                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 11-4613


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

MICHAEL ATTILIO MANGARELLA,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.   Frank D. Whitney,
District Judge. (3:06-cr-00151-FDW-DCK-3)


Submitted:   June 29, 2012                    Decided:    July 20, 2012


Before TRAXLER,   Chief   Judge,   and   GREGORY   and   DAVIS,   Circuit
Judges.


Affirmed by unpublished per curiam opinion.


Chiege O. Kalu Okwara, LAW OFFICE OF CHIEGE O. KALU OKWARA,
Charlotte, North Carolina, for Appellant.      Lanny A. Breuer,
Assistant Attorney General, John D. Buretta, Acting Deputy
Assistant Attorney General, Ellen R. Meltzer, Patrick M. Donley,
Michael A. Rotker, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Michael Attilio Mangarella was convicted by a jury of

conspiracy to defraud the United States, 18 U.S.C. § 371 (2006),

and   multiple    counts         of    wire    fraud,     18    U.S.C.A.      § 1343     (West

Supp. 2011), 18 U.S.C. § 2 (2006), after he was extradited from

Costa Rica where he and others operated a fraudulent sweepstakes

scheme    aimed       at   U.S.        citizens.         Initially,       Mangarella       was

sentenced to a term of 600 months’ imprisonment, but while his

appeal was pending, we vacated the sentence of his co-defendant,

Giuseppe Pileggi, who had received the same term, on the ground

that it was a de facto life sentence which was not in accord

with the assurances given to Costa Rica. *                             United States v.

Pileggi,   361    F.       App'x      475,     478-79    (4th    Cir.     2010).         Before

briefing was completed, Mangarella moved to remand his case for

resentencing, and the motion was granted.

            On    remand,        the     district       court    adopted      its    previous

rulings on Mangarella’s objections to the presentence report and

imposed    a     sentence         of     360     months,        as    well    as     ordering

restitution      of    $2,687,501.47            and   forfeiture        of   $10     million.

Because    no    count      carried       a    statutory        maximum      equal    to   360

months,    in    order      to     achieve      that     total       sentence      the   court


      *
       The government inadvertently failed to inform the district
court accurately about the extradition agreement.



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imposed the maximum 60-month sentence on Count One, a 60-month

sentence on Count Two, and concurrent 240-month sentences on the

remaining counts, with the sentences for Counts One and Two to

run consecutive to each other and to the remaining 240-month

sentences.        See   U.S.    Sentencing        Guidelines       Manual       § 5G1.2(d)

(2010)   (instructing          sentencing        court     to     impose     consecutive

sentences    “to    the      extent    necessary         to     produce     a    combined

sentence equal to the total punishment”).                       On appeal, Mangarella

challenges both his convictions and sentence.

            We first address Mangarella’s two claims of error with

respect to his convictions.            Mangarella argues that the district

court plainly erred by failing to instruct the jury sua sponte

on venue.    A defendant has a right to be tried in the state and

district where the alleged crime occurred.                      U.S. Const. art III,

§ 2, cl. 3; amend. VI; see also Fed. R. Crim. P. 18.                            Mangarella

did not object to venue in the district court.                             Consequently,

the issue is waived on appeal.                  United States v. Ebersole, 411

F.3d 517, 527-28 (4th Cir. 2005); United States v. Stewart, 256

F.3d 231, 238 (4th Cir. 2001).              In any case, venue was proper in

the   Western     District     of   North       Carolina      because   all      the   wire

fraud    counts     involved        Western      Union     transfers        which      were

processed in Charlotte, North Carolina.

            Mangarella also claims that the district court abused

its discretion in allowing his co-conspirators to authenticate

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his   handwritings.              Herman     Kankrini       and        Larry     Cunningham

testified at trial about various handwritten materials that were

seized from Mangarella’s call center in Costa Rica on the day he

was arrested.      The materials had been admitted without objection

as government exhibits.             Kankrini testified that Mangarella had

written the employee rules that were posted in the call center.

Cunningham identified a document as the opening pitch used when

a victim was first contacted, and said Mangarella had written

it.   He also recognized the office rules as having been written

by Mangarella.      In addition, Kankrini testified that he had read

many handwritten letters Mangarella sent him during the year

they were in jail in Costa Rica.

           Mangarella        now    claims      that    the   documents         containing

his handwriting were not properly authenticated under Fed. R.

Evid. 901(b)(7), which pertains to public records.                                However,

under Fed. R. Evid. 901(b)(2), expert opinion on handwriting is

not necessary.      United States v. Dozie, 27 F.3d 95, 98 (4th Cir.

1994).      Instead,         a     handwritten         document       is      sufficiently

authenticated      if    a   non-expert         testifies,       as    here,      that    the

handwriting   is    genuine,        based    on   a    familiarity         that    was    not

acquired   for     the   litigation.            Mangarella        also     asserts       that

Kankrini and Cunningham did not explain how they were familiar

with his handwriting, but the record reveals that they did.                                To



                                            4
the      extent           that          Mangarella                preserved         the         issue        of

authentication, it is meritless.

                  With    respect        to    Mangarella’s               sentence,        we    review        a

sentence          under       a    deferential                  abuse-of-discretion              standard,

necessitating             consideration              of           both      the     procedural               and

substantive         reasonableness             of       the        sentence.            Gall    v.    United

States, 552 U.S. 38, 41, 51 (2007).                                 Improperly calculating the

advisory      Guidelines           range       is       a       significant       procedural          error.

Id.

                  Mangarella        first          claims           that     the        district        court

clearly erred in denying him an adjustment for acceptance of

responsibility, USSG § 3E1.1.                        A defendant who goes to trial and

is    convicted          is   eligible         for          a    reduction        for    acceptance           of

responsibility            only     if        his    pre-trial             statements       and       conduct

demonstrate acceptance of responsibility and he goes to trial to

assert and preserve issues that do not relate to factual guilt.

It    does    not        apply     to    a    defendant            who     denies       “the     essential

factual      elements         of    guilt”         and          “puts     the     government          to     its

burden       of    proof      at    trial.”                 USSG     § 3E1.1       cmt.        n.2.          The

defendant          has     the     burden          of           proving    to      the     court        by     a

preponderance of the evidence that he has affirmatively accepted

personal          responsibility             for     his          criminal        conduct.            United

States v. Nale, 101 F.3d 1000, 1005 (4th Cir. 1996).



                                                        5
            Mangarella         argues     that         he    acknowledged          his     guilt

before    trial.        The    government         concedes        that    Mangarella          made

certain    admissions         during    two    proffer           sessions    after       he   was

extradited       to   the     United     States.             However,       when      no      plea

agreement was reached, Mangarella moved to suppress statements

he made to informants in Costa Rica after his arrest, as well as

the   incriminating           statements          he     made      during       the      proffer

sessions.       At the suppression hearing, Mangarella testified that

his first lawyer pressured him into making the proffers and that

he did so because the attorney led him to believe that he might

receive immunity from prosecution and witness protection for his

wife and children.            Mangarella also testified that he was barely

literate and did not understand much of what transpired during

the time he made the proffers.                         After the court denied his

suppression      motion,       Mangarella         went      to   trial,     contesting         his

guilt.      In    his   post-conviction            interview        with    the       probation

officer, Mangarella said he drank heavily and was intoxicated

most of the time he was in Costa Rica, again suggesting that he

was not really responsible for his criminal conduct.                                  On these

facts,    the    district       court    did       not       clearly      err    in      denying

Mangarella a reduction for acceptance of responsibility.

            Next,       Mangarella            contests           the      application          of

Guidelines enhancements because they were not included in the

extradition agreement.           The “rule of specialty” permits a person

                                              6
extradited to the United States to be tried only for the offense

or   offenses    for    which    extradition          was    granted.          See    United

States v. Rauscher, 119 U.S. 407, 430 (1886); see also Kasi v.

Angelone, 300 F.3d 487, 500 (4th Cir. 2002).                            The extradition

treaty between the United States and Costa Rica incorporates the

rule of specialty.        United States v. Anderson, 472 F.3d 662, 665

n.1 (9th Cir. 2006).           Costa Rica extradited Mangarella with the

specific assurance that he would not be tried or punished for

offenses other than those for which extradition was granted.

Whether the district court violated the rule of specialty is a

legal issue reviewed de novo.                   United States v. Al-Hamdi, 356

F.3d 564, 569 (4th Cir. 2004); see also United States v. Lomeli,

596 F.3d 496, 499 (8th Cir. 2010).

            Mangarella contends that sentencing enhancements that

increased his offense level above the base offense level of 7

constituted     a   violation     of      the    extradition       agreement         because

they were neither charged in the indictment nor included in the

extradition      documents.          We    conclude         that   consideration          of

uncharged conduct to determine the sentence did not violate the

rule   of   specialty.         See   Lomeli,         596    F.3d   at    503    (criminal

history); United States v. Garrido-Santana, 360 F.3d 565, 578

(6th   Cir.     2004)    (obstruction           of   justice);     United       States v.

Lazarevich,     147     F.3d    1061,     1063-65       (9th   Cir.      1998)       (upward

departure     for   child      abduction        after      conviction     for    passport

                                            7
fraud); United States v. Saccoccia, 58 F.3d 754, 783-87 (1st

Cir. 1995) (criminal forfeiture).

            Mangarella suggests that the maximum sentence he could

receive     was       twenty-five      years       because       anything     more        would

violate the extradition agreement.                       As he did in the district

court, he points to the statutory maximum of five years for

Count     One     and    twenty       years       for     the    remaining        counts    of

conviction.           However, no error occurred.                     The district court

imposed    the    statutory       maximum      for       each    count    (with    a   lesser

sentence on Count Two), and stacked the sentences to the extent

necessary to achieve a sentence within the Guidelines range,

following       the     procedure      directed         in     USSG    § 5G1.2(d).         The

extradition agreement prohibited a sentence of death or one that

would require him to spend the rest of his natural life in

prison.      The district court was careful to impose a sentence

that would result in Mangarella’s release when he was in his

seventies.

            Relying       on    Apprendi       v.       New     Jersey,    530     U.S.    466

(2000),     Mangarella         next    claims           that    the    only   permissible

enhancement was the loss amount, which was found by the jury in

a special verdict form, because the facts supporting the other

enhancements were not submitted to the jury and found beyond a

reasonable doubt.          Where, as here, the Guidelines are treated as

advisory and the sentence does not exceed the statutory maximum,

                                              8
this argument is without merit.                   United States v. Blauvelt, 638

F.3d 281, 293 (4th Cir.), cert. denied, 132 S. Ct. 111 (2011).

Sentence enhancements are generally factual issues determined by

a preponderance of the evidence.                  Id.

            Mangarella          also    contends        that      the     district     court

clearly erred in finding that the offense involved more than 250

victims    because       only    the    182       victims   who     filed     claims    for

restitution are listed in the presentence report.                           However, the

district    court    noted       that    the       evidence       presented     at    trial

established that the offense involved far more than 250 victims.

Thousands of victim sheets with the amounts they remitted were

seized from Mangarella’s call center when he was arrested.                              The

district court did not clearly err in making the enhancement.

            In     the    presentence         report,       the     probation        officer

recommended a 2-level increase under USSG §                        2B1.1(b)(13)(B) for

possession of a firearm in connection with the offense based on

information      given    by     co-conspirator          Carlo     Testore.          Testore

testified     at    Mangarella’s         trial       but    did     not     mention    that

Mangarella had possessed a firearm.                     James Martin, an agent with

Immigration and Customs Enforcement, testified at Mangarella’s

sentencing that he interviewed Testore and that Testore said

that, during a period when he was not working with Mangarella,

he went to Mangarella’s call center in Costa Rica to talk about

money Mangarella owed him relating to a failed coin business

                                              9
they had previously had together.               Testore told Agent Martin

that, during the conversation, Mangarella lifted his shirt to

show that he had a gun in his waistband, which he felt was

Mangarella’s way of discouraging him from asking for the money.

The district court found that Martin was a credible witness and

that   Mangarella     possessed    the    gun    in     connection    with       the

telemarketing scheme because he had it at the call center “in

furtherance    of   the   conspiracy”     and   “was     clearly   using   it     as

security at the call center.”

           Mangarella      first   argues       that     Testore    was    not     a

credible source because he had a conflict with Mangarella and

thus had a motive to lie.            However, the district court may

consider relevant information that it deems to have “sufficient

indicia   of   reliability    to   support      its    probable    accuracy”      to

resolve disputed matters at sentencing.               USSG § 6A1.3(a).

           Second,    Mangarella    contends      that    the   government       did

not prove that he possessed the gun in connection with the mail

fraud offense.       Because firearms are not generally regarded as

tools of the trade in mail fraud cases, see United States v.

Aslan, 644 F.3d 526, 551-52 (7th Cir. 2011), the mere presence

of Mangarella’s firearm at the call center is not necessarily

sufficient to support the enhancement.                However, the government

points out that testimony at Mangarella’s trial established that

the usual practice for telemarketing schemes operating in Costa

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Rica was to have runners regularly pick up wire transfers from

victims and bring the cash to the call center.                   When Mangarella

was arrested at his call center, he had $3408 in cash on his

person.      Another     $40,000    in    cash   was   seized   from       his   home.

Given the security concerns implicit at the call center, the

district    court’s      determination      that   Mangarella        possessed     the

firearm in connection with the wire fraud offense is not clearly

erroneous.

            Mangarella maintains that the 4-level role adjustment

he received under USSG § 3B1.1(a) was unwarranted because he was

an equal partner or employee in the various call centers he was

associated with; however, the trial evidence demonstrated that

he was both an organizer and leader in the telemarketing scheme.

The   record       discloses       that    the     testimony     of        government

investigators      and   co-conspirators         established    that       Mangarella

was involved in fraudulent sweepstakes operations from the early

2000’s until his arrest in 2006, during which time he owned

seven call centers at various times, recruited others into the

business,    wrote     scripts     to    teach   employees     how    to    make   the

initial pitch to victims and how to induce the victim to send

additional money after an initial payment.                He managed at least

one   of     the    call    centers       as     the   boss,    performing         the

administrative duties, and supervising the callers.                        In another

instance, he demanded a larger ownership share when setting up a

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new     call   center     with    three      partners,    where     he    represented

himself as the leader who had the knowledge, the equipment, and

the contacts.         In light of this evidence, which the district

court found credible, the 4-level adjustment was not clearly

erroneous.

               Last, Mangarella maintains that his 360-month sentence

is unreasonable and that the district court failed to give an

adequate explanation for giving him a longer sentence than some

of his co-conspirators.           Gall, 552 U.S. at 50; United States v.

Carter,    564     F.3d    325,    330      (4th   Cir.   2009).         Mangarella’s

below-Guidelines          sentence     is    entitled     to    a   presumption     of

reasonableness.         United States v. Susi, 674 F.3d 278, 289 (4th

Cir. 2012).       Moreover, the district court discussed most of the

§ 3553(a) factors, addressed the need to avoid disparity, and

noted    the     seriousness      of   Mangarella’s       current     offense,    his

previous serious offenses, and his apparent lack of remorse.

Thus, the district court’s explanation was adequate to permit

appellate review.

               We therefore affirm the district court’s judgment.                  We

dispense       with   oral    argument        because     the   facts     and    legal

contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.

                                                                             AFFIRMED



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