                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-4662


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

INGRID DINA LEVY,

                  Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. James C. Cacheris, Senior
District Judge. (1:07-cr-00265-JCC-1)


Submitted:    April 7, 2009                 Decided:   June 30, 2009


Before MICHAEL, MOTZ, and SHEDD, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.


Nathan Lewin, Alyza D. Lewin, LEWIN & LEWIN, LLP, Washington,
D.C., for Appellant. Dana J. Boente, Acting United States
Attorney, Jay V. Prabhu, Assistant United States Attorney,
Thomas S. Dougherty, Tyler G. Newby, UNITED STATES DEPARTMENT OF
JUSTICE, Alexandria, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Ingrid    Dina   Levy    was       convicted    by   a   jury    of   three

counts of mail fraud, in violation of 18 U.S.C. § 1341 (2006),

and four counts of wire fraud, in violation of 18 U.S.C. § 1343

(2006).      Levy was sentenced to forty-six months’ imprisonment

and ordered to pay $168,300.77 in restitution.                     Levy appeals her

convictions and sentence.             We affirm Levy’s convictions, but

vacate the sentence and remand for resentencing.



                                        I.

             Viewing the evidence in the light most favorable to

the Government, see Glasser v. United States, 315 U.S. 60, 80

(1942), the facts can be summarized as follows: In 2004, Levy

agreed to serve as the supplier for an online business selling

wholesale women’s fashions run by Ashley Foster.                         Pursuant to

their agreement, Foster would take orders and collect payments

and Levy would send the merchandise directly to the customer.

In December of 2004, Judson Burdon ordered a number of items

from   the   website    and   tendered          payment     via   wire   transfer     to

Foster.      Foster forwarded the payment to Levy, who never sent

the merchandise to Burdon.             When Burdon complained to Foster,

Levy   advised    Foster      to     make       misrepresentations       to    Burdon,

including inventing the name of a supplier that did not exist.



                                            2
            As a result of incidents similar to this one, Foster

became the target of harassment and complaints from customers in

online fora and eventually shut down the website.                                 Foster and

Levy then decided to start another online business, this time

selling retail women’s fashion clothing.                        Again, Levy was to be

the supplier of the merchandise and informed Foster that she

would send the items directly to the customers.                            The evidence at

trial   showed    that     this      business       also       was    a    failure       due   to

customer     complaints         of    non-receipt          and       partial-receipt           of

merchandise.          Many,     if   not     all,    of     the      customers       obtained

refunds from either their credit card companies or from Foster.

As a result of her dealings with Levy, Foster suffered losses

from these businesses.

            At    and     around      this       same     time       and    in     the    years

following, Levy set up several online businesses of her own to

sell women’s fashion clothing.                     In doing so, Levy set up a

mailbox    in    another      state    to     serve       as    the       address    for       her

businesses      and    listed    fictitious         names      on    the    websites.          In

October 2005, Stacy Armstrong ordered a number of items from one

of Levy’s websites.           Armstrong tendered payment by check.                         Levy

never     completed       Armstrong’s            order         and    instead        sent       a

significantly         smaller    number       of     non-conforming              goods    while

promising a refund for the undelivered portion of the order.

Levy, however, never provided a refund to Armstrong.

                                             3
              Annamarie          Siegler    also     placed    an     order     on    one   of

Levy’s    websites         and    transferred       payment    into     Levy’s       account.

Siegler never received her merchandise, despite assurances by

Levy that it had been sent.                  In retaliation, Siegler placed the

same order repeatedly on Levy’s site, costing Levy a transaction

fee each time.          In response to this, Levy drafted a fraudulent

summons and complaint purporting to be official court documents

filed in state court in California and sent them to Siegler.

Levy used a fictitious law firm name that she previously had

used in drafting letters to various online fora.

              In December 2005, Special Agent Ryman of the Federal

Bureau of Investigation (“FBI”) placed an order from Levy’s site

using an undercover identity.                      Ryman tendered payment to Levy

and   Levy,     using       a    fictitious        name,    assured     Ryman    that       the

merchandise had been shipped.                 Levy never sent any of the items

that Ryman ordered.              After this incident, FBI agents obtained a

warrant    to      search       Levy’s     home.      While    executing      the      search

warrant,      Ryman     and       another     agent        interviewed    Levy.            Levy

admitted to the agents that she knew what she had been doing was

“criminal” and that the majority of the orders that were placed

on her websites remained unfulfilled.

              At    trial,        the    Government         introduced    three        charts

created    by      Ryman    and    summarizing       records     that    also        had   been

introduced.         The first was Government Exhibit 45, a bar graph

                                              4
showing    a    breakdown       of     Foster’s      income    and     losses    from     her

ventures with Levy.            Ryman testified that this exhibit was based

on Foster’s bank records and Government Exhibit 46, records of

the credit card charge-backs for customers who received refunds

for   non-receipt        of    merchandise.           The     second    was     Government

Exhibit 30, a chart listing the names and purported loss amounts

of customers who had complained about Levy’s businesses on an

internet       website    called       the    Internet      Crime    Complaint      Center

(“IC3”).       The final chart was Government Exhibit 2, a bar graph

depicting the total amount of deposits into, and purchases of

merchandise       from,       Levy’s    account.           Ryman   testified       that    he

prepared this chart by reviewing Levy’s bank and credit card

records that previously had been introduced into evidence.

               In addition, the Government introduced Exhibit 31, a

collection of emails from Levy’s home computer obtained during

the search of her house.                 This exhibit contained emails from

disgruntled customers complaining about partial and non-receipt

of merchandise, and Levy’s responses to those customers.                                  The

district       court   admitted        each    of    these     exhibits    over     Levy’s

objections.

               The   jury     convicted       Levy    of    all    seven   counts.         At

sentencing, the Government produced a chart, again compiled by

Ryman,    listing      eighty-two        victims     and     $168,300.77      in   losses.

Ryman testified that he generated this chart by first compiling

                                              5
a list of victims from the IC3 website, then identifying the

victims’ email addresses from Levy’s computer, and attempting to

contact the victims to verify their complaints.                           Ryman admitted

that he was only able to speak with fifteen of these victims.

Based   on    Ryman’s     testimony,       the    district        court     found      by    a

preponderance       of    the     evidence       that       there      were      at    least

eighty-two victims of Levy’s crimes, who suffered $168,300.77 in

losses.

              The   court   therefore        enhanced         Levy’s      offense      level

under   the    Sentencing       Guidelines       by    four    levels     based       on    the

number of victims and by ten levels based on the loss figure.

See U.S. Sentencing Guidelines Manual (“USSG”) § 2B1.1(b)(1)(F),

(b)(2)(B) (2007).         Because Levy’s criminal history placed her in

Category      I,    the   advisory     Sentencing             Guidelines      range         was

forty-six      to     fifty-seven          months’          imprisonment.              After

considering the 18 U.S.C. § 3553(a) (2006) factors, the district

court sentenced Levy to forty-six months’ imprisonment.                                    The

district court also ordered Levy to pay restitution in the loss

amount pursuant to 18 U.S.C. § 3663A (2006).



                                           II.

              Levy first argues that the district court erred in

admitting     Government        Exhibits    2,        30,   31,     45,    and    46       into

evidence.      This court reviews a district court’s determination

                                            6
of   the    admissibility        of    evidence         for    abuse       of   discretion.

United     States    v.    Hedgepeth,           418   F.3d    411,    418-19     (4th    Cir.

2005).     “An abuse of discretion occurs only when a trial court

has acted ‘arbitrarily’ or ‘irrationally’ in admitting evidence,

when   a   court     has    failed         to    consider     ‘judicially        recognized

factors constraining its exercise’ of discretion, or when it has

relied on ‘erroneous factual or legal premises.’”                               Id. at 419

(quoting United States v. Simpson, 910 F.2d 154, 157 (4th Cir.

1990); James v. Jacobson, 6 F.3d 233, 239 (4th Cir. 1993)).                                In

addition,    “‘[a]ny       error      in    [the]      admission      or    exclusion     [of

evidence]     is    subject     to     the      harmless      error    test.’”      United

States v. Loayza, 107 F.3d 257, 263 (4th Cir. 1997) (quoting

United States v. Francisco, 35 F.3d 116, 118 (4th Cir. 1994)).

             Government Exhibits 2, 30, and 45 are summary charts

and graphs.        Levy objects to their admission on several grounds,

including    relevance,         lack    of      advance      notice,   inaccuracy,        and

hearsay, and argues that these charts did not assist the jury

and were unduly prejudicial.                    “Summary charts are admissible if

they aid the jury in ascertaining the truth.”                          Loayza, 107 F.3d

at 264 (citing United States v. Johnson, 54 F.3d 1150, 1159 (4th

Cir.     1995)).          The   district            court    should    consider     “[t]he

complexity and length of the case as well as the numbers of

witnesses and exhibits” in determining admissibility.                              Id.     In

addition, the court can dispel any prejudice to the defendant in

                                                7
the admission of charts and summaries by giving the defendant

the opportunity to cross-examine the witness who prepared the

exhibits and giving a cautionary instruction to the jury.                      Id.

Applying these standards, we have reviewed the record and find

no error in the admission of these charts and summaries.

            Levy     also    challenges      the    court’s     admission      of

Government       Exhibit    46   on   the    grounds    that        it    contains

inadmissible hearsay and that she received it for the first time

at trial.        However, these records were not hearsay but were

admissible as business records under Fed. R. Evid. 803(6) and

902(11).     In addition, Levy did not object to the lack of notice

in the district court and therefore waived appellate review of

this claim.      See Fed. R. Evid. 103; United States v. Parodi, 703

F.2d 768, 783 (4th Cir. 1983).

             Finally, Levy objects to the admission of Government

Exhibit 31 on the ground that the emails from the customers were

hearsay    and    that   their   admission   was    highly    prejudicial      and

violated the spirit of the Confrontation Clause of the Sixth

Amendment    and    Crawford     v.   Washington,    541     U.S.    36    (2004).

However, these emails were not hearsay because they were not

offered for the truth of the matter asserted.                Rather, they were

offered to place the admissions by Levy in her response emails

into context and to show Levy’s intent, lack of mistake, and

notice.     The district court properly instructed the jury that

                                        8
these emails were not offered for their truth.                              Therefore, the

admission    of    this    exhibit    did       not    violate        the       Confrontation

Clause.     See id. at 59 n.9 (explaining that Confrontation Clause

does not bar use of testimonial statements for purposes other

than establishing truth of the matter asserted).



                                        III.

            Levy       next    contends          that         the         district         court

inadequately instructed the jury on the element of intent to

defraud.      “‘The       decision    to    give        or     not    to        give   a    jury

instruction is reviewed for an abuse of discretion.’”                                      United

States v. Hurwitz, 459 F.3d 463, 474 (4th Cir. 2006) (quoting

United States v. Moye, 454 F.3d 390, 398 (4th Cir. 2006) (en

banc)).        Furthermore,          “‘[this          court]       review[s]           a     jury

instruction       to   determine      whether,          taken        as     a    whole,      the

instruction fairly states the controlling law.’”                                Id. (quoting

Moye, 454 F.3d at 398).

            While      Levy    argues           that         the     district          court’s

instruction to the jury was inadequate, Levy fails to specify in

what way the instruction misstated the controlling law.                                     Levy

has thus failed to demonstrate that the district court abused

its discretion in instructing the jury on intent to defraud.




                                            9
                                              IV.

            Levy       argues      that       the     district         court       erroneously

treated    the       Sentencing       Guidelines          as    mandatory.           Appellate

courts    review       a    sentence        imposed       by    a    district       court     for

reasonableness,            applying     an     abuse       of       discretion       standard.

Gall v.    United      States,        128    S.     Ct.    586,      597     (2007);       United

States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007).                                       In so

doing, the court “first examines the sentence for significant

procedural       errors,”        including:         “‘failing         to     calculate        (or

improperly       calculating)         the     Guidelines            range,     treating       the

Guidelines      as    mandatory,        failing       to       consider      the    §   3553(a)

factors, selecting a sentence based on clearly erroneous facts,

or failing to adequately explain the chosen sentence . . . .’”

Pauley, 511 F.3d at 473 (quoting Gall, 128 S. Ct. at 597).                                     If

there     are    no    procedural       errors,           the    appellate         court     then

considers the substantive reasonableness of the sentence.                                   Gall,

128 S. Ct. at 597.

            In sentencing Levy, the district court stated that it

was “bound by these [S]entencing [G]uidelines, except to the

extent that [it could] depart upwards or downwards in any given

case” and expressed that “[it did not] feel that [it could]

depart    downwards         in   this   case        and    [had]      to     be    within    the

[G]uideline range.”              We agree that the district court treated

the Guidelines as mandatory and therefore vacate the sentence

                                              10
and remand for resentencing. *       See Covington v. United States,

129 S. Ct. 1612 (2009) (remanding for resentencing in light of

Nelson v. United States, 555 U.S. ___, 129 S. Ct. 890 (2009),

because the district court treated Guidelines as mandatory).



                                   V.

            Levy next contends that the district court erroneously

increased    the   applicable   advisory   Guidelines   range   based   on

unreliable     hearsay.     Specifically,     Levy   argues     that    the

Government failed to provide reliable evidence of the number of

victims of Levy’s scheme and the amount of loss suffered by

those victims.      This court reviews a district court’s factual

determination of the amount of loss for clear error.               United

States v. Miller, 316 F.3d 495, 503 (4th Cir. 2003).            The court

need only make these determinations by a preponderance of the

evidence and “need only make a reasonable estimate of the loss,

given the available information.”       Id. (citing USSG § 2F1.1 cmt.

n.9 (2000)).

            Here, Ryman testified to his methods for determining

the victims of Levy’s crimes.       Ryman testified that he consulted

the victims listed on the IC3 website and confirmed their status


     *
       In so doing, we express no opinion on the reasonableness
of the sentence imposed by the district court.



                                   11
as customers by searching through the email addresses found on

Levy’s computer.        We conclude that the district court made a

reasonable estimate of the loss and determination of the number

of victims based on Ryman’s testimony.



                                        VI.

          Finally, Levy contends that the district court’s order

of   restitution      was    unlawful    because   the   Mandatory   Victims

Restitution    Act,     18    U.S.C.    §§ 3663A-3664    (2006),   does   not

authorize the court to order a defendant to pay restitution to a

person who was not a victim of the offense.               Levy argues that

the eighty-two individuals to whom restitution was ordered were

not victims within the Act.

          This court reviews a restitution order for abuse of

discretion.    United States v. Hoyle, 33 F.3d 415, 520 (4th Cir.

1994).   Under § 3663A(a) and (c), the district court must order

that the defendant make restitution to the victim of an offense

committed by fraud.          The term “victim” is defined in subsection

3663A(a)(2).       We conclude the district court did not err in

finding that the eighty-two individuals to whom restitution was

ordered were “victims” as defined by the Act.               Therefore, the

district court committed no error in ordering restitution to

those victims.



                                        12
                                  VII.

           In sum, we conclude that the district court committed

no error in its conduct of the trial but erred in treating the

Guidelines as mandatory in sentencing Levy.           Accordingly, we

affirm Levy’s convictions, but vacate the sentence and remand

for   resentencing.   We   also   deny   Levy’s   renewed   motion   for

release pending appeal.    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 in the

decisional process.

                                                    AFFIRMED IN PART,
                                                     VACATED IN PART,
                                                         AND REMANDED




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