                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 04-4893



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


RAYMOND M. MARKER,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. William L. Osteen, District
Judge. (CR-04-10)


Submitted:   January 6, 2006                 Decided:   April 6, 2006


Before WILKINS, Chief Judge, and WILLIAMS and SHEDD, Circuit
Judges.


Affirmed in part, vacated in part, and remanded by unpublished per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


Nils E. Gerber, Winston-Salem, North Carolina, for Appellant. Anna
Mills Wagoner, United States Attorney, Douglas Cannon, Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

     Raymond M. Marker appeals his convictions and sentence for 17

counts   of    mail    and    wire   fraud,   securities    fraud,   and   money

laundering.        We affirm Marker’s convictions.       However, because the

district court imposed a sentence greater than that allowed by the

facts found by the jury alone, we vacate his sentence and remand

for resentencing.        See United States v. Booker, 543 U.S. 220, 244

(2005); United States v. Hughes, 401 F.3d 540, 546 (4th Cir. 2005).



                                         I.

     Marker was arrested on December 17, 2003, and he was later

indicted      on   numerous    charges   related   to    his   operation   of   a

fraudulent investment scheme.            Following his arrest, the Federal

Public Defender’s Office was appointed to represent him.

     In March 2004, Marker moved to dismiss appointed counsel,

claiming that counsel possessed neither the training nor ability to

handle a case this complex. Although the district court denied the

motion, Marker renewed his objections following a dispute with

counsel over the release of certain records to a receiver, who had

been appointed in a related civil matter.                As a result of that

disagreement, Marker claimed that he no longer trusted his attorney

and could not work with him.           The district court granted Marker’s

renewed motion but warned him of the perils of proceeding pro se

and offered to appoint substitute counsel.              An impasse was reached


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when   the   district    court   would        not    allow    Marker    to   interview

prospective counsel and, despite statements that he would move to

have certain seized funds released so that he could hire counsel,

Marker ultimately represented himself at trial.

       At a status conference on June 10, 2004, four days before his

trial was to begin, Marker indicated that he was not prepared and

complained that he did not have access to a law library, a printer,

and other items.     On June 14, 2004, when his case was called for

jury selection and trial, Marker renewed his complaints about not

being prepared and not having access to materials.                     Once it became

evident that the district court would not grant a continuance,

Marker   announced      that   he   had       “had    it     [and   would]    not    ...

participate” in his trial.          J.A. 247.

       As promised, Marker did not participate.                 He made no opening

or closing statements, presented no evidence, called no witnesses,

offered no objections, and conducted no cross-examination.                          As a

result, the Government presented evidence of Marker’s fraudulent

investment scheme unopposed, and the jury convicted Marker on all

17 counts.    The jury thereafter returned a special verdict finding

that $857,000 was forfeitable to the Government.

       At sentencing, the Government produced evidence demonstrating

that Marker had used mass-marketing techniques in promoting his

fraudulent investment scheme, had removed and concealed documents,

and had made fraudulent investment presentations to various foreign


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nations    seeking     investments    totaling      hundreds     of   millions    of

dollars.     Based upon this evidence, the district court calculated

the loss attributable to Marker’s actions to be at least $800

million.

      Although Marker’s base offense level was six, this loss

finding resulted in an enhancement of 26 levels. See United States

Sentencing Guidelines Manual § 2S1.1(a)(1) (2001) (directing that

the offense level for money laundering is the offense level for the

offense    from   which      the   laundered    funds     were    derived);      id.

§ 2B1.1(a) (setting forth a base offense level of six for fraud

offenses);      id.    §    2B1.1(b)(1)(N)     (providing      for     a   26-level

enhancement for loss greater than $100 million).                      The district

court assessed an additional five offense levels because (1)

Marker’s offense involved more than ten victims and was committed

through mass-marketing, see id. § 2B1.1(b)(2)(A); (2) Marker was

convicted      under   18     U.S.C.A.   §   1957    (West     2000),      see   id.

§ 2S1.1(b)(2)(A); and (3) Marker obstructed justice, see id.

§ 3C1.1.     The resulting total offense level of 37, combined with

Marker’s criminal history category of I, produced a guideline range

of   210-262    months      imprisonment.      However,    the    court     granted

Marker’s motion to depart on the basis that the offense level

overstated the seriousness of the offense and reduced the offense

level to 31, producing a guideline range of 108-135 months.                      The

district court sentenced Marker to 110 months imprisonment.


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                               II.

     We have reviewed Marker’s challenges to his convictions and

find them to be without merit.       We therefore consider Marker’s

sentence.

     Marker argues, and the Government concedes, that the sentence

imposed by the district court violated his Sixth Amendment rights

because it exceeded the maximum sentence authorized by the jury

verdict alone.    See Booker, 543 U.S. at 244.      Because Marker

objected below based on Blakely v. Washington, 542 U.S. 296 (2004),

his Booker claim is reviewed for harmless error. See United States

v. Rodriguez, 433 F.3d 411, 415-16 (4th Cir. 2006).         By our

calculations, the facts found by the jury authorized an offense

level of 21 and a guideline range of 37-46 months.        This is,

obviously, far less than the sentence actually imposed by the

district court.



                               III.

     For the reasons set forth above, we affirm Marker’s conviction

but vacate and remand for resentencing.      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 IN PART,
                                                   VACATED IN PART,
                                                       AND REMANDED

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