                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 15-4713


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

RONALD CHISHOLM,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk.     Robert G. Doumar, Senior
District Judge. (2:14-cr-00132-RGD-LRL-1)


Submitted:   May 26, 2016                  Decided:   June 15, 2016


Before WYNN, DIAZ, and FLOYD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


James R. Theuer, JAMES R. THEUER, PLLC, Norfolk, Virginia, for
Appellant.   Dana J. Boente, United States Attorney, Joseph
Kosky, Assistant United States Attorney, Norfolk, Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

      Ronald Chisholm appeals his jury convictions and 218-month

sentence for one count of conspiracy to commit mail fraud, in

violation of 18 U.S.C. § 1349 (2012); four counts of mail fraud,

in violation of 18 U.S.C. §§ 2, 1341 (2012); and 14 counts of

aggravated    identity            theft,   in        violation    of     18    U.S.C.         §§ 2,

1028A(a)(1) (2012).               Chisholm asserts that the district court:

(1) erroneously instructed the jury on the conspiracy charge

against him; (2) erred when it allowed the Government to call as

a witness Chisholm’s probation officer, and denied his motion

for a mistrial when another witness stated that Chisholm was

“locked up” during a portion of the conspiracy with which he was

charged;     and       (3)    imposed      an    unreasonable          sentence           when    it

increased his base offense level for sophisticated means, made

his sentence on two of the aggravated identity theft convictions

run   consecutive        to       his   remaining       sentences,       and    awarded          the

Government     both          forfeiture     and        restitution       for        his       crimes

without    crediting          one   for    the       other.      Finding       no    error,       we

affirm.

      We   review        a     district     court’s           decision    regarding              jury

instructions       for       an    abuse   of    discretion.            United       States       v.

Kivanc, 714 F.3d 782, 794 (4th Cir. 2013).                             Because a district

court is given broad discretion in fashioning a charge, a party

challenging        a    district        court’s        instructions       faces           a    heavy

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burden.     See Noel v. Artson, 641 F.3d 580, 586 (4th Cir. 2011).

Accordingly,       we    must      determine      “whether         the        instructions

construed    as    a    whole,     and    in   light     of       the    whole    record,

adequately informed the jury of the controlling legal principles

without misleading or confusing the jury to the prejudice of the

objecting party.”         Id. (internal quotation marks omitted).                         In

so determining, the district court will only be reversed for

declining to give a proposed jury instruction when the requested

instruction: “(1) was correct; (2) was not substantially covered

by the court’s charge to the jury; and (3) dealt with some point

in the trial so important, that failure to give the requested

instruction seriously impaired that party’s ability to make its

case.”      Id.        (internal    quotation        marks    omitted).           We    have

considered    Chisholm’s        arguments      and    discern      no     error    in    the

district court’s jury instructions.

     We     give    “substantial         deference     to     a    district        court’s

decision to exclude evidence, and . . . will not reverse the

district court’s decision absent a clear abuse of discretion.”

United States v. Achiekwelu, 112 F.3d 747, 753 (4th Cir. 1997)

(internal quotation marks omitted).                   Thus, evidentiary rulings

are also reviewed for abuse of discretion, and we “will only

overturn     an     evidentiary          ruling      that     is         arbitrary       and

irrational.”       United States v. Cole, 631 F.3d 146, 153 (4th Cir.

2011)     (internal      quotation       marks       omitted);          see    Malone     v.

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Microdyne Corp., 26 F.3d 471, 480 (4th Cir. 1994) (reviewing

ruling on motion in limine for abuse of discretion).

       On abuse of discretion review, we may not substitute our

judgment       for   that   of     the    district       court;    rather,       we     must

determine whether the district court’s “exercise of discretion,

considering the law and the facts, was arbitrary or capricious.”

United States v. Banks, 482 F.3d 733, 742-43 (4th Cir. 2007)

(internal       quotation        marks    omitted).         “When        reviewing      the

district court’s decision to admit evidence under Rule 403, we

must look at the evidence in a light most favorable to its

proponent,      maximizing       its     probative      value    and   minimizing        its

prejudicial effect.”         Minter v. Wells Fargo Bank, N.A., 762 F.3d

339, 350 (4th Cir. 2014) (internal quotation marks omitted).                             We

discern no abuse of discretion in the district court’s decision

to allow Chisholm’s probation officer’s testimony.

       We also review a district court’s decision to deny a motion

for a mistrial for abuse of discretion.                         See United States v.

Wallace, 515 F.3d 327, 330 (4th Cir. 2008).                       To establish abuse

of    discretion,     a   defendant       must   show     prejudice.        See       United

States    v.    Hayden,     85    F.3d    153,    158    (4th     Cir.    1996).       Given

counsel’s failure to request a curative instruction, the lack of

prejudice to Chisholm, and the apparent inadvertent nature of

the    particular     witness’s        comment,    it     was    not     error   for     the

district court to deny Chisholm’s motion for a mistrial.                                See

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Wallace, 515 F.3d at 330-31 (holding that district court did not

abuse its discretion when it denied motion for mistrial where

Government did not purposefully elicit prejudicial testimony and

defense       counsel     did       not      immediately          request        a     curative

instruction).

       We review a sentence for reasonableness.                         Gall v. United

States, 552 U.S. 38, 51 (2007).                     The first step in this review

requires the court to ensure that the district court committed

no significant procedural error.                     United States v. Evans, 526

F.3d    155,    161     (4th    Cir.      2008).       Procedural       errors          include

“failing to calculate (or improperly calculating) the Guidelines

range, treating the Guidelines as mandatory, failing to consider

the [18 U.S.C.] § 3553(a) [(2012)] factors, selecting a sentence

based    on    clearly       erroneous       facts,    or     failing       to       adequately

explain the chosen sentence — including an explanation for any

deviation from the Guidelines range.”                      Gall, 552 U.S. at 51.

       If,     and    only     if,      we   find     the     sentence       procedurally

reasonable can we consider the substantive reasonableness of the

sentence imposed.            United States v. Carter, 564 F.3d 325, 328

(4th Cir. 2009).          We presume on appeal that a sentence within

the    Guidelines       range      is   reasonable.           See    United          States   v.

Mendoza-Mendoza, 597 F.3d 212, 217 (4th Cir. 2010).

       We reject Chisholm’s argument that the district court erred

when    it    increased      his     offense       level    for    using    sophisticated

                                               5
means    to    commit       his    offenses,       pursuant    to     U.S.    Sentencing

Guidelines Manual (USSG) § 2B1.1(b)(10)(C) (2014).                            “Whether a

defendant’s          conduct       involved        sophisticated       means        is     an

essentially factual inquiry,” that we “review for clear error.”

United States v. Adepoju, 756 F.3d 250, 256 (4th Cir. 2014).

Pursuant to USSG § 2B1.1(b)(10)(C), a defendant receives a two-

level     sentencing        enhancement        for    an    offense    that        involves

“sophisticated means” if “the defendant intentionally engaged in

or caused the conduct constituting sophisticated means[.]”                               USSG

§ 2B1.1(b)(10)(C).               Thus,   the   sophisticated        means    enhancement

applies       when     a    defendant      employs         “especially       complex       or

especially intricate offense conduct pertaining to the execution

or concealment of an offense.”                 USSG § 2B1.1 cmt. n.9(B).                 “For

example, in a telemarketing scheme, locating the main office of

the     scheme       in     one     jurisdiction       but     locating       soliciting

operations       in        another       jurisdiction         ordinarily       indicates

sophisticated means.”             Id.

      While the scheme must involve “more than the concealment or

complexities inherent in fraud[,]” Adepoju, 756 F.3d at 257,

courts can find that a defendant used sophisticated means even

where he did “not utilize the most complex means possible to

conceal his fraudulent activit[y].”                   United States v. Jinwright,

683 F.3d 471, 486 (4th Cir. 2012) (applying sophisticated means

enhancement      in       USSG    § 2T1.1(b)(2)      in    context    of     tax   fraud).

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Thus, “[t]he court need only find the presence of efforts at

concealment that go beyond (not necessarily far beyond . . . )

the   concealment        inherent    in   .    .   .    fraud.”       Id.     (internal

quotation marks omitted).

      Although         Chisholm   characterizes         his     conduct      as    merely

cashing checks, and insists that his conduct “lacked any of the

badges     of     sophistication[,]”          we     find     that     the        evidence

established that Chisholm took efforts at concealment that went

beyond     the    concealment     inherent      in     fraud.        Accordingly,         we

discern no error in the district court’s decision to enhance

Chisholm’s offense level under USSG § 2B1.1(b)(10)(C).

      We    reject      Chisholm’s    argument         that   the    district          court

abused its discretion when it imposed the 24-month sentences on

two   of    the     aggravated      identity       theft      convictions         to    run

consecutive       to    his   remaining       sentences.         Although         Chisholm

correctly cites a portion of the Commentary to USSG § 5G1.2, the

district court was allowed to consider the seriousness of the

underlying offenses and the § 3553(a)(2) sentencing factors in

determining whether to run Chisholm’s sentences concurrently or

consecutively.          See USSG § 5G1.2 cmt. n.2(B) (2014).                      Because

Chisholm has established no procedural or substantive error in




                                          7
his 218-month sentence, we find that the district court did not

abuse its discretion in imposing the sentence. *

     Based         on   the   foregoing,   we    affirm   the   district      court’s

judgment.       We dispense with oral argument because the facts and

legal       contentions       are   adequately    presented     in   the   materials

before      this    court     and   argument    would   not   aid    the   decisional

process.

                                                                             AFFIRMED




        *
       We reject Chisholm’s argument that the district court’s
decision to order both restitution and forfeiture without any
credit against one for funds received for the other resulted in
double recovery by the Government.        See United States v.
Blackman, 746 F.3d 137, 143 (4th Cir. 2014) (“Forfeiture is
mandatory even when restitution is . . . imposed.       These two
aspects of a defendant’s sentence serve distinct purposes:
restitution   functions  to   compensate   the  victim,   whereas
forfeiture acts to punish the wrongdoer. . . . Because [they]
are distinct remedies, ordering both in . . . similar amounts
does not generally amount to a double recovery.”).



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