                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT
                          _______________

                              No. 09-4698
                            _______________

UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

JOHN C. CURTISS, a/k/a Jay Curtiss, d/b/a Centerline Carbon
Products,

                Defendant - Appellant.

                         ________________

Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Richard L. Williams, Senior
District Judge. (3:87-cr-00112-RLW-1)
                         ________________

Argued:   December 8, 2010              Decided:   January 13, 2011
                          ________________

Before SHEDD, DAVIS, and KEENAN, Circuit Judges.
                         ________________

Affirmed by unpublished per curiam opinion.
                         ________________

ARGUED: Amy Leigh Austin, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Richmond, Virginia, for Appellant. Benjamin L. Hatch, OFFICE OF
THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.
ON BRIEF: Michael S. Nachmanoff, Federal Public Defender,
Patrick L. Bryant, Research and Writing Attorney, OFFICE OF THE
FEDERAL PUBLIC DEFENDER, Alexandria, Virginia, for Appellant.
Neil H. MacBride, United States Attorney, Alexandria, Virginia,
for Appellee.
                        ________________

Unpublished opinions are not binding precedent in this circuit.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

      On     December    14,    1987,    Appellant           John    C.     Curtiss     was

indicted in the Eastern District of Virginia for mail fraud,

false      statements,    false    claims        upon   the     United       States     and

conspiracy, in violation of 18 U.S.C. § § 1341, 1001, 287 and

286, respectively.        The gravamen of all of the charges was that,

despite his debarment from entering into government contracts,

Curtiss continued to engage in fraudulent contracting with a

Department of Defense agency located in Virginia.

      Prior to trial, Curtiss moved to dismiss the indictment on

the   ground    of   improper     venue.       The   district       court    denied    the

motion and a jury convicted Curtiss on all counts. Sentencing

was scheduled for May 1988, but Curtiss absconded and was not

apprehended      until     2009.     The       proceedings          resumed     with      a

sentencing      hearing    on     July     14,       2009.    The     district        court

sentenced Curtiss to a 15-year term of imprisonment. On appeal,

Curtiss assigns error in the denial of his motion to dismiss and

in the inadequacy of the district court’s statement of reasons

for the sentence. We affirm.



                                         I.

                                         A.

      The Defense General Supply Center (“DGSC”), located in the

Eastern District of Virginia, procures and stores a variety of

                                           2
military supplies, including electrical contact brushes, which

are devices designed to maintain electric currents in rotating

machinery. Curtiss supplied DGSC with electrical contact brushes

but was barred from doing so after he was convicted in 1983 of

the unlawful sale of government property. The debarment order

prohibited Curtiss from government contracting from February 22,

1984 to December 28, 1986.

       After Curtiss was barred from government contracting, he

approached     the       owner      of      Sent    Electric        Company,       Peter

Kljucaricek, a/k/a Peter Kay, about using Sent Electric Company

to make brush sales to the DGSC. Kay agreed to the arrangement

in return for a ten-percent commission on the sales. Around the

same time, Curtiss’s wife registered a new company, Centerline

Carbon Products, in her name in Michigan. Under the arrangement

with    Kay,   Curtiss         received     information     about        brushes    DGSC

intended to purchase, prepared bids in the name of Centerline

Carbon Products, and submitted them in the name of Sent Electric

Company.     When    the       government    submitted      a   contract      to   Sent

Electric Company, Kay would transfer the contracts to Centerline

Carbon, which handled the stock selection, packing, labeling,

and    shipping.    As     a   result,    Curtiss    was    able    to    continue   to

participate    in    the       contracting      process    during    his    period   of

debarment.



                                            3
       DGSC       initiated      an    investigation          after      it    received

complaints        about    the    quality       of   the    contact      brushes.     The

investigation revealed that Curtiss would either select and ship

less       expensive,     unauthorized     brushes       instead   of    the   required

brushes, or he would resell brushes from government surplus that

he possessed, in violation of the contract.

                                            B.

       On December 14, 1987, Curtiss was indicted in 21 counts for

mail fraud, in violation of 18 U.S.C. § 1341; false statements,

in violation of 18 U.S.C. § 1001; false claims upon the United

States,      in   violation      of   18   U.S.C.    §     287;   and    conspiracy    to

defraud the Department of Defense, in violation of 18 U.S.C. §

286. Each count alleged that the offense occurred within the

Eastern District of Virginia prior to November 1, 1986.

       Curtiss filed a pretrial motion to dismiss the indictment

for    improper     venue,    relying      on    constitutional         provisions    and

Federal Rule of Criminal Procedure 18. 1 While Curtiss’s motion


       1
       Article III provides that “[t]he Trial of all Crimes . . .
shall be held in the State where the said Crimes shall have been
committed.” U.S. Const. art. III, § 2, cl. 3. In addition, the
Sixth Amendment provides that “[in] all criminal prosecutions,
the accused shall enjoy the right to a speedy and public trial,
by an impartial jury of the State and district wherein the crime
shall have been committed.” U.S. Const. amend. VI. Federal Rule
of Criminal Procedure 18 codifies these principles:

          Unless a statute or these rules permit otherwise,
     the government   must   prosecute  an  offense   in  a
(Continued)
                                            4
did not seek a transfer of venue pursuant to Federal Rule of

Criminal Procedure 21(b), 2 the government’s opposition stated in

a footnote that Curtiss’s allegations “seem to fit the framework

of that Rule.” J.A. 38. In its denial of Curtiss’s motion to

dismiss,          the    district    court         cited    law     pertaining      to

constitutional          venue   principles       and   Federal    Rule   of   Criminal

Procedure 18.

        At the conclusion of a three-day trial, the jury convicted

Curtiss on all counts. Prior to sentencing, however, Curtiss

absconded, and the district court issued a bench warrant for his

arrest. Curtiss was not apprehended until March 25, 2009, more

than twenty years after he fled.

     When Curtiss was returned to Virginia for sentencing in

2009,       the   government    filed   an       updated   sentencing    memorandum,



        district where      the         offense was committed.                The
        court must set the place        of   trial       within               the
        district with due regard        for the    convenience of             the
        defendant, any victim,           and the witnesses, and               the
        prompt administration of        justice.

Fed. R. Crim. P. 18.
        2
            Rule 21(b) provides:

        Upon the defendant’s motion, the court may transfer
        the proceeding, or one or more counts, against that
        defendant to another district for the convenience of
        the parties, any victim, and the witnesses, and in the
        interest of justice.

Fed. R. Crim. P. 21(b).


                                             5
requesting a five-year term of imprisonment. At the sentencing

hearing, Curtiss argued for a term of three to four years of

imprisonment.     The   district   court     announced   its   sentence   by

stating:

     Pursuant to Title 18 U.S.C. Section 3553(a) . . . I
     sentence Mr. Curtiss to a total term of 15 years,
     consisting of five years on count one, five years on
     count two, and five years on count three, all to run
     consecutively to each other; and ten years on count 21
     to run concurrently to the 15-year term imposed on
     counts one, two and three.

J.A. 655. On the remaining counts, the court suspended sentence

and placed Curtiss on five years of supervised release upon his

release from prison. Curtiss noted a timely appeal, and we have

jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742.



                                       II.

                                       A.

     Curtiss first maintains that the district court committed

error    in   denying   his   motion    to   dismiss   the   indictment   for

improper venue. 3 He notes that many of the events related to the


     3
       The government urges us to decline to consider Curtiss’s
appeal of the denial of his venue challenge based on the
fugitive disentitlement doctrine. The fugitive disentitlement
doctrine generally provides that federal courts “have authority
to dismiss an appeal . . . if the party seeking relief is a
fugitive while the matter is pending.” Degen v. United States,
517 U.S. 820, 824 (1996). In addition, although Curtiss had not
yet appealed (for he had not been sentenced) at the time he
absconded, courts have the authority to dismiss a criminal
(Continued)
                                       6
government     contracting     offenses      occurred   outside    of    Virginia,

and that the scheme he created originated in Michigan, where

Curtiss, his wife, and Kay resided.

       We review de novo a district court’s denial of a motion to

dismiss for improper venue. See Mitrano v. Hawes, 377 F.3d 402,

405 (4th Cir. 2004); United States v. Newsom, 9 F.3d 337, 338

(4th    Cir.   1993).    When      multiple    counts     are   alleged       in     an

indictment, venue must be proper on each count. United States v.

Stewart, 256 F.3d 231, 242 (4th Cir. 2001). The government bears

the burden of proving venue by a preponderance of the evidence.

United States v. Ebersole, 411 F.3d 517, 524 (4th Cir. 2005).

       As   mentioned,       the   Constitution     sets    forth       the    basic

parameters     for   venue    in   a   criminal   case.    Under   Article         III,

“[t]he Trial of all Crimes . . . shall be held in the State

where the said Crimes shall have been committed.” U.S. Const.

art. III, § 2, cl. 3; see also U.S. Const. amend. VI (“In all

criminal prosecutions, the accused shall enjoy the right to a

speedy and public trial, by an impartial jury of the State and

district wherein the crime shall have been committed.”). Federal



appeal under the doctrine where there is some nexus between “a
defendant’s [prior] fugitive status and his appeal.” Ortega-
Rodriguez v. United States, 507 U.S. 234, 249 (1993). We
conclude that Curtiss’s venue challenge plainly lacks merit.
Therefore, we decline to apply the fugitive disentitlement
doctrine in this case.



                                         7
Rule of Criminal Procedure 18 reiterates this principle: “Unless

a statute or these rules permit otherwise, the government must

prosecute      an    offense      in     a    district       where    the     offense    was

committed.”      Together,        these      provisions      “protect       the   defendant

from bias, disadvantage, and inconvenience in the adjudication

of the charges against him.” United States v. Johnson, 510 F.3d

521, 524 (4th Cir. 2007) (quoting Ebersole, 411 F.3d at 524).

       In keeping with these principles, Congress may prescribe

specific venue requirements for a particular crime. Johnson, 510

F.3d at 524. If Congress adopts such a statute imposing venue

requirements,        “that      provision       must    be    honored       (assuming,    of

course,      that    it   satisfies          the   constitutional           minima.)”    Id.

(quoting United States v. Salinas, 373 F.3d 161, 164 (1st Cir.

2004)). In addition, federal law provides that venue is proper

in    any    district     where     an       offense    was    begun,        continued   or

completed. 18 U.S.C. § 3237(a).

       Here, venue in the Eastern District of Virginia was proper

for   each    count.      Venue    was       proper    for   the     mail    fraud   counts

because Curtiss caused DGSC to mail contract payments from the

Eastern District of Virginia. See 18 U.S.C. § 1341 (noting venue

is proper, among other places, where a defendant causes a letter

to    be    placed   in    an    authorized        depository        for    mail);   United

States v. Blecker, 657 F.2d 629, 632-33 (4th Cir. 1981) (same);

see also 18 U.S.C. 3237(a) (“Any offense involving the use of

                                               8
the mails . . . may be . . . prosecuted in any district from,

through, or into which such commerce, mail matter, or imported

object or person moves.”).

      Venue was proper for the false statement counts because

Curtiss made and used false documents knowing they contained

materially false information, and these documents were filed in

the Eastern District of Virginia. See Blecker, 657 F.2d at 636-

37 (noting venue is proper where the claims were prepared, where

the     claims    were    received    by     the   government,      or   where   the

defendant causes the government to place the funds in the mail);

see also United States v. Bilzerian, 926 F.2d 1285 (2d Cir.

1991) (noting venue is proper under 18 U.S.C. § 1001 either

where documents were prepared or filed).

      Similarly, venue was proper for the false claims counts

because    Curtiss       made   and   used     false    documents    knowing     they

contained materially false information, and these documents were

presented to the government in the Eastern District of Virginia.

See 18 U.S.C. § 287 (noting venue is proper in any district in

which    the     claims    were   made,      prepared    or   presented     to    the

government). Finally, venue was proper for the conspiracy count

because overt acts in furtherance of the charged conspiracy were

committed in the Eastern District of Virginia. See 18 U.S.C. §

3237(a) (Where a crime is “begun in one district and completed

in another, or committed in more than one district,” federal law

                                           9
permits prosecution “in any district in which such offense was

begun, continued, or completed.”).

      Curtiss        argues,      in     the    alternative,         that     even        assuming

venue    was    proper       in    the       Eastern       District     of    Virginia,       the

district court should have transferred the case to the Eastern

District       of    Michigan       pursuant         to    Federal    Rule         of    Criminal

Procedure 21 and abused its discretion in failing to do so.

However,      Curtiss      waived        any    argument       concerning          transfer     of

venue by failing to seek such a transfer pursuant to Rule 21.

United States v. Sorce, 308 F.2d 299, 301 (4th Cir. 1962); see

also United States v. Blackwell, 946 F.2d 1049 (4th Cir. 1991)

(“[B]ecause defendants failed to request a retransfer of the

prosecution . . . under Rule 21(b), we may not review whether

the proceedings properly should have gone forward there.”).

      For the reasons set forth above, it is plain that venue in

the Eastern District of Virginia was proper for each count of

the indictment and the district court properly so concluded.

                                                B.

        Curtiss next asserts that his sentence should be vacated

and   the     case    remanded         for     resentencing       because      the       district

court erred by failing to give individualized reasons for the

sentence imposed. However, the district court was not required

to    abide     by     the        requirements            surrounding        the        Sentencing

Guidelines,          and     therefore           was        not    required             to    give

                                                10
individualized reasons. This is because all of the offenses of

conviction were completed prior to the effective date of the

Sentencing Reform Act of 1987 and thus, before the Sentencing

Guidelines became applicable.

       The     United    States      Sentencing        Guidelines     “apply       only    to

offenses committed after” November 1, 1987. Sentencing Act of

1984, Pub. L. No. 100-182, § 2(a); United States v. Munoz, 974

F.2d    493,    495     n.*   (4th    Cir.   1992)       (“Since     [the    defendant’s]

crimes were committed before November 1, 1987, the United States

Sentencing      Guidelines      do    not    apply      to    this   case.”).      Here,    §

3553(c) is inapplicable because all of Curtiss’s offenses were

committed and completed before November 1, 1987.

       Consequently, we review the district court’s sentence as it

would    have    been     reviewed      prior     to    the    implementation       of    the

Sentencing       Guidelines.         Prior   to        the    implementation       of     the

Sentencing Guidelines, broad discretion was given to sentencing

courts to consider a wide range of information concerning the

background,      character,       and    conduct        of    defendants.     Munoz,      974

F.2d at 495; Wasman v. United States, 468 U.S. 559, 563 (1984)

(observing      that     sentencing      courts        may    consider      “any   and    all

information that reasonably might bear on the proper sentence

for    the     particular      defendant,         given      the   crime     committed”);

United States v. Tucker, 404 U.S. 443, 447 (1972) (“[A] sentence

imposed by a federal district judge, if within statutory limits,

                                             11
is generally not subject to review.”). Further, a district court

can   consult       the    Guidelines      to     “to    inform       a    pre-Guidelines

sentence.” United States v. Bakker, 925 F.2d 728, 740 (4th Cir.

1991).

      Here,     the       district      court’s       statement       of    reasons     was

sufficient under governing law. While the district court stated

that it found that “the sentence imposed is fair and appropriate

for this defendant in light of the requirements of 18 United

States   Code       section    3553(a),”        the     fact    the       district     court

mentioned     the     inapplicable       Sentencing      Guidelines         framework     is

not dispositive. See Bakker, 925 F.2d at 740. The district court

adopted the presentence report without change. The presentence

report   indicated         that    the    correct       statutory          framework     for

Curtiss’s     sentencing          was    governed       by     pre-Guidelines          legal

principles. In addition, the sentence imposed was within the

statutory limits. Consequently, the district court committed no

error in sentencing Curtiss.



                                          III.

      For the reasons stated, we hold that the district court did

not err in denying Curtiss’s motion to dismiss the indictment

for improper venue. In addition, we hold that the district court




                                           12
did not err in fashioning Curtiss’s sentence. Accordingly, the

judgment is

                                                     AFFIRMED.




                              13
