                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 04-4168



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


NORMAND THOMAS TURGEON,

                                            Defendant - Appellant.



                            No. 04-4169



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


KENNETH CHARLES GRIFFITH,

                                            Defendant - Appellant.



                            No. 04-4181



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus
DAVID GREGORY MUELLER,

                                                Defendant - Appellant.


Appeals from the United States District Court for the Western
District of Virginia, at Roanoke. Samuel G. Wilson, Chief District
Judge. (CR-03-25-SGW)


Submitted:   September 22, 2004           Decided:   September 13, 2005


Before WILKINSON, MOTZ, and GREGORY, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished per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


Deborah S. Caldwell-Bono, Roanoke, Virginia; Lowell H. Becraft,
Jr., Huntsville, Alabama; William H. Cleaveland, WILLIAM H.
CLEAVELAND, P.L.C., Roanoke, Virginia, for Appellants.    John L.
Brownlee, United States Attorney, Jennie L. M. Waering, Assistant
United States Attorney, Roanoke, Virginia; Thomas E. Booth,
DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.


Unpublished opinions are not binding precedent in this circuit.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




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PER CURIAM:

               Normand Thomas Turgeon, Kenneth Charles Griffith, and

David Gregory Mueller were indicted of seven counts of mail and

wire fraud, in violation of 18 U.S.C. §§ 1341, 1343 (2000), and one

count of conspiracy to commit fraud, in violation of 18 U.S.C.

§ 317 (2000).        Appellants undertook a scheme to acquire land in

Floyd County, Virginia, from out-of-state owners, and then sell

timber rights to commercial loggers.              In some cases, Appellants

contracted to purchase land from the owners, but sold the timber

rights before they owned the land outright, in violation of state

law.       In other cases, Appellants attempted to lay claim to the land

under the doctrine of adverse possession, but did not meet the

statutory minimum possession time.              Appellants were arrested and

charged with fraud.        Following a five-day jury trial, Appellants

were convicted on all counts.            Griffith was sentenced to twenty-

four months in prison, and Turgeon and Mueller were each sentenced

to twenty-seven months in prison.           They now appeal.1

               Appellants raise several issues regarding their trial

defense of adverse possession.            At the heart of their appeal is

their       purported   belief   that    under    the   doctrine   of   adverse

possession, they obtained legal title to land as soon as they had

taken open and hostile possession of the property.             However, under


       1
      We grant the Government’s motion to file a supplemental brief
to address Griffith’s appeal, which was initially dismissed for
failure to prosecute, but subsequently reinstated.

                                        - 3 -
Virginia law, “to establish title to real property by adverse

possession, a claimant must prove actual, hostile, exclusive,

visible and continuous possession, under claim of right, for the

statutory period of 15 years.”         Kim v. Douval Corporation, 529

S.E.2d 92, 95 (Va. 2000); see also Va. Code Ann. § 8.01-236 (Michie

2000).   Accordingly, we find that the district court did not abuse

its discretion in refusing to submit Appellants’ incomplete and

erroneous     jury   instructions     that    omitted    the    fifteen-year

requirement, Chaudhry v. Gallerizzo, 174 F.3d 394, 408 (4th Cir.

1999) (defining the standard of review); United States v. Sloley,

19 F.3d 149, 153 (4th Cir. 1994) (requiring that a requested

instruction    be    supported   by   an     evidentiary    foundation    and

accurately state the applicable law), and that the court’s adverse

possession instructions accurately reflected state law.             Kim, 529

S.E.2d at 95; Va. Code Ann. § 8.01-236.

            We also reject Appellants’ claims that the district

court’s refusal to adopt their interpretation of adverse possession

law prejudiced their case, that the court’s demeanor deprived them

of a fair trial, and that the court erred by refusing to allow them

to present excerpts of case law to establish the defense of adverse

possession.    Additionally, we reject Appellants’ claims that the

court    inappropriately   questioned       Griffith’s     credibility,   and

erroneously refused to admit evidence of a defective deed in the

title of one of the properties involved in the fraudulent scheme.


                                    - 4 -
These arguments are all based on Appellants’ purported belief that

they obtained legal title at the moment they entered the victims’

property. We find that the district court’s rulings were an effort

to conduct the trial within the framework of an articulation of

applicable    law.     Additionally,    as     the   district   court   noted,

Appellants’   stated    belief   that   they    held   legal    title   to   the

properties in question does not shield them from liability for

trespass, fraud, or any action brought by the legal owner.               Thus,

any error by the court was harmless.         United States v. Brooks, 111

F.3d 365, 371 (4th Cir. 1997).

           Turgeon also contends that the evidence presented at

trial was insufficient to find him guilty of Count VIII, because he

sold his company and withdrew from the conspiracy before Griffith

sold the timber rights to the land that was the subject of Count

VIII.   Thus, he contends, the district court erred by denying his

motion for a judgment of acquittal.

           This court reviews the district court’s decision to deny

a motion for judgment of acquittal de novo.               United States v.

Gallimore, 247 F.3d 134, 136 (4th Cir. 2001).           Where, as here, the

motion was based on insufficient evidence, “[t]he verdict of a jury

must be sustained if there is substantial evidence, taking the view

most favorable to the Government, to support it.”                 Glasser v.

United States, 315 U.S. 60, 80 (1942).          This court does not review

the credibility of the witnesses and assumes that the jury resolved


                                   - 5 -
all contradictions in the testimony in favor of the Government.

United States v. Romer, 148 F.3d 359, 364 (4th Cir. 1998).                     Turgeon

was involved in the fraudulent scheme from the very beginning.

Although he alleges that he sold his company to Griffith and

withdrew from the conspiracy, there is no evidence, other than his

self-serving statement, that he exited the conspiracy. Viewing the

entirety    of     the   evidence     in   a     light    most    favorable    to   the

Government, and assuming that the jury resolved all inconsistencies

in favor of the Government, we conclude that a reasonable jury

could     have    concluded    that    Turgeon       never       withdrew   from    the

conspiracy.       Romer, 148 F.3d at 364.

             Finally, we turn to Appellants’ contention that their

sentences    were    enhanced     based     upon    judicial        fact-finding,   in

violation of United States v. Booker, 125 S. Ct. 738 (2005).                         In

Booker,    the     Supreme    Court    held      that     the    federal    sentencing

guidelines’       mandatory    scheme,      which        provides    for    sentencing

enhancements based on facts found by the court, violated the Sixth

Amendment.       Booker, 125 S. Ct. at 746 (Stevens, J., opinion of the

Court).      The    Court     remedied     the    constitutional       violation     by

severing two statutory provisions, 18 U.S.C.A. § 3553(b)(1) (West

Supp. 2004) (requiring sentencing courts to impose a sentence

within the applicable guideline range), and 18 U.S.C.A. § 3742(e)

(West 2000 & Supp. 2004) (setting forth appellate standards of

review    for    guideline     issues),        thereby     making    the    guidelines


                                         - 6 -
advisory.   Booker, 125 S. Ct. at 756-57 (Breyer, J., opinion of the

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

            Because Appellants did not raise this claim in the

district court, their sentences are reviewed for plain error.

Hughes, 401 F.3d at 547 (citing United States v. Olano, 507 U.S.

725, 731-32 (1993)).   To demonstrate plain error, a defendant must

establish that error occurred, that it was plain, and that it

affected his substantial rights.         Olano, 507 U.S. at 731-32;

Hughes, 401 F.3d at 547-48.         If a defendant establishes these

requirements, the court’s “discretion is appropriately exercised

only when failure to do so would result in a miscarriage of

justice, such as when the defendant is actually innocent or the

error   seriously   affects   the    fairness,   integrity   or   public

reputation of judicial proceedings.”        Hughes, 401 F.3d at 555

(internal quotation marks and citation omitted).

            At sentencing, the Presentence Report (“PSR”) assigned

Appellants a base offense level of six, pursuant to U.S. Sentencing

Guidelines Manual § 2F1.1(a).       The PSR then increased Griffith’s

and Turgeon’s offense level by eight levels for more than $200,000

in intended loss, under USSG § 2F1.1(b)(1).          However, Mueller

received a seven-level increase for loss more than $120,000.         All

three Appellants received a two-level increase for more than

minimal planning under USSG § 2F1.1(b)(2), and an additional two-

level increase for use of sophisticated means.


                                - 7 -
           After careful review of the record, we conclude that the

district court did not plainly err in applying the planning and

sophisticated means enhancements.           Olano, 507 U.S. 725 at 731-32;

Hughes, 401 F.3d at 546-47, 556.          At trial, Griffith testified to

participating in an elaborate conspiracy to acquire land from out-

of-state owners, and subsequently sell timber rights to commercial

loggers.   Turgeon and Mueller did not deny these facts.               Instead,

Appellants asserted that they either owned the land through a valid

contract, or mistakenly believed that under the doctrine of adverse

possession, they obtained legal title to land once they had taken

open and hostile possession of the property.               However, the jury

necessarily rejected these claims in finding the Defendants guilty.

Accordingly, we find that the facts underlying the planning and

sophisticated   means        enhancements    were    admitted     to    by     the

Defendants, and therefore find no Sixth Amendment violation for

these specific enhancements.

           However,     we     conclude     that    the    district     court’s

enhancement   for   intended     loss     constitutes     plain   error      which

warrants correction.     Olano, 507 U.S. 725 at 731-32; Hughes, 401

F.3d at 546-47, 556.     Although evidence of the amount of loss was

presented at trial, the jury did not necessarily have to determine

a specific amount of loss to return a guilty verdict.                  Moreover,

Appellants squarely objected to the amounts at sentencing, and on

appeal.    Accordingly, we conclude that the application of these


                                    - 8 -
enhancements based upon judicial fact-finding constitutes plain

error under Booker.2         Moreover, it appears that without these

enhancements, all three Appellants would have been subject to lower

sentencing ranges, demonstrating that the error affected their

substantial rights. Consequently, we find that the error seriously

affected the fairness and integrity of the proceeding and should be

recognized.      Hughes, 401 F.3d at 555.

              Accordingly,    we   affirm    Appellants’   convictions,    but

remand for resentencing in accordance with Hughes.3                Appellants’

motions to file supplemental briefs are granted and the motions

deemed   to    be   the   supplemental   briefs.   We   dispense    with   oral

argument because the facts and legal contentions            are    adequately




     2
      Just as we noted in United States v. Hughes, 401 F.3d 540,
545 n.4, (4th Cir. 2005), "[w]e of course offer no criticism of the
district judge, who followed the law and procedure in effect at the
time" of Appellants’ sentencing.
     3
      Although the sentencing guidelines are no longer mandatory,
United States v. Booker, 125 S. Ct. 738, 767 (2005), makes clear
that a sentencing court must still “consult [the] Guidelines and
take them into account when sentencing.” On remand, the district
court should first determine the appropriate sentencing range under
the guidelines.    Hughes, 401 F.3d at 546.      The court should
consider this sentencing range along with the other factors
described in 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2005), and
then impose a sentence. Id. & n.5. If that sentence falls outside
the guidelines range, the court should explain its reasons for the
departure, as required by 18 U.S.C.A. § 3553(c)(2) (West Supp.
2005). Id. The sentence must be within the statutorily prescribed
range and reasonable. Id. at 547.

                                     - 9 -
presented in the materials before the court and argument would not

aid the decisional process.



                                                   AFFIRMED IN PART,
                                       VACATED IN PART, AND REMANDED




                              - 10 -
