                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 12-4947


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

           v.

ROGER VAN SANTVOORD CAMP,

                Defendant – Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   Terrence W. Boyle,
District Judge. (5:11-cr-00155-BO-1)


Argued:   January 28, 2014                 Decided:   April 15, 2014


Before KING, SHEDD, and THACKER, Circuit Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: Jorgelina E. Araneda, ARANEDA LAW FIRM, Raleigh, North
Carolina, for Appellant.     Kristine L. Fritz, OFFICE OF THE
UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
ON BRIEF: Thomas G. Walker, United States Attorney, Jennifer P.
May-Parker, Assistant United States Attorney, Yvonne V. Watford-
McKinney, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

       Roger Van Santvoord Camp appeals his sentence on several

grounds     and    requests         a     vacatur       of   his       guilty       plea.       For   the

reasons set forth below, we affirm the district court.

       Roger      Van     Santvoord          Camp        established            Piedmont         Center

Investments, LLC (PCI) in 1999. He was solely responsible for

running     the      company.        Timothy        Buckley,           Camp’s       friend,      was    a

passive     investor        in      the    business.           In      2009,       Camp    sought      to

establish a bowling alley and family entertainment center. From

July   2009    until        December       2010,        Camp      secured       or    attempted        to

secure financing from four financial institutions through the

fraudulent use of Buckley’s personal identifying information. He

also obtained additional financing from Buckley.

       In   2009,       Camp     secured        a   $3.8       million       dollar        commercial

mortgage      from      Key     Source      Bank.        Camp       falsely         told    the       bank

representatives          that       Buckley         agreed        to    be     a     guarantor        and

provided       the      bank        with    a       falsified           financial          statement,

representing         that      it    was    prepared         by     Buckley,         and    a    forged

guaranty form. As a result of Camp’s fraudulent representations,

Key Source Bank disbursed the $3.8 million commercial mortgage

to PCI.

       Around this same time, Camp submitted a commercial loan

application to Capital Bank for $2 million. This application

also included falsified documents representing that Buckley had

                                                    2
agreed to personally guarantee the loan. Capital Bank ultimately

disbursed       the   loan,     and   the      bowling        alley’s    equipment         was

pledged as collateral.

       Camp also sought a personal loan from Buckley in order to

cover    some    of    the    renovation        costs    for     the    bowling       alley.

Buckley    loaned      Camp    $250,000,       unaware    that     Camp       had    already

received      loans    from    Key    Source     and    Capital        Bank   by     falsely

representing Buckley as the guarantor. The loan was secured by

Camp’s interest in PCI, which is currently in bankruptcy.

       Camp continued to experience financial problems and thus

applied to Trust Atlantic Bank for a $500,000 unsecured line of

credit. Camp falsely told the bank that Buckley was going to co-

sign    this    loan.     However,      Trust    Atlantic        ultimately         did    not

approve    the    loan    because     Camp      could    not     produce      Buckley       to

personally meet with bank representatives.

       Camp also received a $150,000 line of credit from North

State Bank by fraudulently listing a fake brokerage account as

proof   of     his    assets.    When    the     bank    realized       the       fraud,    it

informed Camp he needed to immediately repay the $70,000 that

Camp    had     already      withdrawn.     Camp       then    obtained       a     $125,000

personal loan from Buckley to repay North State and pocketed the

additional $55,000. To obtain this personal loan, Camp lied to

Buckley, telling him that the bank loan was for $200,000, that

he had $75,000 to repay it, but that he needed another $125,000.

                                            3
       Camp’s fraudulent scheme was eventually discovered, and he

pled   guilty    to     several     counts      of    bank   fraud    and    aggravated

identity theft. Camp was sentenced to a total of 102 months

imprisonment      and    $442,827.02        in       restitution     to   Buckley.       At

sentencing, the judge applied an 18-level enhancement for the

amount of loss exceeding $2.5 million. The judge also applied a

2-level enhancement for the use of sophisticated means. Camp

timely    appealed      to   this    Court       and     makes    several     arguments

regarding his sentencing and guilty plea.

       First,    Camp    argues      that       the    district      court    erred      at

sentencing      when    it   applied    an       18-level    enhancement          for   the

amount   of     loss    exceeding     $2.5       million,    pursuant        to   USSG    §

2B1.1(b)(1). Under the guidelines,

       loss is the greater of actual loss or intended loss.
       “Actual   loss”   means  the   reasonably    foreseeable
       pecuniary   harm  that  resulted   from   the   offense.
       “Intended loss” . . . means the pecuniary harm that
       was intended to result from the offense . . . . The
       court need only make a reasonable estimate of the
       loss. The sentencing judge is in a unique position to
       assess the evidence and estimate the loss based upon
       that evidence. For this reason, the court’s loss
       determination is entitled to appropriate deference. .
       . . In a case involving collateral pledged or
       otherwise provided by the defendant, [loss shall be
       reduced by] the amount the victim has recovered at the
       time of sentencing from disposition of the collateral,
       or if the collateral has not been disposed of by that
       time, the fair market value of the collateral at the
       time of sentencing.




                                            4
USSG § 2B1.1.1(b)(1) cmt. We review a district court’s factual

finding of loss for clear error. See United States v. Parsons,

109 F.3d 1002, 1004 (4th Cir. 1997).

        Here,     considering        only   actual       loss,    there    was     loss

exceeding $2.5 million. Key Source Bank loaned $3.8 million to

Camp, but only received $1.5 million upon sale of the property

after default. Thus, Key Source Bank suffered a loss of $2.3

million.

        Buckley lost $250,000 in a personal loan to Camp, which

Buckley made because he was unaware Camp had already obtained

other    financing       for   the    project     by    fraudulently     representing

Buckley as a guarantor. Although this personal loan was backed

by Camp’s interest in PCI (which is now in bankruptcy), the

district        court,    by    awarding        the    full    restitution       amount

requested for Buckley, implicitly found the PCI interest was

worth only a nominal value. Further, Camp lied to Buckley in

order    to     obtain   an    additional       $125,000   loan   from    him,   which

Buckley also lost. Buckley also incurred $67,827.02 in legal

fees as a result of the instant offense. In total, Buckley lost

$442,827.02.

       The district court did not clearly err in its finding of a

$2.3    million     dollar     loss   for   Key       Source   Bank.   That   loss   is

clearly supported in the record. Further, the district court

must only make a reasonable estimation of the loss. Thus, even

                                            5
if   the   loss       incurred       by   Buckley       was   only      half    of   what   the

district court found when awarding restitution, it would still

push the loss incurred over the $2.5 million threshold for the

18-level enhancement. Therefore, the district court’s estimation

that the loss exceeded $2.5 million was not clear error, and we

affirm the 18-level enhancement.

      Second, Camp argues the district court erred in applying a

2-level enhancement for the use of sophisticated means, pursuant

to   USSG        §     2B1.1(b)(10)(c).              “‘Sophisticated           means’    means

especially       complex        or    especially         intricate        offense       conduct

pertaining to the execution or concealment of an offense.” USSG

§ 2B1.1(b)(10)(c) cmt. “We . . . review for clear error the

district     court's       finding        that       [defendant]     used      sophisticated

means.” United States v. Noel, 502 F. App'x 284, 290 (4th Cir.

2012), cert. denied, 134 S. Ct. 366 (2013).

      In the instant case, Camp used great effort to secure or

attempt to secure loans from four financial institutions and

Timothy     Buckley.       He        forged      assignment        of    guaranty       forms;

manipulated          Timothy     Buckley’s           financial       statements;        forged

Buckley’s signature, as well as the signatures of others; and

engaged     in       extended    negotiations          with    financial        institutions

based upon false information, among other things.




                                                 6
      The district court’s finding that Camp used sophisticated

means is amply supported by the record, and thus the 2-level

enhancement was appropriate.

      Third, Camp argues that he received ineffective assistance

of counsel because his defense lawyers did not pursue protection

for   him    under   the      North    Carolina    business       judgment        rule.   “A

claim    of      ineffective          assistance       of     counsel      is     normally

considered on collateral review, not on direct appeal.” United

States      v.   Ford,   88    F.3d    1350,    1363    (4th     Cir.     1996)    (citing

United States v. Grubb, 11 F.3d 426, 441 (4th Cir. 1993)). “For

a claim of ineffective assistance of counsel to be heard on

direct   appeal,     it    must   ‘conclusively             appear[   ]   in    the   trial

record itself that the defendant was not provided with effective

representation.’” United States v. Hoyle, 33 F.3d 415, 418 (4th

Cir. 1994) (quoting United States v. Hanley, 974 F.2d 14, 16 n.

2 (4th Cir. 1992)) (alteration in original).

      To prevail on an ineffective assistance of counsel
      claim in the context of a conviction following a
      guilty plea, [defendant] must show that defense
      counsel's representation fell below an objective
      standard of reasonableness pursuant to the prevailing
      professional   norms, and    that  but   for counsel's
      unprofessional errors he would not have pled guilty
      and would have insisted on going to trial.

McGraw v. United States, 106 F.3d 391 table, No. 96-6161, 1997

WL 34431, at *1 (4th Cir. 1997) (citing Hill v. Lockhart, 474

U.S. 52, 58 (1985)).


                                            7
     Here, it does not “conclusively appear in the trial record”

that Camp received ineffective assistance of counsel. Camp does

not even argue that he would not have pled guilty but for his

defense attorneys’ failure to pursue the business judgment rule

defense; rather, he simply argues he was prejudiced by their

failure to do so. The business judgment rule, however, does not

protect   against     an   individual’s          purposeful    and    fraudulent

misconduct, but rather protects mere errors in judgment. See

State ex rel. Long v. ILA Corp., 513 S.E.2d 812, 822 (N.C. Ct.

App. 1999). Therefore, it does not “conclusively appear” on the

record that Camp received ineffective assistance at trial.

     Fourth,   Camp    argues   that       the   district     court   wrongfully

participated in plea negotiations in violation of Federal Rule

of Criminal Procedure 11. Because Camp did not object to this at

trial, his Rule 11 claim is subject to plain error review. See

United States v. Bradley, 455 F.3d 453, 461 (4th Cir. 2006). To

show plain error, Camp

     must demonstrate that (1) the asserted violation of
     Rule 11(c)(1) is error, (2) the error is plain, and
     (3) the error affected [his]    substantial rights; if
     these three conditions are met, an appellate court may
     then exercise its discretion to notice a forfeited
     error, but only if (4) “the error seriously affect[s]
     the fairness, integrity, or public reputation of
     judicial proceedings.” United States v. Olano, 507
     U.S. 725, 731-32 (1993).

Bradley, 455 F.3d at 461.




                                       8
       Here,       at       the   close   of    the      prosecution’s         evidence,     the

district court stated,

       You never know what happens in court but perjury is a
       spector and obstruction of justice and whatever. I’ve
       tried a few cases and I can only remember one other
       one—I won’t go into it—where something like the
       evidence that just came out came out.

J.A. 672.

       This statement does not constitute a Rule 11(c) error. Even

if these remarks were to be construed as a comment on plea

negotiations, this Court has distinguished cases where judges

have       made    “single        brief   remark[s]        during         negotiations”     from

those       where       judges     have   fully       inserted        themselves     into   the

negotiations process. See Bradley, 455 F.3d at 462–63 (citing

United States v. Bierd, 217 F.3d 15, 21 (1st Cir. 2000), for the

proposition            “that      court's      mention         of     a    guilty    plea   and

acceptance             of    responsibility         to     defense         counsel   was    not

reversible error” and citing United States v. Johnson, 89 F.3d

778,       783         (11th      Cir.    1996),         for        “finding    no    improper

participation when the court warned the defendant of the risk

involved          in    pleading     guilty     to       the   substantive      offense     and

contesting the conspiracy charge”). 1



       1
       In Bradley, this Court explained there was a Rule 11 error
because:

     [t]he record clearly demonstrate[d] that the district
     court   initiated  plea   discussions,  advised   the
(Continued)
                                                9
     Here, rather than involve itself in plea negotiations, the

court simply warned Camp against committing perjury on the stand

and did not mention pleading or the benefits of pleading versus

continuing   with    trial.   Additionally,     rather   than      attempt    to

coerce Camp into pleading guilty during the trial, the court

twice   reminded    Camp   that   he   had   already   been   at    trial    for

several days and asked if he was sure he wanted to proceed with

the guilty plea rather than continuing with the trial. J.A. 674–

75. This record shows a single, brief remark warning against

perjury, rather than judicial engagement in plea negotiations,

and therefore, there is no Rule 11(c) error here, let alone a

plain error.




     Defendants that they might “be better off pleading to
     the indictment,” suggested that they would likely
     receive life sentences if they went to trial,
     commented on the amount and weight of the Government's
     evidence, criticized the Defendants for turning down
     plea offers from the Government, urged the Defendants
     to attempt “to dispose of the charges against them on
     a reasonable basis,” and explained to the Defendants
     that even if the prosecution would not recommend the
     sentence the Defendants desired, this should not
     prevent a plea because the court-not the prosecution-
     would determine the sentence.

Bradley, 455 F.3d at 462.

     This extensive engagement in plea negotiations stands in
stark contrast to the single remark made in this case regarding
perjury.


                                       10
     Fifth,    Camp   argues   that    the   district   court    improperly

questioned witnesses at trial and that this resulted in a denial

of due process for Camp. By pleading guilty, Camp has waived any

argument    regarding    “nonjurisdictional      defects”   in   the   trial

proceedings below. See United States v. Moussaoui, 591 F.3d 263,

280 (4th Cir. 2010) (“When a defendant pleads guilty, he waives

all nonjurisdictional defects in the proceedings conducted prior

to the entry of the plea.” (quoting          United States v. Bundy, 392

F.3d 641, 644 (4th Cir. 2004))). Therefore, his argument about

judicial questioning of witnesses is waived. 2

     In    conclusion,   for   the   foregoing   reasons,   we   refuse   to

vacate Camp’s guilty plea, and we affirm the district court’s

sentence.

                                                                   AFFIRMED




     2
       Camp also raises an argument regarding his restitution to
Buckley, which we find to be without merit.



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