                                                              [DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT            FILED
                           ________________________ U.S. COURT OF APPEALS
                                                             ELEVENTH CIRCUIT
                                 No. 09-16327                 AUGUST 16, 2010
                             Non-Argument Calendar               JOHN LEY
                           ________________________                CLERK


                     D. C. Docket No. 08-00443-CR-1-TWT-1

UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                       versus

JAMES HOWARD COOK,
d.b.a. PCDirectBiz.com.Inc.,

                                                              Defendant-Appellant.

                           ________________________

                   Appeal from the United States District Court
                      for the Northern District of Georgia
                        _________________________

                                 (August 16, 2010)

Before BARKETT, HULL and MARCUS, Circuit Judges.

PER CURIAM:

      James Howard Cook appeals from his sentences following his convictions

for wire fraud, in violation of 18 U.S.C. § 1343. Cook argues that the district court
erred in (1) determining the loss amount, which resulted in an 18-level offense

level increase, pursuant to U.S.S.G. § 2B1.1(b)(1)(J); (2) imposing a two-level

obstruction of justice enhancement under U.S.S.G. § 3C1.1; and (3) determining

the restitution amount. After careful review, we affirm.

      We review the district court’s loss determination for clear error. United

States v. Woodard, 459 F.3d 1078, 1087 (11th Cir. 2006). When considering an

obstruction of justice enhancement under U.S.S.G. § 3C1.1, we review the district

court’s findings of fact for clear error and the application of the Guidelines to those

facts de novo. United States v. Bradberry, 466 F.3d 1249, 1253 (11th Cir. 2006).

We review de novo the legality of a restitution order, for abuse of discretion the

determination of the restitution value of lost or destroyed property, and for clear

error the factual findings underlying a restitution order.          United States v.

Valladares, 544 F.3d 1257, 1269 (11th Cir. 2008).

      In November 2008, a federal grand jury indicted Cook on seven counts of

wire fraud, in violation of 18 U.S.C. § 1343. The indictment alleged that Cook

owned and operated PCDirectBiz.com (“PCDirect”). In order to obtain money for

his company, Cook made false representations to Bowsprit Funding I, LLC

(“Bowsprit I”) and Bowsprit Funding II, LLC (“Bowsprit II”), each established by

Thomas Digan, and misrepresented the value of collateral in the form of accounts



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receivable of PCDirect web customers and the assets of PCDirect. As a result of

these misrepresentations, on June 26, 2006, Bowsprit I transferred a $1,320,220.10

loan from its Evanston, Illinois bank account to Cook’s PCDirect bank account in

Atlanta, Georgia.    Also, on December 11, 2006, Bowsprit II transferred a

$3,228,229.82 loan from its Evanston, Illinois bank account to Cook’s PCDirect

bank account in Atlanta, Georgia.

      On February 23, 2009, Cook pled guilty to all seven counts, without a plea

agreement, and the court adjudicated him guilty. At sentencing, Digan testified

that he was the president and sole employee of Bowsprit I and Bowsprit II. After

having acted as a broker for three previous loans to Cook, Digan formed Bowsprit

I to make a loan in its own name to Cook’s PCDirect business. After borrowing

money from The Patriot Group, which was acting as Washington Offshore

Funding I, LLC, Bowsprit I loaned the money to Cook in June 2006. Similarly,

after borrowing money from The Patriot Group, which was acting as Washington

Special Opportunity Fund, LLC, Bowsprit II loaned the money to Cook in

December 2006. The two loans to Cook totaled $4,548,449.

      Digan further testified that Cook had repaid some of the loans to Bowsprit I

and Bowsprit II, but that Cook still owed approximately $2,969,000 on the two

loans. Cook presented no evidence as to the loss amount, arguing only that The



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Patriot Group actually supplied the money, which required a Patriot Group witness

to testify to the actual loss amount.

      First, we are unpersuaded by Cook’s claim that because the government

presented insufficient evidence to prove the actual loss amount, the district court

improperly increased his offense level by 18 levels. For offenses involving fraud,

the Guidelines provide an increase to a defendant’s offense level depending on the

amount of loss that resulted from the fraud. U.S.S.G. § 2B1.1(b)(1). The offense

level is increased by 18 where the loss amount is greater than $2,500,000, but less

than $7,000,000.     U.S.S.G. § 2B1.1(b)(1)(J)-(K).    When calculating loss for

sentencing purposes, the district court looks to “the greater of actual loss or

intended loss.” U.S.S.G. § 2B1.1(b)(1), comment. (n.3(A)). Actual loss is the

“reasonably foreseeable pecuniary harm that resulted from the offense,” and

intended loss is “the pecuniary harm that was intended to result from the offense.”

U.S.S.G. § 2B1.1(b)(1), comment. (n.3(A)(i)-(ii)).

      The government bears the burden of supporting its loss calculation with

“reliable and specific evidence.” United States v. Sepulveda, 115 F.3d 882, 890

(11th Cir. 1997). A district court’s finding of loss under § 2B1.1 is entitled to

“appropriate deference.” United States v. Willis, 560 F.3d 1246, 1251 (11th Cir.

2009) (quotation omitted).



                                         4
      On this record, the district court did not clearly err in its loss amount

calculation.   At sentencing, Digan testified that the two loans to Cook from

Bowsprit I and Bowsprit II totaled $4,548,449. Cook presented no evidence that

this total was incorrect, arguing only that since Digan borrowed the money from

The Patriot Group someone from The Patriot Group needed to testify to the loss

amount. The district court appropriately found this argument to be without merit,

since Digan’s source of funds to make the loans did not matter, only that Digan

lent the money to Cook -- money that Digan lost when Cook failed to repay the

loans. Accordingly, we affirm the district court’s loss amount calculation.

      Next, we find no merit in Cook’s claim that the district court erred in

imposing an obstruction of justice enhancement.          An obstruction of justice

enhancement is appropriate if the defendant willfully obstructed or impeded, or

attempted to obstruct or impede, the administration of justice during the course of

the investigation, prosecution, or sentencing of the instant offense of conviction.

U.S.S.G. § 3C1.1. Application Note 4 provides a “non-exhaustive list of examples

of the types of conduct to which this enhancement applies.” Id., comment. (n.4).

But, “[o]bstructive conduct can vary widely in nature, degree of planning, and

seriousness,” and the Commentary instructs that the court should compare the

conduct at hand to the conduct in the non-exhaustive lists in Application Notes



                                          5
Four and Five to “assist the court in determining whether application of this

enhancement is warranted in a particular case.” U.S.S.G. § 3C1.1, comment. (n.3).

In order for this enhancement to apply, the defendant must have consciously acted

with the purpose of obstructing justice. United States v. Campa, 529 F.3d 980,

1016 (11th Cir. 2008), cert. denied, 129 S.Ct. 2790 (2009).

      In this case, the district court did not clearly err in applying the obstruction

of justice enhancement. While Cook’s conduct does not fit squarely within any of

the listed examples in Application Notes Four or Five (see U.S.S.G. § 3C1.1,

comment. (nn.4, 5)), his conduct is more analogous to the examples where the

obstruction enhancement does apply. For example, as the district court concluded,

Cook’s threat to file and filing of a malpractice suit was an attempt to intimidate

his appointed attorney and caused her to file a motion to withdraw. Also, when

considered with Cook’s other actions, Cook’s arguably frivolous malpractice suit

was an attempt to delay his sentencing proceedings.

      In addition to his malpractice suit, on the day of his scheduled sentencing

hearing, Cook filed a petition for injunctive and declaratory relief against the

district court, asking for an injunction and for the court to produce documents

establishing subject matter, territorial, and personal jurisdiction.   And, the day

before his scheduled sentencing hearing, Cook filed a motion to withdraw his



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guilty plea.   Based upon Cook’s disruptive behavior at counsel’s motion to

withdraw hearing, which required security officers to handcuff Cook and remove

him from the courtroom, the court did not consider Cook’s motion to withdraw his

guilty plea at that hearing and had to conduct another hearing on that motion.

Viewing Cook’s actions together, Cook was consciously attempting to delay his

sentencing proceedings, which he succeeded in doing. Accordingly, his actions

justified the imposition of the two-level obstruction-of-justice enhancement.

      Finally, we reject Cook’s claim that the district court erred in calculating the

restitution amount. The Mandatory Victims Restitution Act of 1996 (“MVRA”),

Pub. L. No. 104-132, 110 Stat. 1227, codified at 18 U.S.C. § 3663A, requires

district courts to order restitution in certain cases, including wire fraud. United

States v. Dickerson, 370 F.3d 1330, 1335-36 (11th Cir. 2004). Section 3664 sets

forth the procedures for ordering restitution and “demands that courts ‘order

restitution to each victim in the full amount of each victim’s losses . . . .’” Id. at

1336 (quoting 18 U.S.C. § 3664(f)(1)(A)). The government bears the burden of

demonstrating the amount of each victim’s loss by a preponderance of the

evidence. 18 U.S.C. § 3664(e).

      At Cook’s sentencing, the government, through Digan’s testimony,

established that Cook had failed to repay $2,969,532.54 of the two loans, and Cook



                                          7
presented no evidence that this calculation was incorrect. Accordingly, we affirm

the district court’s restitution order.

       AFFIRMED.




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