                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 13-4738


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

ROBERT GARTRELL BOWLING,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Greenville.    Henry M. Herlong, Jr., Senior
District Judge. (6:09-cr-00894-HMH-1)


Submitted:   March 24, 2014                 Decided:   April 10, 2014


Before MOTZ, GREGORY, and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Russell Warren Mace, III, THE MACE FIRM, Myrtle Beach, South
Carolina, for Appellant.     William N. Nettles, United States
Attorney, William J. Watkins, Jr., Assistant United States
Attorney, Greenville, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

                A jury found Robert Gartrell Bowling guilty of:                               one

count      of   conspiracy      to     make,       pass,    and    possess       counterfeit

checks of organizations doing business in interstate commerce,

in violation of 18 U.S.C. § 371 (2012) (“Count 1”); two counts

of    possession       with    intent    to     use    or     transfer      five    or    more

identification documents or false identification documents, in

violation of 18 U.S.C. § 1028(a)(3) (2012) (“Counts 2 and 9”);

two   counts      of    aggravated      identity       theft,      in    violation       of   18

U.S.C. § 1028A(a)(1) (2012); one count of unlawful possession of

a firearm and ammunition that traveled in interstate commerce,

in violation of 18 U.S.C. § 922(g)(1) (2012); and one count of

forcibly        assaulting      a    Special       Deputy    U.S.       Marshall    who       was

engaged in the performance of his official duties, in violation

of    18   U.S.C.      § 111(a)(1),       (b)       (2012).        The    district       court

sentenced Bowling to 192 months in prison and ordered him to pay

$222,283.98 in restitution.                   This court affirmed the district

court’s judgment.          See United States v. Bowling, 442 F. App’x 72

(4th Cir. 2011) (No. 11-4015) (unpublished).

                Bowling timely filed a pro se 28 U.S.C. § 2255 (2012)

motion raising several ineffective assistance of counsel claims.

The     district       court    found     that        all    but    one     of     Bowling’s

ineffective assistance claims were meritless.                             With regard to

Bowling’s       claim    that       counsel    was    ineffective         for    failing       to

                                               2
object      to    his     presentence          investigation          report’s     (“PSR”)

inclusion of the incorrect statutory maximum sentence for the

§ 1028      offenses,     the      district        court     found    that    Bowling    was

sentenced under an incorrect subsection of that statute and,

thus, determined that Bowling had to be resentenced.

               A new PSR was generated that was virtually identical

to    the   first      PSR,    except   that       the     correct    statutory    maximum

sentence       was     identified       for     the        § 1028    convictions.         At

resentencing, 1        the     district       court      immediately     clarified       its

position that the parties were “starting over completely fresh

as if that never happened, that other sentencing.                             So [Bowling]

can    raise     any    objection.”           The     district       court    adopted    the

Guidelines        range       as   calculated         in     Bowling’s       revised    PSR,

afforded counsel an opportunity to argue regarding the 18 U.S.C.

§ 3553(a)        (2012)       factors     relevant         to   Bowling’s       case,   and

afforded Bowling an opportunity to allocute.                         The district court


       1
       Before he was resentenced, Bowling filed a pro se notice
of appeal purporting to appeal the portion of the district
court’s order denying the majority of his habeas claims.   That
appeal was dismissed as interlocutory.    See United States v.
Bowling, ___ F. App’x ___, 2013 WL 6135801 (4th Cir. 2013) (No.
13-7166) (unpublished). Bowling has since been allowed to file
an additional appeal to challenge the district court’s adverse
habeas determinations.   (4th Cir. Appeal No. 14-6338).   As we
are faced here only with Bowling’s challenges to his new
sentence, by our disposition in this appeal, we express no
opinion as to Bowling’s habeas claims, which have yet to be
reviewed by this court.



                                               3
once again sentenced Bowling to 192 months in prison and again

ordered him to pay $222,283.98 in restitution.                                Bowling timely

appealed.

               On appeal, Bowling asserts that his offense level was

improperly enhanced in two respects.                          First, he maintains that

the district court erred by increasing the offense level of his

grouping      of     fraud     offenses     by        six    levels      pursuant       to     U.S.

Sentencing         Guidelines         Manual         (“USSG”)       § 3A1.2(c)(1)            (2012)

(requiring six-level increase if defendant knowingly assaults a

law    enforcement        officer      during        the    course    of     the   offense      or

flight      therefrom).           Second,      he      contends       that    there      was    no

showing       that      he     intended     to       inflict       the     amount       of    loss

attributed         to   him,    so    the   district          court      erred     by    further

increasing his fraud offense level by twelve levels under USSG

§ 2B1.1(b)(1)(G)             (2012)     (requiring           that     offense       level       be

increased twelve levels if the loss exceeded $200,000). 2                                Bowling

also       asserts      that    he    should     not        have    been     assigned         three

       2
       Bowling also argues that these enhancements violate the
Sixth Amendment because he did not admit to their factual bases,
nor were such facts proven to a jury.    We reject this argument
because there is no indication that the district court treated
the Guidelines as mandatory, and Bowling’s sentence is within
the statutory maximums authorized for the respective offenses.
See United States v. Benkahla, 530 F.3d 300, 312 (4th Cir. 2008)
(“Sentencing judges may find facts relevant to determining a
Guidelines range by a preponderance of the evidence, so long as
that Guidelines sentence is treated as advisory and falls within
the statutory maximum authorized by the jury’s verdict.”).



                                                 4
criminal history points for his prior conviction for failure to

stop for a blue light because he did not effectively waive his

right to counsel for that conviction.                  Finally, Bowling contends

that the district court erred when it calculated the amount he

owes in restitution.            Bowling has also filed a motion to file a

pro se supplemental brief.            For the reasons that follow, we deny

his motion to file a pro se supplemental brief and affirm his

sentence.

               We review a sentence imposed by the district court

under    a     deferential      abuse-of-discretion           standard.       Gall     v.

United States, 552 U.S. 38, 46 (2007); United States v. Lynn,

592 F.3d 572, 578 (4th Cir. 2010) (abuse of discretion standard

of review applicable when defendant properly preserves a claim

of sentencing error in district court “[b]y drawing arguments

from [18 U.S.C.] § 3553 [(2012)] for a sentence different than

the one ultimately imposed”).                 In conducting this review, we

must    first     examine      the   sentence       for     significant     procedural

error,        including     “failing      to        calculate        (or    improperly

calculating) the Guidelines range, treating the Guidelines as

mandatory, failing to consider the § 3553(a) factors, selecting

a   sentence     based    on    clearly   erroneous         facts,    or    failing    to

adequately explain the chosen sentence[.]”                      Gall, 552 U.S. at

51.      In    reviewing       the   district       court’s    application     of     the

Guidelines,      we   review     findings      of    fact     for   clear   error     and

                                          5
questions of law de novo.                         United States v. Layton, 564 F.3d

330, 334 (4th Cir. 2009).

                 Bowling’s        arguments        to    the   contrary,     we    discern     no

error       in    the      district     court’s          Guidelines     range     calculation.

First,      we       reject      Bowling’s        argument     that    the   district       court

erred      when       it   increased        his    fraud     offense    level     six   levels,

pursuant         to     USSG     § 3A1.2(c)(1).              Under    that     provision,     an

offense level is to be increased six levels if, “in a manner

creating         a    substantial       risk        of    serious     bodily      injury,    the

defendant . . . knowing or having reasonable cause to believe

that    a    person        was    a   law    enforcement       officer,      assaulted      such

officer during the course of the offense or immediate flight

therefrom[.]”

                 According to Bowling, while this increase may have been

an appropriate increase to the offense level for his assault of

a   federal          officer      offense,        the     increase     was   inappropriately

applied to his fraud offense grouping. 3                             Specifically, Bowling

asserts that “[h]ad the enhancement been properly applied under


       3
       Bowling does not assert that the six-level enhancement was
erroneously applied, only that it was included in the incorrect
offense grouping.   Bowling also does not assert that Counts 1,
2, and 9 were improperly grouped together in accordance with
USSG § 3D1.2(d) (2012) (“All counts involving substantially the
same harm shall be grouped together into a single Group . . .
[w]hen the offense level is determined largely on the basis of
the total amount of harm or loss[.]”).



                                                    6
the assault guidelines group, it would have given [him] a total

offense level of 27, subjecting him to a guidelines range of 100

to 125 months and greatly affecting his degree of exposure at

sentencing.”       For support, Bowling relies on United States v.

Kleinebreil, 966 F.2d 945, 954 (5th Cir. 1992) (holding that

“because the assault count was not grouped with the marijuana

counts,”    the    district     court      erred     in    increasing     the   offense

level for the marijuana convictions under USSG § 3A1.2, and also

increasing the assault count).

            Bowling’s       argument    is      meritless.         First,   unlike    in

Kleinebreil,      only    Bowling’s     fraud      grouping       offense   level    was

increased under this enhancement.                   Thus, there was no double-

counting.       In addition, at the time Bowling injured the officer

upon which the enhancement was based, Bowling was fleeing from

authorities       and     had   in    his       possession     the     identification

documents that formed the basis for Count 9.                         Accordingly, we

discern    no     error    in   the    PSR’s       application       of   the   § 3A1.2

enhancement to the fraud offense grouping.                         See USSG § 3A1.2

cmt. n.4(A) (recognizing that “[s]ubsection (c) may apply in

connection with a variety of offenses that are not by nature

targeted against official victims”).

            We    also     discern    no     error    in    the    district     court’s

decision    to      enhance     Bowling’s          offense     level      under     USSG

§ 2B1.1(b)(1)(G).         Under USSG § 2B1.1, “loss” is the greater of

                                            7
actual loss or intended loss.                      USSG § 2B1.1 cmt. n.3(A) (2012).

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” and

“includes      intended         pecuniary              harm     that     would       have        been

impossible       or    unlikely         to    occur[.]”                USSG    §     2B1.1       cmt.

n.3(A)(i)-(ii) (2012).

            In making “loss” calculations, the sentencing court is

instructed to hold the defendant “responsible for the amount of

loss   which      was        intended,        not       the     actual        loss    ultimately

sustained[.]”         United States v. Loayza, 107 F.3d 257, 266 (4th

Cir.   1997)     (refusing         to    apply          net     loss     theory      and       credit

payments made to victims of Ponzi scheme against amount of loss

intended by perpetrator).                Indeed, this court has held that the

“Guidelines permit courts to use intended loss in calculating a

defendant’s sentence, even if this exceeds the amount of loss

actually    possible,         or   likely          to    occur,    as     a    result      of     the

defendant’s conduct.”              United States v. Miller, 316 F.3d 495,

502 (4th Cir. 2003).

            In        this     case,         the        Government        established            that

Bowling’s crimes resulted in a total loss (actual and intended)

of   $356,981.44.            Although        Bowling          objected    that       he    did    not

intend to take all of the money for which the counterfeit checks

were written, and speculated that some of the checks may have

                                                   8
been    old        or    canceled,           Bowling          presented       no    evidence       to

contradict the Government’s evidence that at the time of his

arrest, Bowling was in possession of numerous checks totaling at

least   $200,000.              Accordingly,           we      conclude      that    the    district

court       did    not        err    in      applying          the    USSG     § 2B1.1(b)(1)(G)

enhancement to his offense.

              We also reject Bowling’s assertion that three criminal

history points were improperly attributed to him for his 2005

South Carolina conviction for failure to stop for a blue light.

Although Bowling asserts he did not have counsel at the time he

pled    guilty          to      that      offense,            and     did     not      “knowingly,

intelligently and unequivocally waive his right to counsel[,]” a

defendant          generally           may      not          collaterally          attack     prior

convictions         used      to    enhance      his         sentence.        United      States   v.

Bacon, 94 F.3d 158, 162 (4th Cir. 1996).

              To be sure, the Supreme Court held in Custis v. United

States, 511 U.S. 485, 487 (1994), that convictions obtained in

violation         of    the    right      to    counsel        fall   outside       this    general

rule.       But the defendant nonetheless bears the burden of proof

if he chooses to challenge a prior conviction, because “even

when    a    collateral             attack      on       a    final    conviction         rests    on

constitutional           grounds,         the        presumption         of    regularity         that

attaches to final judgments makes it appropriate to assign a

proof burden to the defendant.”                          Parke v. Raley, 506 U.S. 20, 31

                                                     9
(1992); see also United States v. Reyes-Solano, 543 F.3d 474,

478 (8th Cir. 2008) (holding that when defendant claims prior

convictions resulting in criminal history points were obtained

in   violation      of       right         to    counsel,      he    must   demonstrate       by     a

preponderance           of    the          evidence      that       prior    convictions       were

constitutionally invalid).

            Bowling’s conclusory assertions to the contrary, the

record establishes that at the time Bowling pled guilty to the

failure   to       stop      for       a    blue    light       offense,     the     state    court

engaged Bowling in a colloquy during which Bowling:                                      (1) was

offered counsel; (2) expressly declined counsel; (3) was sober;

(4) expressed a desire to plead guilty; and (5) knew he was

receiving      a    good          plea      deal.         In     fact,      during    his     self-

representation, Bowling was able to secure a plea deal of two

years   suspended            to    one      year    of    probation.          Given    Bowling’s

lucidity, experience with the criminal justice system at the

time of the prior conviction, and the fact that he was able to

secure for himself a good plea deal, it was not error for the

district court to reject Bowling’s argument that he should not

be assigned criminal history points for his prior conviction.

            Finally,              we       reject     Bowling’s          argument      that        the

district court abused its discretion when it ordered him to pay

$222,283.98        in     restitution             because      the    amount    was    allegedly

“speculative        and       was          not    proven       by    the    Government        by    a

                                                    10
preponderance        of     the      evidence.”           Under     the    Guidelines,      a

sentencing court “need only make a reasonable estimate of the

loss.”       USSG        § 2B1.1,      cmt.    n.3(C)      (2012).         In    fact,     the

Guidelines recognize that a “sentencing judge is in a unique

position to assess the evidence and estimate the loss based upon

that   evidence.”              Id.     “For    this       reason,    the    court’s       loss

determination is entitled to appropriate deference.”                            Id.

             Thus, we review a trial court’s restitution order for

abuse of discretion.              See United States v. Harvey, 532 F.3d 326,

339 (4th Cir. 2008).                 “A district court abuses its discretion

when   it    acts    arbitrarily         or    irrationally,        fails       to    consider

judicially        recognized         factors       constraining      its    exercise       of

discretion, relies on erroneous factual or legal premises, or

commits an error of law.”                See United States v. Grant, 715 F.3d

552, 557 (4th Cir. 2013) (internal quotation marks and citation

omitted).

             We     discern       no   abuse    of    discretion      by    the       district

court.      The district court attached the names of the individual

restitution payees and the amount owed to each, which totaled

$222,283.98,        as    an    addendum      to    the    amended    judgment.           This

amount was derived by attributing to Bowling $17,502.63, which

is one half of the hard loss associated with Count 1, and adding

$204,781.35, which is the loss tied to the account numbers used

by Bowling.        The Government offered at the first sentencing, and

                                               11
the case agent confirmed, that the $204,781.35 was derived from

taking      the    account    numbers       of     stolen       checks    in     Bowling’s

possession         and   checks     that     he     was     negotiating,         and    then

providing them to a Postal Inspection Service analyst who ran

the account numbers with the merchants and came up with the loss

amount.

              Although the Government offered to have the case agent

elaborate on the loss calculations, the district court did not

require      the    Government      to    present    the     agent’s      testimony      and

Bowling      presented       only        speculation       to     suggest        that   the

Government’s calculations were incorrect.                        Accordingly, Bowling

has not established that the district court relied on erroneous

factual      or    legal    premises,       or    committed       an     error    of    law,

warranting a vacatur of the restitution order.

              Based on the foregoing, we deny Bowling’s motion to

file    a    pro    se   supplemental       brief     and    affirm       his    192-month

sentence.         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




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