                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 14-3685
                         ___________________________

                              United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                                  James Van Doren

                       lllllllllllllllllllll Defendant - Appellant
                                       ____________

                     Appeal from United States District Court
                for the Western District of Arkansas - Fayetteville
                                 ____________

                              Submitted: June 11, 2015
                              Filed: September 3, 2015
                                   ____________

Before GRUENDER, BEAM, and BENTON, Circuit Judges.
                          ____________

BEAM, Circuit Judge.

       James Van Doren appeals his conviction and sentence as well as the district
court's1 denial of his motion to withdraw his plea; Van Doren also appeals the denial
of his motion for reconsideration of this motion to withdraw; the district court's

      1
      The Honorable P.K. Holmes, III, Chief Judge, United States District Court for
the Western District of Arkansas.
refusal to vacate the money judgment for $22,000; and the district court's order
applying Van Doren's $25,000 cash bond toward payment of a fine, special
assessment, and satisfaction of the money judgment.2 For the reasons stated herein,
we affirm.

I.    BACKGROUND

       In 2013, a grand jury charged James Van Doren and two codefendants in a
multicount indictment containing various counts of bankruptcy fraud, money
laundering, wire fraud, and similar charges, all related to financial dealings between
the three men charged. The twenty-seven-count, third superseding indictment
specifically named Van Doren in seven counts, and he ultimately pled guilty to one
count, count 24, which charged Van Doren with money laundering by engaging in
monetary transactions in property derived from specified unlawful activity in
violation of 18 U.S.C. § 1957.

       As relevant to this matter, and in general terms, the third superseding
indictment contained allegations of an elaborate scheme by Brandon Barber, Van
Doren, and Barber's attorney K. Vaughn Knight to defraud Barber's creditors by
concealing income, assets, and funds from them in order to allow Barber to use those
funds for his benefit, including for his personal expenses. The dealings between the
men generally stemmed from Barber's extensive real estate development,
construction, and sales, and the various businesses created to handle Barber's business
ventures. The resulting bankruptcy fraud, wire fraud, and money laundering
allegations, along with the related conspiracy charges, stem from these many dealings


      2
       Van Doren's notice of appeal includes the latter two orders but he makes no
reference to them in his briefing and argument on appeal and thus we do not address
them here. See Griffith v. City of Des Moines, 387 F.3d 733, 739 (8th Cir. 2004)
(arguments not briefed are considered abandoned on appeal).

                                         -2-
with Barber. Noted previously, Van Doren pled guilty to count 24, which specifically
alleged:

      On or about the 29th day of October, 2008, in the Western District of
      Arkansas, Fayetteville Division and elsewhere, the defendants, Brandon
      Lynn Barber and James Van Doren, aided and abetted by each other and
      others known and unknown to the grand jury, did knowingly engage in
      a monetary transaction through a financial institution, affecting
      interstate commerce, in criminally derived property of a value greater
      than $10,000, that is, by causing $22,000 to be transferred from a
      Citibank Account in New York in the name of James Van Doren to a
      First Security Bank account in Fayetteville, Arkansas in the name of the
      Barber Group, an entity owned by Barber, such proceeds having
      derived from a specified unlawful activity, that is wire fraud, in violation
      of 18 U.S.C. § 1343. All in violation of 18 U.S.C. §§ 1957 and 2.

Particular transfers of money between Barber and Van Doren formed the basis for
Van Doren's guilty plea and the district court's loss calculations at sentencing. The
factual basis for the guilty plea states:

      On or about October 29, 2008, in the Western District of Arkansas, and
      elsewhere, James Van Doren, aided and abetted by Brandon Barber,
      engaged in a monetary transaction through a financial institution,
      affecting interstate commerce, in criminally derived property of a value
      greater than $10,000. Van Doren had agreed with Barber to conceal
      certain amounts of Barber's income and transactions from creditors. As
      part of this scheme and artifice to hide money from and thereby defraud
      his creditors, on or about September 29, 2008, Barber endorsed a check
      payable to him in the amount of $64,000 over to Van Doren. Van Doren
      deposited this check into his Citibank Account in New York. On or
      about October 29, 2008, Van Doren wired $22,000 of these funds from
      his Citibank account in New York, to an account at First Security Bank
      in Fayetteville, Arkansas, in the name of The Barber Group, controlled
      by Barber. Van Doren agreed and intended to help Barber conceal these
      funds and defraud Barber's creditors. The records and evidence would

                                          -3-
      further show that the specified unlawful activity for this transaction was
      wire fraud, specifically a wire transaction in furtherance of the scheme
      to defraud Barber's creditors of $64,000 by concealing these funds to
      make it appear that some of the funds belonged to Van Doren, when in
      fact, Van Doren knew and agreed that the funds would be used by
      Barber for his benefit, including his personal living expenses. The
      banks involved were FDIC insured and the use of the wires in some way
      or degree affected interstate commerce.

       Van Doren later moved to withdraw his plea, advancing that he was "compelled
by conscience to act with honesty and integrity . . . [and therefore could not] honor
a commitment to truthfulness and continue to affirm a legal position that is contrary
to the truth." He specifically clarified that his claim was not that the district court
committed any procedural error under the Federal Rules of Criminal Procedure during
its acceptance of his guilty plea, but rather, in his own words, his request to withdraw
his plea was "based solely on his factual innocence." The district court denied Van
Doren's motion to withdraw his plea as well as his motion for reconsideration of the
denial, holding that his claim of innocence was insufficient to overcome his sworn
testimony acknowledging his guilt and that there was a sufficient factual basis
supporting the charge. The district court sentenced Van Doren to fifteen months'
imprisonment followed by a two-year term of supervised release. Van Doren appeals
these rulings and the sentence imposed.

II.   DISCUSSION

      A.     Plea

       We review the denial of a motion to withdraw a guilty plea for an abuse of
discretion. United States v. Gamble, 327 F.3d 662, 663 (8th Cir. 2003). Relevant
here, under Federal Rule of Criminal Procedure 11(d), a defendant may withdraw a
plea of guilty before the court imposes a sentence if "the defendant can show a fair


                                          -4-
and just reason for requesting the withdrawal." Fed. R. Crim. P. 11(d)(2)(B). "'While
the standard is liberal, the defendant has no automatic right to withdraw a plea.'"
United States v. Heid, 651 F.3d 850, 853 (8th Cir. 2011) (quoting United States v.
Ramirez-Hernandez, 449 F.3d 824, 826 (8th Cir. 2006)). Rule 11(b)(3) additionally
mandates that "[b]efore entering judgment on a guilty plea, the court must determine
that there is a factual basis for the plea." Fed. R. Crim. P. 11(b)(3). A defendant may
establish a fair and just reason for withdrawing his guilty plea by demonstrating that
his plea is not supported by an adequate factual basis. Heid, 651 F.3d at 855-56.

       Van Doren renews his contention that an inadequate factual basis existed for
his guilty plea and, thus, that a fair and just reason exists for withdrawing the plea.
The crux of Van Doren's claim is that because count 24 does not specify the facts
supporting the basis for the underlying wire fraud charge (the "specified unlawful
activity" supporting the money laundering charge), we look to count 23 of the
indictment, where allegations of conduct underlying a wire fraud charge are
explicated, to discern whether the conduct that Van Doren admitted to in his plea
constitutes the offense charged in count 24. In that vein, Van Doren argues that,
looking to count 23, the only specification in the indictment for the manner of
commission of the wire fraud was through "a scheme and artifice to defraud Barber's
creditors and for obtaining money and property by means of false and fraudulent
pretenses, representations and promises."3 Proceeding with that reasoning, Van

      3
       In part, and in addition to myriad facts supporting the charge, count 23
specifically alleges that during a specific time period, Van Doren

      did knowingly and intentionally combine, conspire, confederate and
      agree with . . . other[s] to devise and intend to devise a scheme and
      artifice to defraud Barber's creditors and for obtaining money and
      property by means of false and fraudulent pretenses, representations and
      promises thereby affecting financial institutions and other creditors and
      in furtherance of that scheme did transmit and cause to be transmitted
      certain wire communications in interstate commerce. All in violation of

                                         -5-
Doren argues that because no other means of committing the offense was charged,
and because the government relied upon a concealment theory to prove the wire fraud
here, it necessarily "failed to identify a single alleged falsity, fraudulent pretense,
misrepresentation or promise" committed by Van Doren and thus fell short of proving
the requisite wire fraud supporting the money laundering charge. Van Doren
maintains that he was engaging in routine banking transactions and that the entire
transaction was completely truthful at all times–that he "misrepresented nothing."
Accordingly, Van Doren claims there was no factual basis to support the guilty plea
in count 24.

       We agree with Van Doren that the determinative issue in this matter is whether
the factual basis supporting the plea suffices to establish the offense charged in the
indictment as required, but our agreement ends there. See United States v. Cheney,
571 F.3d 764, 769 (8th Cir. 2009) (describing when a guilty plea is supported by a
sufficient factual basis). The factual basis of Van Doren's plea suffices to establish
the offense charged.4 Based on the factual basis of the plea, Van Doren committed


      18 U.S.C. §§ 1349 and 1343.

That specific language of count 23 tracks the language of § 1343 "Fraud by wire,
radio, or television," which provides that "[w]hoever, having devised or intending to
devise any scheme or artifice to defraud, or for obtaining money or property by means
of false or fraudulent pretenses, representations, or promises" transmits by wire, any
writing, sign, signal, picture or sound for the purpose of executing the fraudulent
scheme, shall be fined or imprisoned not more than 20 years, or both. 18 U.S.C. §
1343.
      4
        As an aside, even were we to indulge Van Doren's argument that there is no
allegation of concealment in count 23, he fails in that pursuit. Count 23 first
incorporates paragraphs 29-37 of the indictment, which paragraphs discuss the
transactions underlying the wire fraud charge and allege, among other claims of
concealment, that the transactions were completed in order to benefit Barber, "thereby
concealing the money from creditors and placing it beyond the reach of his creditors."

                                         -6-
wire fraud as charged. The plea agreement states that Barber transferred $64,000 to
Van Doren pursuant to an agreement between them to conceal the funds from
Barber's creditors so that the funds could later be directed back to Barber for his
personal use.

      [T]he Supreme Court has placed some outside limits on what constitutes
      a scheme to defraud under sections 1341, 1343, and 1344, by finding
      that these statutes must be interpreted with an eye toward the common-
      law understanding of fraud. . . . "At common law, fraud has not been
      limited to those situations where there is an affirmative
      misrepresentation or the violation of some independently-prescribed
      legal duty . . . . Rather, even in the absence of a fiduciary, statutory, or
      other independent legal duty to disclose material information, common-
      law fraud includes acts taken to conceal, create a false impression,
      mislead, or otherwise deceive in order to prevent the other party from
      acquiring material information."

United States v. Steffen, 687 F.3d 1104, 1113 (8th Cir. 2012) (third alteration in
original), (quoting United States v. Colton, 231 F.3d 890, 898-99 (4th Cir. 2000)).
Simply, wire fraud under § 1343 can be established by a fraudulent scheme involving
concealment. Pasquantino v. United States, 544 U.S. 349, 356 (2005) ("[F]raud at
common law included a scheme to deprive a victim of his entitlement to money. For
instance, a debtor who concealed his assets when settling debts with his creditors




So even were we to hold that the government could not proceed with its concealment
theory unless count 23's recitation included language in addition to the language
tracking the statutory definition of wire fraud and the facts already contained therein,
the entirety of count 23 encompasses the theory nonetheless and the factual basis thus
established the crime.


                                          -7-
thereby committed common-law fraud.").5 Van Doren's plea is thus supported by an
adequate factual basis, as there is sufficient evidence upon which this court can
reasonably determine that Van Doren likely committed the offense as charged in
count 24. Cheney, 571 F.3d at 769 ("A guilty plea is supported by an adequate
factual basis when the record contains 'sufficient evidence at the time of the plea upon
which a court may reasonably determine that the defendant likely committed the
offense.'" (quoting United States v. Gamble, 327 F.3d 662, 664 (8th Cir. 2003))). The
district court did not abuse its discretion in denying Van Doren's motion to withdraw
his plea on this basis.6

       As to Van Doren's alleged actual innocence supporting a fair and just reason
for his requested withdrawal, we have thoroughly analyzed Van Doren's arguments
on appeal, carefully reviewed the record, and adopt the court's thorough and well-

      5
        In the instant analysis, Van Doren's insistence that he had no legal duty to
speak and, thus, cannot be criminally liable for participating in these "lawful"
transactions misses the mark. The claim of wire fraud in this matter is not premised
upon Van Doren's nondisclosure but rather on Van Doren's act of knowingly helping
Barber fraudulently conceal money from his creditors, among other similar
allegations, and their use of wires to do so. This collective conduct of fraudulent
concealment is the basis for the wire fraud charged. "'[T]he common law clearly
distinguishes between concealment and nondisclosure. The former is characterized
by deceptive acts or contrivances intended to hide information, mislead, avoid
suspicion, or prevent further inquiry into a material matter. The latter is characterized
by mere silence.'" Steffen, 687 F.3d at 1114 (quoting Colton, 231 F.3d at 898-99).
This indictment alleges acts to conceal.
      6
       Although we resolve Van Doren's challenge based on his admission to wire
fraud, we note that the government need not always prove that a defendant convicted
under 18 U.S.C. § 1957 participated in the specified unlawful conduct underlying a
money laundering charge. Instead, the government need only show that the defendant
knew that the money was criminally derived. 18 U.S.C. § 1957(c); United States v.
Hare, 49 F.3d 447, 452 (8th Cir. 1995); United States v. Lombardi, 5 F.3d 578, 570
n.3 (1st Cir. 1993).

                                          -8-
reasoned orders on this issue. 8th Cir. R. 47B. We therefore affirm the district court
in all respects on Van Doren's motions to withdraw his plea and reconsideration of
the same following the district court's initial denial.

      B.     Sentencing

       Finally, Van Doren claims the district court erroneously calculated the offense-
level enhancements and, as a result, improperly increased his Guidelines range. He
asserts the loss calculation should have been limited to the value of what he claims
to be the laundered funds–which he claims was $22,000 (i.e., the amount Van Doren
wired to The Barber Group after depositing $64,000 into his own bank account in
New York)–as opposed to the $244,000 amount utilized by the district court in
arriving at its sentence calculation. This would have resulted in a four-level increase
rather than the twelve-level increase imposed. The $244,000 figure utilized by the
district court in its sentence calculation is comprised of three financial transactions:
the $64,000 check that is the subject of the factual basis in Van Doren's plea; $30,000
cash delivered to Van Doren by Barber and deposited by Van Doren into a safe
deposit box owned by Van Doren; and $150,000 wired by Barber's attorney to a bank
account in New York in the name of Epsilon Investments, LLC, an entity allegedly
owned by Van Doren.

       "We review de novo the 'legal conclusions a district court reaches in order to
apply an enhancement for purposes of calculating an advisory guidelines range . . .
while the factual findings underpinning the enhancement are reviewed for clear
error.'" United States v. Battle, 774 F.3d 504, 516 (8th Cir. 2014) (alteration in
original) (quoting United States v. Butler, 594 F.3d 955, 965 (8th Cir. 2010), cert.
denied, 135 S. Ct. 1881 (2015)). "'[S]entencing judges are required to find sentence-
enhancing facts only by a preponderance of the evidence.'" United States v.




                                          -9-
Norwood, 774 F.3d 476, 479 (8th Cir. 2014) (per curiam) (quoting United States v.
Scott, 449 F.3d 1040, 1043 (8th Cir. 2006)).

       Section 2S1.1(a) of the Guidelines describes how a district court must calculate
the base offense level for the crime of money laundering. Section 2S1.1(a)(1)
provides that if, as here, the defendant committed the underlying offense, then the
offense level for the underlying offense serves as the base offense level for the money
laundering crime. U.S.S.G. § 2S1.1(a)(1). As discussed above, the facts in the plea
agreement establish that Van Doren aided and abetted Barber in committing the wire
fraud offense that served as the basis for the money laundering charge in count 24.
Accordingly, the district court appropriately calculated Van Doren's base offense
level using the guideline for the wire fraud offense. U.S.S.G. § 2B1.1. The district
court concluded that the base offense level for the wire fraud offense was six, and the
court added a mandatory one-level increase for a money laundering conviction under
18 U.S.C. § 1957. U.S.S.G. §§ 2B1.1(a)(2) and 2S1.1(b)(2)(A). Applying §
2B1.1(b)(1)(G), the district court additionally increased Van Doren's offense level by
twelve after concluding that all three transfers alleged in relation to Van Doren were
part of the same scheme to defraud that formed the basis for the wire fraud offense.
U.S.S.G. § 2B1.1(b)(1)(G) (proscribing that if a defendant is convicted of an offense
involving fraud or deceit and the loss exceeded $200,000, a twelve-level
enhancement applies).

        The district court committed no error in its sentencing calculations, correctly
calculated the losses associated with the wire fraud offense, and we find no clear error
in its factual findings underpinning the calculation. Section 1B1.3(a) provides that
unless otherwise specified, the specific offense characteristics (i.e., loss calculations)
shall be determined on the basis of all acts and omissions committed, aided, and
abetted, or willfully caused by the defendant, and in the case of a jointly undertaken
criminal activity, "all reasonably foreseeable acts and omissions of others in
furtherance of the jointly undertaken criminal activity." U.S.S.G. § 1B1.3(a)(1)(A),

                                          -10-
(B). Too, conduct comprising a dismissed count may be used as relevant conduct for
sentencing purposes. United States v. Andreano, 417 F.3d 967, 970 (8th Cir. 2005).
Evidence of the three transactions discussed here, and the district court's use of them
in its sentencing calculation, was foremost at issue during the sentencing hearing, and
all of these transactions formed the basis of the wire fraud and money laundering
charges against Van Doren. The district court did not clearly err in determining that
the three financial transactions were part of a single underlying scheme to defraud
and thus accurately calculated Van Doren's sentence according to the Guidelines.

III.   CONCLUSION

       For the reasons stated herein, we affirm.
                       ______________________________




                                         -11-
