                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 10-5294


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

RAJENDRASINH BABUBAHAI MAKWANA,

                Defendant – Appellant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.     J. Frederick Motz, Senior District
Judge. (1:09-cr-00043-JFM-1)


Submitted:   August 24, 2011                 Decided:   August 31, 2011


Before GREGORY, SHEDD, and DAVIS, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Marta K. Kahn, THE LAW OFFICE OF MARTA K. KAHN, LLC, Baltimore,
Maryland, for Appellant.      Rod J. Rosenstein, United States
Attorney,   P.  Michael   Cunningham,  Assistant   United States
Attorney, Anthony V. Teelucksingh, Special Assistant United
States Attorney, Baltimore, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Rajendrasinh Babubahai Makwana appeals his conviction

after    a   jury     trial    for   causing     and    attempting       to    cause   the

transmission of a code to a protected computer, in violation of

18     U.S.C.      § 1030(a)(5)(A)(i),      (B)(i),          (c)(4)(A)      (2006),    and

forty-one-month prison sentence.               On appeal, Makwana argues that

the district court erred in refusing to instruct the jury on

reasonable doubt and erred in the calculation of his Guidelines

sentencing range.        We affirm.

              We    review     the    district    court’s       refusal       to   give    a

party’s      requested       jury    instruction       for    abuse    of     discretion.

United States v. Passaro, 577 F.3d 207, 221 (4th Cir. 2009),

cert. denied, 130 S. Ct. 1551 (2010).                    Makwana argues that the

district court erred when it did not instruct the jury on the

definition of the term “reasonable doubt” after defense counsel

requested that it do so.               We have “consistently and vigorously

condemned the attempts of [district] courts to define reasonable

doubt,” unless such an instruction is requested by the jury.

United States v. Reives, 15 F.3d 42, 45 (4th Cir. 1994).                                  In

this case, the jury did not request a definition of the term

“reasonable doubt.”            Although Makwana requests that we overrule

this precedent, we decline the invitation.                          United States v.

Rivers, 595 F.3d 558, 564 n.3 (4th Cir. 2010) (“[A] panel of

this     court      cannot    overrule,    explicitly          or     implicitly,      the

                                           2
precedent set by a prior panel of this court.                     Only the Supreme

Court or this court sitting en banc can do that.” (internal

quotation marks omitted)).            We therefore conclude that the court

did   not   err    in    refusing     to    give      Makwana’s    requested      jury

instruction.

            Makwana also challenges his forty-one-month sentence,

arguing that the district court erred in its calculation of the

Guidelines     range    by:     (1)   applying        the   two-level    enhancement

under       U.S.        Sentencing         Guidelines           Manual         (“USSG”)

§ 2B1.1(b)(9)(C) (2010) for his use of sophisticated means and

(2)     applying        the      four-level          enhancement        under     USSG

§ 2B1.1(b)(14)(B)(i)            because        his      offense      substantially

jeopardized the safety and soundness of a financial institution.

We    review   Makwana’s        sentence       for     reasonableness      “under      a

deferential       abuse-of-discretion”             standard.      Gall    v.    United

States, 552 U.S. 38, 41, 51 (2007).                   In conducting this review,

we ensure that the district court correctly calculated Makwana’s

Guidelines range.          Id. at 49, 51.            When reviewing the district

court’s application of the Guidelines, we review de novo the

application of the Guidelines to the facts.                       United States v.

Sosa-Carabantes, 561 F.3d 256, 259 (4th Cir. 2009).

            Under    the      Guidelines,      a    two-level   enhancement       to   a

defendant’s offense level is warranted if the offense involved

“sophisticated means.”           USSG § 2B1.1(b)(9)(C).            The enhancement

                                           3
applies      when        a    defendant         employs          “especially               complex        or

especially intricate offense conduct pertaining to the execution

or concealment of an offense.”                           USSG § 2B1.1, cmt. n.8(B).                        A

defendant’s       offense          of    conviction           may       involve       “sophisticated

means” even if not every aspect of his scheme was complex or

intricate.          United         States       v.       Edelmann,         458       F.3d    791,     816

(8th Cir. 2006).               The enhancement applies if the “defendant's

total   scheme       was       undoubtably           sophisticated.”                  Id.    (internal

quotation marks omitted); see United States v. Weiss, 630 F.3d

1263,   1279      (10th       Cir.      2010)    (“The        Guidelines          do       not   require

every     step      of       the     defendant’s           scheme         to     be     particularly

sophisticated;           rather,         as     made       clear         by      the       Guidelines’

commentary,       the        enhancement         applies            when       the     execution          or

concealment       of     a     scheme,        viewed       as       a    whole,       is    especially

complex      or   especially            intricate.”           (internal          quotation        marks

omitted)); see also United States v. Jackson, 346 F.3d 22, 25

(2d   Cir.    2003)          (concluding        that      a     credit        card     fraud      scheme

linking unelaborate steps in a coordinated way to exploit the

vulnerabilities of the banking system was “sophisticated”).

              Although         not      every    aspect         of       Makwana’s          scheme    was

complex    or     intricate,            we    easily      conclude         that,       viewed        as   a

whole, Makwana’s mode of access to the Fannie Mae server in

which he embedded malicious code, coupled with his efforts to

conceal the presence of the code and his connection to it, were

                                                     4
unambiguously       sophisticated.            Accordingly,          the       district       court

did not err in applying the two-level enhancement under USSG

§ 2B1.1(b)(9)(C).

            Makwana also argues that the district court erred in

applying       the           four-level             enhancement                under          USSG

§ 2B1.1(b)(14)(B)(i)              for    an         offense        that         substantially

jeopardized the safety and soundness of a financial institution.

Makwana asserts that Fannie Mae’s safety and soundness was not

jeopardized        because    neither         the    outcomes           described       in       the

commentary    to     the     Guideline    nor        any   outcomes           akin     to    those

described     in     the     commentary       occurred        as        a    result     of       his

transmission of the malicious script.

            Analysis         of      section         2B1.1(b)(14)(B)(i)                of        the

Guidelines    properly        begins     with        the     plain          language    of       the

Guideline itself.            See United States v. Tigney, 367 F.3d 200,

203   (4th         Cir.      2004)      (rejecting            a     party’s            Guideline

interpretation because it conflicted with the Guideline’s plain

language).     This section of the Guidelines provides for a four-

level enhancement to a defendant’s offense level if his offense

“substantially        jeopardized        the        safety        and       soundness       of    a

financial     institution.”              USSG        § 2B1.1(b)(14)(B)(i).                       The

commentary to section 2B1.1 directs a district court to consider

a list of four “non-exhaustive” factors in determining whether

the safety and soundness of a financial institution has been

                                              5
substantially         jeopardized      by    the     defendant’s       offense     conduct.

USSG § 2B1.1, cmt. n.12(A)(i)-(iv).                     See United States v. Seay,

553 F.3d 732, 737 (4th Cir. 2009) (recognizing the Guidelines’

commentary is authoritative).                  The commentary does not require

the fulfillment of any one particular factor, some combination

of the factors, or all of the factors for the enhancement to

apply.    USSG § 2B1.1, cmt. n.12(A).

               The      Guideline           does      not      define        the      terms

“substantially”         and     “jeopardized.”           Application        of     standard

dictionary definitions of these terms leads us to conclude that

the     plain        language     of       USSG     § 2B1.1(b)(14)(B)(i)           clearly

indicates that a financial institution need not actually suffer

any of the outcomes specifically delineated in application note

12(A) or any actual harm to its safety or soundness for the

four-level       enhancement          to    apply.           Rather,     the      financial

institution’s         safety    and    soundness       need    only    be   placed       in   a

position of non-illusory exposure to risk.                      See United States v.

Zech,    553    F.3d     663,    666-67      (8th     Cir.    2009)     (“The     list    [in

application note 12(A)] does not define all of the circumstances

in which the enhancement is appropriate.                      Thus, Zech's principal

argument,       that    the     [financial         institution]    did      not    actually

become insolvent, does not establish that the district court

erroneously          applied    the    substantial-jeopardy             enhancement.”);

United States v. Jackson, 524 F.3d 532, 548 (4th Cir. 2008)

                                              6
(construing an earlier version of the Guideline and affirming

its application even though one of the defendants ultimately

surrendered assets to reimburse company for losses to retirement

and health plans), vacated on other grounds by Jackson v. United

States, 129 S. Ct. 1307 (2009).

           Makwana’s     contention         that     Fannie        Mae   was     not

jeopardized because the malicious script did not execute lacks

merit.    The district court’s findings make clear that Makwana’s

offense conduct jeopardized Fannie Mae’s soundness by exposing

the entity to the non-illusory risk of losing all of the data

stored on its computer servers.            Although the malicious code was

discovered   and   removed    before   the    date    it     was    programmed    to

execute, it was not necessary to the application of Makwana’s

enhancement that the data on the servers be actually deleted.

Consequently, we affirm the district court’s imposition of the

four-level enhancement under USSG § 2B1.1(b)(14)(B)(i). *

           Accordingly, we affirm the district court’s judgment.

We   dispense   with   oral   argument      because    the    facts      and   legal

      *
       Makwana also suggests that, even if the malicious script
had executed, the outcome forecast by the Government—namely,
that Fannie Mae’s business activity would have been halted for
at least one day at a loss of 47.7 million dollars in revenue—
does not qualify as conduct that would have substantially
jeopardized Fannie Mae’s safety and soundness.   We reject this
argument   because  the  district  court  did  not   adopt  the
Government’s position in this regard as one of its findings of
fact.



                                       7
contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.

                                                           AFFIRMED




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