                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 11-4132


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

ROBERT DEWAIN VENSON,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Greenbelt.      Alexander Williams, Jr., District
Judge. (8:09-cr-00088-AW-1)


Submitted:   April 30, 2012                   Decided:   June 6, 2012


Before AGEE, KEENAN, and DIAZ, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Mary E. Davis, DAVIS & DAVIS, Washington, D.C., for Appellant.
Rod J. Rosenstein, United States Attorney, Ann M. O’Brien,
Special Assistant United States Attorney, Robert K. Hur,
Assistant United States Attorney, Greenbelt, Maryland, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Robert Dewain Venson was convicted by a jury of all 26

counts of an indictment charging him with mail and wire fraud,

18 U.S.C. §§ 1341, 1343 (2006) (16 counts), money laundering, 18

U.S.C. § 1956 (2006) (7 counts), and failure to file income tax

returns, 26 U.S.C. § 7203 (2006) (3 counts).                      He was sentenced

to a total term of 120 months’ imprisonment and ordered to pay

$2,060,021.75 in restitution.             Venson timely appealed.

             Between September 2004 and March 2007, Venson engaged

in a scheme to defraud a number of mortgage lenders by arranging

for    the   sale    of   residential     properties       in   Maryland   and   the

District of Columbia, using inflated sales prices and “straw

purchasers”        who,   at   Venson’s   behest,    overstated        their   income

and/or creditworthiness.            Venson realized approximately $800,000

from his efforts.         However, he eventually defaulted on the loans

and    all   the    properties      (thirteen)   were      sold   at   foreclosure,

resulting in substantial losses for the lenders.                    The Government

presented testimony from each of the six straw buyers Venson

employed to purchase the properties, each of whom was paid a

“commission” (generally between $3000 and $7500) for agreeing to

pose   as    a   buyer    through    closing.       Each    testified     that   they

understood that Venson paid them for the use of their name and

credit to purchase homes, that they had no intention of living

in the homes, that they were not required to actually pay the

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mortgages obtained in their names, and had no involvement in the

sales of the properties other than to attend the closings.                   In

addition to the straw buyers, the Government also presented the

testimony of eight property sellers, each of whom testified that

they never met the straw buyers prior to closing, and that the

sales price shown on the settlement documents was higher than

the “true” price negotiated with Venson, but that none of them

received the differential.        Rather, the money was received by

Venson.

            Rasheeda Canty, a loan officer for various mortgage

brokers between 2004 and 2005, testified that Venson would send

straw buyers to her in order to obtain financing.                  According to

Canty,    she   and   Venson   referred    to     such    buyers    as   “credit

partners” and, together, they would falsify loan applications in

order to qualify the buyers.

            At sentencing, the district court determined that the

aggregate net loss amount attributable to Venson’s conduct was

$2,060,021.76, by subtracting from the original loan amount the

price for which the property was sold after foreclosure and any

payments made on the mortgages prior to foreclosure.                 Based   on

a total offense level of 31 and a criminal history category III,

Venson’s    advisory     Guidelines       range     was     135-168      months’

imprisonment.     However, the district court departed downward and

imposed a sentence of 120 months.

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              Venson       appeals,    challenging     the   sufficiency       of    the

evidence,     the     restitution      order,   and    his   sentence.         For   the

reasons that follow, we affirm.

              When    a    defendant      challenges   the   sufficiency       of    the

evidence supporting the jury’s guilty verdict, this court views

the    evidence      and    all   reasonable    inferences        in   favor   of    the

Government and will uphold the jury’s verdict if it is supported

by substantial evidence.               United States v. Cameron, 573 F.3d

179, 183 (4th Cir. 2009).               “[S]ubstantial evidence is evidence

that a reasonable finder of fact could accept as adequate and

sufficient to support a conclusion of a defendant’s guilt beyond

a reasonable doubt.”              Id. (internal quotation marks omitted).

In reviewing for substantial evidence, this court will not weigh

evidence      or     review     witness    credibility.        United     States      v.

Wilson, 118 F.3d 228, 234 (4th Cir. 1997).                        Rather, it is the

role of the jury to judge the credibility of witnesses, resolve

conflicts in testimony, and weigh the evidence.                          Id.; United

States v. Manbeck, 744 F.2d 360, 392 (4th Cir. 1984).                        Appellate

reversal on grounds of insufficient evidence “will be confined

to    cases   where       the   prosecution’s    failure     is    clear.”      United

States v. Green, 599 F.3d 360, 367 (4th Cir. 2010) (internal

quotation marks omitted).

              Mail fraud under § 1341 and wire fraud under § 1343

have two essential elements: (1) the existence of a scheme to

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defraud and (2) the use of the mails or wire communication in

furtherance of the scheme.             See United States v. Godwin, 272

F.3d 659, 666 (4th Cir. 2001); United States v. ReBrook, 58 F.3d

961, 966 (4th Cir. 1995).             Venson argues that the Government

failed to prove the first element in that it did not show that

he had the requisite fraudulent intent because he acted in good

faith,    with   the    intention    of   repaying          the    loans.    However,

intent to repay is irrelevant.                See United States v. Curry, 461

F.3d 452, 458 (4th Cir. 2006) (“The intent to repay eventually

is     irrelevant      to   the     question      of        guilt    for    fraud.”).

Venson also claims that the bank/victims failed to review the

loan documentation and, therefore, subjected themselves to the

risk    of   fraudulently-issued       loans.          In    order    to    prove   the

existence of a scheme to defraud, the Government had to prove

that Venson “acted with the specific intent to defraud, which

may be inferred from the totality of the circumstances and need

not be proven by direct evidence.”               Godwin, 272 F.3d at 666.             A

scheme to defraud includes “an assertion of a material falsehood

with the intent to deceive or active concealment of a material

fact with the intent to deceive.”               United States v. Pasquantino,

336 F.3d 321, 333 (4th Cir. 2003) (en banc).                      Here, the evidence

amply supported a finding that Venson had the requisite intent

to   deceive     the   lenders,     regardless      of      what    their   decisions

ultimately would have been.

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             Next,    Venson       argues         that       the     Government    failed     to

prove that he directed any of the witnesses to fabricate or

misrepresent       any    fact     in    the          loan    documents      or   to    inflate

property     values.           Venson    misstates             the    evidence.         As   the

district court noted at sentencing, “I sat through the trial,

and what I saw, Mr. Venson, was witness after witness coming in

and fingering you as the person and the mastermind behind this

scheme.”

             Venson      also     argues      that       the    misrepresentations           were

not material because the Government failed to present testimony

from any of the lenders that the loans would not have been made

had   they   known       the    truth.        However,         such     testimony      was   not

necessary to support Venson’s conviction.                             Venson’s reliance on

United States v. Sarihifard, 155 F.3d 301 (4th Cir. 1998) is

misplaced.     In that case, involving a conviction for making a

materially false statement to a government agency, 18 U.S.C.

§ 371 (2006), this court noted that, “[i]n determining whether a

statement     is     material,      it       is       irrelevant       whether    the    false

statement    actually          influenced      or       affected       the   decision-making

process. . . . Instead, a statement is material ‘if it has a

natural tendency to influence, or is capable of influencing, the

decision-making body to which is was addressed.’”                                 (citations

omitted).          Accordingly,         we     find          that     the    evidence     amply

supported Venson’s convictions.

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            Next,       Venson        raises    several         claims    challenging          the

district court’s restitution order.                       We review such orders for

abuse of discretion.              United States v. Llamas, 599 F.3d 381, 391

(4th Cir. 2010).             The Mandatory Victims Restitution Act of 1996

(“MVRA”) obligates a sentencing court to order full restitution

to identifiable victims of certain crimes, including crimes of

fraud or where an identifiable victim has suffered pecuniary

loss, without regard to the defendant’s economic circumstances.

18   U.S.C.      §§     3663A(c)(1)(A)(ii),           (B),       3664(f)(1)(A)           (2006).

Disputes    as     to       the   proper     amount    of       restitution      are      to    be

resolved      by      the    district       court    by     a    preponderance           of    the

evidence, and the government bears the burden of demonstrating

the “amount of the loss sustained by a victim as a result of the

offense.”     18 U.S.C. § 3664(e).

            Venson first argues that this court should vacate the

restitution ordered by the district court because it failed to

make specific findings as to the victims and amounts owed to

each.      However, at sentencing, the Government requested that

restitution        be       ordered    in     the    amount       shown     on     the        chart

submitted     as      exhibit      “Venson     2.”        The     chart    identifies          the

location of the property, the name of the lender, the gross loss

amounts,      payments         made,    and    net     loss       amounts     as     to        each

property.      At sentencing, the district court adopted the list of



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victims and loss amounts enumerated in Venson 2.                       We find that

this satisfies the requirements of § 3664(f)(1)(a).

             Next,     Venson   argues    that    successor        lenders    are    not

“victims” for restitution purposes.                The MVRA defines victim as

“any person directly harmed by the defendant’s criminal conduct

in the course of the scheme.”             18 U.S.C.A. § 3663A(a)(2) (2006).

Here,     the    bad   loans    created    by    Venson’s      scheme       were    sold

(sometimes more than once), with each subsequent purchaser of

the fraudulently obtained loan exposed to additional risk of

default.        Accordingly, the district court properly found that

the victims are the institutions that held the loans at the time

the properties went into default and were subsequently sold at a

loss.

             Venson     also    challenges      the   calculation      of    loss    for

purposes        of   restitution.        The    district     court     adopted      the

Government’s method for calculating loss: original loan amount

less amount realized upon sale and any payments made toward the

mortgage balance.           Venson claims that this method is incorrect

because    “the      only   possible     victims      in    this    case     were   the

original lenders.”           According to Venson, the original lenders

suffered little to no loss because they sold the notes to other

lenders.         Because    successor     lenders     are    victims       within   the

meaning of the MVRA, this claim lacks merit.                   Cf. United States

v. Wilkinson, 590 F.3d 259, 270 n.9 (4th Cir. 2010)                          (district

                                          8
court may reach a different loss amount under the MVRA than

under the Guidelines, USSG § 2B1.1(b)(1)).

            Venson next raises several challenges to his 120-month

sentence.         First,   Venson       claims     that     the     district     court

improperly enhanced his sentence based on facts found by the

judge and not a jury, citing United States v. Booker, 543 U.S.

220 (2005).       Venson’s claim is foreclosed by Circuit precedent.

See United States v. Perry, 560 F.3d 246, 258 (4th Cir. 2009)

(noting that, even after Booker, district courts may “continue

to   make   factual     findings      concerning     sentencing      factors     by    a

preponderance of the evidence”).

            Venson also argues that the district court erred in

applying    the    18   U.S.C.    §   3553(a)    (2006)     factors       in   that   it

“simply ignored the many mitigating facts and circumstances that

were presented by the defense.”                 This claim is belied by the

transcript    of    Venson’s     sentencing      hearing     and    the    memorandum

opinion issued by the district court, both of which show that

the district court carefully considered the mitigating factors

identified by Venson.          In particular, the court agreed that the

bank/victims were also culpable and reduced Venson’s Guidelines

range on that basis.

            Finally,       Venson      asserts       that     his     sentence        is

disproportionate        when     compared     with    other       defendants     found

guilty of similar conduct.            We have observed that “by devising a

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recommended sentencing range for every type of misconduct and

every    level    of    criminal       history,    the    Guidelines       as   a    whole

embrace ‘the need to avoid unwarranted sentencing disparities

among defendants with similar records who have been found guilty

of similar conduct.’”.            United States v. Johnson, 445 F.3d 339,

343     (4th     Cir.    2006).         Indeed,     the        district      court    here

specifically indicated that it had considered this sentencing

factor:

       There were many others involved in this scheme who
       have received or will receive lesser sentences though
       the Court is aware that these other participants had
       different and arguably more minor roles.      Yet the
       Court has considered other sentences it has issued
       over the past several years for similar conduct and
       recognizes the need to attempt to avoid disparities in
       sentencing.

               Moreover, this court presumes that a sentence within a

properly-calculated Guidelines range is reasonable.                          See Rita v.

United States, 551 U.S. 338, 351 (2007).                       Venson’s sentence was

fifteen    months       below    the    bottom    of     the    advisory      Guidelines

range.         We find that he has failed to overcome the presumption

of reasonableness accorded his sentence.

               We therefore affirm Venson’s conviction and sentence.

We    dispense    with    oral    argument       because       the   facts    and    legal

contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.

                                                                                AFFIRMED


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