                                    UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                      No. 17-4662


UNITED STATES OF AMERICA,

                    Plaintiff - Appellee,

             v.

JAMES C. STEWART, III,

                    Defendant - Appellant.



                                      No. 17-4685


UNITED STATES OF AMERICA,

                    Plaintiff - Appellee,

             v.

VINCENT ANTHONY GRANT,

                    Defendant - Appellant.



Appeals from the United States District Court for the District of Maryland, at Greenbelt.
George Jarrod Hazel, District Judge. (8:16-cr-00224-GJH-1; 8:16-cr-00225-GJH-2)


Submitted: January 31, 2019                                    Decided: March 29, 2019
Before AGEE and HARRIS, Circuit Judges, and HAMILTON, Senior Circuit Judge.


Affirmed by unpublished per curiam opinion.


Marc Gregory Hall, LAW OFFICES OF MARC G. HALL, P.C., Greenbelt, Maryland;
Landon M. White, LAW OFFICE OF LANDON M. WHITE, Baltimore, Maryland, for
Appellants. Kathryn A. Schmidt, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C.; Robert K. Hur, United States Attorney, Baltimore, Maryland, Bryan
E. Foreman, Assistant United States Attorney, Gustav W. Eyler, Special Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greenbelt,
Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




                                            2
PER CURIAM:

       James C. Stewart, III, and Vincent Anthony Grant appeal from their convictions

following a joint jury trial and their respective 66-month and 58-month sentences

imposed by the district court. On appeal, they argue that the district court erred by (1)

allowing certain testimony from several Government witnesses and (2) imposing certain

Sentencing Guidelines enhancements. For the reasons set forth below, we affirm.



                                           I.

       The jury convicted both Stewart and Grant of aggravated identity theft, in

violation of 18 U.S.C. § 1028A (2012). The jury also found Stewart guilty of conspiracy

to commit wire fraud, in violation of 18 U.S.C. § 1349 (2012), and wire fraud, in

violation of 18 U.S.C. § 1343 (2012), and Grant guilty of conspiracy to commit access

device fraud, in violation of 18 U.S.C. § 1029(b)(2) (2012). The charges stemmed from a

scheme in which several coconspirators used stolen credit and debit card account

numbers to purchase gift cards and merchandise for later resale. Because many of the

sales occurred in Army and Air Force Exchange Service (“AAFES”) stores on U.S.

military bases, the Defense Criminal Investigative Service (“DCIS”) conducted the

investigation.



                                           II.

       Stewart and Grant challenge testimony from several Government witnesses.

Typically, when defendants preserve their challenge, “[w]e review a district court’s

                                           3
evidentiary rulings for abuse of discretion.” United States v. Garcia, 855 F.3d 615, 621

(4th Cir. 2017). Under such circumstances, we will not reverse if we can “say with fair

assurance, after pondering all that happened without stripping the erroneous action from

the whole, that the judgment was not substantially swayed by the error.” United States v.

Cloud, 680 F.3d 396, 401 (4th Cir. 2012) (internal quotation marks omitted).

       We review unpreserved evidentiary challenges for plain error. United States v.

Galloway, 749 F.3d 238, 244 (4th Cir. 2014). To demonstrate plain error, Stewart and

Grant must show that (1) an error occurred, (2) the error was plain, and (3) the error

affected their substantial rights, ordinarily by demonstrating “a reasonable probability

that, but for the error, the outcome of the proceeding would have been different.”

Molina-Martinez v. United States, 136 S. Ct. 1338, 1343 (2016) (internal quotation marks

omitted). Even when defendants meet this standard, we will exercise our discretion to

correct the error only if it “seriously affects the fairness, integrity or public reputation of

judicial proceedings.” Id. (internal quotation marks omitted).

       Stewart and Grant first contend that the district court erred in permitting lay

witnesses Shonn Dyer-Jones and Theresa McDonald to provide expert testimony. Under

Fed. R. Evid. 702, a witness “qualified as an expert by knowledge, skill, experience,

training, or education” may give opinion and other testimony if: “the expert’s . . .

knowledge will help the trier of fact”; the testimony “is based on sufficient facts or data”

and “is the product of reliable principles and methods”; and “the expert has reliably

applied the principles and methods to the facts of the case.” Under Fed. R. Evid. 701, a

lay witness is permitted to “give opinion testimony that is rationally based on the

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witness’s perception . . . so long as it is not based on the same scientific, technical, or

other specialized knowledge covered by Rule 702.” Lord & Taylor, LLC v. White Flint,

L.P., 849 F.3d 567, 575 (4th Cir. 2017) (internal quotation marks omitted); see also Fed.

R. Evid. 701.

       Stewart and Grant challenge the district court’s decision to allow McDonald, a

loss prevention manager with AAFES, to testify about signatures on sales receipts

without being qualified as an expert. McDonald testified in general terms that she was

able to link certain fraudulent transactions together because of the similarity of the

signatures. Because this testimony was based on McDonald’s personal perception and

McDonald did not testify to the authenticity of the signatures, we find that the district

court did not abuse its discretion in allowing this testimony. 1

       Next, Stewart and Grant challenge several statements made by Dyer-Jones, a

computer crime investigator with DCIS, as improper expert testimony. Most of Dyer-

       1
         For the first time on appeal, Stewart and Grant argue that McDonald’s testimony
was more prejudicial than probative. Because they offer no argument to support this
contention, this argument is waived. See United States v. Bartko, 728 F.3d 327, 335 (4th
Cir. 2013). Stewart and Grant also argue for the first time on appeal that because
McDonald was not the employee who pulled the various internal logs, sales receipts, and
video footage from the investigation, her testimony violated the Confrontation Clause.
“Evidence implicates the Confrontation Clause only if it constitutes a testimonial
statement—that is, a statement made with a primary purpose of creating an out-of-court
substitute for trial testimony.” United States v. Reed, 780 F.3d 260, 269 (4th Cir. 2015)
(internal quotation marks omitted). “Business and public records are generally
admissible absent confrontation . . . because—having been created for the administration
of an entity’s affairs and not for the purpose of establishing or proving some fact at
trial—they are not testimonial.” Melendez-Diaz v. Massachusetts, 557 U.S. 305, 324
(2009). Because the challenged evidence was not testimonial in nature, the district court
did not err in allowing this testimony.


                                              5
Jones’ testimony was proper lay testimony drawn from her own perceptions developed

through conducting the investigation. To the extent that some of Dyer-Jones’ testimony

about Bitcoin may have been impermissibly based on specialized knowledge covered by

Rule 702, we conclude that any error in admitting this testimony was harmless because

the same information had been testified to earlier in the trial.       Thus, Dyer-Jones’

additional testimony to this same fact did not “substantially sway[]” the judgment so as to

warrant reversal. See Cloud, 680 F.3d at 401 (internal quotation marks omitted).

       Stewart and Grant also challenge Dyer-Jones’s testimony that they were

committing “credit card fraud,” contending that this was improper “ultimate issue”

testimony. Because this challenge was not raised in the district court, we review it for

plain error. Galloway, 749 F.3d at 244. “[O]pinion testimony that states a legal standard

or draws a legal conclusion by applying law to the facts is generally inadmissible.”

United States v. McIver, 470 F.3d 550, 562 (4th Cir. 2006). Plain error cannot be shown

here because, even assuming that the challenged testimony was inadmissible, Stewart and

Grant fail to establish “a reasonable probability that . . . the outcome of the proceeding

would have been different” without this testimony. Molina-Martinez, 136 S. Ct. at 1343.

       Stewart and Grant’s final evidentiary challenge is that the district court erred in

allowing the testimony of Quentin Stewart, a coconspirator, because it was the

“uncorroborated testimony” of an accomplice.        Contrary to this assertion, however,

Quentin Stewart’s testimony was corroborated by the testimony of numerous other

witnesses and other evidence presented by the Government at trial. The district court did

not err in admitting this testimony.

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                                           III.

       Stewart and Grant also challenge the district court’s imposition of certain

Sentencing Guidelines enhancements. We review criminal sentences for reasonableness

using an abuse of discretion standard. Gall v. United States, 552 U.S. 38, 51 (2007). In

assessing the district court’s Guidelines calculations, we “review the district court’s

factual findings for clear error and its legal conclusions de novo.” United States v.

McManus, 734 F.3d 315, 317 (4th Cir. 2013). We will find clear error only if “on the

entire evidence [we are] left with the definite and firm conviction that a mistake has been

committed.” United States v. Cox, 744 F.3d 305, 308 (4th Cir. 2014) (internal quotation

marks omitted).

       At Stewart’s sentencing hearing, the district court imposed a 12-level upward

adjustment, pursuant to U.S. Sentencing Guidelines Manual § 2B1.1(b)(1)(G) (2016),

because the loss amount reasonably foreseeable to Stewart exceeded $250,000. Stewart

challenges both the court’s loss calculation and its decision that the entire loss was

reasonably foreseeable to him. 2

       In a case involving jointly undertaken criminal activity, loss resulting from the

conduct of others is attributable to a defendant “so long as the conduct was in furtherance

       2
         Although both Stewart and Grant argued against the amounts of foreseeable loss
respectively attributed to them at sentencing, they only advance Stewart’s argument in
their consolidated opening brief. Because Grant has failed to develop his argument on
appeal, he has forfeited appellate review of this issue. See Bartko, 728 F.3d at 345 (issue
not raised in opening brief is waived).


                                            7
of, and reasonably foreseeable in connection with the criminal activity.” United States v.

Otuya, 720 F.3d 183, 191 (4th Cir. 2013) (internal quotation marks omitted). In deciding

that the entire loss—including transactions made by coconspirators—was reasonably

foreseeable to Stewart, the district court noted that Stewart was frequently present at

purchases made by the other coconspirators—including purchases made out-of-state—

and that he lived with coconspirators for part of the conspiracy. We find no clear error in

this determination.

       “[T]he determination of loss attributable to a fraud scheme is a factual issue for

resolution by the district court, and we review such a finding of fact only for clear error.”

United States v. Godwin, 272 F.3d 659, 671 (4th Cir. 2001). In calculating the loss

amount, the district court considered the established fraudulent purchases from AAFES

locations and extrapolated from this number to account for testimony indicating that (1)

the identified timeframe reflected only a “small portion” of the conspiracy period and (2)

only approximately half of the coconspirators’ fraudulent purchases were at AAFES

locations. See United States v. Pierce, 409 F.3d 228, 234 (4th Cir. 2005) (upholding

fraud-loss calculation made by extrapolating from monthly averages for time frame for

which records were available to estimate loss amount for total duration of conspiracy).

Because the court is only required to make a “reasonable estimate of the loss,” U.S.S.G.

§ 2B1.1 cmt. n.3(C), we find that the court’s determination was not clearly erroneous.

       Finally, Grant challenges the imposition of a two-level enhancement for

obstruction of justice pursuant to U.S.S.G. § 3C1.1. The court based this on evidence

that Grant affirmatively reached out to investigators and lied about his involvement in the

                                             8
scheme, asked a coconspirator to “take this charge” for him, and logged into his iCloud

account after a coconspirator instructed him to destroy evidence.

      The Sentencing Commission provides guidance in the application of

U.S.S.G. § 3C1.1, providing nonexhaustive lists to demonstrate the types of conduct

covered by and excluded from the enhancement. U.S.S.G. § 3C1.1 cmt. nn.4–5. Grant

argues that the district court’s reliance on two of the demonstrative examples of included

behavior amounts to clear error because the court failed to look to the on-point

application note stating that “false statements, not under oath, to law enforcement

officers” are generally not included in the enhancement. See U.S.S.G. § 3C1.1 cmt.

n.5(B). However, the court did not rely exclusively on Grant’s false unsworn statements

to investigators in applying the enhancement. And even assuming that the district court

erroneously applied this enhancement, the error would be harmless here, as the district

court stated on the record during the sentencing colloquy that its rationale for Grant’s

downward-variant sentence applied “[r]egardless of whether [it] had applied the actual

two-level enhancement” for obstruction of justice. See United States v. Savillon-Matute,

636 F.3d 119, 123 (4th Cir. 2011) (noting that harmless error may apply when district

court miscalculates advisory sentencing range but we “know[] that the district court

would have reached the same result even if it had decided the guidelines issue the other

way” (internal quotation marks omitted)).



                                            IV.



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      Accordingly, we affirm the district court’s judgments. 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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