                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 08-5178


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          and

ARTHUR ANDERSEN, LLP; AOL, Inc.

                Parties-in-Interest,

          v.

CHARLES E. JOHNSON, JR.,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.   Liam O’Grady, District
Judge. (1:05-cr-00012-LO-2)


Submitted:   May 27, 2010                 Decided:   July 12, 2010


Before WILKINSON, GREGORY, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Mark H. Allenbaugh, ALLENBAUGH SAMINI GHOSHEH, LLP, Irvine,
California, for Appellant.      Dana J. Boente, United States
Attorney, Timothy D. Belevetz, Charles F. Connolly, Assistant
United States Attorneys, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

               After a bench trial, Charles E. Johnson was convicted

of conspiracy to commit securities fraud, in violation of 18

U.S.C. § 371 (2006), securities fraud, in violation of 15 U.S.C.

§§ 78j(b), 78ff (2006); 17 C.F.R. § 240.10b-5; 18 U.S.C. § 2

(2006), tampering with a witness, in violation of 18 U.S.C.A.

§ 1512(b)(3) (West 2000 & Supp. 2010), and obstruction of an

official proceeding, in violation of 18 U.S.C.A. § 1512(c)(2).

He was sentenced to 108 months’ imprisonment and ordered to pay

$9.7    million    in     restitution,    of    which    $6.7   million       he    was

jointly and severably liable.            We affirm.

               Johnson’s    argument     that    the    venue   in    the     Eastern

District of Virginia for Count Three was improper was previously

considered and rejected by this court.                   See United States v.

Johnson, 510 F.3d 521 (4th Cir. 2007).                  It is well-settled that

this panel cannot overrule a prior decision, only an en banc

court    may    overrule     a   prior   panel    decision.          See    Jones    v.

Angelone, 90 F.3d 900, 905 (4th Cir. 1996).

               We reject Johnson’s sentencing arguments.                   This court

reviews       Johnson’s    sentence      “under    a     deferential        abuse-of-

discretion standard.”            Gall v. United States, 552 U.S. 38, 41

(2007).       In conducting this review, the court “must first ensure

that    the    district    court   committed      no    significant        procedural

error, such as failing to calculate (or improperly calculating)

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the   Guidelines      range,      treating         the    Guidelines         as     mandatory,

failing to consider the [18 U.S.C.] § 3553(a) [(2006)] factors,

selecting     a    sentence       based    on       clearly        erroneous        facts,    or

failing to adequately explain the chosen sentence.”                               Id. at 51.

“When    rendering    a    sentence,       the      district         court    must    make     an

individualized       assessment         based        on      the      facts       presented,”

applying     the     “relevant        § 3553(a)          factors       to     the    specific

circumstances of the case before it.”                       United States v. Carter,

564 F.3d 325, 328 (4th Cir. 2009) (internal quotation marks and

emphasis omitted).         The court must also “state in open court the

particular       reasons    supporting         its       chosen      sentence”       and     “set

forth enough to satisfy” this court that it has “considered the

parties’ arguments and has a reasoned basis for exercising [its]

own legal decisionmaking authority.”                        Id. (internal quotation

marks    omitted).         Once    this        court      has     determined         that    the

sentence    is     free    of   procedural          error,      it    must    consider       the

substantive       reasonableness          of       the    sentence,         “tak[ing]        into

account the totality of the circumstances.”                            Gall, 552 U.S. at

51.     If the sentence is within the appropriate Guidelines range,

this court applies a presumption on appeal that the sentence is

reasonable.        See United States v. Go, 517 F.3d 216, 218 (4th

Cir. 2008).

            In     assessing      a    challenge          to    the     district       court’s

application of the Sentencing Guidelines, this court reviews a

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district court’s factual findings for clear error and its legal

conclusions de novo.             United States v. Sosa-Carabantes, 561 F.3d

256, 259 (4th Cir. 2009).                A sentencing court is to make factual

findings by a preponderance of the evidence.                       United States v.

Jeffers, 570 F.3d 557, 570 (4th Cir.), cert. denied, 130 S. Ct.

645 (2009).           These factual findings will be reversed only if

this court is “left with the definite and firm conviction that a

mistake has been committed.”                United States v. Harvey, 532 F.3d

326, 337 (4th Cir. 2008) (internal quotation marks omitted).

                  Johnson’s    argument     that      U.S.    Sentencing      Guidelines

Manual § 2F1.1 (2000) is irrational and unreasonable is without

merit. *     Furthermore, Johnson did not raise this issue before the

district      court      and    review    is   for    plain    error.      See    United

States v. Lynn, 592 F.3d 572, 576-77 (4th Cir. 2010).                            Johnson

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

affected his substantial rights.                   United States v. Massenburg,

564 F.3d 337, 342-43 (4th Cir. 2009).                        Even if he makes that

showing, this Court will consider the error “only if seriously

affects       the     fairness,     integrity         and    public     reputation     of

judicial proceedings.”              United States v. Olano, 507 U.S. 725,

731 (1993).          We find no error.


       *
       USSG § 2F1.1 was deleted in 2001 and replaced by USSG
§ 2B1.1.



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            We    further    find      no    error       in     the    district      court’s

finding that the amount of loss for sentencing purposes was $9.7

million.         Whether    the     district          court     used    the    clear       and

convincing       standard    of     proof        or     the   preponderance          of    the

evidence standard of proof in arriving at the amount of loss and

the other enhancement, the evidence supporting these findings

was clearly sufficient.           As a result of Johnson receiving these

funds, either for his own use or to pass onto a third party,

PurchasePro, Incorporated, suffered substantial pecuniary harm.

            We find no merit to Johnson’s argument that the Fifth

Amendment    requires        that      the        facts       supporting       sentencing

enhancements       be   found     by    the           court     using    the    beyond-a-

reasonable-doubt standard.              See United States v. Grubbs, 585

F.3d 793 (4th Cir. 2009), cert. denied, __ S. Ct. __ (2010) (No.

09-9104)     (rejecting       Appellant’s              argument       that     the        Fifth

Amendment requires a higher standard of proof at sentencing);

see also United States v. Villareal-Amarillas, 562 F.3d 892, 897

(8th Cir. 2009); United States v. Jones, 489 F.3d 243, 250 (6th

Cir. 2007); United States v. Grier, 475 F.3d 556, 561 (3d Cir.

2007);   United     States   v.     White,        472    F.3d    458,    464   (7th        Cir.

2007).

            Finally, we find no procedural or substantive error

with Johnson’s sentence.            The district court clearly considered

Johnson’s arguments for a below-Guidelines sentence and balanced

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his    claims    against   his   criminal   conduct,      his   attempts   to

obstruct justice and the need to deter other leaders of publicly

held corporations from engaging in similar conduct.

            Accordingly, we affirm the convictions 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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