UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                     No. 96-4775

MARK T. MORIARTY,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Graham C. Mullen, District Judge.
(CR-95-143-MU)

Submitted: May 27, 1997

Decided: June 17, 1997

Before HALL, MURNAGHAN, and NIEMEYER, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Daniel J. Clifton, Charlotte, North Carolina, for Appellant. Mark T.
Calloway, United States Attorney, Brian L. Whisler, Assistant United
States Attorney, Charlotte, North Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Mark T. Moriarty pled guilty to conspiracy to commit offenses
against the United States, 18 U.S.C. § 371 (1994), specifically, viola-
tions of 18 U.S.C. § 1028(a)(2) (West Supp. 1997) (Fraud in Connec-
tion with Identification Documents). He appeals his 18-month
sentence, contending that the district court erred in determining that
he was accountable for the full amount of the loss under USSG
§§ 1B1.3, 1F1.1.* We affirm.

Between October 1993 and April 1994, Melanie Wolny headed a
scheme to obtain merchandise using fraudulent "instant credit"
accounts which she established at local businesses. She used patient
identification information she had obtained while working at a hospi-
tal. Wolny purchased items such as television sets, camcorders, and
computer systems, and sold them to acquaintances for half the retail
price. The merchandise was picked up at the store and delivered to
her customers by several people, including Mark Moriarty.

In calculating Moriarty's offense level, the probation officer added
a 5-level enhancement under USSG § 2F1.1(b)(1)(F) to account for
the full amount of loss, which was $62,623.76, because the govern-
ment agent had informed her that all the participants had full knowl-
edge of the extent of the others' involvement. Moriarty objected that
he was not accountable for the full amount of loss because his
involvement was minimal and he had received little compensation.

At sentencing, Moriarty shifted ground slightly, testifying that
when he began buying items from Wolny and delivering items for
her, he did not realize she was engaged in anything illegal. He said
that after about six months he and the others involved realized that
Wolny was committing some kind of fraud, but that they continued
assisting her because they believed they would not be in much trouble
even if they were caught. His testimony was contradicted by state-
ments he had previously given to the case agent, in which he admitted
_________________________________________________________________
*United States Sentencing Commission, Guidelines Manual (Nov.
1995).

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that he acted as a fence for the conspiracy from October 1993 to
March 1994. However, the government did not introduce these state-
ments at sentencing or have the case agent testify about them.

Moriarty argued that he should not be held accountable for illegal
activity which occurred before he realized that he was involved in
anything illegal. However, the district court decided that, "at a point
earlier than [Moriarty] now maintains . . . he was aware of the extent
and nature of the conspiracy and that he has likewise ratified the prior
acts and is chargeable with them." The court accordingly found him
responsible for the entire amount of loss and made the recommended
5-level enhancement.

The commentary to guideline section 1B1.3 provides:

          In order to determine the defendant's accountability for the
          conduct of others under subsection 1B1.3(a)(1)(B), the court
          must first determine the scope of the criminal activity the
          particular defendant agreed to jointly undertake (i.e., the
          scope of the specific conduct and objectives embraced by
          the defendant's agreement). The conduct of others that was
          both in furtherance of, and reasonably foreseeable in con-
          nection with, the criminal activity jointly undertaken by the
          defendant is relevant conduct under this provision.

          ....

          A defendant's relevant conduct does not include the conduct
          of members of a conspiracy prior to the defendant joining
          the conspiracy, even if the defendant knows of that conduct
          (e.g., in the case of a defendant who joins an ongoing drug
          distribution conspiracy knowing that it had been selling two
          kilograms of cocaine per week, the cocaine sold prior to the
          defendant joining the conspiracy is not included as relevant
          conduct in determining the defendant's offense level). The
          Commission does not foreclose the possibility that there
          may be some unusual set of circumstances in which the
          exclusion of prior conduct does not adequately reflect the
          defendant's culpability; in such a case, an upward departure
          may be warranted.

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USSG § 1B1.3, comment. (n.2).

This paragraph was added to the guideline by amendment 503,
effective November 1, 1994, to clarify the defendant's accountability
for conduct of co-conspirators prior to his joining the conspiracy. The
amendment specifically approves the rule followed in the cases which
Moriarty relies on in his appeal brief. See United States v. Carreon,
11 F.3d 1225, 1235 (5th Cir. 1994); United States v. Petty, 982 F.2d
1374, 1377 (9th Cir. 1993); United States v. O'Campo, 973 F.2d
1015, 1026 (1st Cir. 1992) (prior conduct cannot be relevant conduct);
see also United States v. James, 998 F.2d 74, 83 (2d Cir. 1993) (prior
conduct cannot be reasonably foreseeable). Also approved in the
amendment were two decisions which take a slightly different view.
In United States v. Edwards, 945 F.2d 1387, 1393 (7th Cir. 1991), the
Seventh Circuit held that a latecomer to a conspiracy may be account-
able for past conduct of co-conspirators if that conduct is reasonably
foreseeable to him in the sense that it is somehow within the scope
of his agreement. The Seventh Circuit recognized that reasonable
foreseeability is "a forward-looking concept," but held that it might
encompass past conduct where a latecoming conspirator was linked
in some way to the earlier transactions. See id. at 1393-94, 1396. In
United States v. Miranda-Ortiz, 926 F.2d 172, 178 (2d Cir. 1991), the
Second Circuit held that prior conduct of co-conspirators may be rele-
vant conduct if it was known to the defendant when he joined the con-
spiracy or was reasonably foreseeable to him.

In this case, Moriarty acknowledged that he was active in the con-
spiracy from the beginning, and the district court rejected Moriarty's
assertion that he did not realize he was participating in criminal activ-
ity until very near the end of the conspiracy. The court found that, at
whatever point he did become a knowing participant, Moriarty then
adopted, as part of his agreement, all that had gone before. Even
assuming the truth of Moriarty's claim that he did not at first realize
what was going on, we find that he was properly held accountable for
the acts of Wolny and the others with whom he actively cooperated
throughout the life of the conspiracy. Therefore, the district court did
not misapply the guideline in finding that Moriarty's agreement
encompassed all the illegal conduct which had already occurred.
Because the district court correctly determined that Moriarty's rele-
vant conduct included the conduct of his co-conspirators, the court

                     4
did not clearly err in finding that he was accountable for the full
amount of the loss and enhancing his offense level accordingly.

The sentence is accordingly affirmed. We dispense with oral argu-
ment because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the deci-
sional process.

AFFIRMED

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