UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                        No. 95-5132

CUONG KIM TU,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Graham C. Mullen, District Judge.
(CR-94-59-MU)

Submitted: September 29, 1998

Decided: October 28, 1998

Before LUTTIG and WILLIAMS, Circuit Judges, and
BUTZNER, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Joseph F. Lyles, Milton Gordon Widenhouse, Charlotte, North Caro-
lina, for Appellant. Mark T. Calloway, United States Attorney, Robert
J. Conrad, Jr., Assistant United States Attorney, Charlotte, North Car-
olina, 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Unpublished opinions are not binding precedent in this circuit.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:

Following a guilty plea, Cuong Kim Tu was convicted on one
count of conspiracy to commit bank fraud, in violation of 18 U.S.C.
§ 371 (1994). The district court sentenced Tu to forty-one months in
prison. Tu appeals, contending that the district court improperly attri-
buted to him for sentencing purposes losses in excess of $200,000.
We find no clear error in the district court's determination; conse-
quently, we affirm.

Tu pled guilty to participating in a scheme to defraud banks
through the use of counterfeit checks. Specifically, participants in the
conspiracy created counterfeit checks using the names of corporate
accounts of the victim banks. These checks were made payable to par-
ticular coconspirators and were drawn on the victim banks' client
accounts. Operating out of Los Angeles, the conspiracy was com-
prised of "cells" that would travel throughout the United States.
Within the cell in which Tu was involved were three levels of co-
conspirators: managers, like Tu, who controlled airline tickets and
prepared the counterfeit documents; individuals who drove check-
passers to obtain false identification and to cash the counterfeit
checks; and check-passers who actually cashed the checks. The cell
made a January 1994 trip to Seattle netting $146,000, a March 1994
trip to Boston netting $73,000, and a subsequent March 1994 trip to
Charlotte from which evidence showed the conspiracy intended to net
$6232.

Although Tu only participated in the trip to Charlotte, evidence
was presented showing that in November 1993 Tu introduced Pha
Tan Tran to Tu's brother, who happened to be the ringleader of the
conspiracy, and that shortly thereafter, Tran became involved in the
conspiracy as a driver. Furthermore, when Tu was arrested at the air-
port in Charlotte, he was carrying the airline tickets for the other

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members of the conspiracy. Evidence also showed that Tu prepared
the false checks and handled the financial matters for the Charlotte
trip. The district court attributed to him for sentencing purposes losses
from all three trips, totaling over $200,000. On appeal, Tu contends
that only the amount of losses from the Charlotte trip should be attri-
buted to him, arguing that there is no evidence that he joined the con-
spiracy prior to that trip.

District courts may take "relevant conduct" into account in deter-
mining a defendant's sentence whether or not the defendant has been
convicted of the charges constituting the relevant conduct. See U.S.
Sentencing Guidelines Manual § 1B1.3 (1994); United States v.
Jones, 31 F.3d 1304, 1316 (4th Cir. 1994). Under guideline section
1B1.3(a)(1) and (a)(2), in offenses that may be grouped under guide-
line section 3D1.2(d), a defendant's relevant conduct includes all his
acts during the offense of conviction and those acts which were part
of the same course of conduct or common scheme or plan. Two or
more offenses are part of a common scheme or plan if they involve
common victims, accomplices, purposes, or similar modus operandi.
Two or more offenses are part of the same course of conduct if they
are part of a single episode, a spree, or an ongoing series of offenses.
Factors to consider are the similarity of the offenses, the time interval
between them and, possibly, the nature of the offenses. See U.S.S.G.
§ 1B1.3, comment. (n.9); see also United States v. Mullins, 971 F.2d
1138, 1144 (4th Cir. 1992) (court should consider similarity, regular-
ity, and temporal proximity of offenses). We review the district
court's factual determination that separate offenses are part of the
same course of conduct or a common scheme or plan under the
clearly erroneous standard. See Mullins, 971 F.2d at 1143.

Based on these criteria, we find that the district court did not
clearly err by attributing to Tu losses from the Boston and Seattle
trips. These trips were in close temporal proximity to the Charlotte
trip and involved many of the same co-conspirators under the direc-
tion of Tu's brother. Moreover, the modus operandi were identical.
Thus, there was sufficient evidence for the district court to consider
the losses from the Boston and Seattle trips as relevant conduct for
purposes of sentencing Tu.

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For these reasons, we affirm Tu's sentence.* We dispense with oral
argument because the facts and legal contentions are adequately pre-
sented in the materials before the court and argument would not aid
the decisional process.

AFFIRMED
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*The Government contends that, in his plea agreement, Tu waived his
right to a direct criminal appeal. However, the plea agreement addresses
only waiver of the right to challenge Tu's conviction or sentence in any
post-conviction proceeding. Consequently, we reject the Government's
contention.

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