                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 10-5336


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

JOHN KENT COLVIN,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Greenville. James C. Dever III,
District Judge. (4:09-cr-00072-D-1)


Submitted:   February 7, 2012              Decided:   February 24, 2012


Before SHEDD, DAVIS, and KEENAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Paul K. Sun, Jr., ELLIS & WINTERS, LLP, Raleigh, North Carolina,
for Appellant.     Thomas G. Walker, United States Attorney,
Jennifer P. May-Parker, Yvonne V. Watford-McKinney, Assistant
United States Attorneys, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             John Kent Colvin appeals his conviction by jury and

his subsequent 300-month sentence for mail fraud and conspiracy

to commit mail fraud.         After thoroughly examining the record and

the contentions of the parties, we affirm.

             First,    Colvin    attacks     his    conviction    on    the   ground

that certain of the trial court’s evidentiary rulings violated

his constitutional right to present a defense.                     As an initial

matter, we observe that “the crux of [Colvin’s] complaint is

that he was not allowed to present a particular defense. As

such, it is better framed as an evidentiary argument.”                        United

States v. Malloy, 568 F.3d 166, 177 (4th Cir. 2009).

             Still, “[w]hether rooted directly in the Due Process

Clause of the Fourteenth Amendment or in the Compulsory Process

or    Confrontation         Clauses     of    the     Sixth      Amendment,        the

Constitution        guarantees    criminal         defendants     ‘a    meaningful

opportunity to present a complete defense.’”                     Holmes v. South

Carolina, 547 U.S. 319, 324 (2006) (quoting Crane v. Kentucky,

476   U.S.   683,     690   (1986)).     Where      exclusion    of    evidence     is

“arbitrary” or “disproportionate” — that is, “important defense

evidence” is excluded without serving “any legitimate interests”

or in a manner that is “disproportionate to the ends that [the

rationale    for     exclusion    is]   asserted      to   promote”     —     it   may

violate a defendant’s constitutional rights.               Id. at 324, 326.

                                         2
             Nevertheless,          “a     defendant’s          right     to    present    a

defense is not absolute:                   criminal defendants do not have a

right   to    present        evidence      that    the        district   court,     in    its

discretion, deems irrelevant or immaterial.”                            United States v.

Prince-Oyibo, 320 F.3d 494, 501 (4th Cir. 2003).                                Thus, not

surprisingly,         “the     Constitution            permits       judges    to   exclude

evidence that is repetitive . . . , only marginally relevant or

poses an undue risk of harassment, prejudice, or confusion of

the issues.”         Holmes, 547 U.S. at 326-27 (internal alterations

omitted).     Of course, a district court’s evidentiary rulings are

reviewed only for abuse of discretion.                         United States v. Hill,

322 F.3d 301, 304 (4th Cir. 2003).                       And even then, “not every

[evidentiary]        error     amounts      to     a    constitutional         violation.”

United States v. Stever, 603 F.3d 747, 755 (9th Cir. 2010).

Instead, only the erroneous exclusion of evidence “important” to

the defense may violate the Constitution.                         Holmes, 547 U.S. at

324; Stever, 603 F.3d at 755.

             Here,      Colvin      expresses           his     disquietude      with     the

district court’s decision to exclude evidence pertaining to his

defense      theory     that       Scott     Hollenbeck,          Colvin’s      associate,

perpetrated the fraud on his own and then hired two lawyers to

blame   Colvin    for        the   fraud     and       bias    the    investors     against

Colvin.      Our review of the record convinces us, however, that

the   evidence    that       Colvin      sought    to     introduce      was   of   limited

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probative     value        and    that       his    constitutional         rights    were    not

violated      when     the       trial       court      exercised     its    discretion      to

exclude it.

              Colvin        next         challenges         his      sentence        as     both

procedurally         and     substantively              unreasonable.         We    review     a

sentence    for      reasonableness,               applying   an     abuse    of    discretion

standard.      Gall v. United States, 552 U.S. 38, 51 (2007).                                 We

first ensure that the district court committed no significant

procedural error, “such as failing to calculate (or improperly

calculating) 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.     If

no procedural error was committed, we review the sentence for

substantive reasonableness, taking into account the “totality of

the circumstances.”              Id.     Indeed, “an appellate court must defer

to the trial court and can reverse a sentence only if it is

unreasonable,        even        if    the    sentence      would     not    have    been    the

choice of the appellate court.”                          United States v. Evans, 526

F.3d   155,    160     (4th           Cir.   2008)       (emphasis    in     original).       A

sentence    that      falls        within      a       properly    calculated       Guidelines

range is presumptively reasonable.                        United States v. Allen, 491

F.3d 178, 193 (4th Cir. 2007).



                                                   4
               Colvin first asserts that the district court erred in

calculating       the     loss      involved     in    his     offense          under       U.S.

Sentencing Guidelines Manual (“USSG”) § 2B1.1(b)(1)(L) (2010),

which provides for a 22-level enhancement for a loss of more

than $20 million but less than $50 million.                               Of course, the

district       court’s    factual     determinations          with    respect          to   this

issue must stand, absent clear error.                      Elliott v. United States,

332 F.3d 753, 761 (4th Cir. 2003).                   And “only a preponderance of

the    evidence        need   support    these       factual    findings.”               United

States v. Miller, 316 F.3d 495, 503 (4th Cir. 2003).                                   Further,

“[t]he court need only make a reasonable estimate of the loss,”

and    its      loss     determination         “is     entitled           to     appropriate

deference,”       given       its   unparalleled       access        to    the     pertinent

facts.        USSG § 2B1.1, cmt. n.3(C).              We have thoroughly reviewed

each     of    Colvin’s       challenges    to       the     district          court’s      loss

calculation and are persuaded that the district court made a

reasonable estimate of the loss in this case.

               Nor do we find any error with the enhancements applied

to Colvin’s Guidelines calculations by the district court.                                  With

respect to the 2-level USSG § 2B1.1(b)(8)(C) (2010) enhancement

that Colvin received for the violation of Hollenbeck’s cease and

desist        order,    sufficient      evidence       existed        to       support      the

district court’s conclusion that Colvin knew that Hollenbeck’s

continued       hawking       of    investments       would    violate           the     order.

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Likewise,       the    district    court      possessed         sufficient          grounds    to

assess a 4-level leadership enhancement under USSG § 3B1.1(a)

(2010)    and      a   6-level    enhancement           under    USSG     § 2B1.1(b)(2)(C)

(2010).

               Finally,       although       Colvin       assails         the      substantive

reasonability          of   his   sentence          by     recounting           his    personal

characteristics         and    attacking          the    fraud     guidelines           in   USSG

§ 2B1.1      as    containing     overlapping            enhancements         and     amorphous

concepts of loss, see, e.g., United States v. Parris, 573 F.

Supp. 2d 744, 750-55 (E.D.N.Y. 2008), he cannot escape the fact

that    he    in   fact     received     a    downward          variant      sentence.        We

decline to hold that, on the circumstances of this case, the

sentence received by Colvin was substantively unreasonable.

               Accordingly, we affirm the judgment of the district

court.        We dispense with oral argument because the facts and

legal     contentions       are    adequately           presented       in      the    material

before       the   court    and   argument         will     not    aid       the      decisional

process.

                                                                                        AFFIRMED




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