United States of America v. Booker, 543 U.S. 220 2005 , finding that the enhancement under U.S. Sentencing…

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-5222
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DAVID GREGORY MUELLER,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. Samuel G. Wilson, District
Judge. (CR-03-25-SGW)
Submitted: October 20, 2006 Decided: November 8, 2006
Before WILKINSON, MOTZ, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
William H. Cleaveland, WILLIAM H. CLEAVELAND, P.L.C., Roanoke,
Virginia, for Appellant. John L. Brownlee, United States Attorney,
Jean B. Hudson, Assistant United States Attorney, Charlottesville,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).

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PER CURIAM:
Along with two other individuals, David Gregory Mueller
was convicted by a jury of seven counts of mail fraud, in violation
of 18 U.S.C. § 1341 (2000); wire fraud, in violation of 18 U.S.C.
§ 1343 (2000); and conspiracy to commit fraud, in violation of 18
U.S.C. § 317 (2000). Mueller was sentenced to twenty-four months
of imprisonment. On appeal, this court affirmed Mueller’s
convictions but remanded for resentencing under United States v.
Booker, 543 U.S. 220 (2005), finding that the enhancement under
U.S. Sentencing Guidelines Manual § 2F1.1(b)(1)(H) (2000) for
intended loss based upon judicial fact-finding constituted plain
error. United States v. Turgeon, No. 04-4168 (lead), 149 F. App’x
144 (4th Cir. 2005). On remand, the district court imposed the
same sentence.
The probation officer assigned a guideline range of
twenty-four to thirty months of imprisonment based on a total
offense level of seventeen and a criminal history category of I.
The presentence report (“PSR”) indicated $185,223 as the amount of
loss attributed to Mueller. This figure included timber and land
value for respective fraud victims. As a result of the PSR loss
calculation, under USSG § 2F1.1(b)(1)(H), a seven-level adjustment
was applied to Mueller’s base offense level.
On appeal, Mueller argues that the court erred in its
calculation of loss under USSG § 2F1.1(b)(1)(H). He essentially

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raises the same argument he did below, i.e., whether the court
erred in including the value of the land in its loss determination.
This court reviews a district court’s factual findings at
sentencing for clear error and its legal conclusions, including its
interpretation and application of the sentencing guidelines, de
novo. United States v. Daughtrey, 874 F.2d 213, 217-18 (4th Cir.
1989). The determination of loss attributable to a fraud scheme is
a factual issue for resolution by the district court. United
States v. Godwin, 272 F.3d 659, 671 (4th Cir. 2001).
We have reviewed the briefs and material submitted in the
joint appendix in light of Mueller’s arguments and find no error in
the application of the disputed enhancement. Accordingly, we
affirm Mueller’s 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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