United States of America, Plaintiff-appellee, v. Herbert Linwood Burton, Jr., Defendant-appellant, 923 F.2d 849 (4th Cir. 1991)

Herbert Linwood Burton, Jr., appeals from the district court's order denying relief under Fed. R. Crim. P. 33 and 35. Our review of the record and the district court's opinion discloses that the appeal of the denial of the Rule 33 motion is without merit. Accordingly, we affirm the denial of the Rule 33 motion on the reasoning of the district court. United States v. Burton, CR-86-110-N (E.D. Va. June 29, 1989).

In addition, we find that the district court properly construed the motion regarding the propriety of restitution as a Fed. R. Crim. P. 35 motion and properly denied the motion. The amount of restitution ordered by the district court was derived from the amount of profit earned by EMS on the transaction. The amount of EMS's profit is supported by Biller's trial testimony. Burton claimed that he should not have had to pay restitution because several Navy investigation documents provide that there was no loss to the government as a result of Burton's actions. However, profits obtained as the result of criminal activity can be considered loss for restitution purposes. United States v. Barnette, 800 F.2d 1558, 1571-72 (11th Cir. 1986), cert. denied, 480 U.S. 935 (1987). Therefore, the district court's denial of his Rule 35 motion is also affirmed.

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.