US v. John Colvin, No. 10-5336 (4th Cir. 2012)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-5336 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JOHN KENT COLVIN, Defendant - Appellant.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 Affirmed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.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 Constitution Clauses guarantees of the criminal Sixth defendants opportunity to present a complete defense. Amendment, a the meaningful 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 violate a defendant s constitutional rights. 2 promote it Id. at 324, 326. may Nevertheless, a defendant s right to present a defense is not absolute: criminal defendants do not have a right that to present evidence the district discretion, deems irrelevant or immaterial. court, the Constitution permits its United States v. Prince-Oyibo, 320 F.3d 494, 501 (4th Cir. 2003). surprisingly, in judges Thus, not to exclude evidence that is repetitive . . . , only marginally relevant or poses an undue risk of harassment, prejudice, or confusion of the issues. omitted). Holmes, 547 U.S. at 326-27 (internal alterations Of course, a district court s evidentiary rulings are reviewed only for abuse of discretion. 322 F.3d 301, 304 (4th Cir. 2003). [evidentiary] error amounts to United States v. Hill, And even then, not every 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 Colvin. the for the fraud and bias the investors against Our review of the record convinces us, however, that evidence that Colvin sought 3 to introduce was of limited probative value violated when and that the his trial constitutional court exercised rights its were not discretion to exclude it. Colvin next challenges procedurally and sentence reasonableness, for standard. substantively his sentence unreasonable. applying an abuse as We of both review a discretion 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 choice of the appellate court. F.3d 155, sentence 160 that (4th falls Cir. a (emphasis properly range is presumptively reasonable. F.3d 178, 193 (4th Cir. 2007). 4 not have been the United States v. Evans, 526 2008) within would in original). calculated A Guidelines United States v. Allen, 491 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. district court s factual determinations issue must stand, absent clear error. with Of course, the respect to this Elliott v. United States, 332 F.3d 753, 761 (4th Cir. 2003). And only a preponderance of the factual evidence need support these 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 deference, facts. each determination given its is entitled unparalleled USSG § 2B1.1, cmt. n.3(C). of Colvin s challenges to access to to appropriate the pertinent We have thoroughly reviewed 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 5 would violate the order. 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, reasonability of characteristics § 2B1.1 as although his and Colvin sentence attacking containing assails by the overlapping the recounting fraud substantive his personal guidelines enhancements and in USSG 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. legal before We dispense with oral argument because the facts and contentions the court are adequately and argument presented will not in aid the the material decisional process. AFFIRMED 6

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