US v. Daniel Nascembeni, No. 14-4363 (4th Cir. 2014)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-4363 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DANIEL JOSEPH NASCEMBENI, a/k/a Daniel Anthony Nascimbeni, Defendant - Appellant. Appeal from the United States District Court for the Northern District of West Virginia, at Elkins. John Preston Bailey, Chief District Judge. (2:13-cr-00025-JPB-JSK-1) Submitted: November 18, 2014 Decided: December 5, 2014 Before NIEMEYER, MOTZ, and GREGORY, Circuit Judges. Affirmed by unpublished per curiam opinion. Katy J. Cimino, Assistant Federal Public Defender, Kristen M. Leddy, Research and Writing Specialist, Clarksburg, West Virginia, for Appellant. William J. Ihlenfeld, II, United States Attorney, Stephen D. Warner, Assistant United States Attorney, Elkins, West Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Daniel Joseph Nascembeni pled guilty to one count of mail fraud and one count of application for Supplemental making false Security statements Income in benefits. an The district court sentenced him to 24 months’ imprisonment on each count, to challenging be served concurrently. the two-level Nascembeni enhancement imposed based on his commission of bankruptcy fraud. at appeals, sentencing We affirm. We review the district court’s factual determinations as to sentencing enhancements for clear error, United States v. Slade, 631 F.3d 185, 188 (4th Cir. 2011), and will reverse only if “left with the definite and firm conviction that a mistake has been committed.” 542 (4th “that Cir. United States v. Stevenson, 396 F.3d 538, 2005). occurred Relevant during the conduct commission includes all of offense the actions of conviction, in preparation for that offense, or in the course of attempting to offense.” avoid U.S. § 1B1.3(a)(1). A detection or Sentencing responsibility Guidelines two-level enhancement Manual is for that (“USSG”) warranted for bankruptcy fraud as relevant conduct “[i]f the offense involved . . . a misrepresentation or other fraudulent action during the course of a bankruptcy proceeding.” USSG § 2B1.1(b)(9)(B). The offense conduct also includes all acts that “were part of the same course of conduct or common scheme or plan as 2 the offense of conviction.” USSG § 1B1.3(a)(2); see United States v. Johnson, 643 F.3d 545, 551 (7th Cir. 2011) (upholding use of uncharged and unconvicted relevant conduct that was part of the same course of conduct or common scheme or plan as the offense of conviction). Here, the district court determined that Nascembeni’s conduct of filing a bankruptcy petition using his alias and second Social Security card was “part and parcel of the same fraudulent behavior” Specifically, on Nascembeni which his applied convictions for and were received based. government benefits using two different Social Security numbers that had been issued to him: one with his name spelled properly, and one with his name misspelled. During this same time, Nascembeni filed two separate bankruptcy petitions — one in his correct name and one using his alias — and received discharges of his debts. We find no clear error by the district court in imposing the enhancement under USSG § 2B1.1(b)(9). Accordingly, dispense with contentions are oral we affirm argument adequately Nascembeni’s because presented in the the sentence. facts We and legal materials before this court and argument would not aid the decisional process. AFFIRMED 3