United States v. Coleman, 4th Cir. (2009)

UNPUBLISHED
UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT
No. 08-4280
UNITED STATES OF AMERICA,

Plaintiff Appellee,
v.
LEONARD STUART COLEMAN,
Defendant Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston.
John T. Copenhaver,
Jr., District Judge. (2:07-cr-00128-1)
Submitted:
November 26, 2008
Decided:
March 23, 2009
Before SHEDD, DUNCAN, and AGEE, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished

per curiam opinion.
Troy N. Giatras, THE GIATRAS LAW FIRM, PLLC, Charleston, West

Virginia, for Appellant.
Charles T. Miller, United States
Attorney, L. Anna Forbes, Assistant United States Attorney,
Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Leonard
Stuart
Coleman
pled
guilty
to
mail
fraud,
18 U.S.C.A. 1341 (West Supp. 2008), and was sentenced to a

term of thirty-three months imprisonment.
He was also ordered
to pay restitution in the amount of $192,740, plus interest.

Coleman appeals his sentence, contending that (1) the district
court erred in denying his motion to exclude U.S. Sentencing
Guidelines
Manual
sentencing
on
2B1.1(b)(1)
constitutional
(2007)
grounds;
from
(2)
consideration
the
district
at
court
erred by finding that Coleman abused a position of trust, USSG

3B1.3; and (3) the district court erred by dismissing without
prejudice Colemans post-judgment motion to modify his interest
payments.
We affirm the sentence.
However, because we agree
that the district court had jurisdiction to consider Colemans

post-judgment petition for waiver of interest, 1 we vacate the
district courts dismissal order and remand for a ruling on the
merits as to that issue.
Coleman did not file a notice of appeal from the district

courts April 23, 2008 order dismissing his petition. However,
we conclude that the docketing statement he filed in this appeal
may be treated as the functional equivalent of a notice of
appeal from that order.
Smith v. Barry, 501 U.S. 244, 248
(1992). The docketing statement was filed within the thirty-day
extension period provided in Fed. R. App. P. 4(b)(4), and we
find that good cause exists to excuse the late filing.
United
States v. Reyes, 759 F.2d 351, 353 (4th Cir. 1985).
Coleman pled guilty to an information charging that,

in 2004 and 2005, he embezzled money from the law firm where he
worked
as
an
attorney
specializing
in
municipal
bond
work.
Coleman stipulated that he embezzled client fees of $195,740 and

attempted to embezzle another $37,500 by causing clients to pay
fees into his own personal bank account.
Coleman reserved the
right to contest the amount of loss for sentencing purposes.
At
sentencing, the district court overruled Colemans due process

objection
to
use
of
the
loss
table
in
2B1.1(b)(1),
and
determined that he had abused a position of trust within his law

firm,
which
3B1.1.
appeal,
payments
resulted
in
two-level
adjustment
under
USSG
After judgment was entered and Coleman had noted his

he
on
filed
the
petition
restitution
seeking
he
was
waiver
of
obligated
the
to
interest
pay.
The
district court found that it no longer had jurisdiction over the

sentence and dismissed his petition without prejudice.
On
appeal,
Coleman
first
challenges
constitutionality of the loss table in 2B1.1.

that
defendants
whose
crimes
result
in
loss
the
He observes
of
less
than
$1 million may receive enhancements of up to fourteen levels,

while
offenses
resulting
in
losses
between
$1
million
and
$400 million may receive no more than fifteen additional levels.

See USSG 2B1.1(b)(1).
Coleman argues that the table produces
a disparity similar to the 100:1 ratio for crack cocaine and

3
powder cocaine offenses addressed in Kimbrough v. United States,

128 S. Ct. 558 (2007), and thus violates due process.
However, the sentences for offenses involving losses
over
$1
million
are
more
involving smaller losses.
severe
than
those
for
offenses
Therefore, we conclude that Coleman
has not shown a due process violation in the district courts

consideration of the loss table generally, or in its application
in his case.
Additionally, as the district court found, because
Colemans offense involved a loss of less than $1 million, he

cannot
claim
to
have
been
adversely
affected,
even
if
his
argument has merit.

Next,
we
review
determination
that
3B1.3,
review
and
Coleman
the
535-36
339 F.3d
226,
(4th
Cir.
235-36
novo
held
factual
the
district
position
findings
of
courts
trust
that
under
support
the
United States v. Ebersole, 411 F.3d
adjustment for clear error.

517,
de
2005);
(4th
United
Cir.
2003).
States
v.
Under
Caplinger,
3B1.3,
an
adjustment is required if the defendant abused a position of

public or private trust . . . in a manner that significantly
facilitated the commission or concealment of the offense.
position
of
trust
is
managerial discretion.
Coleman
argues
characterized
by
professional
A
or
USSG 3B1.1, comment. (n.1).

that
the
adjustment
for
abuse
of
position of trust was inappropriate because he did not occupy a

4
position of trust with respect to the clients whose money he

diverted, whom he characterizes as the victims of his offense.
He further claims that he did not use any special skill in
preparing the invoices to the clients.
Colemans law firm was the victim of his offense.
The
firm lost the money paid by its clients when Coleman diverted
the money to his personal use.
Coleman acknowledged that within
his firm he held a position of authority and operated with a

level of independence in his day to day work.
We conclude that
the district court did not clearly err in finding that Coleman
occupied a position of trust within his law firm and that his
position of trust facilitated the commission of his offense.
Finally, we agree with Coleman that the district court
erred in declining to address his post-judgment petition for
waiver of interest.
Once judgment is entered, the sentencing
court loses jurisdiction to change the sentence except in a few

circumstances where a statute or Rule 35 permits it to revisit
the sentence.
United States v. Lawrence, 535 F.3d 631, 637 (7th
Cir. 2008); United States v. Goode, 342 F.3d 741, 743 (7th Cir.
2003).
One such statute is 18 U.S.C. 3612 (2006).
While
3612(f)(1) provides that payment of interest is mandatory on

restitution of more than $2,500, 3612(f)(3) permits the court,
post-judgment, to waive or limit the payment of interest upon a
finding that the defendant is unable to pay interest.
5
In
petition
Goode,
seeking
the
defendant
waiver
of
filed
interest
a
on
post-sentencing
his
fines,
and
alternatively asking that the fines be remitted or suspended.

The district court denied the petition.
that,
regardless
jurisdiction
to
of
its
consider
merits,
the
Coleman
is
the
district
post-judgment
U.S.C. 3572(d)(3) (2006).

Goode,
The appeals court held

court
petition
under
Goode, 342 F.3d at 743.
correct
that
the
district
had
18
Under
court
had
jurisdiction to consider his petition, and erred in dismissing

it without a ruling on the merits.
Therefore, we vacate the
courts order dismissing the petition without prejudice.
On
remand, the court should reconsider Colemans petition and rule

on the merits of his request for a waiver of interest payments. 2
We
district
facts
court.
and
materials
otherwise
legal
before
We
affirm
dispense
contentions
the
court
the
with
sentence
oral
imposed
argument
are
adequately
and
argument
by
the
because
the
presented
would
not
in
the
aid
the
decisional process.
AFFIRMED IN PART,
VACATED IN PART, AND REMANDED
We express no opinion on the merits of Colemans petition.

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UNPUBLISHED

UNITED STATES COURT OF APPEALS

UNITED STATES OF AMERICA,

November 26, 2008

March 23, 2009

Before SHEDD, DUNCAN, and AGEE, Circuit Judges.

Affirmed in part, vacated in part, and remanded by unpublished

Troy N. Giatras, THE GIATRAS LAW FIRM, PLLC, Charleston, West

Unpublished opinions are not binding precedent in this circuit.

18 U.S.C.A. 1341 (West Supp. 2008), and was sentenced to a

He was also ordered

to pay restitution in the amount of $192,740, plus interest.

erred by finding that Coleman abused a position of trust, USSG

We affirm the sentence.

However, because we agree

that the district court had jurisdiction to consider Colemans

Coleman did not file a notice of appeal from the district

Coleman pled guilty to an information charging that,

Coleman stipulated that he embezzled client fees of $195,740 and

Coleman reserved the

right to contest the amount of loss for sentencing purposes.

sentencing, the district court overruled Colemans due process

determined that he had abused a position of trust within his law

After judgment was entered and Coleman had noted his

district court found that it no longer had jurisdiction over the

constitutionality of the loss table in 2B1.1.

$1 million may receive enhancements of up to fourteen levels,

$400 million may receive no more than fifteen additional levels.

Coleman argues that the table produces

a disparity similar to the 100:1 ratio for crack cocaine and

powder cocaine offenses addressed in Kimbrough v. United States,

involving smaller losses.

Therefore, we conclude that Coleman

has not shown a due process violation in the district courts

Additionally, as the district court found, because

Colemans offense involved a loss of less than $1 million, he

argument has merit.

United States v. Ebersole, 411 F.3d

adjustment for clear error.

adjustment is required if the defendant abused a position of

USSG 3B1.1, comment. (n.1).

position of trust was inappropriate because he did not occupy a

position of trust with respect to the clients whose money he

Coleman acknowledged that within

his firm he held a position of authority and operated with a

Once judgment is entered, the sentencing

court loses jurisdiction to change the sentence except in a few

United States v. Lawrence, 535 F.3d 631, 637 (7th

One such statute is 18 U.S.C. 3612 (2006).

3612(f)(1) provides that payment of interest is mandatory on

alternatively asking that the fines be remitted or suspended.

U.S.C. 3572(d)(3) (2006).

The appeals court held

Goode, 342 F.3d at 743.

jurisdiction to consider his petition, and erred in dismissing

Therefore, we vacate the

courts order dismissing the petition without prejudice.

remand, the court should reconsider Colemans petition and rule

We express no opinion on the merits of Colemans petition.