UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 20-4110

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

MICHAEL ALLEN DUKE, a/k/a Mike West,

Defendant - Appellant.

Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Max O. Cogburn, Jr., District Judge. (3:16-cr-00221-MOC-DCK-7)

Submitted: January 25, 2021 Decided: March 16, 2021

Before KEENAN, THACKER, and HARRIS, Circuit Judges.

Affirmed in part and vacated and remanded in part by unpublished per curiam opinion.

Michael Allen Duke, Appellant Pro Se. Angela Macdonald Miller, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.

Unpublished opinions are not binding precedent in this circuit. PER CURIAM:

A jury convicted Michael Allen Duke of conspiracy to commit mail and wire fraud,

in violation of

, 2326(2)(A), (B); three counts of mail fraud, and aiding

and abetting such conduct, in violation of

, 2; wire fraud, and aiding and

abetting such conduct, in violation of

, 2; and money laundering, and

aiding and abetting such conduct, in violation of

(a), 2. He was

sentenced to 70 months’ imprisonment. On appeal, Duke challenges the sufficiency of the

evidence and the procedural and substantive reasonableness of his sentence. While we

affirm his convictions, we vacate the sentence and remand for resentencing.

We review the denial of a motion for judgment of acquittal de novo. United States v.

Zelaya,

(4th Cir. 2018). When a defendant challenges the sufficiency

of the evidence to support a jury verdict, we view the evidence in the light most favorable

to the government and will sustain the verdict if it is supported by substantial evidence.

United States v. Savage,

(4th Cir. 2018). “Substantial evidence is

evidence sufficient for a reasonable jury to find proof beyond a reasonable doubt of each

element of the charged offense. In evaluating the sufficiency of evidence, we don’t

consider the credibility of witnesses.” Zelaya,

(brackets, citation, and

internal quotation marks omitted).

A conspiracy to commit mail or wire fraud under

“requires a jury

to find that (1) two or more persons agreed to commit [the] fraud and (2) the defendant

willfully joined the conspiracy with the intent to further its unlawful purpose.” United

States v. Burfoot,

(4th Cir. 2018) (wire fraud); see also United States v.

2 Landersman,

(4th Cir. 2018) (mail fraud). The defendant must take

“some action indicating his participation.” Landersman,

(internal

quotation marks omitted). The elements of a conspiracy offense “can be shown by

circumstantial evidence such as [the defendant’s] relationship with other members of the

conspiracy, the length of this association, [the defendant’s] attitude, conduct, and the nature

of the conspiracy.”

(internal quotation marks omitted). A defendant may join the

conspiracy “without full knowledge of all of the conspiracy’s details, but if he joins the

conspiracy with an understanding of the unlawful nature thereof and willfully joins in the

plan on one occasion, it is sufficient to convict him of conspiracy.” United States v. Burgos,

(4th Cir. 1996) (en banc) (brackets and internal quotation marks omitted).

“Mail fraud under

and wire fraud under

have

two essential elements: (1) the existence of a scheme to defraud and (2) the use of the mails

or wire communication in furtherance of the scheme.” United States v. Curry,

(4th Cir. 2006). “[I]t is not necessary for the defendant to be directly or personally

involved in the wire communication as long as that communication was reasonably

foreseeable in the execution or the carrying out of the alleged scheme to defraud in which

the defendant is accused of participating. Whether the use of wire transmissions can be

reasonably foreseen is determined under an objective standard.” United States v. Taylor,

(4th Cir. 2019) (citation and internal quotation marks omitted). The

essential elements of the offense of money laundering under § 1957(a) are: (1) engaging in

or attempting to engage in a financial transaction; (2) with money or property that the

3 defendant knows involved proceeds from an unlawful activity. United States v. Najjar,

(4th Cir. 2002).

We conclude that substantial evidence showed that Duke willfully joined a

conspiracy to promote a sham corporation for the purpose of defrauding victims. Duke

joined with other coconspirators to create false and misleading sales pitches, corporate

documents, and press releases with the intent to persuade targeted victims to invest in their

sham corporation. The evidence clearly showed that the duped investors used the mail to

tender their investments and that Duke was wired his share of the ill-gotten proceeds from

the corporation’s account into his account. Accordingly, we affirm Duke’s convictions.

We conclude, however, that Duke’s sentence was procedurally unreasonable. See

United States v. Gutierrez,

(4th Cir. 2020) (“[T]his Court first must

ensure that the sentences are procedurally sound and, if they are, then must consider

whether they are substantively reasonable.”). At sentencing, the district court sustained

Duke’s objection to the 4-level enhancement, imposed under U.S. Sentencing Guidelines

Manual (“USSG”) § 3B1.1(a) (2018), for his role in the offense. The court reduced Duke’s

total offense level for the fraud offenses to 29. On advice from the probation officer, the

court found that the total offense level for the money laundering conviction, 33, determined

Duke’s Guidelines range. However, the total offense level for the money laundering

conviction had been determined by reference to the total offense level for the fraud

offenses. See USSG § 3D1.3(b). The adjusted offense level for Duke’s money laundering

conviction was 30 and, after the court removed the adjustment for Duke’s role in the

offense, this became the highest offense level applicable to the group. Thus, the court

4 should have used offense level 30 to determine Duke’s Guidelines range. Originally, the

court applied a downward variance to Duke’s offense level. There is no indication what

sentence may have been imposed had it started with the lower offense level. The

Government concedes that this miscalculation was plain error that affected Duke’s

substantial rights. We further conclude that the failure to correct this error will “seriously

affect[] the fairness, integrity [and] public reputation of judicial proceedings.” United

States v. Lester,

(4th Cir. 2021) (stating standard for plain error review)

(internal quotation marks omitted).

Accordingly, we affirm Duke’s convictions, but vacate Duke’s sentence and remand

for resentencing under the appropriate Guidelines range consistent with this opinion. We

dispense with oral argument because the facts and legal contentions are adequately

presented in the materials before this court and argument would not aid the decisional

process.

AFFIRMED IN PART, VACATED AND REMANDED IN PART

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