UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 20-4117

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

THOMAS SNIFFEN,

Defendant - Appellant.

Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Max O. Cogburn, Jr., District Judge. (3:15-cr-00213-MOC-DSC-7)

Submitted: October 27, 2021 Decided: November 5, 2021

Before KING and RICHARDSON, Circuit Judges, and SHEDD, Senior Circuit Judge.

Affirmed and remanded by unpublished per curiam opinion.

William R. Terpening, TERPENING LAW PLLC, Charlotte, North Carolina, for Appellant. Brian C. Rabbitt, Acting Assistant Attorney General, Robert A. Zink, Acting Deputy Assistant Attorney General, Daniel J. Kane, Jennifer Farer, Philip Trout, Criminal Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Thomas Sniffen pleaded guilty without the benefit of a plea agreement to several

offenses based on his participation in a fraudulent scheme in which persons were

telephoned and told that they won a sweepstakes and, to collect their cash award, they

would have to remit a “fee” in advance. There was no sweepstakes, nor did Sniffen ever

return a person’s fee. Sniffen was sentenced to 114 months’ imprisonment. Sniffen

challenges several aspects of his sentence. We affirm Sniffen’s sentence, but remand to

the district court to correct a clerical error.

Sniffen first challenges the two-level enhancement imposed because he knew or

should have known that some of his victims were vulnerable. See U.S. Sent’g Guidelines

Manual § 3A1.1(b)(1). “In reviewing whether a sentencing court properly calculated the

Guidelines range, we review the court’s factual findings for clear error and its legal

conclusions de novo.” United States v. Shephard,

(4th Cir. 2018). We

have reviewed the record and conclude that there was no error in applying the two-level

enhancement. The evidence revealed that it was common practice for Sniffen to “reload”

victims, or contact victims who had fallen victim to the scheme to persuade the victim to

send more money.

at 672 n.3 (noting that there is “the strong inference that defendants

who reload victims target them because they are unusually vulnerable”).

Sniffen also challenges the amount of loss for which it was found reasonably

foreseeable to him. When determining the loss amount attributable to a defendant, “the

[sentencing] court ‘need only make a reasonable estimate of the loss.’” United States v.

Cloud,

(4th Cir. 2012) (quoting USSG § 2B1.1 cmt. n.3(C)). Actual

2 loss, as was determined here, is defined as “the reasonably foreseeable pecuniary harm that

resulted from the offense.” USSG § 2B1.1 cmt. n.3(A)(i). “Reasonably foreseeable

pecuniary harm” is “pecuniary harm that the defendant knew or, under the circumstances,

reasonably should have known, was a potential result of the offense.” USSG § 2B1.1 cmt.

n.3(A)(iv). “The amount of loss is a factual determination, and a sentencing court need

only make a reasonable estimate of loss, given the available information, as supported by

a preponderance of the evidence.” United States v. Savage,

(4th Cir.

2018) (internal quotation marks omitted). In a conspiracy, “loss is attributable to a

defendant if it results from the conduct of others so long as the conduct was in furtherance

of, and reasonably foreseeable in connection with the criminal activity.” Shephard,

(internal quotation marks omitted). Our review of the record shows that

Sniffen’s role in the conspiracy and his knowledge of the extent of the conspiracy is greater

than he would like us to believe. We conclude that the district court’s finding on the

amount of loss was a reasonable estimate and that it was reasonably foreseeable to Sniffen.

We also conclude that there was no clear error in the district court’s decision to

apply a two-level Guidelines enhancement because the fraud was committed through a

telemarketing scheme. A two-level enhancement can be imposed if the fraud offense

involved 10 or more victims, was committed through a mass marketing scheme, or resulted

in financial hardship to one or more victims. See USSG § 2B1.1(b)(2)(A). The court

determined a two-level enhancement was appropriate after finding that it was a

telemarketing scheme. A two-level enhancement for a mass-marketing scheme can be

supported by evidence showing that there was “a plan, program, promotion, or campaign

3 that is conducted through solicitation by telephone, mail, the Internet, or other means to

induce a large number of persons to (i) purchase goods or services; (ii) participate in a

contest or sweepstakes; or (iii) invest for financial profit. ‘Mass-marketing’ includes, for

example, a telemarketing campaign that solicits a large number of individuals to purchase

fraudulent life insurance policies.” USSG § 2B1.1 cmt. 4(A).

We further conclude that there is no evidence that the district court improperly

considered evidence from a coconspirator’s trial in determining Sniffen’s sentence. Lastly,

the record shows that the Government’s decision not to request a reduced sentence under

USSG § 5K1.1 based on Sniffen’s assistance was not made in bad faith or because of an

unconstitutional motive. See United States v. Snow,

(4th Cir. 2000).

Accordingly, we affirm Sniffen’s sentence. The Government has brought to our

attention a clerical error in the written judgment. The judgment incorrectly cites

(2)(A), (B) as one of the offenses. Thus, we remand to permit the district court to

correct this clerical error. See Fed. R. Crim. P. 36. 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 AND REMANDED

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