UNPUBLISHED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Affirmed in part, vacated in part, and remanded by unpublished 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Unpublished opinions are not binding precedent in this circuit.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 § 2B1.1(b)(1) (2007) from consideration at 

sentencing on constitutional grounds; (2) the district court 

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

§ 3B1.3; and (3) the district court erred by dismissing without 

prejudice Coleman’s post-judgment motion to modify his interest 

payments. We affirm the sentence. However, because we agree 

that the district court had jurisdiction to consider Coleman’s 

post-judgment petition for waiver of interest,1 we vacate the 

district court’s dismissal order and remand for a ruling on the 

merits as to that issue. 

 1

 Coleman did not file a notice of appeal from the district 

court’s 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). 

2 
 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 Coleman’s 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 resulted in a two-level adjustment under USSG 

§ 3B1.1. After judgment was entered and Coleman had noted his 

appeal, he filed a petition seeking waiver of the interest 

payments on the restitution he was obligated to 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 the 

constitutionality of the loss table in § 2B1.1. He observes 

that defendants whose crimes result in a loss 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 severe than those for offenses 

involving smaller losses. Therefore, we conclude that Coleman 

has not shown a due process violation in the district court’s 

consideration of the loss table generally, or in its application 

in his case. Additionally, as the district court found, because 

Coleman’s 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 de novo the district court’s 

determination that Coleman held a position of trust under 

§ 3B1.3, and review the factual findings that support the 

adjustment for clear error. United States v. Ebersole, 411 F.3d 

517, 535-36 (4th Cir. 2005); United States v. Caplinger, 

339 F.3d 226, 235-36 (4th Cir. 2003). Under § 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.” A 

“position of trust” is “characterized by professional or 

managerial discretion.” USSG § 3B1.1, comment. (n.1). 

 Coleman argues that the adjustment for abuse of a 

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. 

 Coleman’s 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 
6 

 In Goode, the defendant filed a post-sentencing 

petition seeking a waiver of interest on his fines, and 

alternatively asking that the fines be remitted or suspended. 

The district court denied the petition. The appeals court held 

that, regardless of its merits, the district court had 

jurisdiction to consider the post-judgment petition under 18 

U.S.C. § 3572(d)(3) (2006). Goode, 342 F.3d at 743. Under 

Goode, Coleman is correct that the district court had 

jurisdiction to consider his petition, and erred in dismissing 

it without a ruling on the merits. Therefore, we vacate the 

court’s order dismissing the petition without prejudice. On 

remand, the court should reconsider Coleman’s petition and rule 

on the merits of his request for a waiver of interest payments.2

 We otherwise affirm the sentence imposed by the 

district court. We dispense with oral argument because the 

facts and legal contentions are adequately presented in the 

materials before the court and argument would not aid the 

decisional process. 

AFFIRMED IN PART, 

VACATED IN PART, AND REMANDED

 2

 We express no opinion on the merits of Coleman’s petition.