**UN PUBLISHED** 
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

_______________ **No. 09 -**  **4698**

_______________ UNITED STATES OF AMERICA , Plaintiff

- Appellee,

v. JOHN C. CURTISS , a/k/a Jay Curtiss, d/b/a Centerline Carbon Products , Defendant

- App ellant.

________________ Appeal from the United States District Court for the Eastern District of Virginia , at Richmond

. Richard L. Williams, Senior District Judge. (3:87

- cr - 0 0112

- RLW

- 1 )

________________ A rgued : December 8 , 2010 Decided: January 13 , 2011

________________ Before SHEDD, DAVIS, and KEENAN, Circuit Judges.

________________ Affirmed by un published per curiam opinion.

________________ **ARGUED** : Amy Leigh Austin, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Richmond, Virginia, for Appellant. Benjamin L. Hatch, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee. **ON BRIEF** : Michael S. Nachmanoff, Federal Public Defender, Patrick L. Bryant, Research and Writing Attorney, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Al exandria, Virginia, for Appellant. Neil H. MacBride, United States Attorney, Alexandria, Virginia, for Appellee.

________________ Unpublished opinions are not binding precedent in this circuit.2 PER CURIAM : On December 14, 1987, Appellant John C. Curtis s was indicted in the Eastern District of Virginia for mail fraud, false statements, false claims upon the United States and conspiracy, in violation of 18 U.S.C. § § 1341 , 1001 , 287 and 286 , respectively. The gravamen of all of the charges was that , desp ite his d e barment from entering into government contracts , Curtiss continued to engage in fraudulent contracting with a Department of Defense agency located in Virginia. Prior to trial, Curtiss moved to dismiss the indictment on the ground of improper ve nue. The district court denied the motion and a jury convicted Curtiss on all counts. Sentencing

was s cheduled for May 1988, but Curtiss absconded and was not apprehended until 2009. The proceedings resumed with a sentencing hearing o n July 14, 2009 . T he d istrict court sentenced Curtiss to a 15

- year term of imprisonment. On appeal, Curtiss assign s err or in the den ial of his motion to dismiss and in the inadequacy of the district court’s statement of reasons for the sentence. W e affirm.

I.
A. The Defense General Supply Center ( “ DGSC ” ) , located in the Eastern District of Virginia, procures and stores a variety of3 military supplies, including electrical contact brushes , which

are device s designed to maintain electric current s in rotating machinery. Curtiss supplied DGSC with electrical contact brushes but was barred from doing so after he was convicted in 1983 of the unlawful sale of government property. The debarment order prohibited Curtiss from government contracting from February 22, 1984 to December 28, 1986. After Curtiss was barred from government contracting, he approached the owner of Sent Electric Company, Peter Kljucaricek, a/k/a Peter Kay, about using Sent Electric Company to make brush sales to the DGSC
. Kay agreed to the arrangement in return for a ten

- percent commission on the sales. Around the same time, Curtiss’s wife registered a new company, Centerline Carbon Products, in her name in Michigan. Under the arrangement with Kay, Curtiss receive d information about brushes DGSC intended to purch ase , prepare d bids in the name of Centerline Carbon Products , and submit ted them in the name of Sent Electric Company. When the government submitted a contract to Sent Electric Company, Kay would transfer the contracts to Centerline Carbon, which handled t he stock selection, packing, labeling , and shipping. As a result, Curtiss was able to continue to participate in the contracting process during his period of d e barment.4 DGSC initiated an investigation a fter it receiv ed complaints about the quality of the contact brushes. The investigation revealed that Curtiss would either select and ship less expensive, unauthorized brushes instead of the required brushes , or he would resell brushes from government surplus that he possessed, in violation of the contract.
B. On December 14, 1987, Curtiss was indicted in 21 counts for mail fraud, in violation of 18 U.S.C. § 1341 ; false statements, in violation of 18 U.S.C. § 1001 ; false claims upon the United States, in violation of 18 U.S.C. § 287 ; and conspiracy to def raud the Department of Defense, in violation of 18 U.S.C. § 286. Each count alleged that the offense occurred within the Eastern District of Virginia prior to November 1, 1986. Curtiss filed a pretrial motion to dismiss the indictment for improper venue , relying on c onstitutional provisions and Federal Rule of Criminal Procedure 18. 1

1 Article III provides that “[t]he Trial o f all Crimes . . . shall be held in the State where the said Crimes shall have been committed.” U.S. Const. art. III, § 2, cl. 3. In addition, the Sixth Amendment provides that “[in] all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed.” U.S. Const. amend. VI. Federal Rule of Criminal Procedure 18 codifies these principles: While Curtiss’s motion

Unless a statute or these rules permit otherwise, the government must prosecute an offense in a (Continued)5 did not seek a transfer of venue pursuant to Federal Rule of Criminal Procedure 21 (b) , 2

A t the conclusion of a thr ee - day trial, the jury convicted Curtiss on all counts. Prior to sentencing, however, Curtiss absconded , and the district court issued a bench warrant for his arrest. Curtiss was not apprehended until March 25, 2009, more than twenty years after he fled. the government’s opposition stated in a footnote that Curtiss’ s allegations “seem to fit the framework of that Rule.” J.A. 38. In its denial of Cu r tiss’s motion to dismiss, the district court cited law pertaining to constitutional venue principl e s and Federal Rule of Criminal Procedure 18.

When Curtiss was returned to Virginia for sentencing in 2009, the government filed an updated sentencing memorandum ,

district where the offense was committed. The court must set the place of trial within the district with due regard for the convenience of the defendant, any victim, and the witnesses, and the prompt administrat ion of justice. Fed. R. Crim. P. 18.

2 Rule 21(b) provides: Upon the defendant’s motion, the court may transfer the proceeding, or one or more counts, against that defendant to another district for the convenience of the parties, any victim, and the wi tnesses, and in the interest of justice. Fed. R. Crim. P. 21(b).6 requesting a five

- year term of imprisonment. At the sentencing hearing, Curtiss argued for a term of three to four years of imprisonment

. The district court announced its sentence by stating: Pursuant to Title 18 U.S.C. Section 3553(a) . . . I sentence Mr. Curtiss to a total term of 15 years, consisting of five years on count one, five years on count two, and five years on count three, all t o run consecutively to each other; and ten years on count 21 to run concurrently to the 15

- year term imposed on counts one, two and three. J.A. 655. On the remaining counts, the court suspended sentenc e and placed Curtiss on five years of supervised rele ase upon his release from prison. Curtiss noted a timely appeal, and we have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742.

II.
A. Curtiss first maintains that the district court committed error in denying his motion to dismiss the ind ictment for improper venue. 3

3 The government urges us to decline to consider Curtiss’s appeal of the denial of his venue challenge based on the fugitive disentitlement doctrine. The fugitive disentitlement doctrine ge nerally provides that federal courts “have authority to dismiss an appeal . . . if the party seeking relief is a fugitive while the matter is pending.” Degen v. United States , 517 U.S. 820, 824 (1996). In addition, although Curtiss had not yet appealed (fo r he had not been sentenced) at the time he absconded, courts have the authority to dismiss a criminal He notes that many of the events related to the

(Continued)7 government contracting offenses occurred outside of Virginia, and that the scheme he created originated in Michigan, where Curtiss, his wife, and Kay resided. We review de novo a district court’s denial of a motion to dismiss for improper venue. See Mitrano v. Hawes , 377 F.3d 402, 405 (4th Cir. 2004); United States v. Newsom , 9 F.3d 337, 338 (4th Cir. 1993). When multiple counts are alleged in an indictment, venue must be proper on each count. United States v.
Stewart , 256 F.3d 231, 242 (4th Cir. 2001). The government bears the burden of proving venue by a preponderance of the evidence. United States v. Ebersole , 411 F.3d 517, 524 (4th Cir. 2005). As mentioned, t he Constitution sets forth the basic parameters for venue in a criminal case. Under Article III, “[t]he Trial of all Crimes

. . . shall be held in the State where the said Crimes shall have been committed.” U.S. Const. art. III, § 2, cl. 3; see also U.S. Const. amend. VI (“I n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed.” ). Federal

appeal under the doctrine where there is some nexus between “a defendant’s [prior] fugitive status and his appeal.” Ortega

Rodriguez v. United States , 50 7 U.S. 234, 249 (1993). We conclude that Curtiss’s venue challenge plainly lacks merit. Therefore, we decline to apply the fugitive disentitlement doctrine in this case.8 Rule of Criminal Procedure 18 reiterates this principle: “Unless a statute or these rules permit otherwise, the government must prosecute an offense in a district where the offense was committed.” Together, these provisions “protect the defendant from bias, disadvantage, and inconvenience in the adjudication of the charges against him.” United States v. Johnson , 510 F.3d 521, 524 (4th Cir. 2007) (quoting Ebersole , 411 F.3d at 524). In keeping with these principles, Congress may prescribe specific venue requirements for a particular crime. Johnson , 510 F.3d at 52 4. If Congress adopts such a statute imposing venue requirements, “that provision must be honored (assuming, of course, that it satisfies the constitutional minima.)” Id. (quoting United States v. Salinas , 373 F.3d 161, 164 (1st Cir. 2004)). In addition, f ederal law provides that venue is proper in any district where an offense was begun, continued or completed. 18 U.S.C. § 3237(a). Here, venue in the Eastern District of Virginia was proper for each count. Venue was proper for the mail fraud counts becaus e Curtiss caused DGSC to mail contract payments from the Eastern District of Virginia. See 18 U.S.C. § 1341 ( noting v enue is proper, among other places, where a defendant causes a letter to be placed in an a uthorized depository for mail); United
States v. Blecker , 657 F.2d 629, 632

- 33 (4th Cir. 1981) (same); see also 18 U.S.C. 3237(a) (“Any offense involving the use of9 the mails . . . may be . . . prosecuted in any district from, through, or into which such commerce, mail matter, or imported object or perso n moves.”). Venue was proper for the false statement counts because Curtiss made and used false documents knowing they contained materially false information , and these documents were filed in the Eastern District of Virginia. See Blecker , 657 F.2d at 636

- 37 ( noting v enue is proper where the claims were prepared, where the claims were received by the government, or where the defendant causes the government to place the funds in the mail) ; see also United States v. Bilzerian , 926 F.2d 1285 (2d Cir. 1991) ( n oting v enue is proper under 18 U.S.C. § 1001 either where documents were prepared or filed). Similarly, v enue was proper for the false claims counts because Curtiss made and used false documents knowing they contained materially false information , and th ese documents were presented to the government in the Eastern District of Virginia.
See 18 U.S.C. § 287 ( noting venue is proper in any district in which the claims were made, prepared or presented to the government)
. Finally, venue was proper for the consp iracy count because overt acts in furtherance of the charged conspiracy were committed in the Eastern District of Virginia. See 18 U.S.C. § 3237(a) ( Where a crime is “begun in one district and completed in another, or committed in more than one district,” federal law10 permits prosecution “in any district in which such offense was b egun, continued, or completed.”). Curtiss argues , in the alternative, that even assuming venue was proper in the Eastern District of Virginia, the district court should have tran sferred the case to the Eastern
D istrict of Michigan pursuant to Federal Rule of Criminal Procedure 21 and abused its discretion in failing to do so

. However, Curtiss waived any argument concerning transfer of

venue by failing to seek such a transfer pursu ant to Rule 21. United States v. Sorce , 308 F.2d 299, 301 (4th Cir. 1962); see also United States v. Blackwell , 946 F.2d 1049 (4th Cir. 1991) (“[B]ecause defendants failed to request a retransfer of the prosecution . . . under Rule 21(b), we may not review whether the proceedings properly should have gone forward there.”). For the reasons set forth above, it is plain that venue in the Eastern District of Virginia was proper for each count of the indictment and the district court properly so concluded

. B. Curtiss next asserts that his sentence should be vacated and the case remanded for resentencing because the district court erred by failing to give individualized reasons for the sentence imposed. However, the district court was not required to abide by the requirements surrounding the Sentencing Guidelines, and therefore was not required to give11 individualized reasons . This is because all of the offenses of convict ion were completed prior to the effective date of the Sentencing Reform Act of 198 7 and thu s, before the Sentencing Guidelines became applicable. The United States Sentencing Guidelines “apply only to offenses committed after” November 1, 1987. Sentencing Act of 198 4 , Pub. L. No. 100

- 182, § 2(a); United States v. Munoz , 974 F.2d 493, 495 n.* ( 4th Cir. 1992) (“Since [the defendant’s] crimes were committed before Novem ber 1, 1987, the United States Sentencing Guidelines d o not apply to this case.”). Here, § 3553(c) is inapplicable because all of Cu r tiss ’s offenses were committed and completed bef ore November 1, 1987

. Consequently , we review the district court’s sentence as it would have been reviewed prior to the implementation of the Sentencing Guidelines. Prior to the implementation of the Sentencing Guidelines, broad discretion was given to se ntencing courts to consider a wide range of information concerning the background, character, and conduct of defendants. Munoz , 974 F.2d at 495 ; Wasman v. United States , 468 U.S. 559, 563 (1984) (observing that sentencing courts may consider “any and all i nformation that reasonably might bear on the proper sentence for the particular defendant, given the crime committed”); United States v. Tucker , 404 U.S. 443, 447 (1972) (“[A] sentence imposed by a federal district judge, if within statutory limits,12 is gen erally not subject to review.”). Further, a district court can consult the Guidelines to “to inform a pre

- Guidelines
sentence.” United States v. Bakker , 925 F.2d 728, 740 (4th Cir. 1991). Here, the district court’s statement of reasons was sufficient und er governing law. While the district court stated that it found that “the sentence imposed is fair and appropriate for this defendant in light of the requirements of 18 United States Code section 3553(a),” the fact the district court mentioned the inapplic able Sentencing Guidelines framework is not dispositive. See Bakker , 925 F.2d at 740. The district court adopted the pre sentence report without change. The presentence report indicated that the correct statutory framework for Curtiss’ s sentencing was gover ned by pre

- Guidelines legal principles

. In addition, the sentence imposed was within the statutory limits. Consequently, the district court committed no error in sentencing Curtiss.

III. For the reasons stated , we hold that the district court did
not er r in denying Curtiss’s motion to dismiss the indictment for improper venue. In addition, we hold that the district court13 did not err in fashioning Curtiss’s sentenc e . Accordingly, the judgment is
AFFIRMED .