UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 15-4449

UNITED STATES OF AMERICA, 

Plaintiff - Appellee, 

v. 

MICHAEL A. MARSHALL, 

Defendant - Appellant. 

Appeal from the United States District Court for the Western 

District of North Carolina, at Charlotte. Frank D. Whitney, 

Chief District Judge. (3:13-cr-00261-FDW-1) 

Submitted: September 30, 2016 Decided: October 13, 2016

Before KING, SHEDD, and THACKER, Circuit Judges. 

Affirmed by unpublished per curiam opinion. 

Eric J. Foster, Asheville, North Carolina, for Appellant. Jill 

Westmoreland Rose, United States Attorney, Amy E. Ray, Assistant 

United States Attorney, Asheville, North Carolina, for Appellee. 

Unpublished opinions are not binding precedent in this circuit.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

Michael A. Marshall was convicted after a jury trial of 

conspiracy to commit offenses against the United States, 

including wire fraud, bank fraud, and making false statements to 

financial institutions, in violation of 18 U.S.C. § 371 (2012) 

(count 1), bank fraud and aiding and abetting, in violation of 

18 U.S.C. §§ 2, 1344 (2012) (count 2), and conspiracy to commit 

money laundering, in violation of 18 U.S.C. § 1956(h) (2012). 

The district court sentenced Marshall to 60 months’ imprisonment 

on count 1 and concurrent terms of 96 months’ imprisonment on 

each of counts 2 and 3. Marshall now appeals. On appeal, he 

challenges the district court’s denial of his Fed. R. Crim. P. 

29 motion for judgment of acquittal on the basis of insufficient 

evidence, the district court’s instructions to the jury on count 

1, and the district court’s calculation of the loss amount under 

U.S. Sentencing Guidelines Manual § 2B1.1 (2014). We affirm. 

We review a challenge to the sufficiency of the evidence de 

novo and must affirm the jury’s verdict if it is supported by 

substantial evidence, viewed in the light most favorable to the 

Government. United States v. Palomino-Coronado, 805 F.3d 127, 

130 (4th Cir. 2015). “Substantial evidence is evidence that a 

reasonable finder of fact could accept as adequate and 

sufficient to support a conclusion of a defendant’s guilt beyond 

a reasonable doubt.” Id. (internal quotation marks omitted). 
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After review of the record and the parties’ briefs, we 

reject as wholly without merit Marshall’s challenges to the 

sufficiency of the evidence underlying his convictions on all 

three counts. Marshall’s arguments fail to establish reversible 

error in the district court’s conclusion that the evidence 

adduced at trial was sufficient to support his convictions. 

See 18 U.S.C. §§ 2, 371, 1014, 1343, 1344, 1956(h), 1957 (2012); 

United States v. McNeal, 818 F.3d 141, 149 (4th Cir. 2016), 

petition for cert. filed, ___ U.S.L.W. ___ (U.S. June 28, 2016) 

(No. 16-5017); United States v. Adepoju, 756 F.3d 250, 254-55 

(4th Cir. 2014); United States v. Jefferson, 674 F.3d 332, 366 

(4th Cir. 2012); United States v. Singh, 518 F.3d 236, 248 

(4th Cir. 2008); United States v. Cherry, 330 F.3d 658, 668 

(4th Cir. 2003); United States v. Smith, 29 F.3d 914, 916 

(4th Cir. 1994). 

Turning to the district court’s instructions on count 1, we 

review for plain error Marshall’s argument that the court 

erroneously instructed the jury with respect to the wire-fraud 

object because he did not object below to the court’s 

instructions on the ground he now advances. See Fed. R. Crim. 

P. 52(b); Henderson v. United States, 133 S. Ct. 1121, 1126-27 

(2013). 
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Regarding the wire-fraud object, the district court 

instructed the jury, among other matters, that: 

A violation of this statute would require proof that, 

one, someone in the conspiracy, with the intent to 

defraud, knowingly devised a scheme or artifice to 

defraud or to obtain money or property by means of 

material false or fraudulent pretenses, 

representations or promised [sic] as detailed in the 

indictment; and two, that in furtherance of the 

scheme, someone transmitted or caused the transmission 

of any writing by a means of a wire communication in 

interstate or foreign commerce. 

J.A. 647 (emphases added). Marshall argues that, because the 

second use in this instruction of “someone” was not followed by 

the words “in the conspiracy,” the jury could have found him 

guilty when neither he nor any other member of the conspiracy 

transmitted information by wire. We conclude after review of 

the record that the court’s second use in the instruction of the 

word “someone” without the modifier “in the conspiracy” was not 

clear or obvious error under the settled law of the Supreme 

Court or of this circuit. See United States v. Olano, 507 U.S. 

725, 733 (1993); United States v. Carthorne, 726 F.3d 503, 516 

(4th Cir. 2013). Further, as Marshall has not suggested that he 

would have been acquitted or that his trial would have ended in 

a hung jury had the district court modified its second use of 

the word “someone” with the phrase “in the conspiracy,” he 

cannot establish that the challenged instruction affected the 

outcome of the trial. See United States v. Godwin, 272 F.3d 
5

659, 680 (4th Cir. 2001); United States v. Nicolaou, 180 F.3d 

565, 570 (4th Cir. 1999); United States v. Hastings, 134 F.3d 

235, 240 (4th Cir. 1998). Marshall thus has not carried his 

burden to demonstrate plain error in the district court’s 

instructions on count 1. 

Finally, Marshall challenges the district court’s 

calculation of the loss amount attributable to him under the 

Sentencing Guidelines, arguing that the court erroneously failed 

to credit against that amount payments made to the victims and 

capital recovered by them prior to sentencing. Marshall did not 

present this argument below, and we therefore review it for 

plain error only. United States v. Strieper, 666 F.3d 288, 292 

(4th Cir. 2012). 

Only a preponderance of the evidence need support the 

district court’s factual determination of the loss amount 

attributable to Marshall. United States v. Miller, 316 F.3d 

495, 503 (4th Cir. 2003). The district court need only make a 

“reasonable estimate” of the loss. United States v. Cloud, 

680 F.3d 396, 409 (4th Cir. 2012); USSG § 2B1.1 cmt. n.3(C). 

Generally, the loss amount under USSG § 2B1.1 “is the greater of 

actual loss or intended loss.” USSG § 2B1.1 cmt. n.3(A). 

Here, the presentence report recommended application of a 

14-level enhancement under USSG § 2B1.1(b)(1)(H) for a loss 

exceeding $400,000 based on the determination in the description 
6

of the offense conduct that the loss to the victim lenders as 

result of Marshall’s criminal conduct was over $425,000. The 

district court adopted the portion of the PSR calculating the 

loss amount and relied on the information therein in calculating 

Marshall’s Guidelines range and imposing sentence. As Marshall 

made no affirmative showing that the information in the PSR was 

not correct, the district court was free to adopt and rely on it 

in sentencing him. See United States v. Revels, 455 F.3d 448, 

451 n.2 (4th Cir. 2006); United States v. Randall, 171 F.3d 195, 

210-11 (4th Cir. 1999); United States v. Love, 134 F.3d 595, 606 

(4th Cir. 1998). The undisputed relevant conduct easily 

establishes a loss amount exceeding $400,000. The district 

court, therefore, did not plainly err in holding Marshall 

accountable for a loss amount exceeding $400,000. 

Accordingly, we affirm the criminal judgment. 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