UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-4036

DAVID M. ROBINSON,

Defendant-Appellant.

Appeal from the United States District Court

for the District of Maryland, at Baltimore.

 William M. Nickerson, District Judge.

(CR-95-479-WMN)

Submitted: October 9, 1998

Decided: November 13, 1998

Before LUTTIG and MOTZ, Circuit Judges, and

HALL, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

David M. Robinson, Appellant Pro Se. Barbara Slaymaker Sale,

Assistant United States Attorney, Baltimore, Maryland, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

David M. Robinson appeals his conviction and sentence pursuant

to a guilty plea for mail fraud, in violation of 18 U.S.C. § 1341

(1994), and wire fraud, in violation of 18 U.S.C.§ 1343 (1994). Robinson received an eighty-five month term of imprisonment and was

ordered to pay restitution in the amount of $953,255.31. Robinson

moved to proceed pro se on appeal, and we granted his motion. Robinson makes several ineffective assistance of counsel claims. He also

assigns error to the district court's calculation of actual loss under

U.S. Sentencing Guidelines Manual § 2F1.1 (1995), application of a

two-level enhancement for acting on behalf of a religious or charitable organization under USSG § 2F1.1(b)(3)(a), and determination that

loss attributed to uncharged relevant conduct be included in the restitution order. Finding no error, we affirm.

Robinson met Morris Vickers in 1991. Vickers was an ordained

Baptist minister who also had extensive training in retirement planning and operated a financial planning business known as Financial

Security Advisors. Vickers developed an idea for a retirement plan for

persons employed by non-profit organizations. He wanted to submit

his idea to the Internal Revenue Service (IRS) for its review and

approval. Robinson represented that he was a practicing attorney in

this area and drafted the documents for Vickers and submitted them

to the IRS. Vickers decided to market the plan as a separate business

and incorporated Financial Diversified Services (FDS) for that purpose.

Vickers asked Robinson to join him as an equal fifty percent shareholder of FDS, based upon his understanding of Robinson's expertise.

Vickers and Robinson agreed that Robinson would hold the title of

President, and Vickers would be FDS's Chief Executive Officer.

Throughout almost the entire period that Robinson defrauded FDS,

Vickers remained in full-time employment with the Arundel Baptist

Association. Robinson managed FDS on a day to day basis. Even

after Vickers joined FDS on a full-time basis, Robinson continued to

be responsible for managing the company's finances. In 1993, Robinson persuaded Vickers to seek funds for FDS and invest them with

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a fictitious investment partnership, Zinman & Associates, promising

a return of twenty-five percent in a three-month period.

In 1992, Robinson learned that two ministers had organized an

interfaith group of ministers who met periodically to discuss issues of

mutual concern. Robinson suggested to the two ministers that the

organization be incorporated and prepared the articles of incorporation under the name of The Minister's Roundtable, Inc. (TMR). Robinson assumed the titles of treasurer and legal counsel for TMR. The

financial matters of FDS and TMR soon became linked due to Robinson's roles in both organizations. Robinson arranged for Vickers to

make presentations to TMR regarding financial planning for the ministers and their churches. Robinson also suggested that he and Vickers

solicit loans for TMR to finance its activities such as speaker's

expenses and funding outreach ministries. Robinson suggested that

the loan proceeds be invested with the fictitious investment partnership and the interest earned that exceeded the amounts due on the

loans could finance TMR's activities.

From October 1993 to April 1994, Robinson induced Vickers to

solicit funds from various individuals to invest with either FDS or

TMR. The individuals who loaned money to the organizations

received promissory notes guaranteeing repayment in one year at

interest rates between seven and fourteen percent. Robinson then

drafted letters from the fictitious investment partnership to himself

falsely representing that the funds invested were accruing twenty-five

percent interest every ninety days. Robinson prepared balance sheets

for FDS showing the substantial funds invested with the investment

firm. However, during this period, Robinson embezzled and diverted

to his own use all of the funds that he represented to Vickers were

invested with Zinman and Associates for FDS. Of the total of

$573,500 FDS received from its clients, $170,871 was used to purchase eight lots of property known as the Piscataway Estates. Vickers

approved the purchase of these properties.

At approximately the same time that the FDS and TMR schemes

were ongoing, Robinson organized another investment venture known

as International Investment Consortium, Inc. (IIC). While fraud

related to this venture is not a part of Robinson's criminal charges, he

stipulated in the plea agreement to his fraudulent activities related to

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IIC and agreed that the restitution order would include these losses.

The sentencing court found that Robinson's activities with IIC were

relevant conduct. IIC's purpose was to use its investors' funds to purchase run-down real estate in Baltimore, renovate it, and resell the

properties at a profit. IIC received approximately $200,000 in funds

from over forty investors. IIC eventually purchased and attempted to

renovate three properties, all titled in Robinson's name. One of the

properties, the North Payson Street property, was renovated and

resold at a profit. One of the two remaining properties, Hilton Street,

was renovated. Robinson then took out a second mortgage against the

property and kept the proceeds. The third property was foreclosed

upon because Robinson did not make the mortgage payments. Some

of the IIC investors were also investors in FDS and TMR, and the

Government considered the IIC scheme to be part of the same course

of conduct or common scheme as the FDS and TMR frauds.

On December 7, 1995, the Government filed an indictment against

Robinson for numerous mail and wire fraud violations. Robinson subsequently pled guilty to one count each of mail fraud and wire fraud.

The court accepted his plea and sentenced him to an eighty-five

month term of imprisonment and ordered him to pay restitution in the

amount of $953,255.31. Robinson timely noted his appeal.

Robinson claims that his counsel was ineffective for failing to

investigate his mental and emotional status to determine his mental

capacity at the time of the crimes and his competency to stand trial.

He also alleges that his counsel was ineffective for failing to contest

allegations of other relevant conduct at the guilty plea and sentencing

hearings. Robinson's final ineffective assistance claim is that his

counsel failed to impeach the testimony of the Government's main

witness at sentencing.

Generally, claims of ineffective assistance of counsel are not

appropriate on direct appeal. Claims of ineffective assistance should

be raised in a motion pursuant to 28 U.S.C.A. § 2255 (West 1994 &

Supp. 1998), unless it conclusively appears from the record that counsel did not provide effective assistance. See United States v. Fisher,

477 F.2d 300, 302 (4th Cir. 1973). A review of the record in this case

does not reveal any conclusive evidence that Robinson's trial counsel

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was ineffective.1 Therefore we find that it is more appropriate for

Robinson to bring these claims in a § 2255 motion.

The Sentencing Guidelines provide for a base offense level of six

for crimes involving fraud or deceit and then set forth a schedule for

incrementally increasing the offense level according to the amount of

loss suffered as a result of the fraud. USSG § 2F1.1. "Loss" is generally defined as "the value of the property taken, damaged, or

destroyed." USSG § 2F1.1, comment. (n.7); USSG § 2B1.1, comment. (n.2).

Robinson claims on appeal that the amount of the actual loss was

incorrectly calculated. The district court determined the amount of

total loss to be $579,675, and increased the offense level by ten to an

offense level of sixteen. See USSG § 2F1.1. However, Robinson did

not raise in the district court four of the issues regarding the loss that

he currently argues on appeal. These claims regarding the reduction

of loss have thus been forfeited, see United States v. Bell, 5 F.3d 64,

66 (4th Cir. 1993), and they receive only plain error review. See

United States v. Olano, 507 U.S. 725, 731-32 (1993). We do not find

plain error in the calculation regarding these claims.

The first of the forfeited claims Robinson argues is that the

appraised value for eight lots purchased by FDS comprising the Piscataway Estates should be deducted from the total amount of loss.

Robinson states that the lots were appraised by Charles County,

Maryland, for a total value of $585,000. Robinson did not seek to

have the loss reduced by this amount or present evidence of the

appraisal to the district court and does not present any documentary

evidence of it on appeal. In addition, he also attempts to include the

purchase price in the reduction of loss resulting in a double counting

of that value. We therefore do not find plain error in the district

court's failure to include the appraised value to reduce the total loss.

In the next forfeited claim, Robinson seeks to reduce the loss by

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1 Regarding the issue of failure to contest relevant conduct, it appears

from the record before us that, at the sentencing hearing, Robinson's trial

counsel did in fact vigorously contest the relevant conduct attributed.

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$135,000 for renovations to the Hilton Street property owned by IIC.2

In his sentencing memorandum, Robinson did not object to the Government's estimation of the renovations cost as $60,000 based upon

his own prior representations to IIC investors. The amount Robinson

now attempts to include is the same information given to the Government prior to sentencing and is based upon receipts and other documents relating to renovations. As the Government sufficiently proved,

the increase in cost Robinson represented is due to accounting errors

such as double counting costs by submitting a delivery invoice as a

charge and a paid credit card bill for the same expense. He also submitted a receipt for work done on the Hilton Street property before

IIC even purchased it. We therefore find that the district court did not

plainly err by not including the added cost represented by Robinson.

The last two forfeited claims -- that the loss should be reduced by

the salary Robinson paid to himself in 1992 and 1993, and by the

amount of a loan repayment from Anthony DeFeo -- were not before

the district court at all as sources for reduction of loss. In addition,

Robinson does not provide any evidence of the amount of salary paid

or agreed upon, or the amount returned to FDS or TMR by DeFeo.

We therefore find that the district court did not commit plain error by

not considering these items.

The remaining disputed issues that Robinson raises are that the district court erred in determining the actual loss because it did not

reduce the amount of loss by the proper value of the eight lots purchased as the Piscataway Estates by FDS, and in finding that the loss

should not have been reduced by the amount of loans paid to private

contractors by FDS.3 The district court's finding of loss is a factual

one, to be set aside only if clearly erroneous. See United States v.

Rothberg, 954 F.2d 217, 219 (4th Cir. 1992) (citing United States v.

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2 Of the $135,000 by which Robinson seeks to reduce the loss, $60,000

was already taken into account to reduce the loss suffered by IIC investors. Robinson thus attempts to apply the $60,000 twice to reduce the

loss.

3 Robinson also included legitimate business expenses in the amount of

$78,433 as an amount that is required to be deducted from the total loss.

The Government argued at sentencing that this is the total amount of

legitimate business expenses, so this amount is not in dispute.

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Daughtrey, 874 F.2d 213, 218 (4th Cir. 1989)). Only a preponderance

of the evidence need support these factual findings. See United States

v. Engleman, 916 F.2d 182, 184 (4th Cir. 1990).

Robinson argues that the $138,000 of loans made by FDS to minority contractors should be deducted from the total loss. He argues that

the loans were consistent with the mission of FDS and, although made

without Vickers' approval, Vickers' approval was not necessary

because he did not have veto power on this type of financial decision.4

The Government contended that several of the contractors had repaid

the loans directly to Robinson. Robinson disputed that he received

payments for the loans. Robinson testified at the sentencing hearing

that he did not have signed promissory notes from the contractors in

the FDS files, except for four of the larger loans, that he received only

$6000 repayment from all the outstanding loans, that he only

reviewed the financial statements of two of the contractors FDS provided loans to before approving the loans, and that he did not have

any securities for the loans or liens when he made the loans on behalf

of FDS. Finally, the plea agreement stated that the prospect for repayment of the debts is doubtful. We therefore find that the district

court's finding excluding most of these loans from the reduction of

total loss was not clear error.

Robinson's final issue regarding the determination of actual loss is

that the total loss should be reduced by $179,000, which he contends

is the total of the purchase price and related expenses of the eight lots

of Piscataway Estates. The Government contended that the purchase

price was $170,871.06. Because Vickers testified at the grand jury

proceedings that including the transactional costs associated with the

purchase, the expenditures totaled $179,000, Robinson argues that the

loss should be reduced by this amount. However, at sentencing, Vickers testified that after his grand jury testimony he recalculated the purchase price and associated transactional costs and found his prior

testimony to be incorrect. We therefore find that the court did not

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4 Vickers testified that he did have knowledge of one $30,000 loan

made to one contractor. That amount was already considered by the Government in its reduction of total loss.

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clearly err in finding that the amount of the purchase price set forth

by the Government was correct.5

Robinson assigns error to the district court's two-level enhancement for misrepresenting that he was acting on behalf of a charitable

or religious organization. Section 2F1.1(b)(3)(A) provides that if the

offense involved "a misrepresentation that the defendant was acting

on behalf of a charitable, educational, religious or political organization" the offense level is increased by two. Robinson contends that the

enhancement does not apply to his conduct because the investors in

TMR intended to invest with the organization to make a good return

on their investment and that he did not represent that investments

would be used for charitable or religious purposes.

Four people invested a combined total of $80,000 for investment

on behalf of TMR: Morris and Twyla Vickers ($30,000); Warren

Burnham ($40,000); and Janet Rutherford ($10,000). Each investor

understood that his money would be reinvested by TMR with Zinman

& Associates at a high rate of return, averaging fifteen to twenty-five

percent annually for the individual investors, while also generating

significant additional funds that TMR could use to carry out its educational and religious purposes.

The FBI took statements from Burnham and Vaughn as part of its

investigation ("302 reports"). In Vaughn's 302 report, he stated that

Robinson indicated to him that he would establish a monetary account

for TMR. The purpose of the account was to provide donations to the

needy, fund enhancement programs, and pay overhead expenses.

Burnham's 302 report indicated that he possessed the articles of

incorporation of TMR, which included identification of a number of

ministers as the incorporators of the organization. Rutherford stated

that she was interested in receiving a good rate of return on her

investment and decided that TMR was a good place to invest, if her

money could be used for a good purpose and still earn a good rate of

return.

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5 Even if we did find $179,000 to be the correct amount, the reduction

would not result in a lower offense level.

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The enhancement recognizes that "defendants who exploit victims'

charitable impulses . . . create particular social harm." USSG § 2F1.1

comment. (backg'd). Even when a defendant acts in part for himself

and in part for charitable purposes, the enhancement applies. See

United States v. Marcum, 16 F.3d 599, 603 (4th Cir. 1994). While it

may be that Robinson informed TMR investors that their investment

would be used primarily to earn money for themselves, the statements

of Vaughn, Burnham, and Rutherford clearly demonstrate their understanding that a portion of their returns would go to the charitable and

religious purposes of TMR. We find that the district court did not

clearly err in finding that Robinson represented that a portion of the

proceeds of the TMR investments would be used for charitable or

religious purposes, therefore, we hold that the enhancement was properly applied.

Finally, Robinson argues that the restitution order should not have

included losses by the IIC investors.6 This court reviews restitution

orders under the Victim and Witness Protection Act (VWPA), 18

U.S.C.A. §§ 3663, 3664 (West Supp. 1998), for abuse of discretion.

See United States v. Blake, 81 F.3d 498, 505 (4th Cir. 1996). Robinson's plea agreement states that under the terms of the agreement, "he

will be liable to pay restitution for all of the criminal conduct detailed

in the attached Statement of Facts if the court determines that he has

the financial ability to make restitution." (R. 4). The attached statement of facts included the fraud-related losses to IIC investors. If the

parties agree to a restitution amount in the plea agreement, the plea

agreement controls. Therefore, the restitution ordered by the court

was authorized, notwithstanding the offense of conviction. See United

States v. Broughton-Jones, 71 F.3d 1143, 1147 (4th Cir. 1995).

Although a specific amount was not agreed to, the plea agreement's

statement of facts clearly outlines the losses attributed to Robinson's

conduct. Even if the plea agreement did not control, the losses are

includable as part of the restitution order because they are part of the

entire fraudulent scheme for which Robinson was indicted. See

United States v. Henoud, 81 F.3d 484, 489 (4th Cir. 1996). We there-

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6 Robinson also challenges the inclusion of $18,000 in credit card

frauds in the restitution order. However, our review of this order discloses that the charges were not included.

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fore find that the district court did not abuse its discretion in including

the IIC losses in the restitution order.

We therefore affirm the judgment. We deny Robinson's motion to

expedite the appeal. 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

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