UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 95-5767

JEFFREY MAURICE YOUNG-BEY,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

Leonie M. Brinkema, District Judge.

(CR-95-148-A)

Submitted: March 31, 1997

Decided: April 28, 1997

Before WIDENER, HALL, and WILLIAMS, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Robert Stanley Powell, Arlington, Virginia, for Appellant. Helen F.

Fahey, United States Attorney, John J. Farley, Special Assistant

United States Attorney, Alexandria, Virginia, 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Unpublished opinions are not binding precedent in this circuit.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:

Jeffrey Maurice Young-Bey was convicted by a jury of four counts

of bank fraud, 18 U.S.C. § 1344 (1994), and was subsequently sentenced to ninety-six months imprisonment. Young-Bey appeals his

conviction on the ground of insufficient evidence. He also claims that

the district court abused its discretion by departing upward under

USSG § 4A1.3 (Adequacy of Criminal History Category)* and in

failing to explain the extent of the departure. We affirm.

On July 13, 1994, Young-Bey deposited a check for $8,900 in

Clarence Warren's account at the State Department Federal Credit

Union (Credit Union). Warren, an old friend of Young-Bey's, gave

Young-Bey permission to make the deposit as a favor and allowed

Young-Bey to use his ATM card to make cash withdrawals afterward.

Young-Bey then deposited another check, this time for $75,000, in

Warren's account without first obtaining Warren's permission. Both

checks were drawn on closed bank accounts of the East Potomac

Mortgage Funding Group (East Potomac), a dummy corporation

Young-Bey had set up. Warren withdrew approximately $24,610

from his account for Young-Bey before the Credit Union froze the

account.

In September 1994, Young-Bey stayed for a few days with another

friend, Ricardo McCown. He persuaded McCown to let him make a

deposit in McCown's account at a different branch of the Credit

Union. On September 12, 1994, Young-Bey deposited an East Potomac check for $12,500 in McCown's account. By this time the Credit

Union was aware that checks on East Potomac accounts were suspicious. When Young-Bey asked McCown to check the balance in his

account using his ATM card, the additional funds were shown as

pending but unavailable. On September 14, 1994, Young-Bey

attempted to deposit a second East Potomac check for $12,500 in

McCown's Credit Union account. The teller had been warned about

checks drawn on that account and notified the assistant manager.

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*United States Sentencing Commission, Guidelines Manual (Nov.

1994).

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While the assistant manager was trying to verify the check, YoungBey left the Credit Union without completing the transaction. Neither

the teller nor the assistant manager could make an in-court identification of Young-Bey, but the jury was able to view photographs of the

man with whom they dealt that were taken by the Credit Union's

security cameras.

The next day, Young-Bey was arrested for an unrelated theft by a

state police officer and his car was searched. Officers searching the

car found Ricardo McCown's Credit Union statement, as well as several East Potomac checks which had a stamped signature and the signature stamp. In February 1995, Young-Bey was arrested for bank

fraud. He identified himself as Ricardo Ware and was carrying identification with that name but with his own photograph. The investigating Secret Service agent subsequently tried to obtain handwriting

samples from Young-Bey. Young-Bey first provided disguised handwriting samples and then refused to cooperate.

Young-Bey argues that the evidence was insufficient to convict

him of bank fraud because it was circumstantial. He contends that no

physical evidence connected him to the offenses charged in the indictments. He also maintains that the Credit Union did not suffer any loss

in connection with Counts Three and Four because no funds were

withdrawn from McCown's account.

"To sustain a conviction the evidence, when viewed in the light

most favorable to the government, must be sufficient for a rational

trier of fact to have found the essential elements of the crime beyond

a reasonable doubt." United States v. Brewer , 1 F.3d 1430, 1437 (4th

Cir. 1993); accord Glasser v. United States, 315 U.S. 60, 80 (1942).

An appeals court may consider direct and circumstantial evidence and

allow the government the benefit of all reasonable inferences from the

facts proved to the facts sought to be established. United States v.

Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982). Even if some facts

support a contrary conclusion, this Court does not weigh the evidence

or judge the credibility of witnesses. United States v. Reavis, 48 F.3d

763, 771 (4th Cir.), cert. denied, #6D6D 6D# U.S. ___, 63 U.S.L.W. 3890

(U.S. June 19, 1995) (No. 94-9316).

The bank fraud statute provides that:

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Whoever knowingly executes, or attempts to execute, a

scheme of artifice--

(1) to defraud a financial institution; or

(2) to obtain any of the moneys, funds, credits, assets,

securities, or other property owned by, or under the

custody or control of, a financial institution, by means

of false or fraudulent pretenses, representations, or

promises; shall be fined . . . or imprisoned.

18 U.S.C.A. § 1344.

We find that the evidence amply supports Young-Bey's bank fraud

conviction. Given that the jury found Warren and McCown to be

credible witnesses, there was substantial evidence that Young-Bey

deposited or caused the deposit of four checks totalling $108,900 in

two Credit Union accounts, knowing that the checks were drawn on

closed accounts, with the intent of defrauding the Credit Union, and

that he succeeded in fraudulently obtaining $24,610 from Warren's

account. We therefore affirm Young-Bey's conviction.

At sentencing, the district court calculated a total offense level of

16 and determined that Young-Bey had 25 criminal history points,

which placed him in category VI, producing a sentencing range of 46-

57 months. Both the probation officer and the Government suggested

an upward departure under USSG § 4A1.3 in view of Young-Bey's

prior convictions for various kinds of fraud, including two federal

bank fraud convictions. In addition, just before his arrest he had swindled a lady out of $500 and her Mercedes under the guise of running

a debt consolidation service. The Government argued that there was

a high probability that Young-Bey would commit other crimes whenever possible. At sentencing, the district court adopted the Government's suggestion to increase Young-Bey's total offense level five

points to 21 (resulting in a new guidelines range of 77-96 months) and

imposed a sentence of ninety-six months.

Young-Bey maintains that the district court failed to provide a justification for the five-level departure above category VI and failed to

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explain why a departure to one of the intervening levels would not

have adequately reflected the seriousness of his past criminal conduct.

His first claim is without merit. A criminal history which is more serious than the average defendant in the same category is an encouraged

factor under the guidelines. See USSG § 4A1.3. Young-Bey's numerous prior convictions, his 25 criminal history points, and his generally

fraudulent behavior provided ample reason for a departure above category VI.

In departing upward by increasing the total offense level, the district court followed a procedure approved by this court. See United

States v. Harrison, 58 F.3d 115, 118 (4th Cir. 1995) (following

United States v. Cash, 983 F.2d 558, 561 & n.6 (4th Cir. 1992);

United States v. Rusher, 966 F.2d 868, 884 (4th Cir. 1992)). YoungBey argues that the court failed to make the necessary level-by-level

findings. See Harrison, 58 F.3d at 118. The district court departed by

five levels without making a specific determination that each of the

intervening levels was inadequate, but did state that it had considered

each of the lower sentencing ranges.

On balance, we are satisfied that the court complied with Harrison,

Cash, and Rusher and considered the intervening offense levels and

sentencing ranges and found none of them adequate.

We therefore affirm Young-Bey's conviction and sentence. 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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