UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 12-4041

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

ERIC O. JONES,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern 

District of North Carolina, at Raleigh. James C. Dever III,

Chief District Judge. (5:10-cr-00228-D-1)

Submitted: September 28, 2012 Decided: October 18, 2012

Before DAVIS, KEENAN, and FLOYD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Marilyn G. Ozer, MASSENGALE & OZER, Chapel Hill, North Carolina, 

for Appellant. Thomas G. Walker, United States Attorney, 

Jennifer P. May-Parker, Kristine L. Fritz, Assistant United 

States Attorneys, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
2

PER CURIAM:

Following a six-day jury trial, Eric Omar Jones was 

convicted of conspiracy to commit bank fraud and to make false 

statements to influence a bank’s lending decisions, in violation 

of 18 U.S.C. § 371 (2006); fifteen counts of bank fraud and 

aiding and abetting, in violation of 18 U.S.C. §§ 1344, 2 

(2006); and two counts of making false statements to influence a 

bank’s lending decisions and aiding and abetting, in violation 

of 18 U.S.C. §§ 1014, 2 (2006). The district court sentenced 

Jones to 151 months’ imprisonment, consisting of 60 months on 

the conspiracy count and 151 months on the substantive counts, 

to be served concurrently. The court further imposed a fiveyear term of supervised release and ordered Jones to pay 

$142,145.85 in restitution.1

 This timely appeal followed. 

In his opening brief, Jones raises two challenges to 

the calculation of his Sentencing Guidelines range. First, 

Jones argues, the district court erred in determining the amount 

of loss attributable to him for sentencing purposes. Second, 

Jones contends, the district court erred in applying a fourlevel enhancement, pursuant to U.S. Sentencing Guidelines Manual

(“USSG”) § 3B1.1(a) (2011), based on his role as a leader or 

 1 Jones does not challenge the restitution amount or the 

district court’s methodology for calculating that amount. 
3

organizer of the underlying fraud conspiracy. For the reasons 

that follow, we affirm. 

We review a sentence for reasonableness, applying an 

abuse of discretion standard. Gall v. United States, 552 U.S. 

38, 51 (2007). In reviewing whether a sentencing court properly 

applied the Guidelines, the district court’s factual findings 

are reviewed for clear error and its legal conclusions are 

reviewed de novo. United States v. Osborne, 514 F.3d 377, 387 

(4th Cir. 2008). This court will “find clear error only if, on 

the entire evidence, we are left with the definite and firm 

conviction that a mistake has been committed.” United States v. 

Manigan, 592 F.3d 621, 631 (4th Cir. 2010) (internal quotation 

marks and brackets omitted).

With regard to the first appellate contention, the 

Government posits that Jones’ challenge to the loss amount 

reflects his misunderstanding of the district court’s Guidelines 

calculations. The Government explains that Jones’ base offense 

level was driven not by the calculated loss amount, but rather 

by the finding that Jones personally derived more than $1 

million in gross receipts from his fraud. See USSG 

§ 2B1.1(b)(15)(A), (D). And because Jones does not contest this 

aspect of the Guidelines calculation, the Government contends,

Jones has waived appellate review of that determination. 
4

In his reply brief, Jones concedes that the loss 

amount was not determinative of his sentence,2 as our review of 

the record confirms. Given that Jones has failed to raise any 

argument relevant to the district court’s finding that he 

personally derived more than $1 million in gross receipts from 

the fraud, we readily conclude that Jones has waived appellate 

review of this issue. See United States v. Palacios, 677 F.3d 

234, 244 n.5 (4th Cir.) (explaining that the defendant waived a

particular argument by not raising it in his opening brief), 

cert. denied, 2012 WL 1566196 (U.S. Oct. 1, 2012) (No. 11-

10137); see also Fed. R. App. P. 28(a)(9)(A). 

Turning to Jones’ second appellate contention, the 

Government argues that there was no clear error underlying the 

district court's imposition of a four-level leadership 

enhancement, given the extensive evidence of Jones’ directorial 

and organizational role in the fraud. We agree and hold that 

the district court’s factual determination that Jones was an 

organizer or leader of the scheme is not clearly erroneous. See

United States v. Thorson, 633 F.3d 312, 317 (4th Cir. 2011) 

(explaining that, if the district court’s interpretation of the 

evidence is plausible, this court will not reverse). 

 2 We reject Jones’ suggestion in his reply brief that we 

should nonetheless review the loss calculation because that 

issue may be relevant in a later proceeding. 
5

In determining a defendant’s leadership and 

organizational role, sentencing courts must consider seven 

factors: 

[T]he exercise of decision making authority, the 

nature of participation in the commission of the 

offense, the recruitment of accomplices, the claimed 

right to a larger share of the fruits of the crime,

the degree of participation in planning or organizing 

the offense, the nature and scope of the illegal 

activity, and the degree of control and authority 

exercised over others. 

USSG § 3B1.1, cmt. n.4. The district court evaluated all of 

these factors in applying the four-level role enhancement here. 

The trial evidence established that Jones developed and executed 

the bank fraud scheme, directed his co-conspirators’ conduct, 

and took a far greater portion of the fraudulently obtained 

proceeds. Thus, it was not clearly erroneous for the district 

court to find that a four-level enhancement was warranted. See

Thorson, 633 F.3d at 319-20 (explaining that the sentencing 

court’s determination that the defendant was “the architect of a 

large portion of this scheme” was enough, in and of itself, to 

support the organizer enhancement (internal quotation marks 

omitted)).

For the foregoing reasons, we affirm the district 

court’s judgment. We dispense with oral argument because the 

facts and legal contentions are adequately presented in the 
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materials before the court and argument would not aid the 

decisional process.

AFFIRMED