UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 05-4886

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

FERRELL BENJAMIN GIBBS,

Defendant - Appellant.

No. 05-4887

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

FERRELL BENJAMIN GIBBS,

Defendant - Appellant.

No. 05-4888

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus
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FERRELL BENJAMIN GIBBS,

Defendant - Appellant.

No. 05-4889

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

FERRELL BENJAMIN GIBBS,

Defendant - Appellant.

No. 05-4890

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

FERRELL BENJAMIN GIBBS,

Defendant - Appellant.

Appeals from the United States District Court for the District of

South Carolina, at Greenville. G. Ross Anderson, Jr., District

Judge. (CR-03-609)

Submitted: June 30, 2006 Decided: July 31, 2006

Before NIEMEYER and SHEDD, Circuit Judges, and HAMILTON, Senior

Circuit Judge.
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Affirmed by unpublished per curiam opinion.

C. Rauch Wise, Greenwood, South Carolina, for Appellant.

Jonathan S. Gasser, United States Attorney, Kevin F. McDonald,

Assistant United States Attorney, Columbia, South Carolina, for

Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
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PER CURIAM:

Ferrell Benjamin Gibbs was convicted of “knowingly and

fraudulently endeavoring to obtain a sum in excess of $1,000 in the

public stocks of the United States and to have a part thereof

transferred, assigned, and conveyed by virtue of false, forged, and

counterfeited instruments,” in violation of 18 U.S.C. § 1003 (2000)

(Count One), and mail fraud, in violation of 18 U.S.C.A. § 1341

(West 2000 & Supp. 2006) (Count Two). The district court initially

sentenced Gibbs under the federal sentencing guidelines to sixty

months in prison on Count One and a concurrent seventy-eight months

in prison on Count Two. Gibbs appealed his convictions and

sentence. We affirmed Gibbs’ convictions, but vacated his sentence

and remanded for further proceedings consistent with United

States v. Booker, 543 U.S. 220 (2005), and United States v. Hughes,

401 F.3d 540 (4th Cir. 2005). On remand, the district court

imposed an identical sentence and Gibbs timely appealed.

Gibbs asserts on appeal that the district court erred in

its advisory guideline calculations by finding that the intended

loss was $3,538,418.28, resulting in an eighteen-level increase in

offense level under U.S. Sentencing Guidelines Manual

§ 2B1.1(b)(1)(J) (2003), and by applying an obstruction of justice

adjustment. We have reviewed the record and conclude that the

sentence imposed by the district court is reasonable. See United

States v. Hampton, 441 F.3d 284, 287 (4th Cir. 2005) (applying

standard).
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Next, Gibbs argues that the district court violated the

prohibition against double jeopardy in sentencing him both on Count

One and Count Two because he contends that all of the elements of

Count Two were included in Count One. Count One charged Gibbs with

violating 18 U.S.C. § 1003 and Count Two charged Gibbs with mail

fraud under 18 U.S.C.A. § 1341. The elements of these crimes do

not completely overlap. Section 1003 requires the use of false,

forged, or counterfeited documents, whereas § 1341 does not.

Additionally, § 1341 requires proof of mailing, whereas § 1003 does

not. Because each offense requires proof of a fact that the other

does not, there is no double jeopardy violation. Blockburger v.

United States, 284 U.S. 299, 304 (1932). We reject Gibbs’ argument

that his sentence violates the Double Jeopardy Clause because both

offenses were based on the same conduct; it is well settled that a

defendant may be tried, convicted, and sentenced for separate

offenses even if he committed a single act. Albernaz v. United

States, 450 U.S. 333, 344-45 n.3 (1981); United States v. Marshall,

332 F.3d 254, 262 (4th Cir. 2003).

Gibbs also argues that the district court erred by

denying his motion to recuse pursuant to 28 U.S.C. § 144 (2000).

We find that the district court did not abuse its discretion by

denying Gibbs’ recusal motion. United States v. Carmichael, 726

F.2d 158, 162 (4th Cir. 1984). 

 Finally, Gibbs filed a motion to file a pro se

supplemental brief. We grant Gibbs’ motion and, having reviewed

his claims, find them to be meritless.
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Accordingly, we affirm Gibbs’ 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