UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 04-4047

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

PAUL H. NOE, a/k/a Paul Noe Randall,

Defendant - Appellant.

Appeal from the United States District Court for the District of

South Carolina, at Columbia. Joseph F. Anderson, Jr., Chief

District Judge. (CR-02-96)

Submitted: June 30, 2005 Decided: August 10, 2005

Before MOTZ, KING, and GREGORY, Circuit Judges.

Affirmed in part, vacated in part, and remanded by unpublished per

curiam opinion.

Johnny E. Watson, Sr., Columbia, South Carolina, for Appellant. J.

Strom Thurmond, Jr., United States Attorney, Eric Wm. Ruschky,

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Unpublished opinions are not binding precedent in this circuit.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:

Paul H. Noe was convicted by a jury of conspiracy to

commit wire fraud, wire fraud, and inducing the victim of a scheme

to defraud to travel in interstate commerce, 18 U.S.C. §§ 371,

1343, 2314 (2000). He was sentenced to 78 months of imprisonment

and three years of supervised release and ordered to pay

$645,708.20 in restitution. Noe appeals, claiming that: (1) venue

was improper in the District of South Carolina; (2) the district

court abused its discretion in admitting certain testimony under

Fed. R. Evid. 404(b); (3) the jury improperly rejected Noe’s

defense of reliance on advice of counsel; and (4) he was improperly

sentenced under the Federal Sentencing Guidelines. We affirm Noe’s

conviction but vacate his sentence and remand for resentencing.

Noe first argues that venue was improper in the District

of South Carolina rather than in the Southern District of Florida

-- where he lives and where he claims the offenses occurred.

However, 18 U.S.C. § 3237 (2000) provides that any offense begun in

one district and completed in another or otherwise committed in

more than one district may be prosecuted in any district in which

the offense was begun, continued, or completed. The conduct

alleged in the six counts of the indictment in which Noe was named

all took place in South Carolina. Accordingly, the district court

properly denied Noe’s motion to transfer venue. We also find that

the district court did not abuse its discretion in denying a
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discretionary change of venue pursuant to Fed. R. Crim. P. 21(b)

after considering the relevant factors. See Platt v. Minn.

Mining & Mfg. Co., 376 U.S. 240, 243-44 (1964). 

Next, Noe challenges the admission of testimony from five

witnesses as a violation of Fed. R. Evid. 404(b). Specifically,

Noe claims that the testimony of Rabbi Widom, Gary Esposito,

William Fouss, Robert Payne, and Jack Daros was improperly admitted

because none of them were mentioned in the indictment and their

testimony was highly prejudicial.

A district court’s rulings on the admission and exclusion

of evidence will not be disturbed absent an abuse of discretion.

United States v. Bostian, 59 F.3d 474, 480 (4th Cir. 1995). This

court will find an abuse of discretion only if the district court’s

evidentiary ruling was arbitrary or irrational. United States v.

Achiekwelu, 112 F.3d 747, 753 (4th Cir. 1997). Evidentiary rulings

are also subject to review for harmless error under Fed. R. Crim.

P. 52 and will be found harmless if the reviewing court can

conclude “‘without stripping the erroneous action from the whole,

that the judgment was not substantially swayed by the error.’”

United States v. Nyman, 649 F.2d 208, 211-12 (4th Cir. 1980)

(quoting Kotteakos v. United States, 328 U.S. 750, 765 (1946)). 

Evidence of other crimes or uncharged conduct is “not

considered ‘other crimes’” for Rule 404(b) purposes if it “‘arose

out of the same . . . series of transactions as the charged
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offense, . . . or if it is necessary to complete the story of the

crime [on] trial.’” United States v. Kennedy, 32 F.3d 876, 885

(4th Cir. 1994) (quoting United States v. Towne, 870 F.2d 880, 886

(4th Cir. 1989)). We find that the testimony at issue was

necessary to complete the story of Noe’s “advance fee” scheme.

Although Holland was the only victim identified in the indictment,

the testimony of the other victims was relevant to show Noe’s

intent and that Holland was not merely the victim of an

unsuccessful business deal. 

Noe’s defense at trial was that he relied on advice of

counsel. On appeal, he contends that the jury should not have

convicted him because he established that he acted in good faith on

the advice of his attorney. The “advice of counsel” defense

requires the defendant to prove: “(a) full disclosure of all

pertinent facts to an expert, and (b) good faith reliance on the

expert’s advice.” United States v. Butler, 211 F.3d 826, 833 (4th

Cir. 2000) (quoting United States v. Miller, 658 F.2d 235, 237 (4th

Cir. 1981)). Here, the district court properly instructed the jury

as to the defense of “advice of counsel.” Juries are presumed to

follow instructions provided them. Hinkle v. City of Clarksburg,

81 F.3d 416, 427 (4th Cir. 1996). 

Finally, Noe claims, in his supplemental briefs, that the

enhancements he received for amount of loss, number of victims, and

use of sophisticated means violated the decision announced by the
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Supreme Court in United States v. Booker, 125 S. Ct. 738 (2005).

Because Noe did not raise this issue at sentencing, we review for

plain error. United States v. Hughes, 401 F.3d 540, 547 (4th Cir.

2005) (citing United States v. Olano, 507 U.S. 725, 731-32 (1993)).

The Supreme Court held in Booker, 125 S. Ct. at 746, 750,

that the mandatory manner in which the federal sentencing

guidelines required courts to impose sentencing enhancements based

on facts found by the court by a preponderance of the evidence

violated the Sixth Amendment. The Court remedied the

constitutional violation by severing two statutory provisions, 18

U.S.C. § 3553(b)(1) (2000) (requiring courts to impose a sentence

within the applicable guideline range), and 18 U.S.C. § 3742(e)

(2000) (setting forth appellate standards of review for guideline

issues), thereby making the guidelines advisory. Hughes, 401 F.3d

at 546 (citing Booker, 125 S. Ct. at 756-57). 

In this case, the district court increased Noe’s base

offense level from 6 to 28 after finding that his conduct met the

requirements of USSG §§ 2B1.1(b)(1)(H) (providing for a fourteenlevel increase if the amount of loss exceeded $400,000),

§ 2B1.1(b)(2)(A) (providing a two-level increase where the offense

involves more than 10 but less than 50 victims, § 2B1.1(b)(8)(C)

(providing a two-level increase where the offense involves

“sophisticated means”), § 3B1.1(a) (providing a four-level increase

where the defendant was “an organizer or leader of a criminal
*Just as we noted in United States v. Hughes, “[w]e of course

offer no criticism of the district judge, who followed the law and

procedure in effect at the time” of Noe’s sentencing. 401 F.3d

540, 545 n.4 (4th Cir. 2005).

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activity that involved five or more participants or was otherwise

extensive”). With these enhancements, Noe’s sentencing range

increased from 0-6 months to 78-97. Because Noe received a higher

sentence than would have been permissible based on the jury’s

findings alone, we vacate and remand for resentencing under an

advisory Guidelines system. See Hughes, 401 F.3d 540.*

On remand, the district court should first determine the

appropriate sentencing range under the Guidelines, making all

factual findings appropriate for that determination. Id. at 546.

The court should consider the sentencing range along with other

factors described in 18 U.S.C. § 3553(a), and then impose a

sentence. If that sentence falls outside the Guidelines range, the

court should explain its reasons for the departure as required by

18 U.S.C. § 3553(c)(2). The sentence must be “within the

statutorily prescribed range . . . and reasonable.” Id. at 546-47.

We deny Noe’s motions for release on bail pending appeal

and supplements, as well as his motion for production of grand jury

documents and to relieve his attorney. We grant his motion to file

a supplemental pro se brief and 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 IN PART,

 VACATED IN PART,

 AND REMANDED