UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 14-4037

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

MARIO CLOTINHO GOMES,

Defendant - Appellant.

Appeal from the United States District Court for the Western 

District of North Carolina, at Asheville. Martin K. Reidinger, 

District Judge. (1:11-cr-00084-MR-DLH-1)

Submitted: February 27, 2015 Decided: March 16, 2015

Before KING, GREGORY, and SHEDD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Andrew B. Banzhoff, DEVEREUX & BANZHOFF, Asheville, North 

Carolina, for Appellant. Anne M. Tompkins, United States 

Attorney, Richard Lee Edwards, Assistant United States Attorney, 

Asheville, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

A jury convicted Mario Clotinho Gomes of conspiracy to 

commit wire fraud, in violation of 18 U.S.C. § 1349 (2012), and 

two counts of wire fraud, in violation of 18 U.S.C. §§ 2, 1343 

(2012). The district court sentenced him to 52 months’ 

imprisonment, to be followed by three years’ supervised release, 

and ordered him to pay restitution, jointly and severally with 

two coconspirators, in the amount of $878,000 to the victim of 

the offenses, Arthur Williams. On appeal, Gomes asserts that 

the evidence was insufficient, that he had a right to have the 

jury determine the amount of loss, and that the district court 

erred in imposing restitution. We affirm.

We review de novo the district court’s denial of a Fed. R. 

Crim. P. 29 motion. United States v. Howard, 773 F.3d 519, 525

(4th Cir. 2014). We will sustain the jury’s verdict “if there 

is substantial evidence, taking the view most favorable to the 

Government, to support it.” Glasser v. United States, 315 U.S. 

60, 80 (1942); see United States v. Wynn, 684 F.3d 473, 477-78

(4th Cir. 2012) (discussing elements of wire fraud); United 

States v. Moussaoui, 591 F.3d 263, 296 (4th Cir. 2010) (setting 

forth elements of conspiracy). “Substantial evidence is 

evidence that a reasonable finder of fact could accept as 

adequate and sufficient to support a conclusion of a defendant’s 
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guilt beyond a reasonable doubt.” Howard, 773 F.3d at 525

(internal quotation marks omitted).

Gomes argues that there was insufficient evidence that he 

knowingly misrepresented the accuracy of the invoices through 

which the fraud was accomplished because there was no evidence 

he knew that the invoices were fraudulent. However, a 

coconspirator testified that Gomes knew the invoices were 

fraudulent. See United States v. Wilson, 115 F.3d 1185, 1189-90 

(4th Cir. 1997) (noting that uncorroborated testimony of single 

witness, even if witness is accomplice or codefendant, may be 

sufficient evidence of guilt). Moreover, other testimony 

disclosed that some of the work billed on the invoices was 

actually performed at Gomes’ home. 

Gomes also argues that there was insufficient evidence that 

his misrepresentations to Williams’ business were material 

because the company did not pay the fraudulent invoices based on 

his approval alone, but also had the invoices verified by a 

consultant. However, the evidence demonstrated that Williams’ 

business would not have made the payments had Gomes not 

indicated that they were proper. See Wynn, 684 F.3d at 479. 

Because Gomes’ misrepresentations did, in fact, influence the 

payment of the fraudulent invoices, despite the additional level 

of review, we conclude that those statements were material. See
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id. Thus, the district court did not err in denying Gomes’ Rule 

29 motion.

Next, Gomes argues that the district court violated his 

Sixth Amendment right to a jury trial by judicially finding the 

loss amount rather than by submitting this question to the jury. 

We conclude that the district court did not plainly err in this 

regard. See Henderson v. United States, 133 S. Ct. 1121, 1126-

27 (2013) (discussing standard of review). It is well 

established that “[s]entencing judges may find facts relevant to 

determining a Guidelines range by a preponderance of the 

evidence, so long as th[e] Guidelines sentence is treated as 

advisory and falls within the statutory maximum authorized by 

the jury’s verdict.” United States v. Benkahla, 530 F.3d 300, 

312 (4th Cir. 2008). Contrary to Gomes’ contentions, this rule 

did not change after the Supreme Court’s decision in Alleyne v. 

United States, 133 S. Ct. 2151, 2163 (2013). See United States 

v. Valdez, 739 F.3d 1052, 1054 (7th Cir. 2014), cert. denied, 

134 S. Ct. 2314 (2014). 

Finally, Gomes asserts that the district court 

miscalculated the amount of restitution by including losses due 

to invoices that were submitted while Gomes was on vacation or 

after he was terminated from his employment with Williams’ 

company, and by making Gomes jointly and severally liable for 

these amounts rather than attributing them solely to a 
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coconspirator. The Mandatory Victims Restitution Act of 1996 

requires the district court to order restitution for all losses 

that result from a criminal scheme or conspiracy. 18 U.S.C. 

§ 3663A(a)(1), (c)(1) (2012). “[E]ach member of a conspiracy 

[who] in turn causes property loss to a victim is responsible 

for the loss caused by the offense, not merely for the losses 

caused by a particular conspirator’s overt acts.” United States 

v. Seignious, 757 F.3d 155, 161 (4th Cir. 2014) (internal 

quotation marks omitted).

Contrary to Gomes’ contention, Gomes’ inability to continue 

helping the conspiracy after he was terminated did not end the 

conspiracy. United States v. Allmendinger, 706 F.3d 330, 341-42

(4th Cir. 2013), cert. denied, 133 S. Ct. 2747 (2013). This 

conspiracy directly caused all of Williams’ losses from the 

fraudulent invoices. To the extent Gomes contends that the 

district court procedurally erred by not considering whether to 

apportion the loss solely to a coconspirator under 18 U.S.C. 

§ 3664(h) (2012), we see no defect in the district court’s 

analysis. Cf. United States v. Rivera-Santana, 668 F.3d 95, 105 

(4th Cir. 2012) (noting that requirement that district court 

consider all 18 U.S.C. § 3553(a) (2012) factors does not require 

that it explicitly discuss each of them). Therefore, we 

conclude that the district court did not abuse its discretion in 
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crafting the restitution order. See United States v. Catone, 769

F.3d 866, 875 (4th Cir. 2014) (stating standard of review).

Accordingly, we affirm the judgment of the district 

court. We dispense with oral argument because the facts and 

legal contentions are adequately presented in the materials 

before this court and argument would not aid the decisional 

process. 

AFFIRMED