United States Court of Appeals

Fifth Circuit



## FILED

August 26, 2004

Charles R. Fulbruge III

Clerk UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

____________

No. 03-30916

____________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MAURICE RIEMER CALHOUN, JR,

Defendant-Appellant.

Appeal from the United States District Court

For the Western District of Louisiana

Before DAVIS, EMILIO M. GARZA, and PRADO, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Maurice Riemer Calhoun Jr. (“Calhoun”) pled guilty to one count of wire fraud in violation

of 18 U.S.C. § 1343 and one count of conspiracy to co mmit equit y skimming in violation of 18

U.S.C. § 371, arising out of his rehabilitation and maintenance of affordable housing developments

in Louisiana and Texas. The district court determined that Calhoun’s total offense level was 24 and

sentenced him to 60 months of imprisonment on each count, to be served concurrently. On appeal,

Calhoun challenges the district court’s application of the Sentencing Guidelines. He contends that-2-

the district court erred in (1) its loss calculation under U.S.S.G. § 2F1.1; and (2) in assigning two

points for obstruction of justice under U.S.S.G. § 3C1.1. We find that the district court applied the

Sentencing Guidelines correctly and accordingly we affirm Calhoun’s sentence.

I

C alhoun was charged with wire fraud based on his development of thirty-five distressed

properties in Louisiana under the Low-Inc o me Housing Tax Credit Program run by the Louisiana

Housing Finance Agency (“LHFA”). The LHFA provides tax credits for investors in lo w-income

apartment complexes to finance the development and rehabilitation of the compl exes. The LHFA

approves projects based on LHFA guidelines and monitors construction and related costs to insure

that the projects comply with the program guidelines as established in the Qualified Application Plan

(“QAP”).

The QAP limit s the developer’s fee to a maximum of 15% of the costs of development plus

8% of the costs of acquisition of distressed properties. In addition, the builder is entitled to a profit

of 8% of the costs of construction. If, however, there is an identity of interest between the developer

and the builder, the developer is not entitled to both the 15% developer’s and the 8% contractor’s

profit. The developer is limited to a developer’s fee consisting of the 15% developer’s profit plus the

costs of acquisition. However, in order to gain bonus points for the competitive application selection

process, a developer may agree to limit their developer’s fee to 10% of the costs of development

only.

As developer of the thirty-five distresse d pro perties, Calhoun hired Ham Contracting Inc.

(“HCI”) as general contractor. Calhoun and HCI agreed that HCI would perform the construction

on these properties and that the profits from the construction work would be diverted to Calhoun.-3-

Calhoun did not, however, reveal this identity of interest to the LHFA, which enabled Calhoun to

collect a larger overall fee. Calhoun also increased his overall fee by submitting fraudulent cost

certificates which overstated costs and understated profits.

HCI diverted the contractor’s profits and the overages from the inflated costs to Calhoun by

purchasing gold coins, which were listed as assets o f HCI. These coins were kept in safe deposit

boxes under Calhoun’s control at the Louisiana Coin Exchange. The di stri ct court found that the

total excess profit gained by Calhoun as a result of the wire fraud was $2,463,995.

Calhoun also plead guilty to conspiracy to commit equity skimm ing based on loans he

received from Rural Development for the acquisition and rehabilitation of forty-seven mult i-family

affordable housin g units in Louisiana and Texas. Rural Development is an agency of the United

States Department of Agriculture that len ds money for the construction of rural low-income and

elder ly multi-family housing projects. The Rural Development loans are collateralized by reserve

accounts maintained by the borrower that can only be used to meet necessary expenses of the

property . In order to use the reserve accounts the borrower must submit reserve requests to Rural

Development for approval.

Calhoun ow ned Calhoun Property Management, L.L.C., which acted as a manager for the

partnerships that owned the housing complexes financed by the Rural Development loans. Calhoun

decided to request reserve funds to make capital improvements on the various housing complexes.

He directed an employee to submit reserve requests that exceeded the amount estimated to complete

the repairs on the properties by approximately 130%. These reserve requests required the solicitation

of at least three competitive bids prior to the release of funds. Calhoun, however, rigged the bidding

pro cess so that a construction company he controlled would always do the work. Calhoun then-4-

diverted the undisclosed profits for his own use.

Calhoun submitted these fraudulent requests for at least 47 propertie s

. Although Rural

Development in Louisiana denied many of the re quest s as excessive, Rural Development in Texas

approved eleven out of twenty-four reserve requests. The district court determined that the correct

measure of the lo ss caused by Calhoun’s fraud was the intended loss and not the actual loss.

Accordingly, the district court considered all of Calhoun’s fraudulent reserve requests, incl udi ng those

no t approved, to determine that the intended loss from the equity skimming scheme was

$1,106,303.62. When the loss from the wire fraud charge was added to the loss from the conspiracy

to commit equity skimming count, it totaled $3,570,298.62. Under U.S.S.G. § 2F1.1, because the

loss total was greater than $2.5 millio n, but less than 5 millio n, the district court enhanced Calhoun’s

sentence by thirteen points.

The district court also enhanced Calhoun’s sentence by two points for obstruction of justice

based on the following facts: Calhoun became aware of the government’s investigation of him

between mid-1999 and early 2000. During the course of his schemes, Calhoun had gold coins placed

in three boxes at the Louisiana Coin Exchange. In May 2002, Calhoun asked his employee, Thomas

Frye, to retrieve the gold coins from one of these boxes, numbered box 122. Before Frye arrived at

the Louisiana Coin Exchange, however, Calhoun called to tell him that the government was already

there drilling the boxes. The government found that boxes 120 and 121 were empt y. Box 122,

however, contained gold coins, which the government confiscated.

The following month, Calhoun visited his safe deposit box at Hibernia Ban k in Mansfield,

Louisiana. Shortly thereafter, he brought gold coins to his son’s house in Louisiana and left them in

a trash can outside the residence. His daughter-in-law subsequently moved the coins to her brother’s-5-

home.

II

Calhoun asserts that the district court erred in calculating his sentencing guideline loss under

U.S.S.G. § 2F1.1. The calculation of the amount of loss is a factual finding, reviewed for clear error.

United States v. Sanders, 343 F.3d 511, 521 (5th Cir. 2003). This means that the finding must be

plausible in light of the record as a whole. Id.

Calhoun first contends that the district court’s loss calculation was incorrect because it failed

to take into account an 8% cost o f acquisition fee to which he was legally entitled. During the

competitive application process, however, in exchange for bonus points Calhoun agreed to limit his

developer’s fees to 10% of the Developer Fee Base. Calhoun thus relinquished any claim to the extra

5% of the Developer Fee Base and 8 % of the Acquisition Cost Base to which he normally would be

entitled. Calhoun was not entitled to a fee consisting of 8% of the cost of acquisition of the distressed

properties.

Calhoun also contends that the wire fraud guideline loss calculation should have taken into

account the $355,653 in losses he sustained on certain of the rehabilitation projects. We need not

address this argument, because even assuming that Calhoun is correct, reducing his loss by $355,653

would not effect his sentence range under § 2F1.1.

Calhoun also objects to the district court’s calculation of the loss stem ming from the

conspiracy to co mmit

equit y skimming charge. He asserts that it was incorrect to use the gross

amount of reserve funds that he requested from Rural Development instead of the amount actually

appr o ved by Rural Development to calculate the loss. The Sentencing Guidelines state that

“[c]onsistent with the provisions of § 2X1.1 (Attempt, Solicitation, or Conspiracy), if an intended loss-6-

that the defendant was attempting to inflict can be determined, this figure will be used if it is greater

than the actual loss.” U.S.S.G. § 2F1.1 cmt. n. 8. Intended loss is the appropriate measure of loss

when the loss is “1) resulting from convictions for an ‘Attempt, Conspiracy or Solicitation’ to commit

some other substantive offense which the Defendant was attempting to commit; 2) which is capable

of being determined; and 3) is greater than the ‘actual loss.’” See Sanders, 343 F.3d at 522.

Here, the intended loss should be used to determine Calhoun’s sentence. First, the loss is a

result of Calhoun’s conviction for conspiracy to commit equity skimming. Second, the intended loss

can be calculated based upon the amount of reserve that Calhoun initially requested. The reserves

requested by Calhoun were not disbursed because of actions taken by Rural Development, not as a

result of any action taken by Calhoun. The refusal to grant certain of Calhoun’s requests did not

impact Calhoun’s intent to cause loss. C f. Sanders, 343 F.3d at 514-15 (Actual loss was the

appropriate measure of lo ss where a smaller loan was disbursed than initially requested when the

defendant reduced the loan amount requested of his own accord). The intended loss in this case is

commensurate with the amount of reserve funds Calhoun requested. Finally, t he intended loss is

greater than the actual loss as Rural Development did not approve all of Calhoun’s reserve requests.

The Sanders factors that determine when to use intended loss as the measure of loss have bee n

satisfied. The district court thus correctly used the requested reserve requests to calculate the loss

stemming from the equity skimming charge.

Calhoun also contends that the district court erred by enhancing his sentence for obstruction

of justice under U.S.S.G. § 3C1.1. The district court gave three reasons for applying the obstruction

of justice enhancement: (1) Calhoun requested that Frye remove the gold from safe deposit box 122;

(2) Calhoun transported gold to New Orleans; and (3) Calhoun altered an employment agreement and1 T he Sentencing Guidelines provided Calhoun with sufficient notice that the district court

might enhance his sentence for obstruction of justice on the basis that he requested Frye retrieve the

gold coins because Calhoun had actual knowledge of his request. S ee United States v. Marmolejo,

89 F.3d 1185, 1201 (5th Cir. 1996).

-7- destroyed the computer on which it was made.

Section 3C1.1 provides for a two-point enhancement

[i]f (A) the defendant willfully obstructed or impeded, or attempted to

obstruct of impede, the administration of justice during the course of

the investigation

. . . and (B) the obstructive conduct related to (i) the

defendant’s offense of the conviction, and any relevant conduct; or (ii)

a closely related offense.

U.S.S.G. § 3C1.1 (2000). Calhoun contends that he did not request that Frye remove the gold from

safe deposit box 122 with the intent to obstruct justice.

We review the question of whether Calhoun acted with the intent to obstruct justice for clear

error. S ee United States v. Chavarria,

___ F.3d

___ , 2004 WL 1551371 (5th Cir. July 12, 2004).

The Government m

ust sho w t hat Calhoun had the specific intent to obstruct justice by a

preponderance of the evidence. U nited S tates v. Greer, 1 58 F.3d 228, 239 (5th Cir. 1998). The

district court is permitted to use circumstantial evidence to find that Calhoun engaged in a conscious

and deliberate attempt to obstruct or impede the administration of justice. I d. T he district court may

draw all reasonable inferences from the evidence. S ee United States v. Khedr, 343 F.3d 96, 102 (2nd

Cir. 2003). Here, it was reasonable to infer that a request to remove gold coins that were purchased

with the proceeds of a fraud during a pending investig at ion was done with the intent to obstruct

justice. The obstruction o f justice enhancement based on Calhoun’s request that Frye retrieve the

gold coins from safe deposit box 122 is supported by the evidence. 1

The record also supports an obstruction of justice enhan cement based upon Calhoun’s

transportati on of gold from Mansfield to New Orleans. Although Calhoun claims that the transported2 We need not address the district court’s other basis for finding obstruction of justice, the

creation of a false employment agreement and destruction of a computer, because the other two bases

are sufficient to support the obstruction of justice enhancement.

3 The appellee’s motion to file a letter supplementing the argument made at oral argument is

denied.

-8- gold was unrelated to the charged conduct because it legitimately belonged to his wife, Marcia, the

evidence shows that: 1) Calho un transported gold from Mansfield to his son’s residence in New

Orleans; 2) Calhoun placed t he go ld in a trash can at the back of his son’s house; 3) Calhoun’s

daughter-in-law then retrieved the gold from the trash and brought it to her brother’s house; and 4)

the gold was placed in a vacant room

. The evidence also shows that the reason Calhoun placed the

gold in a trash can outside his son’s home was that his son did not want the gold in the house. This

is strong circumstantial evidence that the transported gold was not legit imat ely owned. The

Government met its burden to establish by a preponderance of the evidence that in transporting the

gold to New Orleans Calhoun tried to obstruct justice by hiding his illegitimate gold. The two-point

enhancement for obstruction of justice is supported by the evidence. 2

AFFIRMED. 3