UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 07-4591

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

DONOVAN CARTER, a/k/a Dski, a/k/a Donavan Alton,

Defendant - Appellant.

Appeal from the United States District Court for the District of

South Carolina, at Columbia. Cameron McGowan Currie, District

Judge. (3:06-cr-01216-CMC)

Submitted: July 22, 2008 Decided: August 18, 2008

Before GREGORY, SHEDD, and DUNCAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

J. Falkner Wilkes, Greenville, South Carolina, for Appellant.

Kevin F. McDonald, Acting United States Attorney, Dean A.

Eichelberger, Assistant United States Attorney, Columbia, South

Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Donovan Carter appeals from his fifty-seven month

sentence entered pursuant to his convictions for conspiracy to

falsely alter and pass money orders and to defraud financial

institutions. On appeal, Carter challenges the calculation of his

Guidelines range. We affirm.

Carter first asserts that the district court clearly

erred in determining the amount of loss for which he was

responsible. Specifically, he claims that many of the money orders

attributed to him were insufficiently linked to him. We review the

amount of loss, to the extent it is a factual matter, for clear

error. United States v. West, 2 F.3d 66, 71 (4th Cir. 1993). This

deferential standard of review requires reversal only if we are

“left with the definite and firm conviction that a mistake has been

committed.” United States v. Stevenson, 396 F.3d 538, 542 (4th

Cir. 2005). A sentencing court may consider any evidence that “has

a sufficient indicia of reliability.” See U.S. Sentencing

Guidelines Manual § 6A1.3(a) (2006).

Here, there was testimony at the sentencing hearing that

all the money orders attributed to Carter met several criteria:

(1) they were purchased in either California or South Carolina

during a specific two-month period; (2) they were purchased for

nominal amounts; (3) they were negotiated in North or South

Carolina; and (4) they were altered by exactly $900. In addition,
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most were traced directly back to Carter by interviews with the

purchasers or negotiators. We find that this testimony was

sufficient to show by a preponderance of the evidence that each of

the money orders attributed to Carter was a foreseeable part of the

conspiracy. Accordingly, the district court did not clearly err in

adopting the calculation of loss in the presentence report.

Carter next argues that, because some of the banks were

reimbursed for their losses from the people who negotiated the

altered money orders, these banks did not suffer a loss and should,

therefore, not be considered victims for Guidelines purposes. In

support, Carter cites to United States v. Yagar, 404 F.3d 967, 971

(6th Cir. 2005), which held that an individual suffering a monetary

loss that was short-lived and immediately covered by a third party

is not a victim for sentencing purposes. Carter did not raise this

issue below.

Under the Guidelines, a “victim” is “any person who

sustained any part of the actual loss.” USSG § 2B1.1, cmt. (n.1).

“Actual loss” is in turn defined as “the reasonably foreseeable

pecuniary harm that resulted from the offense.” USSG § 2B1.l, cmt.

(n.3(A)(i)). A defendant is only entitled to a credit against loss

where money or property is returned “by the defendant or other

persons acting jointly with the defendant, to the victim before the

offense was detected.” USSG § 2B1.1, cmt. (n.3(E)(i)). Moreover,

the Eleventh Circuit held that a defendant who is entitled to
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credit by definition has caused an initial loss to a third party,

thus making the third party a victim, albeit a reimbursed victim.

See United States v. Lee, 427 F.3d 881, 895 (11th Cir. 2005)

(criticizing and distinguishing Yagar). We have not addressed the

question of the reimbursed victim, and we decline to do so at this

juncture because, even applying Yager, Carter is not entitled to

relief.

Here, there was no evidence that the reimbursements were

made immediately or prior to the time the offense was detected. To

the contrary, according to Carter’s brief and the evidence at

trial, some of the repayments were made by court order (clearly

AFTER the offense was detected), some were not complete, and none

were alleged to have been made in conjunction with Carter. Given

the lack of argument or evidence from Carter at the sentencing

hearing and the lack of agreement amongst the courts that have

looked at this issue, we conclude that the district court did not

commit either significant procedural error or plain error in

counting victims who had subsequently been reimbursed by third

parties. See United States v. Olano, 507 U.S. 725, 734 (1993)

(holding that error is “plain” when it is “clear under current

law”).

Finally, Carter argues that the victims listed in the

presentence report, but not mentioned at trial, were not

specifically linked to him. The presentence report included a
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detailed report of all the money orders involved in the case.

According to the report, the conspiracy, of which Carter was a

driving force, passed money orders to sixteen financial

institutions. There was testimony at the sentencing hearing that

these money orders were included because they all fit the specific,

detailed pattern of the conspiracy. Carter did not challenge the

accuracy of the report and failed to provide any evidence that any

of the money orders which had been included in his relevant conduct

were included incorrectly. Accordingly, the district court’s

conclusion that there were more than ten victims was not clearly

erroneous. See United States v. Terry, 916 F.2d 157, 162 (4th Cir.

1990) (“A mere objection to the finding in the presentence report

is not sufficient . . . . Without an affirmative showing the

information is inaccurate, the court is free to adopt the findings

of the [presentence report] without more specific inquiry or

explanation.”).

Based on the foregoing, we affirm Carter’s 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