UNPUBLISHED

 UNITED STATES COURT OF APPEALS 

 FOR THE FOURTH CIRCUIT 

 No. 06-4819

 

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

versus 

JAMES BRAGG NEWMAN, 

 Defendant - Appellant. 

 

Appeal from the United States District Court for the Western 

District of Virginia, at Charlottesville. Norman K. Moon, District 

Judge. (3:04-cr-00094-nkm) 

 

Submitted: January 29, 2008 Decided: September 4, 2008 

Before MOTZ and DUNCAN, Circuit Judges, and HAMILTON, Senior 

Circuit Judge. 

Affirmed by unpublished per curiam opinion. 

Melvin L. Hill, WARE & HILL, L.L.P., Roanoke, Virginia, for 

Appellant. John L. Brownlee, United States Attorney, Jean B. 

Hudson, Assistant United States Attorney, Charlottesville, 

Virginia, for Appellee. 

Unpublished opinions are not binding precedent in this circuit. 
2

PER CURIAM: 

James Bragg Newman appeals his conviction and sentence 

following his guilty plea to one count of transportation of stolen 

money taken by fraud, in violation of 18 U.S.C. ' 2314 (2000). He 

claims his sentence was unreasonable, asserting error in the 

district court=s calculation of loss, in its increase of his base 

offense level by two levels based on an offense involving ten or 

more victims pursuant to U.S. Sentencing Guidelines Manual (USSG) 

' 2B1.1(b)(2)(A) (2004), in its alleged sixteen-level upward 

adjustment for loss exceeding $1,000,000 pursuant to USSG 

' 2B1.1(b)(1)(H), and in failing to grant his request for a 

downward departure.1

 1

The district court placed Newman in a total offense level of 

twenty-two, and a criminal history category of IV, with an 

attendant sentencing range of sixty-three to seventy-eight months=

imprisonment. 

The charge arose from, and the evidence established, a 

scheme by which Newman created a company operating as Basic 

Strategies Corporation located in Charlottesville, Virginia, held 

himself out as a licensed investment broker with Fidelity 

Investments, with which he was neither a licensed broker nor a 

representative, and made false representations to potential and 

actual investors in order to obtain their trust and their money. 

Among other things, Newman failed to reveal to his customers that 

he previously had been convicted of fraud. At Newman=s direction, 
3

clients opened new accounts with Fidelity Investments and Merrill 

Lynch. Newman provided his victims with financial advice on stock 

purchases and, in some cases, was given authority to make trading 

decisions and to manipulate transactions without conferring with 

the customer. Newman directed several clients to fund SelfEmployed Individual Retirement Accounts, or ASEP IRAs,@ and then 

failed to open many of these accounts, taking the money intended 

for the SEP IRA for his personal use. In some instances, Newman 

perpetrated his scheme by providing victims with fraudulent 

statements detailing how the money in the SEP IRA and other 

accounts purportedly had been invested. 

The probation officer placed Newman at a base offense 

level of six, pursuant to USSG ' 2B1.1(a)(2), and then added 

sixteen levels for a loss exceeding $1,000,000, pursuant to USSG 

' 2B1.1(b)(1)(H); an additional two levels for abuse of trust 

because Newman claimed to be a licensed financial investor or 

broker, pursuant to USSG ' 3B1.3; and an additional two levels 

because the offense involved more than ten victims, pursuant to 

USSG ' 2B1.1(b)(2)(A), for a total offense level of twenty-six.2

 

With a criminal history category of IV, the probation officer 

calculated Newman=s advisory guidelines range to be 92 to 115 

months= imprisonment. Newman filed objections to the presentence 

 2

The PSR identified eighteen victims, with a corresponding 

total loss of $1,242,219. 
4

report (APSR@), which objections included a challenge to the PSR=s 

calculation of loss and the number of victims. Following a full 

evidentiary hearing, the district court ultimately sentenced Newman 

under the advisory federal sentencing guidelines to seventy-eight 

months= imprisonment, three years of supervised release, and ordered 

payment of restitution of $148,749.16, representing total losses 

incurred by fifteen victims.34

With regard to the calculation of loss issue, Newman 

alleges on appeal that he should only have been held responsible 

for $61,500 in losses, and that the court should have found only 

six victims, such that the two-point enhancement for more than ten 

victims was wrongly applied.5 Newman further asserts error in the 

alleged sixteen-level adjustment for losses exceeding $1,000,000. 

 3

Specifically, the district court determined that Newman was 

responsible for an actual total loss of $186,992.16, for losses 

sustained by fifteen victims, and ordered restitution to be paid to 

twelve of those victims in the total amount of $148,749.16. 

4

The district court also found that Newman=s testimony was not 

credible and that he had not accepted responsibility, stating that 

Newman had obstructed justice in Aso many ways that are hard to 

enumerate@ but specifically with regard to the information he 

supplied to his counsel and the court regarding certain 

transactions with specific victims. 

5

Newman does not contest the district court=s loss 

determination as to the following victims and loss amounts: (1) 

David Artigues, in the amount of $10,000; (2) Edmond Hoskins, in 

the amount of $5000; (3) Marietta McCarty, in the amount of $7000; 

(4) Robert Stumm, in the amount of $13,000; and (5) Keith Stumm, in 

the amount of $6500. He also agrees that he absconded with $20,000 

from Hannah Watters, but disagrees with the $40,000 amount 

determined by the district court to be the actual loss sustained by 

Watters. 
5

This court reviews the determination of the amount of 

loss, to the extent it is a factual matter, for clear error, and 

reviews de novo the district court=s legal interpretation of the 

term Aloss@ under the Sentencing Guidelines. United States v. West, 

2 F.3d 66, 71 (4th Cir. 1993). Here, the district court heard and 

considered oral and documentary evidence, as well as arguments from 

both parties, during a two-day sentencing hearing regarding the 

various sentencing issues, including the calculation of loss. 

While Newman takes issue with the amount of loss 

determined by the district court, the record clearly reflects that 

the district court=s loss determination followed a lengthy 

sentencing hearing and was made after review of documentary and 

testimonial evidence, and an extended and detailed analysis of the 

transactions each victim had with Newman. The court=s careful 

consideration and determination as to which losses properly were 

attributable to Newman=s fraudulent activity, and its findings in 

distinguishing such properly attributable losses from losses 

sustained by other causes not properly includable including stock 

market instability,6

 fully support our conclusion that there is no 

clear error with regard to the district court=s loss calculation. 

 6

The court=s restitution order also reflects that it subtracted 

out the amounts that, as to some victims, already had been returned 

or recovered by each victim, as well as amounts that reasonably 

were incurred for legitimate services rendered. 
6

Secondly, Newman challenges the district court=s finding 

that the number of victims was ten or more, thus triggering a twolevel enhancement under USSG ' 2B1.1(b)(2)(A). We find this claim 

to be without merit, given the district court=s fact-finding at 

sentencing, which was based on the government=s ample evidence 

demonstrating that more than ten victims were affected by Newman=s 

fraudulent activities. The enhancement was reasonable and 

appropriate. 

Nor do we find merit to Newman=s challenge to the 

application of the sixteen-level upward adjustment for losses 

exceeding $1,000,000 pursuant to USSG ' 2B1.1(b)(1)(H), that was 

recommended in the PSR. The record clearly reflects that the 

district court did not apply the recommended adjustment, finding 

instead the total loss amount for which Newman should be held 

responsible for purposes of calculating his advisory guidelines 

range to be $186,992.16. 

Finally, Newman asserts error in the district court=s 

failure to grant him a downward departure. Specifically, he claims 

he should have benefitted from a departure because of family 

circumstances, because he suffers from Type II diabetes, and 

because he had been involved in charitable causes. 

We review a post-Booker sentence for reasonableness. 

This court affords sentences that fall within the properly 

calculated guidelines range a presumption of reasonableness, a 
7

presumption permitted by the Supreme Court. Rita v. United States, 

551 U.S. , 127 S. Ct. 2456, 2462 (2007). Where the district 

court is aware of its authority to depart under a specific 

guidelines provision, but exercises its discretion not to depart, 

this court lacks jurisdiction to review that portion of the 

sentencing decision. See United States v. Wood, 378 F.3d 342, 351 

n.8 (4th Cir. 2004); United States v. Bayerle, 898 F.2d 28, 30-31 

(4th Cir. 1990). 

In this case, the district court was aware of its 

authority to depart, but chose not to do so. A review of the 

sentencing transcript reveals that the district court considered 

the information in the PSR, the evidence presented by Newman and 

his arguments relating to his physical condition and family 

situation, as well as his educational level and charitable 

activities.7

 After considering the statutory factors under 

' 3553(a), the facts, arguments, and evidence presented to it, as 

well as the applicable advisory guidelines range, the district 

court deemed a within-guideline sentence to be appropriate. We 

find Newman has not overcome the presumption of reasonableness that 

this court accords such a sentence. Rita, 551 U.S. at , 127 S. 

Ct. at 2462. 

 7

The district court granted leave to Newman=s counsel to 

proffer or summarize information relative to Newman=s charitable 

work. 
8

Accordingly, we affirm Newman=s conviction and 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