UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 94-5938

SANDRA M. SKEEN,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 94-5955

ROBERT L. PEELER, SR.,

Defendant-Appellant.

Appeals from the United States District Court

for the District of South Carolina, at Anderson.

Henry M. Herlong, Jr., District Judge.

(CR-93-165)

Submitted: May 21, 1996

Decided: June 3, 1996

Before MURNAGHAN, LUTTIG, and MOTZ, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Oscar William Bannister, Jr., D. Garrison Hill, HILL, WYATT,

BANNISTER & BROWN, L.L.P., Greenville, South Carolina;
Albert Q. Taylor, Jr., TAYLOR & HENRY, Greenville, South Carolina, for Appellants. William Corley Lucius, Assistant United States

Attorney, Greenville, South Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Robert Peeler, Sr., and Sandra Skeen appeal from their convictions

of making material false statements on loan applications with banks

insured by the FDIC (18 U.S.C.A. §§ 1014, 2) (West 1976 & Supp.

1996) (Counts One through Nine) and knowingly and fraudulently

withholding documents relating to a debtor's assets from the bankruptcy trustee (18 U.S.C.A. § 152) (West 1969 & Supp. 1996) (Count

Ten). Peeler also appeals from his conviction of withholding, concealing, and falsifying certain bankruptcy records (18 U.S.C. § 152)

(Count Eleven). Their attorney has filed a brief pursuant to Anders v.

California, 386 U.S. 738 (1967), noting three issues regarding sentencing but stating that, in his view, there are no meritorious issues

for appeal. Peeler and Skeen were both notified of their right to file

supplemental pro se briefs. Only Peeler has done so.

Peeler owned Carolina Leasing, Inc., an automobile leasing company, and Skeen served as its vice president and office manager. Carolina Leasing filed for bankruptcy under Chapter 11 of the

Bankruptcy Code in August 1991. During the course of those proceedings, the bankruptcy trustee found a number of irregularities in

Carolina Leasing's finances. An investigation by the United States

Attorney and the FBI ultimately resulted in a twelve-count indictment

against Peeler and Skeen (the Defendants).1

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1 Count Twelve was dismissed on motion of the Government prior to

trial.

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The indictment charged the Defendants with submitting false loan

applications to FDIC-insured banks (Counts One through Nine) by (1)

misrepresenting that vehicles pledged as collateral were unencumbered when, in fact, they had been pledged as collateral to another

financial institution; (2) submitting falsified lease agreements to

pledge as security for loans on vehicles; (3) submitting falsified purchase agreements for certain vehicles; and (4) overstating the value

of vehicles pledged as security. The indictment also charged the

Defendants with fraudulently withholding from the bankruptcy trustee

certain books and records of Carolina Leasing (Count Ten). Finally,

the Defendants were charged with fraudulently concealing from the

trustee and creditors of the estate the diversion of assets from the

bankruptcy estate. A jury convicted Peeler on all counts; Skeen was

convicted of Counts One through Ten. Peeler was sentenced to sixtythree months imprisonment on Counts One through Nine, and sixty

months imprisonment on Counts Ten and Eleven, to be served concurrently. Skeen was sentenced to forty months imprisonment. Both

have timely appealed.

Peeler's and Skeen's counsel first challenges the amount of loss

attributable to them in determining their sentences. Under USSG

§ 2F1.12 (Fraud and Deceit), each of the Defendants was assigned a

base offense level of six. Pursuant to § 2F1.1(b), the specific offense

characteristics, the offense level is increased according to the monetary loss involved. "Loss," as the term is used in the guidelines,

includes "intended, probable, or otherwise expected loss." United

States v. Baum, 974 F.2d 496, 499 (4th Cir. 1992). In bank fraud

cases, loss is measured as the potential consequences of default, rather

than the amount of the loan, less the value of any security interest and

any payments made by the defendant. Id.; see also United States v.

Rothberg, 954 F.2d 217 (4th Cir. 1992). The district court's determination of the amount of loss is reviewed for clear error. Id. at 219.

The government produced detailed evidence at the sentencing hearing to support the district court's finding that Peeler was responsible

for an actual loss of $5,624,408.82. Finding that Skeen was slightly

less culpable than Peeler, the district court determined that she was

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2 United States Sentencing Commission, Guidelines Manual (Nov.

1990).

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responsible for an actual loss of between $2,500,000 and $5,000,000.

Our review of the record reveals that the district court did not clearly

err in these findings.

Second, counsel raises two claims regarding Skeen's sentence: the

district court's denial of her request for a two-point reduction for

acceptance of responsibility (USSG § 3E1.1) and the denial of her

request for a two-point reduction for minimal role in the offense

(USSG § 3B1.2). The adjustment for acceptance of responsibility is

not intended to apply to a defendant who contests his factual guilt at

trial. U.S.S.G. § 3E1.1, comment. (n.2). See United States v.

Muldoon, 931 F.2d 282 (4th Cir. 1991) (absent rare circumstances,

USSG § 3E1.1 precludes a downward adjustment for acceptance of

responsibility where a defendant exercises his constitutional right to

a trial). Moreover, the burden is on the defendant to establish by a

preponderance of the evidence that he is entitled to the adjustment.

United States v. Urrego-Linares, 879 F.2d 1234, 1239 (4th Cir.), cert.

denied, 493 U.S. 943 (1989). Whether the reduction is warranted "is

primarily a factual question, and due deference for the sentencing

court requires an appellate court to accept its findings unless they are

clearly erroneous." United States v. Cusack , 901 F.2d 29, 31 (4th Cir.

1990). The district court denied Skeen's request primarily on the

grounds that she had not accepted responsibility prior to the sentencing hearing. Because timeliness of admission of responsibility is a

factor which the district court may consider, United States v. Jones,

31 F.3d 1304 (4th Cir. 1994), and because Skeen did not unambiguously acknowledge her criminal conduct, United States v. Castner, 50

F.3d 1267, 1280 (4th Cir. 1995), the district court did not clearly err

in denying her the adjustment.

Second, Skeen's counsel claims that the district court erred in

denying her an adjustment for being a minimal participant, USSG

§ 3B1.2. A minimal participant is among the least culpable of those

involved, as shown by his lack of understanding of the scope and

structure of the activities of the others involved. USSG § 3B1.2, comment. (n.1). The "critical inquiry is whether the defendant's conduct

is material or essential to commission of the offense." United States

v. Palinkas, 938 F.2d 456 (4th Cir. 1991), vacated, 503 U.S. 931

(1992), reinstated, 977 F.2d 905 (4th Cir. 1992). The district court's

determination of whether the defendant had a minimal or minor role

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is essentially a factual question, reviewed for clear error. United

States v. Daughtrey, 874 F.2d 213, 218 (4th Cir. 1989). The evidence

at trial established that Skeen was involved in all aspects of the dayto-day running of Carolina Leasing, that she shared an office with

Peeler, and that the two of them had worked together for fifteen years.

Accordingly, we will not disturb the district court's finding that Skeen

was neither a minor or minimal participant in the offenses.

Peeler has filed a supplemental pro se brief raising five broad

claims. First, Peeler alleges that the district court judge displayed

"prejudicial and biased conduct" during the trial and that his motions

for a mistrial and for a new trial on those grounds were improperly

denied. Our review of the transcript of the trial reveals no excessive

intervention by the judge, Anderson v. Warden, Md. Penitentiary, 696

F.2d 296 (4th Cir. 1982), or any improper commentary on the evidence, United States v. Tello, 707 F.2d 85 (4th Cir. 1983). Accordingly, we find these claims to be without merit.

Second, Peeler alleges that several of the government's witnesses

were "biased and influenced" through various"favors" and "preferential treatment" issued by the banks and the bankruptcy trustee. Again,

our review of these claims and the evidence submitted by Peeler in

support thereof reveals that these claims are without merit.

Third, Peeler raises a number of claims alleging that he was denied

effective assistance of counsel. Because ineffective assistance does

not conclusively appear on the face of the record, however, Peeler's

ineffective assistance claims must be brought by motion under 28

U.S.C. § 2255 (1988) and not on direct appeal. United States v.

Fisher, 477 F.2d 300, 302 (4th Cir. 1973); see also United States v.

DeFusco, 949 F.2d 114, 120 (4th Cir. 1991), cert. denied, 503 U.S.

997 (1992).

Peeler's fourth claim is entitled "Evidentiary Facts and Findings,"

but points to no specific evidentiary rulings by the district court.

Rather, Peeler makes four statements explaining facts adduced at his

trial, none of which states a claim.

Finally, Peeler claims that the district court improperly overruled

his objections to the amount of loss as calculated in the presentence

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report. We have already concluded that the district court's finding on

this issue was not clearly erroneous; accordingly, these claims are

without merit.

In accordance with Anders we have examined the entire record in

these cases and find no other meritorious issues for appeal. We therefore affirm the convictions and sentences. This court requires that

counsel inform his clients, in writing, of their right to petition the

Supreme Court of the United States for further review. If the client

requests that a petition be filed, but counsel believes that such a petition would be frivolous, then counsel may move in this court for leave

to withdraw from representation. Counsel's motion must state that a

copy thereof was served on the client. 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

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