Filed: October 17, 2002

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

 

No. 99-4783

(CR-99-58, CR-99-134, CR-99-135)

 

United States of America,

Plaintiff - Appellee,

versus

Mark Paul Sarno,

Defendant - Appellant.

 

No. 00-4795

(CR-99-58, CR-99-134, CR-99-135)

 

United States of America,

Plaintiff - Appellee,

versus

Mark Paul Sarno,

Defendant - Appellant.
 

On Petition for Rehearing and Rehearing En Banc

 

The appellant’s petition for rehearing and rehearing en banc

was submitted to this Court. As no member of this Court or the

panel requested a poll on the petition for rehearing en banc, and

As the panel considered the petition for rehearing and is of

the opinion that it should be denied,

IT IS ORDERED that the petition for rehearing and rehearing en

banc is denied.

IT IS FURTHER ORDERED that the slip opinion is modified as

follows: on page 7, line 10 of the text of Part B, the word “then”

is changed to read “had.”

Entered at the direction of Judge Widener, with the

concurrence of Judge Luttig and Judge Goodwin.

For the Court

/s/ Patricia S. Connor
Panel rehearing and rehearing 

en banc denied and opinion

modified by order filed 10/17/02
UNPUBLISHED 

UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

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UNITED STATES OF AMERICA,

 Plaintiff-Appellee,

 v. No. 99-4783 

MARK PAUL SARNO,

 Defendant-Appellant.

4444444444444444444444444444444444444444444444448

4444444444444444444444444444444444444444444444447

UNITED STATES OF AMERICA,

 Plaintiff-Appellee,

 v. No. 00-4795 

MARK PAUL SARNO,

 Defendant-Appellant.

4444444444444444444444444444444444444444444444448

Appeals from the United States District Court 

for the Middle District of North Carolina, at Durham. 

 

William L. Osteen, District Judge. 

(CR-99-58, CR-99-134, CR-99-135) 

Argued: December 4, 2001 

Decided: May 24, 2002 

Before WIDENER and LUTTIG, Circuit Judges, and 

 

Joseph R. GOODWIN, United States District Judge for the 

 

Southern District of West Virginia, sitting by designation. 

 

____________________________________________________________

Affirmed by unpublished per curiam opinion.

____________________________________________________________
COUNSEL 

ARGUED: Stephen Clayton Gordon, Assistant Federal Public

Defender, Raleigh, North Carolina, for Appellant. Lawrence Patrick

Auld, Assistant United States Attorney, Greensboro, North Carolina,

for Appellee. ON BRIEF: Thomas P. McNamara, Federal Public

Defender, Raleigh, Noth Carolina, for Appellant. Benjamin H. White,

Jr., United States Attorney, Greensboro, North Carolina, for Appellee.

____________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

____________________________________________________________

OPINION 

PER CURIAM:

 Mark Paul Sarno (defendant) pleaded guilty and was sentenced for

loan application fraud, 18 U.S.C. § 1014, credit card fraud, 18 U.S.C.

§ 1029(a)(2), and mail fraud, 18 U.S.C. § 1341. Defendant appeals

the district court's denial of three motions, the district court's application of three sentencing guidelines, and also raises an Apprendi issue.

We affirm the district court's decision in each of those claims.1

I. 

A. 

 The following facts underlie the charges. As to the loan application

fraud charge, on October 6, 1998 Defendant applied for two loans,

totaling $159,500, from the First Citizens Bank and Trust in Greensboro, N.C. On the application, defendant listed Paul Kaiser as cowriter or guarantor on the loans; in addition, a deed of trust with Kaiser's signature was attached to the application.

____________________________________________________________

 1 The 1998 Sentencing Guidelines were used in this case.

2 
 Kaiser was described as the president and fifty-percent shareholder

of Zaitech Holdings. Zaitech was allegedly a real-estate/ investment

firm in Greensboro. Kaiser denied ever signing the deed of trust, ever

owning interest in Zaitech Holdings, and ever agreeing to be a guarantor of the loan.

 As to the credit card fraud charge, between February 1998 and January 1999, defendant obtained 13 credit cards through false statements. The alleged loss exceeded $85,000, with an intended loss in

excess of $135,000.

 As to the mail fraud charge, defendant falsely held himself out to

be the sole proprietor of an investment firm to induce the victims to

relinquish their money. The victims were mailed statements showing

their alleged gains on the fake investments. More than $150,000 was

invested.

B. 

 In January 1999, defendant was arrested and charged with violating

supervised release on previous federal charges. He allegedly contacted Bill Osteen, an attorney, to represent him, but Sarno did not

employ Bill Osteen, claiming the fee was too high.2

 Defendant claims

that Bill Osteen had had previous contact with one of the banks,

apparently concerning some unidentified source of money Sarno had

sent to the bank. At the arraignment in March, David Freedman

(Freedman) represented defendant where he entered a not guilty plea.

Subsequently, defendant sent letters to the district court alleging problems with Freedman; however, when asked about the representation,

defendant stated "Mr. Freedman will represent me, and that's fine."

He also stated that he had no other issues to raise with the court. Two

months later in May, defendant again stated he did not want to discharge Freedman. At the change of plea hearing when he pleaded

guilty, defendant was given time to confer with counsel, was provided

options as to sentencing, and unequivocally pleaded guilty to all three

charges.3

 Defendant also acknowledged that he was waiving constitu-

____________________________________________________________

 2 Defendant claims that Bill Osteen offered to represent him for

$40,000.

 3 Defendant was repeatedly asked by the district court if he wished to

discharge his counsel. Moreover, the district court stated it would not

accept a guilty plea unless defendant knowingly and intelligently waived

his right to a trial. Defendant twice reaffirmed his plea.

3 
tional rights in so pleading. At the end of this proceeding, Freedman

informed the court that he may move for a mental health evaluation;

he did so on July 17, 1999.

 Prior to sentencing, defendant actively filed various motions and

attended multiple hearings on such motions. Defendant requested the

discharge of Freedman, which the district court granted during the

August 4, 1999 hearing.4

 At this same hearing, the court thoroughly

questioned defendant about an alleged promise made by Freedman

and the prosecution to debrief defendant on inconsistencies in the factual content of his plea. Shortly after the hearing, defendant filed a

motion for a psychiatric evaluation; he also filed various other

motions between August 9 and 23. On September 21, 1999, the district court denied the psychiatric evaluation after hearing argument on

the matter.

 Shortly after this September 21 hearing, Assistant Public Defender

Thomas Cochran (Cochran) began representing defendant and did so

throughout sentencing. On October 4, Cochran filed a position statement objecting to the Presentence Report (PSR) inclusion of the

mass-marketing and abuse of trust enhancements and the exclusion of

the acceptance of responsibility adjustment. On this same day, defendant's counsel also filed an "Acceptance of Responsibility" pleading.

The two-day sentencing hearing began the next day on October 5.

 The first day of sentencing defendant stated that he wished to challenge alleged false statements made by witnesses. The district court

allowed this, but noted that the fact may weigh against a reduction

under U.S.S.G. § 3E1.1 Acceptance of Responsibility. Defendant called Mr. Creason, an investor with defendant, who testified that he still

did not believe Zaitech Holdings to be a fraud. The court did not find

anything in the testimony to support defendant's motion and proceeded to sentencing. As to the mass-marketing and abuse of trust

enhancements, the district court relied on the PSR and affirmed the

application of the two provisions. As to the acceptance of responsibility, the court heard statements from the government and Camille Roberts that defendant had recently misled these investors, inducing them

____________________________________________________________

 4 Defendant also filed motions alleging witness tampering by the

United States Attorney's office.

4 
to believe he would repay their money. The court allowed a two out

of three point reduction for accepting responsibility, but expressed

doubt in doing so.

 On the second day of sentencing, defendant moved to withdraw his

guilty pleas, alleging prosecutorial misconduct, concealment of evidence, government collusion, and perjury. In addition, defendant

asserted ineffective assistance of counsel against his former attorney

Freedman, claiming a conspiracy between Freedman and the government. The district court permitted defendant to write out his version

of the facts, which he felt the PSR omitted, on the condition that the

previous sentencing guideline rulings would be reconsidered. Mr.

Stout, a witness unavailable the day before, also testified that less

than a week before defendant assured him his funds were available.

After hearing argument on the acceptance of responsibility issue, the

district court reversed its decision and declined to grant a two-point

reduction. Immediately prior to being sentenced, defendant requested

the district court recuse itself, based on defendant's previous contact

with Bill Osteen. Finding Bill Osteen was not retained by defendant

and never made an appearance in the case, the district court declined

defendant's motion for recusal. Defendant was then sentenced to 115

months imprisonment, to run consecutive to a 48-month supervised

release violation.

 At conclusion of the hearing, the court admonished Cochran to do

three things: first, to "bring to the attention of the court within a

period of 30 days any evidence that he has which may reflect that the

United States Attorney has withheld and destroyed evidence in this

case"; second, to investigate whether perjury had occurred; and third,

to investigate possible collusion between Freedman and the U.S.

Attorney's office. After investigating, Cochran reported by letter that

he found no evidence to support the allegation of withholding or

destroying evidence or perjury. As to collusion between David Freedman and Assistant U.S. Attorney Auld, both of whom denied any collusion, he could form no conclusion because a potential witness,

Assistant U.S. Attorney Weinman, would not respond to his request

without permission from his attorney. Weinman later spoke to Cochran, denying collusion with the defendant's attorney, and this was

reported to the district judge by Cochran. The judgment of the district

court was filed December 7, 1989.

5 
II. 

 Defendant raises seven issues on appeal, three pertaining to the district court's application of the sentencing guidelines, three relating to

denied motions, and lastly, an Apprendi issue.

A. 

 Defendant challenges the district court's denial of his motion to

withdraw his guilty plea. We review a denial of a motion to withdraw

a guilty plea for abuse of discretion. United States v. Craig, 985 F.2d

175, 178 (4th Cir. 1993). The question is whether the district court

abused its discretion in finding that the defendant had not shown a

"fair and just reason" for being allowed to withdraw his plea. Craig,

985 F.2d at 178 (citing Fed. R. Crim. P. 32(e) as the standard). The

factors are (1) whether the defendant has offered credible evidence

that his plea was not knowing or not voluntary, (2) whether the defendant has credibly asserted his legal innocence, (3) whether there has

been a delay between the entering of the plea and the filing of the

motion, (4) whether defendant has had close assistance of competent

counsel, (5) whether withdrawal will cause prejudice to the government, and (6) whether it will inconvenience the court and waste judicial resources. United States v. Moore, 931 F.2d 245, 248 (4th Cir.),

cert. denied, 502 U.S. 857 (1991).

 We are of opinion that the district court did not abuse its discretion

in refusing to allow the defendant to withdraw his guilty plea. Defendant originally pleaded not guilty but then signed a plea agreement.

At the hearing on the change of plea, the court clearly explained to

defendant his three choices: first, to hire a new lawyer; second, to

plead not guilty and go to trial; third, to plead guilty. Defendant

admitted that no promises or threats had been made which would

have precluded voluntariness or knowledge. He did not object to the

Rule 11 proceeding. While defendant stated that he and his attorney

had disagreements, he conceded that he had cleared up all concerns

with counsel. He showed no error or prejudice with the representation

of his attorney. Defendant's motion was not timely, he waited until

his sentencing hearing then decided to challenge his guilty plea.

Moreover, the timing of the motion did not add to confidence in its

6 
validity.5

 We are of opinion the district court did not abuse its discretion in its denial of Sarno's request to withdraw his plea of guilty.

B. 

 Sarno also appeals the district judge's decision not to recuse himself. We review a denial of a district court's refusal to recuse itself

for abuse of discretion: United States v. DeTemple, 162 F.3d 279, 283

(4th Cir. 1998), cert. denied, 526 U.S. 1137 (1999). Defendant moved

for recusal at the eleventh hour, after the district court had determined

all of the guideline applications; the judge declined to recuse himself

and sentenced the defendant. The district judge affirmed his recusal

decision by order dated October 27, 2000. This order specified that

the judge had no notice of his son's alleged representation of defendant. Defendant then filed a judicial complaint, which was dismissed

as frivolous by the Chief Judge of this court on April 20, 2000, being

wholly unsupported by factual allegations. Defendant then petitioned

the Circuit Judicial Council for a review of that order. The Judicial

Council denied Sarno's Petition for Review on May 30, 2000.

 28 U.S.C. § 455(b)(5)(ii) requires a judge to recuse himself if "he

or his spouse, or a person within the third degree of relationship to

either of them, or the spouse of such a person . . . is acting as a lawyer

in the proceeding." Proceeding is then defined to include pretrial,

trial, appellate review, or other stages of litigation. 28 U.S.C.

§ 455(d)(1).

 Defendant alleges that Bill Osteen, the district court judge's son,

was his lawyer in pretrial litigation. Apart from a brief reference to

Bill Osteen at a detention hearing,6

 the only evidence of Bill Osteen's

____________________________________________________________

 5 The district court noted the potential for bad-faith when it stated:

"You are either not knowledgeable enough to enter a plea, or you're

attempting to make a record to show later on that you were not ably represented by counsel. And we're going to shortstop both of those, because

you're either going to have a jury trial or you're going to knowingly and

willfully waive that and tender a plea of guilty."

 6 At a detention hearing on February 3, 1999 before Magistrate Judge

Eliason, in which Sarno was represented by John Dusenbury, of the Federal Public Defender's office, Bill Osteen was referred to in relation to

conversations Dusenbury had with First Citizens Bank on or around January 18.

7 
involvement in this case is a letter dated March 26, 1999 from the

attorney of First Citizens Bank to defendant. The letter reads:

I am in receipt of your letter dated March 15, 1999 disputing

the validity of your credit card debt to First Citizens. I was

quite surprised to receive your letter, in that at no time during my telephone conversation with you and Bill Osteen did

either of you dispute the validity of the debt.

Under the facts of this case, we find that the brief reference at the

detention hearing and this letter are inadequate to find that the district

court abused its discretion in denying recusal. First, as conceded by

the defendant, Bill Osteen was never retained nor appeared as a lawyer of record in this case. Second, and in accord, this letter was

addressed to defendant, not his alleged counsel Bill Osteen, not inferring that Bill Osteen was Sarno's attorney, especially in view of the

fact that Sarno now claims that Judge Osteen was biased because his

son was not employed by Sarno. Third, while we recognize the mandatory nature of 28 U.S.C. § 455(b)(5)(ii), the recusal motion was

brought at the eleventh hour after six months of litigation. When this

motion was not granted, defendant attempted to recuse the district

court in an obvious effort to judge-shop to another district.7

 More

importantly, however, there is no factual basis for defendant's claim

that the judge had knowledge of this case from his son or was biased

against defendant for not retaining his son in this action.8

C. 

 Defendant next appeals the district court's denial of his motion for

a psychiatric examination which was requested by Sarno for sentencing but which was not requested with respect to his plea of guilty to

the merits. We review the refusal for an abuse of discretion. United

____________________________________________________________

 7 During discussion on this recusal motion, the district court named all

the judges in the Middle District of North Carolina to find one which

defendant approved of; but the defendant claimed he could not receive

a fair trial from any of the judges in the district.

 8 Defendant claimed the judge was unfair because he was angry that

defendant declined to hire his son.

8 
States v. Cropp, 127 F.3d 354, 363 (4th Cir. 1997), cert. denied, 522

U.S. 1090 (1998).

 Defendant sought this evaluation to prove that he suffered from

"significant reduced mental capacity" under Sentencing Guideline

§ 5K2.13, which defines the term in Application Note 1 to mean a

"significantly impaired ability to (A) understand the wrongfulness of

the behavior comprising the offense or to exercise the power of reason; or (B) control behavior that the defendant knows is wrongful."

 The district court set a hearing on this motion at which the defendant could have, but did not, offer evidence. The only information

before the district court as to the necessity for the mental examination

was the motion of an earlier attorney, Freedman, and the statement of

the defendant that, some 15 or 20 years before, apparently on account

of a bank embezzlement charge in a New Jersey federal court, he,

Sarno, had attended Gamblers Anonymous meetings, apparently as a

result of psychological counseling. While the PSR indicated that

Sarno's father thought that Sarno had some kind of a mental problem,

the report indicated "There was no indication the defendant suffered

from any mental and/or emotional disorders during the presentence

interview. He was alert, cooperative, articulate, and appeared to provide well thought out responses to questioning on matters other than

the instant offense." Sarno had told the probation officer that in the

early 1980's he had experienced problems with gambling and

acknowledged his willingness to participate in psychological counseling, from which the probation officer indicated he would benefit, in

the officer's opinion.

 On this record, the district court denied the motion of Sarno that

he receive a mental examination, but the court stated: "And I would

say whatever the sentence may be, that it would be my recommendation that you be housed at an institution, where, if you desire, and if

the authorities think it appropriate, that you be given treatment that

might assist you when you come out." The district court followed up

this oral statement in its judgment, as follows: "The court makes the

following recommendation to the Bureau of Prisons: the court recommends that the defendant be housed to receive mental health counseling." On this record, we are of opinion the order of the district court

to deny a mental examination with respect to sentencing was not an

9 
abuse of discretion and the judgment of the district court in that

respect is affirmed.

 The government argues that, in any event, Sarno should not be eligible for any reduction in sentence due to diminished capacity

because of his extensive criminal record, which includes convictions

for bank embezzlement, bank fraud, wire fraud, mail fraud, interstate

transportation of falsely made securities, grand theft, escape, and a

bad check charge between 1982 and 1998.

 Because we believe the action of the district court in denying the

mental examination was not an abuse of discretion, however, we

express no opinion on the government's position with respect to the

criminal record.

D. 

 Defendant next challenges his sentence under Apprendi. Defendant

must show plain error since he failed to raise this issue before the district court. United States v. Kinter, 235 F.3d 192, 199-200 (4th Cir.

2000), cert. denied, 532 U.S. 937 (2001). Defendant was sentenced

to 115 months; this sentence falls within the statutory limits under 18

U.S.C. § 1014 and 1029(a). Thus, there is no error and Apprendi does

not apply. See Kinter, 235 F.3d at 201-202.9

E. 

 Defendant also challenges the district court's determination of

three sentencing guideline applications. We review the district court's

factual determinations concerning the application of the Sentencing

Guidelines for clear error and legal conclusions de novo. United

States v. Blake, 81 F.3d 498, 503 (4th Cir. 1996). The government

bears the burden of showing that a guideline enhancement applies,

while the defendant has the burden of proving by a preponderance of

____________________________________________________________

 9 Sarno's claim is that the adjustments for amount of loss, more than

minimal planning and defrauding, more than one victim, mass marketing,

and abuse of trust may not be used in sentencing unless "alleged in the

indictment and proven beyond a reasonable doubt," Br. p.61. We do not

agree.

10 
the evidence mitigating factors that would lower his ultimate sentencing range. United States v. Urrego-Linares, 879 F.2d 1234, 1236-39

(4th Cir.), cert. denied, 493 U.S. 943 (1989).

1. 

 First, defendant contests the district court's mass-marketing

enhancement. U.S.S.G. § 2f1.1(b)(3) provides that an offense committed through mass-marketing allows for a two level increase. The

district court determined that defendant had used mass-marketing to

commit his offenses.

 Application Note 3 defines mass-marketing as "a plan, program,

promotion, or campaign that is conducted through solicitation by telephone, mail, the Internet, or other means to induce a large number of

persons . . . (C) to invest for financial profit." Unfortunately, case law

on this provision and application note is sparse.

 While the government bears the burden of proving enhancements,

the district court may accept the PSR as its findings of fact. If so, the

defendant must then show that the PSR is incorrect or unreliable.

United States v. Terry, 916 F.2d 157, 162 (4th Cir. 1990). The district

court adopted the findings of fact in the PSR, concluding that the web

page flyers "were passed out with, obviously, the intent to make

inquirers, and people who might show interest, to believe that it [the

company] was global."10 While defendant disagreed as to whether the

flyers containing the web page information were actually passed out,

he presented no rebuttal evidence to these factual contentions at his

sentencing hearing. With no contradictory evidence, we cannot say

that the district court clearly erred in adopting the factual findings in

the PSR. As to defendant's argument that the 13 people he defrauded

do not equate to a "large number of people," the provision states "a

campaign conducted . . . to induce a large number of people." The

provision does not state that a large number of people must actually

be defrauded by the mass-marketed fraudulent actions. U.S.S.G.

§ 2F1.1(b)(3) Application Note 3 (emphasis added). As found by the

district court, the defendant conducted a campaign designed to induce

____________________________________________________________

 10 The web page was never launched.

11 
a large number of people to invest; fortunately, however, no more

than 13 were defrauded. For these reasons, we affirm the massmarketing two-point enhancement.11

2. 

 Second, defendant contests the district court's enhancement for

abuse of trust. U.S.S.G. § 3B1.3 provides that"[i]f a defendant abused

a position of public or private trust, or used a special skill, in a manner that significantly facilitated the commission or concealment of the

offense, an increase by two levels." Application Note 1 defines a trust

position as "characterized by professional or managerial discretion

(i.e., substantial discretionary judgment that is ordinarily given considerable deference)."

 The abuse of trust issue is viewed from the victims' perspective.

United States v. Akinoye, 185 F.3d 192, 203 (4th Cir. 1999), cert.

denied, 528 U.S. 1177 (2000). Defendant argues that since the investors knew of his past criminal history, they did not place him in a

position of trust.

 We find no error and affirm the district court's two point enhancement for abuse of trust. We do so for two reasons. First, assuming

defendant's argument is correct, we question whether all of the investors knew of defendant's past criminal history. Camille Roberts testified, "I never did once know that he was already in trouble for a

federal violation previous or I would not never have invested in him."

Second, defendant held himself out as the sole proprietor of an

invented firm which, in this case, illustrated "professional or managerial discretion" under U.S.S.G. § 3B1.3 Application Note one.

3. 

 Third, defendant challenges the district court's denial of his acceptance of responsibility claim under Guidelines § 3E1.1 as a mitigating

sentencing factor. The defendant contends that he fully accepted

responsibility through papers filed on October 3, 1999. The district

____________________________________________________________

 11 We do not hold that 13 is not a large number of people.

12 
court originally granted a two, out of three, point reduction for acceptance of responsibility, noting that it was an "extremely close call."

Defendant then, however, filed a motion to withdraw his guilty pleas,

but later argued that this motion did not warrant a reversal of the district court's two point reduction for acceptance of responsibility. He

claimed to be only challenging his legal, not factual, guilt. Defendant,

however, rewrote his factual version of the PSR, with the understanding that the district court would revisit all of its previous guideline

findings. In addition, a witness testified that defendant, less than a

week earlier, had assured him his money would be returned, which

never occurred. From these facts and transcripts from the hearing, we

find no error in the district court's denial of an acceptance of responsibility credit.

III. 

 In conclusion, we affirm the district court's denial of defendant's

motions to withdraw his guilty plea, to have the district court recuse

itself, and to undergo a psychiatric evaluation. We find no merit to

defendant's Apprendi argument. We also affirm the district court's

sentencing guideline applications.

AFFIRMED 

13