Unpublished
Unpublished
No. 04-4047
Appeal from the United States District Court for the District of
South Carolina, at Columbia.
Joseph F. Anderson, Jr., Chief
District Judge. (CR-02-96)
Submitted:
Decided:
PER CURIAM:
Paul H. Noe was convicted by a jury of conspiracy to
commit wire fraud, wire fraud, and inducing the victim of a scheme
to defraud to travel in interstate commerce, 18 U.S.C. 371,
1343, 2314 (2000).
and
three
years
supervised
release
and
ordered
to
pay
The conduct
alleged in the six counts of the indictment in which Noe was named
all took place in South Carolina.
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considering
the
relevant
factors.
See
Platt
v.
Minn.
Specifically,
This
United States v.
Achiekwelu, 112 F.3d 747, 753 (4th Cir. 1997). Evidentiary rulings
are also subject to review for harmless error under Fed. R. Crim.
P. 52 and will be found harmless if the reviewing court can
conclude without stripping the erroneous action from the whole,
that the judgment was not substantially swayed by the error.
United States v. Nyman, 649 F.2d 208, 211-12 (4th Cir. 1980)
(quoting Kotteakos v. United States, 328 U.S. 750, 765 (1946)).
Evidence of other crimes or uncharged conduct is not
considered other crimes for Rule 404(b) purposes if it arose
out of the same . . . series of transactions as the charged
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(4th Cir. 1994) (quoting United States v. Towne, 870 F.2d 880, 886
(4th Cir. 1989)).
and
that
Holland
was
not
merely
the
victim
of
an
Cir. 2000) (quoting United States v. Miller, 658 F.2d 235, 237 (4th
Cir. 1981)). Here, the district court properly instructed the jury
as to the defense of advice of counsel. Juries are presumed to
follow instructions provided them.
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2005) (citing United States v. Olano, 507 U.S. 725, 731-32 (1993)).
The Supreme Court held in Booker, 125 S. Ct. at 746, 750,
that
the
mandatory
manner
in
which
the
federal
sentencing
the
Sixth
Amendment.
The
Court
remedied
the
increase
if
the
amount
of
loss
exceeded
$400,000),
two-level
increase
where
the
offense
involves
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Id. at 546.
The court should consider the sentencing range along with other
factors described in 18 U.S.C. 3553(a), and then impose a
sentence. If that sentence falls outside the Guidelines range, the
court should explain its reasons for the departure as required by
18
U.S.C.
3553(c)(2).
The
sentence
must
be
within
the
materials
before
the
court
and
argument
would
not
aid
the
decisional process.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED
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