author: DAVIS, Senior Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Deshawn DOZIER, Defendant-Appellant.
    No. 15-4532
    United States Court of Appeals, Fourth Circuit.
    Argued: October 27, 2016
    Decided: January 30, 2017

      ARGUED: Jonathan D. Byrne, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Charleston, West Virginia, for Appellant. Miller A. Bushong,. Ill, OFFICE OF THE UNITED STATES ATTORNEY, Beckley, West Virginia, for Ap-pellee. ON BRIEF: Christian M. Capece, Federal Public Defender, Rachel E. Zima-rowski, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Charleston, West Virginia, for Appellant. Carol A. Casto, Acting United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West Virginia, for Appellee.
    Before SHEDD and KEENAN, Circuit Judges, and DAVIS, Senior Circuit Judge.
   DAVIS, Senior Circuit Judge:

Deshawn Dozier pled guilty to distribution of a quantity of cocaine base, in violation of 21 U.S.C. § 841(a)(1), and he was sentenced as a career offender to 151 months imprisonment. On appeal, Dozier contends (1) the district court erroneously applied the modified categorical approach when determining whether a prior state court attempt conviction qualified as a “controlled substance offense” under U.S.S.G. § 4B1.2, and (2) because West Virginia’s general attempt statute criminalized more conduct than a generic controlled substance offense, he should not be designated a career offender.

We conclude that the district court erred in applying the modified categorical approach to the West Virginia general attempt statute. Given the unique complexity of general attempt statutes, we hold that sentencing courts must compare the state and generic elements of such statutes as well as the elements of the underlying substantive statutory offense when determining whether a prior attempt conviction qualifies as a controlled substance offense. The district court failed to make these required comparisons. However, even when analyzed under the correct approach, Dozier’s prior attempt conviction under West Virginia law properly constitutes a controlled substance offense under § 4B1.2 of the Sentencing Guidelines. We therefore affirm the judgment.-

I.

In April 2015, Dozier was charged with knowingly and intentionally distributing a quantity of crack cocaine in violation of 21 U.S.C. § 841(a)(1). After Dozier entered his guilty plea, the probation officer prepared a Presentence Investigation Report (“PSR”) to assist the district court at sentencing. The PSR identified the relevant conduct attributable to Dozier, which produced a base offense level of 20. The PSR then recommended a two-level enhancement for possession of a firearm, a Chapter Four enhancement for qualifying as a career offender, and a three-level reduction for acceptance of responsibility. As a result of these calculations, the advisory guidelines range for Dozier’s sentence became 151 to 188 months imprisonment.

Dozier was designated a career offender due to two prior state convictions, which were categorized as “controlled substance offenses” under § 4B1.2 of the Sentencing Guidelines. Only the second conviction, a conviction for attempt to distribute a controlled substance, is at issue in this appeal. Dozier objected to the categorization of this second conviction and his resulting career offender status. He posited that the West Virginia attempt statute under which he was convicted broadly covered any possible offense and, as a result, his prior attempt conviction did not categorically constitute a controlled substance offense. Without this second qualifying conviction, Dozier contended, he could not be classified as a career offender. The government disagreed. The government argued the statute was divisible and that under the modified categorical approach, it was “not in dispute” that Dozier’s attempt conviction qualified as a controlled substance offense. J.A. 12.

At sentencing, the district court overruled Dozier’s objection. The court observed that when determining whether to categorize the attempt offense as a felony or a misdemeanor, the statute directs it to first identify the punishment scheme of the underlying offense. Because it was also “impossible to determine the defendant’s punishment without looking to the underlying offense,” the district court found it “necess[ary]” to apply the modified categorical approach. J.A. 31. The district court examined extra-statutory documents and, based on the facts underlying Dozier’s 2008 conviction, “readily conclude[d] that the defendant qualifies as a career offender.” J.A. 30. The district court then adopted the PSR’s advisory guideline range and imposed a sentence of 151 months imprisonment, followed by a three-year term of supervised release.

Dozier timely appealed. We have jurisdiction over this appeal pursuant to 18 U.S.C. § 3742.

II.

Dozier’s sole contention on appeal is that his prior attempt conviction does not constitute a “controlled substance offense” for purposes of the career offender sentencing enhancement. This assertion presents a legal issue we review de novo. United States v. Jenkins, 631 F.3d 680, 682 (4th Cir. 2011) (citing United States v. Allen, 446 F.3d 522, 527 (4th Cir. 2006)).

A.

Pursuant to § 4B1.1 of the U.S. Sentencing Guidelines, a defendant is a career offender if, among other factors, “the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.” U.S.S.G. § 4B1.1(a). The term “controlled substance offense” is defined as:

[A]n offense under federal or state law, punishable by imprisonment for a term exceeding one year, that prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance (or a counterfeit substance) or the possession of a controlled substance (or a counterfeit substance) -with intent to manufacture, import, export, distribute, or dispense.

Id. § 4B1.2(b). A controlled substance offense also includes the offenses of “aiding and abetting, conspiring, and attempting to commit such offenses.” Id. § 4B1.2 cmt. n.1 (emphasis added).

When addressing whether a pri- or conviction triggers a Guideline sentencing enhancement, “we approach the issue categorically, looking ‘only to the fact of conviction and the statutory definition of the prior offense.’ ” United States v. Cabrera-Umanzor, 728 F.3d 347, 350 (4th Cir. 2013) (quoting Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990)). “The point of the categorical inquiry is not to determine whether the defendant’s conduct could support a conviction for a [predicate offense], but to determine whether the defendant was in fact convicted of a crime that qualifies as a [predicate offense].” Id. (citation omitted). Accordingly, “[t]he categorical approach focuses on the elements of the prior offense rather than the conduct underlying the conviction.” Id. For a prior conviction to qualify as a Guideline predicate offense, “the elements of the pri- or offense [must] ‘correspond[ ] in substance’ to the elements of the enumerated offense.” Id. (second alteration in original) (quoting Taylor, 495 U.S. at 599, 110 S.Ct. 2143).

This approach is altered for “divisible” statutes, statutes that “list elements in the alternative[ ] and thereby define multiple crimes.” Mathis v. United States, — U.S. -, 136 S.Ct. 2243, 2249, 195 L.Ed.2d 604 (2016). In such circumstances, the sentencing court may apply the' modified categorical approach and consult “a limited class of documents” — otherwise known as Shepard documents — “to determine what crime, with what elements, a defendant was convicted of.” Id. (citations omitted). The Supreme Court has cautioned that the modified categorical approach “serves a limited function” and that Shepard documents may be consulted only where the statute, by “listing potential offense elements in the alternative, renders opaque which element played a part in the defendant’s conviction.” Descamps v. United States, — U.S. -, 133 S.Ct. 2276, 2283, 186 L.Ed.2d 438 (2013). “Where the statute defines the offense broadly rather than alternatively, the statute is not divisible, and the modified categorical approach simply ‘has no role to play.’ ” Cabrera-Umanzor, 728 F.3d at 350 (quoting Descamps, 133 S.Ct. at 2285).

B.

A threshold issue in this appeal is whether West Virginia’s general attempt statute is divisible and, as such, is subject to the modified categorical approach. The statute provides: “Every person who attempts to commit an offense, but fails to commit or is prevented from committing it, shall, where it is not otherwise provided, be punished[.]” W. Va. .Code § 61-11-8. The statute then enumerates three different “classification” categories depending on the scope and means of punishment for the underlying statutory offense. Id. § 61-11 — 8(1)-(3). If the attempted offense is punishable with life imprisonment, the defendant will be guilty of a felony and shall be imprisoned for three to fifteen years. Id. § 61-11-8(1). If the attempted offense is punishable by imprisonment for a term less than life, the defendant will be guilty of a felony and may be imprisoned for one to three years or jailed for six to twelve months. Id. § 61-11-8(2). If the attempted offense is punishable by confinement in jail, however, the defendant will be guilty of only a misdemeanor. Id. § 61-11-8(3).

Our inquiry does not end with this statutory language. To the extent the statutory definition of a prior offense has been interpreted by the state’s highest court, this interpretation informs and constrains our analysis of the state law. United States v. Aparicio-Soria, 740 F.3d 152, 154 (4th Cir. 2014) (en banc) (citing Johnson v. United States, 559 U.S. 133, 138, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010)). As the parties acknowledge, the highest court in West Virginia has repeatedly held that to constitute the crime of attempt under § 61-11-8, two elements must be met: (1) a specific intent to commit the underlying statutory crime, and (2) an overt act toward commission of that crime. See, e.g., State v. Minigh, 224 W.Va. 112, 680 S.E.2d 127, 136 (2009) (citations omitted). Generally, as mentioned above, where a statute “con-taints] a single, indivisible set of elements covering far more conduct than the generic crime,” the modified categorical approach “has no role to play.” Descamps, 133 S.Ct. at 2285-86.

In arguing that § 61-11-8 is divisible, the government focuses on the statute’s references to the underlying, attempted offense. The government primarily relies on the statute’s three “classification” categories, which require the state sentencing court to first identify the punishment scheme of the underlying offense. The government argues that as a result of these categories, § 61-11-8 is “by definition ... comprise[d] [of] multiple, alternative versions of the crime” such that the modified categorical approach applies. Appellee’s Br. 10 (quoting Descamps, 133 S.Ct. at 2284). We disagree that these categories compel the modified categorical approach.

In a recent opinion, this Court clarified that “[g]eneral divisibility ... is not enough” to warrant the application of the modified categorical approach. Cabrera-Umanzor, 728 F.3d at 352. Rather, a statute is divisible “only if at least one of the categories into which the statute may be divided constitutes, by its elements, a [Guideline predicate offense].” Id. (citations omitted). Even if we assume the West Virginia attempt statute can be divided into three “classification” categories (based on the taxonomy of punishments it prescribes), no single category constitutes, by its elements, a controlled substance offense. No category references the manufacture, import, export, distribution, dispensing, or possession (with the requisite intent) of a controlled substance, nor does any category reference the attempt of these specific offenses. Thus, based on our clear precedent, the general divisibility of § 61-11-8’s punishment scheme is insufficient to compel or justify application of the modified categorical approach.

However, we note a unique complexity of general attempt statutes: they do not set forth a standalone crime. As acknowledged by the highest court in West Virginia, “[t]he crime of attempt does not exist in the abstract but rather exists only in relation to other offenses[.]” State v. Starkey, 161 W.Va. 517, 244 S.E.2d 219, 223 n.2 (1978) (citation omitted), overruled on other grounds by State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995). This is evident from the statutory language and elements of a § 61-11-8 crime of attempt, which require both an overt act and specific intent to commit the underlying statutory crime. W. Va. Code § 61-11-8; Minigh, 680 S.E.2d at 136. It would therefore be imprudent to analyze the statutory language of § 61-11-8 in complete isolation, as Dozier urges. Nonetheless, contrary to the government’s assertion, this undefined reference to other offenses does not render the statute divisible for purposes of applying the modified categorical approach.

The Supreme Court has repeatedly emphasized the “essential rule” in cases concerning the categorical approach: “[a]ll that counts ... are ‘the elements of the statute of conviction.’” Mathis, 136 S.Ct. at 2251 & n.2 (quoting Taylor, 495 U.S. at 601, 110 S.Ct. 2143). This “elements-only inquiry” applies equally to the modified categorical approach, which “serves solely[ ] as a tool to identify the elements of the crime of conviction when a statute’s disjunctive phrasing renders one (or more) of them opaque.” Id. at 2252, 2253-54 (citing Descamps, 133 S.Ct. at 2285). Where, as here, the defendant is convicted under a state’s general attempt statute, one embracing all (or nearly all) possible substantive crimes, two sets of elements are at issue: the elements of attempt and the elements of the underlying, attempted offense. See Rebilas v. Mukasey, 527 F.3d 783, 787 (9th Cir. 2007).

As we have noted above, a “controlled substance” offense expressly includes the “attempt! ] to commit such [an] offense! ].” U.S.S.G. § 4B1.2 cmt. n.1. To adhere to the “elements-only inquiry” required by the Supreme Court, Mathis, 136 S.Ct. at 2252, we must therefore engage in two related analyses when determining whether a general attempt conviction constitutes a controlled substance offense under § 4B1.2, see United States v. Gomez-Hernandez, 680 F.3d 1171, 1175 (9th Cir. 2012) (citing United States v. Saavedra-Velazquez, 578 F.3d 1103, 1106-07 (9th Cir. 2009) and Rebilas, 527 F.3d at 787). First, we must determine whether the state’s definition of “attempt” categorically comports with the generic definition of “attempt” as that term is used in the career-offender enhancement. United States v. Gonzalez-Monterroso, 745 F.3d 1237, 1240 (9th Cir. 2014). Separately, we must also determine whether the underlying state offense is a categorical match for the Guideline predicate offense. Id. It is critical to engage in both analyses, given that either inquiry could determine that the statute of conviction “sweeps more broadly than the generic crime.” Descamps, 133 S.Ct. at 2281. See, e.g., Gonzalez-Monterroso, 745 F.3d at 1244-45 (noting that “under Delaware law, a defendant' could be held liable for an attempt due to ‘mere preparation’ or other preliminary acts” that would not constitute attempt as generically defined).

Applying the modified categorical approach without engaging in this two-part analysis would contravene the Supreme Court’s repeated instruction to “consider only the elements of the offense.” Mathis, 136 S.Ct. at 2252 (alteration marks and emphasis omitted) (quoting Sykes v. United States, 564 U.S. 1, 7, 131 S.Ct. 2267, 180 L.Ed.2d 60 (2011)). The district court did not undertake this inquiry, and it erred in applying the modified categorical approach to identify the factual means by which Dozier committed his prior attempt crime. See id. at 2254. Although it is “understandably tempting to examine Shepard-approved documents earlier rather than later in the sentencing process,” examination of these documents should only occur when the relevant statute is properly deemed divisible. United States v. Barcenas-Yanez, 826 F.3d 752, 757-58 (4th Cir. 2016). Where, as here, a general attempt statute is at issue, the modified categorical approach applies only where the statute is divisible and at least one of the alternative definitions of “attempt” categorically matches the generic definition. Gonzalez-Monterroso, 745 F.3d at 1241. Similarly, the modified categorical approach applies to the underlying offense statute only where the statute is divisible and at least one of the alternative definitions of the offense categorically matches a generic controlled substance offense. As we recently expressed, “[i]t should be clear that the modified categorical approach may not be employed to determine whether the modified categorical approach may be employed.” Barcenas-Yanez, 826 F.3d at 758.

In sum, to conclude that Dozier’s conviction for attempt to distribute narcotics was properly deemed a controlled substance offense under § 4B1.1, we must determine not only that West Virginia’s definition of attempt is a categorical match for the generic definition of attempt, but also that the underlying statutory offense is a categorical match for any of the generic offenses listed as a controlled substance offense. Id. We turn to these analyses below.

C.

Under the approach enumerated above, we must first determine whether West Virginia’s attempt statute is a categorical match for the generic definition of “attempt.” Gonzalez-Monterroso, 745 F.3d at 1243. Our precedent defines generic attempt as requiring (1) culpable intent to commit the crime charged and (2) a substantial step towards the completion of the crime, which “is consistent with the definition of attempt found in the Model Penal Code.” United States v. Neal, 78 F.3d 901, 906 (4th Cir. 1996) (citations omitted). A substantial step is defined as a “direct act in a course of conduct planned to culminate in commission of a crime that is strongly corroborative of the defendant’s criminal purpose.” United States v. Engle, 676 F.3d 405, 423 (4th Cir. 2012) (citing United States v. Pratt, 351 F.3d 131, 135 (4th Cir. 2003)). A substantial step “is more than mere preparation but less ... than completion of the crime.” Id. (alteration in original) (quoting Neal, 78 F.3d at 906).

We then compare this generic definition of “attempt” to West Virginia’s definition of “attempt.” To constitute a crime of attempt under § 61-11-8, two elements must be met: “(1) a specific intent to commit the underlying substantive crime; and (2) an overt act toward the commission of that crime, which falls short of completing the underlying crime.” Minigh, 680 S.E.2d at 136 (citations omitted). The degree of intent required under West Virginia’s general attempt statute is no broader than that required under the generic definition. As for the “act” element, despite a difference in terminology between “overt” and “substantial” acts, these terms appear to share the same operational meaning. Both state and federal courts have acknowledged the difficulty in precisely defining the line between mere preparation and attempt. See Pratt, 351 F.3d at 136; State v. Burd, 187 W.Va. 415, 419 S.E.2d 676, 680 (1991) (citing Braham v. State, 571 P.2d 631 (Alaska 1977)). Nonetheless, West Virginia’s highest court has determined that an “overt” act requires a “direct” or “substantial” act beyond mere preparation that “demonstrates ‘the seriousness of [the] [criminal] purpose, and mak[es] the planned crime closer to fruition.’” Burd, 419 S.E.2d at 680 (first and third alterations in original) (quoting State v. Molasky, 765 S.W.2d 597, 602 (Mo. 1989)). Both “act” elements require a direct act toward the commission of the crime, beyond mere preparation, that strongly corroborates the defendant’s criminal purpose. Thus, the definition of an overt act under West Virginia law “corresponds in substance” to the generic definition of a substantial act. See Taylor, 495 U.S. at 599, 110 S.Ct. 2143.

Accordingly, under the Taylor categorical approach (the application of which is required because the general attempt statute is indivisible), Dozier’s prior state conviction for attempt qualifies as a generic attempt offense.

D.

Having made the above determination, we then consider whether the underlying offense is a categorical match for a generic “controlled substance offense.”

As noted above, a controlled substance offense is an offense that “prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance (or a counterfeit substance) or the possession of a controlled substance (or a counterfeit substance) with intent to manufacture, import, export, distribute, or dispense.” U.S.S.G. § 4B1.2(b). The underlying statutory offense at issue, West Virginia Code § 60A-4-401, provides “it is unlawful for any person to manufacture, deliver, or possess with intent to manufacture or deliver, a controlled substance.” W. Va. Code § 60A-4-401(a). Accordingly, the act and related intent elements of § 60A-4-401(a) are no broader than those of the generic offense.

However, a controlled substance offense must also be a felony punishable by imprisonment for a term exceeding one year. U.S.S.G. §§ 4B1.1(a), 4B1.2(b). Section 60A-4-401(a) is divided into four categories depending on the type of controlled substance at issue. W. Va. Code § 60A-4-401(a). A defendant is guilty of a felony and is subject to a maximum sentence for a term exceeding one year if the controlled substance has a Schedule I, II, III, or IV classification. Id. § 60A-4-401(a)(I)-(iii). On the other hand, if the substance is classified in Schedule V, the defendant is guilty only of a misdemeanor and, upon conviction, may be confined to jail for no more than one year. Id. § 60A-4-401(a)(iv). Accordingly, three of the four categories into which the statute is divided, by their elements, qualify as a controlled substance offense. See id. § 60A-4-401(a)(i)-(iv). This statute is thereby divisible as a matter of federal law, and the modified categorical approach applies.

The relevant Shepard documents indicate that Dozier was charged and pled guilty to distributing cocaine, a Schedule II narcotic drug. J.A. 82; see 21 C.F.R. § 1308.12(b)(4). The relevant offense category would result in a felony conviction and a maximum sentence of imprisonment that exceeds one year. W. Va. Code § 60A-4-401(a)(i)-(ii). Thus, the underlying offense that Dozier attempted to commit is a categorical match of a generic controlled substance offense. We therefore conclude that Dozier’s prior attempt conviction qualifies as a controlled substance offense, and Dozier was properly deemed a career offender under § 4B1.1 of the Sentencing Guidelines.

III.

Although the district court used an incorrect approach for categorizing Dozier’s prior attempt conviction, it reached the correct conclusion regarding Dozier’s career offender status. We are “entitled to affirm on any ground appearing in the record, including theories not relied .upon or rejected by the district court.” United States v. Moore, 709 F.3d 287, 293 (4th Cir. 2013) (quoting United States v. McHan, 386 F.3d 620, 623 (4th Cir. 2004)). Accordingly, for the alternative reasons enumerated above, the judgment of the district court is

AFFIRMED.

      . To qualify as a career offender, two other factors must be satisfied: (l)'the defendant must have been at least eighteen years old at the time he committed the instant offense of conviction, and (2) the instant offense of conviction must be a felony that is either a crime of violence or a controlled substance offense. U.S.S.G. § 4B1.1(a). These factors are not at issue in the present appeal.

      . "[C]ommentary in the Guidelines Manual that interprets or explains a guideline is authoritative unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that guideline.” Stinson v. United States, 508 U.S. 36, 38, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993). Dozier does not contend the commentary to § 4B1.2 violates the Constitution or federal law, nor does he assert the commentary is inconsistent with § 4B1.2.


source: Caselaw Access Project

author: GREGORY, Chief Judge:

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Lorene CHITTENDEN, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Lorene Chittenden, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Lorene Chittenden, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Lorene Chittenden, Defendant-Appellant.
    No. 14-4768, No. 14-4828, No. 15-4226, No. 15-4659
    United States Court of Appeals, Fourth Circuit.
    Argued: October 28, 2016
    Decided: January 31, 2017

      ARGUED: Joseph Ray Pope, WILLIAMS MULLEN, Richmond, Virginia, for Appellant. Christopher John Cati-zone, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee. ON BRIEF: John S. Davis, WILLIAMS MULLEN, Richmond, Virginia, for Appellant. Dana J. Boente, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.
    Before GREGORY, Chief Judge, and KEENAN and FLOYD, Circuit Judges.
   GREGORY, Chief Judge:

On May 7, 2014, a jury found Appellant Lorene Chittenden guilty of one count of conspiracy to commit bank fraud and mail fraud and ten counts of bank fraud for her role in originating and submitting fraudulent mortgage loan applications. Chitten-den appeals on several grounds, including that the government’s pretrial seizure of her assets violated her Sixth Amendment right to counsel, that the government failed to present sufficient evidence on the conspiracy and bank fraud counts, and that the district court lacked jurisdiction to enter the post-trial forfeiture orders. Finding no error, we affirm.

I.

Chittenden worked as a loan officer at George Mason Mortgage (“GMM”) in Fair-fax, Virginia from June 1999 to April 2008. The superseding indictment alleged that in this role Chittenden joined a conspiracy to submit mortgage loan applications with false information, and that in doing so she defrauded Cardinal Bank, a federally insured institution. Count 1 charged that between 2002 and 2007 Chittenden conspired with four codefendants, five named coconspirators, and other conspirators known and unknown to commit bank fraud and mail fraud in violation of 18 U.S.C. § 1349. The government also charged Chittenden with twenty-two individual counts of bank fraud in violation of 18 U.S.C. § 1344.

Contemporaneous with the superseding indictment, the government moved ex parte for a restraining order to preserve Chittenden’s property for potential forfeiture. The district court granted the motion, finding that “[a]ll assets of the defendants, including substitute assets” were subject to pretrial restraint. J.A. 80. The district court made one exception, however — it denied the government’s request to recover $40,000 that Chittenden had already paid to her attorneys from the law firm Williams Mullen, the same attorneys who defended her in the trial court and represent her in this appeal.

Chittenden ultimately proceeded to a seven-day trial that centered on her role in preparing loan applications for first-time, Hispanic homebuyers. Beginning in 2005, Chittenden worked on applications for “stated loans” (commonly referred to as “liar loans”), see J.A. 1074, which borrowers generally obtained by listing their income and asset figures without any independent verification by lenders. The government argued at trial that, among other things, Chittenden submitted stated loan applications replete with false income, asset, and employment information, and that she undertook these acts in concert with multiple realtors.

The central figure in the charged conspiracy was Rosita Vilchez, the head of Vilchez & Associates, a residential real estate company. As Chittenden recognizes, the testimony at trial showed that Vilchez and her company were “steeped in fraud.” Appellant’s Br. 13. Vilchez, for instance, would direct her employees to give money to the company’s clients so the clients had the minimum amount of funds needed to qualify for certain loans (and then later ordered employees to reclaim the money). J.A. 154-55. For the same purpose, Vilchez directed employees to add borrowers to their own personal bank accounts. J.A. 153.' Vilchez and her associates also obtained fraudulent “CPA letters” from tax preparation companies to support borrowers’ loan applications; these letters falsely stated that the borrowers were self-employed and that the companies had prepared tax returns on their behalf. See J.A. 155, 470-71, 646-48.

Over the course of the trial, the government presented testimony from twenty-seven witnesses, including more than a dozen borrowers and several realtors who had worked with Chittenden on those borrowers’ loan applications. The defense called eight witnesses, including Chitten-den. Chittenden moved for a judgment of acquittal, but the trial court denied the motion and submitted the case to the jury. The jury convicted Chittenden on the conspiracy count and on ten counts of bank fraud, and acquitted her on four other bank fraud counts.

On the evening before Chittenden’s October 3, 2014 sentencing hearing, the government filed a motion for a preliminary order of forfeiture, seeking a money judgment against Chittenden. At the hearing, Chittenden argued that the government’s motion was untimely under Federal Rule of Criminal Procedure 32.2(b)(2)(B), which provides that “[ujnless doing so is impractical, the court must enter the preliminary order sufficiently in advance of sentencing to allow the parties to suggest revisions or modifications before the order becomes final as to the defendant under Rule 32.2(b)(4).”

In large part due to the government’s delay, the district court neither made any forfeiture findings at the sentencing hearing nor entered any forfeiture orders. The district court instead proceeded to other aspects of Chittenden’s sentence, imposing a term of forty-two months’ imprisonment. The parties did, however, discuss the forfeiture issue at the hearing, and the court referenced forfeiture near the close of the hearing: “I will not impose a fine and costs in light of the restitution and the forfeiture order that may take assets that you presently possess.” Sentencing Transcript, October 3, 2014 (“Sent’g Tr.”) 42. The written judgment entered later that day also included the following notation: “FORFEITURE — TO BE DETERMINED.” J.A. 1757.

Because the district court had sentenced Chittenden without imposing the forfeiture penalty, the government filed a motion to amend or correct sentence pursuant to Federal Rule of Criminal Procedure 35(a). The government suggested that the court remedy this omission by entering a forfeiture order within the fourteen days allowed under Rule 35(a). The district court did not follow this suggestion. Instead, it directed counsel to schedule an evidentiary hearing on the government’s forfeiture motion. The district court also stated in a written order that its earlier judgment “is amended to clarify that it was only a partial judgment order — as it did not include the mandatory forfeiture order — and therefore is not yet final.” J.A. 1829.

Over Chittenden’s objection that the district court lacked jurisdiction to amend her sentence, the parties litigated the forfeiture issue for the next year. The district court issued an order in March 2015 granting in part and denying in part the government’s motion for a preliminary order of forfeiture. The district court subsequently entered a money judgment against Chit-tenden for $1,513,378.82, the amount of the conspiracy proceeds that it deemed was reasonably foreseeable to Chittenden. The government eventually obtained a forfeiture order for Chittenden’s substitute property up to the amount of $1,032,378.82. The government filed a motion for reconsideration, which the district court denied on October 13, 2015, just over a year after Chittenden’s sentencing hearing.

Chittenden timely appealed the district court’s order of October 13, 2015.

II.

Chittenden first claims that the government’s pretrial seizure of her assets violated her Sixth Amendment right to counsel. Because Chittenden failed to raise this argument below, it is subject to plain error review. Chittenden must therefore demonstrate that an error was made, the error was plain, the error affected her substantial rights, and the court should exercise its discretion to correct the error because it seriously affected the fairness, integrity, or public reputation of judicial proceedings. United States v. Hare, 820 F.3d 93, 104-05 (4th Cir. 2016). We need not proceed past the first step of the plain error analysis here as Chittenden has failed to establish any Sixth Amendment error.

As noted, the district court allowed the government to restrain Chittenden’s assets, tainted or untainted. Prior to this restraint, Chittenden had hired attorneys from Williams Mullen to conduct a prein-dictment investigation, whom she retained during trial and throughout the sentencing proceedings. Chittenden states that due to the pretrial restraint she had to borrow money from family members to pay her legal fees, and because she could not pay her attorneys throughout the lengthy post-trial proceedings, she amassed a considerable debt. In the wake of the Supreme Court’s decision in Luis v. United States, — U.S.-, 136 S.Ct. 1083, 194 L.Ed.2d 256 (2016) (plurality opinion), Chittenden contends that the government violated her right to counsel, requiring reversal of the judgment below.

In Luis, a four-member plurality held that the government’s “pretrial restraint of legitimate, untainted assets needed to retain counsel of choice violates the Sixth Amendment.” Id. at 1088. It was undisputed that the district court’s order there barred the defendant from using her untainted funds — that is, funds unconnected to the alleged crime — to “hire counsel to defend her in her criminal case.” Id. Consistent with this denial, the Supreme Court repeatedly spoke of the Sixth Amendment right in terms of the right to choose one’s counsel. See, e.g., id. at 1093 (stating that “[a]s far as Luis’ Sixth Amendment right to counsel of choice is concerned”). The Court reaffirmed that deprivation of the right to counsel of choice is a structural error. Id. at 1089 (citing United States v. Gonzalez-Lopez, 548 U.S. 140, 148, 126 S.Ct. 2557, 165 L.Ed.2d 409 (2006)).

Chittenden’s right to counsel of choice is simply not implicated here. Chittenden re-tamed at trial multiple attorneys from Williams Mullen — the same firm she chose to conduct a preindictment investigation. Chittenden was not forced to change her privately retained attorneys or to rely on appointed counsel. As Chittenden’s (chosen) counsel conceded at oral argument, nothing in the record indicates that she wanted different attorneys. Given that the pretrial seizure of funds did not prevent Chittenden from “being represented by the lawyer[s] [s]he want[ed],” Gonzalez-Lopez, 548 U.S. at 148, 126 S.Ct. 2557, we reject her claim that the government violated her Sixth Amendment right to counsel of choice. See also United States v. Gordon, 657 Fed.Appx. 773, 778 (10th Cir. 2016) (denying defendant’s Sixth Amendment claim under Luis where “he, in fact, had retained counsel of his choice”) (citing United States v. Gordon, 710 F.3d 1124, 1139 (10th Cir. 2013)).

In sum, we find no Sixth Amendment error.

III.

Chittenden next claims that the government failed to present sufficient evidence to support her conspiracy conviction.

Defendants face a “heavy burden” when bringing sufficiency challenges. United States v. McLean, 715 F.3d 129, 137 (4th Cir. 2013) (quotation omitted). This Court must sustain the jury’s verdict if there is substantial evidence, viewed in the light most favorable to the government, to support it. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942). Substantial evidence is “evidence that a reasonable finder of fact could accept as adequate and sufficient to support a conclusion of a defendant’s guilt beyond a reasonable doubt.” United States v. Jaensch, 665 F.3d 83, 93 (4th Cir. 2011) (quotation omitted). Reversal on insufficiency grounds is appropriate only where “the prosecution’s failure is clear.” Burks v. United States, 437 U.S. 1, 17, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978).

To convict a defendant of conspiracy under 18 U.S.C. § 1349, the government must prove that two or more people agreed to commit an unlawful act, and that the defendant willfully joined the conspiracy with the intent to further its unlawful purpose. See United States v. Edwards, 188 F.3d 230, 234 (4th Cir. 1999); United States v. Simpson, 741 F.3d 539, 547 (5th Cir. 2014). The government charged Chittenden with conspiracy to commit bank fraud and mail fraud. Once the government proves the existence of a conspiracy, it need only show a “slight connection” between the defendant and the conspiracy to obtain a conviction. United States v. Burgos, 94 F.3d 849, 861 (4th Cir. 1996) (en banc) (quotation omitted). It is the “settled law of this circuit” that the “testimony of a defendant’s accomplices, standing alone and uncorroborated, can provide an adequate basis for conviction.” United States v. Burns, 990 F.2d 1426, 1439 (4th Cir. 1993).

As a threshold matter, the parties contest the scope of the conspiracy charged in the indictment. Chittenden argues that the indictment alleged a “hub and spoke” conspiracy in which Vilchez was the “hub” and the other conspirators (such as Chittenden, Rocio Benavides, and J. David Levy) were the “spokes.” Appellant’s Reply Br. 2. From this understanding, Chittenden asserts that the government was limited to showing that Chittenden was a “spoke connected to the unitary Vilchez Conspiracy,” id. at 4 — that is, that she conspired with Vilchez herself or individuals employed at Vilchez & Associates at the relevant times. The government rejects the notion that the conspiracy charged in the indictment focused exclusively on Vilchez and Vilchez & Associates. Taking a broader view of the indictment, the government argues that it could show Chittenden’s involvement in the charged conspiracy by linking her to any of the other coconspirators named in the indictment, not just Vilchez or those that worked at her company.

Looking to the language of the indictment, we adopt the government’s view of the charged conspiracy. The “Manner and Means” section of the indictment, for example, states that “the defendants and their co-conspirators would and did submit and direct Vilchez & Associates employees to submit fraudulent loan documents that materially misstated” borrowers’ information. J.A. 32 (emphasis added). This language indicates that the government could prove the conspiracy by showing Chittenden and her cocon-spirators agreed to submit fraudulent applications, regardless of Vilchez’s or her employees’ involvement.

With this understanding of the scope of the conspiracy in place, we now consider whether the evidence, viewed in the light most favorable to the government, was sufficient to support the jury’s verdict on the conspiracy count.

As is common in these cases, much of the government’s evidence came from co-conspirator testimony. The coconspirator testimony here, if credited, established that Chittenden was aware of her cocon-spirators’ unlawful practices and of the conspiracy. Coconspirator Rocio Bena-vides, a realtor during the charged conspiracy, testified that Chittenden discussed CPA letters with Vilchez, telling Vilchez that they could not use the letters for every application because “the underwriter won’t believe it.” J.A. 158. Benavides also testified that she discussed CPA letters and the practice of adding clients to bank accounts with Chittenden. J.A. 174, 207, 209. When asked on cross-examination why she added a particular borrower to her account, Benavides responded that Chittenden “needed to show more assets. And I asked her, can I add this client into my bank account. And she said, yeah, that’s fine.” J.A. 209.

The coconspirators and borrowers also provided key testimony concerning Chit-tenden’s participation in the conspiracy, namely her preparation of applications that contained false information. Benavides collaborated with Chittenden on applications, and she described their working relationship. After receiving the applications from Chittenden, Benavides would have the borrowers .sign them and would fill in their biographical information, but would leave the borrowers’ income and asset information blank. J.A. 162-63. Benavides would then return the applications to Chit-tenden. Chittenden never asked Benavides for the borrowers’ income information.

Benavides closed three loans with Chit-tenden, and each of the three borrowers testified that their applications contained false information. Alma Reyes, one of the borrowers, testified that she had signed the application but had not provided the employment or income information contained therein. J.A. 245-46. Her application stated that she made $7,450 per month, when in fact she earned approximately $16,000 or $17,000 per year. J.A. 246,1461. The last page of Reyes’s application also included a note — which Reyes did not write and confirmed was false — that stated Reyes owned a business: “I work [at] Chick Fila [sic] as my day job. I also own my cleaning company and work evening[s] and weekends there. My manager runs my business when I am not there. I have 8 people who work for me.” J.A. 1463.

Critically, when Chittenden took the stand, she testified that she had inputted the income and employment information on Reyes’s application, and had written the explanatory note. See J.A. 1079-1082; see also J.A. 1082 (confirming explanatory note was in her handwriting). Chittenden claimed Benavides provided her with the information.

Reyes’s loan application was just one of several that Chittenden worked on that contained false employment, income, and/or asset information, and where realtors and borrowers testified they had not filled in (or provided Chittenden or anyone else with) that information. See, e.g., J.A. 542, 569, 612-13, 621, 626-27, 655, 709, 719-20, 730. The jury could have reasonably — indeed, easily — concluded from this evidence that Chittenden knew of an agreement to submit fraudulent loan applications and supporting documentation, and that she knowingly and willfully participated in it by, among other things, supplying false information in the applications. Considering that Chittenden’s connection to the conspiracy needed only to be slight, the testimony of the realtors and borrowers, coupled with the applications themselves, provided more than sufficient evidence of Chittenden’s guilt.

Even adopting Chittenden’s limited view of the conspiracy, the government introduced sufficient evidence linking Chitten-den and Vilchez. Chittenden originated loans for Vilchez herself, in which Vilchez’s monthly income varied widely. Benavides also overheard Vilchez and Chittenden discussing fraudulent activities. Benavides testified that Vilchez told Chittenden on the phone, “I’m sending you the bank statement right now. Did you get it?” J.A. 159. Chittenden responded to Vilehez over the speakerphone: “Rosie, stop using that bank account because the underwriter already knows that account number.” J.A. 159. Finally, named coconspirator Rolando Ponce, a Vilehez & Associates employee during the conspiracy, testified that, at Vilchez’s direction, he visited Chittenden to collect a $10,000 check that was to be deposited to inflate a client’s bank account. J.A. 639-40.

Chittenden asks us to discredit much of the coconspirator testimony as unreliable. She notes that Benavides spoke limited English, and asserts that Benavides could not possibly have recognized Chittenden’s voice over the phone or recalled conversations all these years later. But it is not our role to reweigh the evidence or second-guess the jury’s credibility determinations. United States v. Kelly, 510 F.3d 438, 440 (4th Cir. 2007). Our role is to draw all reasonable inferences and assume that the jury resolved any inconsistencies in the government’s favor.

Having done so, we conclude that the government presented substantial evidence such that a reasonable jury could find Chittenden guilty of conspiracy to commit bank fraud and mail fraud. We therefore affirm the conspiracy conviction.

IV.

Chittenden also seeks reversal of her conspiracy conviction because of the trial court’s allegedly flawed evidentiary rulings.

We “review evidentiary rulings for an abuse of discretion, affording substantial deference to the district court.” United States v. White, 810 F.3d 212, 227 (4th Cir. 2016). If the district court erred in admitting evidence, the error is subject to harmless error review, as per Federal Rule of Criminal Procedure 52(a).

Chittenden challenges multiple pieces of evidence concerning an application prepared for a borrower named Zenaida Li-nares (“Linares Loan evidence”). Chitten-den first challenges the admission of hearsay statements from Francisco Ramos, a realtor who worked for named co-conspirator Levy. The government introduced Ramos’s statements through Levy’s testimony. According to Levy, Ramos stated that he had discussed fraudulent activity with Chittenden related to Li-nares’s application; Ramos further said that he had set up a meeting between Linares and a tax preparation company.

Chittenden also challenges the admission of a fax cover sheet that the government introduced through Linares’s testimony. The fax cover sheet concerned the preparation of fraudulent tax returns to support Linares’s loan application. The cover sheet indicated that a fax had been sent from Ramos to Chittenden with the subject line, “Zenaida Linares” and a “Notes” section that read, “These are tax returns 2005[,] 2006.” J.A. 1531.

Chittenden claims that the district court erred by admitting Ramos’s statements (which include the fax cover sheet) under the coconspirator exception to the hearsay rule. Fed. R. Evid. 801(d)(2)(E). To admit a statement pursuant to this exception, the offering party “must show that (i) a conspiracy did, in fact, exist, (ii) the declarant and the defendant were members of the conspiracy, and (in) the statement was made in the course of, and in furtherance, of the conspiracy.” United States v. Psratt, 239 F.3d 640, 643 (4th Cir. 2001). These preliminary questions are to be resolved under a preponderance standard of proof. United States v. Blevins, 960 F.2d 1262, 1255 (4th Cir. 1992). In deciding these factual questions, a court is “not precluded from examining the out-of-court statements sought to be admitted; the court may consider those statements in conjunction with other evidence.” Id.

Chittenden zeroes in on the sec.ond factual question — she contends that the government failed to show that she and Ramos were members of the same conspiracy, thereby precluding admission of the Linares Loan evidence. We find otherwise. Unchallenged testimony from Levy and Linares established that Ramos worked for Levy and was engaged in fraudulent activity with respect to loan applications, both Ramos and Chittenden worked on Linares’s application, that application contained false information, and Linares unknowingly signed amended tax returns. Levy also testified that fifteen days after Linares’s loan closed, he received a call from Chittenden regarding the Linares loan and tax forms; Levy understood Chittenden to be saying that if the loan was submitted without the proper tax forms, the IRS “will find about it.” J.A. 461.

Put simply, the testimony at trial established that both Chittenden and Ramos had worked on the Linares application, which contained false information, and had ties to fraudulent activities with Levy. It was reasonable for the district court to conclude from this evidence, in conjunction with the out-of-court statements themselves, that it was more likely than not that Chittenden and Ramos were cocon-spirators. This is especially so considering that individuals need not even know each other to be part of the same conspiracy. United States v. Johnson, 54 F.3d 1150, 1154 (4th Cir. 1995). As such, we conclude that the district court did not abuse its discretion by admitting Ramos’s statements pursuant to the coconspirator exception to the hearsay rule.

But even if the district court had erred in admitting the challenged evidence, the error would have been harmless. To find an evidentiary error harmless, we must be able to “say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error.” United States v. Ibisevic, 675 F.3d 342, 350 (4th Cir. 2012) (quotation omitted).

Given the substantial testimonial and documentary evidence showing Chitten-den’s connection to the charged conspiracy, we can say with “fair assurance” that the admission of the Linares Loan evidence did not affect the jury’s verdict on the conspiracy count. As discussed above, the government introduced ample evidence of Chittenden’s awareness of and participation in the conspiracy. This evidence included testimony from Benavides and Levy describing the practice of sending blank, signed applications to Chittenden; testimony from borrowers who confirmed that critical information on those applications was false; the loan applications themselves; testimony from Chittenden describing how she filled in loan applications; testimony from Benavides describing her discussions of fraudulent activity (such as adding clients to bank accounts) with Chit-tenden; testimony from Benavides and Ponce describing Chittenden’s ties to Vil-chez’s fraudulent activities; and applications that Chittenden originated for Vil-chez.

In light of this overwhelming evidence, we are confident that the jury’s verdict “was not substantially swayed by” the admission of the Linares Loan evidence. Chittenden classifies the challenged evidence, particularly the fax cover sheet, as “devastating,” noting that the government emphasized it in its closing argument. Appellant’s Br. 37. She stresses the documentary nature of the fax cover sheet and how it corroborated Levy’s testimony. But this overstates the importance of the Linares Loan evidence; that loan was but one of many the government argued Chittenden had submitted with false information. The Linares Loan evidence had nothing to do with Benavides, for instance, and the documentary evidence consistent with her extensive testimony. And while it is true that the government discussed the contested evidence in its closing statement, the government methodically walked through numerous pieces of additional evidence.

In short, we find that the district court did not err in admitting the Linares Loan evidence, but even if it had, the error was harmless.

V.

Turning to the bank fraud convictions, Chittenden contends that the government failed to produce sufficient evidence that she violated either subsection of the federal bank fraud statute, 18 U.S.C. § 1344. The statute provides:

Whoever knowingly executes, or attempts to execute, a scheme or artifice—
(1) to defraud a financial institution; or
(2) to obtain any of the moneys, funds, credits, assets, securities, or other property owned by, or under the custody or control of, a financial institution, by means of false or fraudulent pretenses, representations, or promises;
shall be fined not more than $1,000,000 or imprisoned not more than 30 years, or both.

The two subsections of § 1344 “proscribe slightly different conduct, but a person may commit bank fraud by violating either [one].” United States v. Brandon, 298 F.3d 307, 311 (4th Cir. 2002). The government charged Chittenden under both subsections, alleging that she knowingly executed a scheme to defraud Cardinal Bank, a federally insured financial institution, and that she obtained the bank’s property by means of fraudulent loan applications to the bank’s wholly owned subsidiary, GMM. The government introduced evidence at trial that when GMM issued loans, the loans were funded from an existing line of credit with Cardinal Bank. J.A. 405.

With respect to § 1344(2), Chit-tenden argues that the government failed to prove she obtained Cardinal Bank’s property “by means of false or fraudulent pretenses, representations, or promises.” We disagree. The Supreme Court has clarified that the “by means of’ requirement is satisfied when the defendant’s “false statement is the mechanism naturally inducing a bank (or custodian of bank property) to part with money in its control.” Loughrin v. United, States, — U.S.-, 134 S.Ct. 2384, 2393, 189 L.Ed.2d 411 (2014). Chittenden’s false and fraudulent statements here — the mortgage loan applications— were the mechanism that naturally induced Cardinal Bank to part with its money. The loan applications caused GMM to issue the loans, which in turn triggered Cardinal Bank to supply funds from its existing line of credit with GMM. See United States v. Irvin, 682 F.3d 1254, 1272-73 (10th Cir. 2012) (sustaining § 1344(2) conviction where “loan proceeds disbursed from [subsidiary] upon its decision to fund [a borrower’s] mortgage indisputably came from the credit line extended to it by [the parent bank]”).

Reading Loughrin broadly, Chittenden asserts that the government cannot satisfy the “by means of’ requirement because the actual false or fraudulent statements— the loan applications, in this case — never “made their way to Cardinal Bank.” Appellant’s Br. 44. But Loughrin does not establish an absolute rule that the false statement must reach the federally insured bank in all cases. Rather, as explained above, the key inquiry is whether the false or fraudulent statement naturally induces a bank to part with its property. And as the Supreme Court has further explained, the “by means of’ language “calls for an inquiry into the directness of the relationship between means and ends” and “will depend almost entirely on context.” Loughrin, 134 S.Ct. at 2394 n.8. Here, the context plainly shows a close and direct relationship between the means (submitting fraudulent loan applications to bank’s subsidiary) and the ends (receiving bank property when bank supplies funds for loans through line of credit with its subsidiary).

Accordingly, we decline to disturb the bank fraud convictions as the government supplied sufficient evidence for a jury to convict Chittenden under § 1344(2). Because we reach this conclusion with respect to § 1344(2), we need not consider whether the bank fraud convictions can be independently affirmed under § 1344(1). See Brandon, 298 F.3d at 314 (declining to engage in sufficiency analysis under § 1344(2) where conviction upheld under § 1344(1)).

VL

In a separate challenge to her bank fraud convictions, Chittenden argues that the government constructively amended the indictment in violation of the Fifth Amendment. A constructive amendment, often referred to as a fatal variance, occurs when the government “through its presen-tátion of evidence and/or its argument ... ‘change[s] the elements of the offense charged, such that the defendant is actually convicted of a crime other than that charged in the indictment.’ ” United States v. Randall, 171 F.3d 195, 203 (4th Cir. 1999) (quoting United States v. Schnabel, 939 F.2d 197, 203 (4th Cir. 1991)). If the government’s proof and/or argument does not alter the crime charged, however, then the change is classified as a “mere variance.” Id. A mere variance does not infringe an individual’s constitutional rights “unless it prejudices the defendant either by surprising him at trial and hindering the preparation of his defense, or by exposing him to the danger of a second prosecution for the same offense.” Id. We review claims of constructive amendment de novo. United States v. Allmendinger, 706 F.3d 330, 339 (4th Cir. 2013).

Chittenden asserts that because the indictment repeatedly states that she “caused Cardinal Bank to grant a [ ] mortgage loan,” see, e.g., J.A. 74, when in fact the evidence at trial showed that GMM granted the loans, a fatal variance occurred and reversal on the bank fraud counts is warranted. Not so. Chittenden was not convicted of an offense different than the one charged in the indictment — ' as explained in the prior section, the government sufficiently proved that Chitten-den fraudulently obtained Cardinal Bank’s property in violation of § 1344(2). Even though GMM granted the loans, it drew upon its line of credit'with Cardinal Bank to fund the loans.

To the extent the government’s imprecise language concerning which entity granted the loans constitutes a mere variance, Chittenden fails to address how she was prejudiced. As such, we reject Chit-tenden’s argument that the government constructively amended the indictment.

VII.

Chittenden next turns her attention to the post-trial proceedings, specifically asking us to vacate the forfeiture orders. She claims that the district court’s failure to include forfeiture as part of the October 3, 2014 sentence and judgment rendered it without jurisdiction to do so at a later date.

Criminal forfeiture is an aspect of a defendant’s sentence, Libretti v. United States, 516 U.S. 29, 38-39, 116 S.Ct. 356, 133 L.Ed.2d 271 (1995), and it is mandatory for a defendant convicted of bank fraud. See 18 U.S.C. § 982(a)(2) (noting that in imposing a sentence on a person convicted of violating or conspiring to violate § 1344 the court “shall order that the person forfeit to the United States any property constituting, or derived from, proceeds the person obtained directly or indirectly, as the result of such violation” (emphasis added)). The procedures governing criminal forfeiture are outlined in Federal Rule of Criminal Procedure 32.2.

Chittenden contends that the district court violated the Rule 32.2 requirements, sentenced her on October 3, 2014, without imposing the forfeiture penalty, and failed to properly use either Federal Rule of Criminal Procedure 35 or Rule 36 to modify her sentence to include forfeiture. From these premises, Chittenden argues that the district court lacked jurisdiction to enter the preliminary and final forfeiture orders months after the October 3, 2014 sentencing and judgment.

Even assuming (without deciding) that all of Chittenden’s premises are true, we conclude that the district court had jurisdiction to later enter the preliminary and final forfeiture orders against Chittenden. In United States v. Martin, 662 F.3d 301 (4th Cir. 2011), this Court considered a district court’s failure to enter the preliminary and final orders of forfeiture until after sentencing and judgment. We concluded that Rule 32.2(b)(3) was not a “jurisdictional condition,” but rather, borrowing language from the Supreme Court’s decision in Dolan v. United States, 560 U.S. 605, 130 S.Ct. 2533, 177 L.Ed.2d 108 (2010), should be understood as a “time-related directive.” Martin, 662 F.3d at 308. The Court went on to hold that “missing [a] deadline set in Rule 32.2 does not deprive a district court of jurisdiction to enter orders of criminal forfeiture so long as the sentencing court makes clear prior to sentencing that it plans to order forfeiture.” Id. at 307.

Because Chittenden was “on notice at the time of sentencing that the district court would enter forfeiture orders,” the district court retained jurisdiction to do exactly that. Id. at 309-10. When the parties were selecting a date for a sentencing hearing, Chittenden’s counsel reminded the court that the government intended to seek forfeiture. J.A. 1441 (“Your Honor, there is a notice of forfeiture in the indictment.”). The court heard the parties’ arguments on the forfeiture issue at that hearing, where the government reminded the court that “[t]he rule says that the Court shall order forfeiture.” Sent’g Tr. 30 (emphasis added). Apart from the jurisdictional objection, Chittenden’s counsel acknowledged at sentencing that Chittenden was subject to the forfeiture penalty. Sent’g Tr. 27 (“I certainly agree that the Government is entitled to forfeiture in an amount that includes the joint and several liability for foreseeable conduct of co-defendants”). And the district court referenced a forthcoming forfeiture order at the close of the hearing when it stated it would “not impose a fine and costs in light of the restitution and the forfeiture order that may take assets that you presently possess.” Sent’g Tr. 42. The district court further indicated in. its written judgment that forfeiture was to be determined. Given this unique combination of facts, we conclude that Chitten-den had notice that the district court would order the mandatory forfeiture.

Accordingly, under Martin, the district court had jurisdiction to enter the preliminary and final forfeiture orders after the October 3 hearing.

VIII.

Chittenden brings one final challenge to the post-trial forfeiture proceedings. Chit-tenden does not contest that she is liable for the approximately $1.5 million forfeiture amount. She instead contends that the government should not be able to collect approximately $1 million of that amount by seizing her substitute property. The core of Chittenden’s argument is that her co-conspirators’ acts of dissipating, commingling, or transferring the conspiracy proceeds — -which provided the basis for the court’s substitute property order — cannot be attributed to her.

It is well-established that a defendant “is vicariously liable for the reasonably foreseeable conduct of his co-conspirators, both substantively and at sentencing.” United States v. Bollin, 264 F.3d 391, 422 (4th Cir. 2001). This Court has applied these vicarious liability principles in the criminal forfeiture context. United States v. McHan, (“McHan I”) 101 F.3d 1027, 1043 (4th Cir. 1996). A conspiracy defendant’s criminal forfeiture liability is not limited to property that he or she derives individually; rather, a defendant is “jointly and severally liable for the forfeiture of proceeds from a conspiracy.” United States v. Jalaram, Inc., 599 F.3d 347, 351 (4th Cir. 2010). Additionally, under the substitute assets provision, contained at 21 U.S.C. § 853(p), courts must order the forfeiture of substitute property “when the tainted property has been placed beyond the reach of a forfeiture.” United States v. McHan, 345 F.3d 262, 271 (4th Cir. 2003) (“McHan II”).

The district court correctly applied these principles here. It entered a money judgment against Chittenden for $1,513,378.82, the amount of conspiracy proceeds that was reasonably foreseeable to Chittenden. The court later determined that $1,032,378.82 of those proceeds was beyond the reach of the government, finding that Chittenden’s coconspirators had dissipated, commingled, or transferred that amount. Because the district court determined that those funds were unavailable, it properly authorized the government to seek Chittenden’s substitute property up to that amount. See McHan II, 345 F.3d at 268 (reiterating, in a conspiracy case, that if “forfeitable property cannot be located by the government ... the court must, pursuant to § 853(p), order the forfeiture of ‘substitute property’ of the defendant up to the value of the forfeitable property”); Bollin, 264 F.3d at 422 (noting that as a member of a conspiracy, defendant’s “substitute assets [ ] may be subject to forfeiture in the event the laundered funds are determined to be unavailable”).

Chittenden objects to the district court’s reliance on her coconspirators’ acts. She argues that their acts of making unavailable the conspiracy proceeds should not be attributed to her because those acts were not within the scope or in furtherance of the conspiracy. Chittenden, in essence, proposes a rule whereby the government can only seize a conspiracy defendant’s substitute assets if the conspirators agree to dissipate, comingle, or transfer the proceeds of a conspiracy after its completion.

Chittenden, however, provides no authority to support the application of vicarious liability principles in this manner. Indeed, as the district court recognized, Chittenden’s proposed rule makes little sense- — the dissipation, commingling, or transfer of funds will almost never be within the scope or in furtherance of a conspiracy. And such a rule would run counter to Congress’s explicit instruction to “liberally construe! ]” the forfeiture statute “to effectuate its remedial purposes.” 21 U.S.C. § 853(o).

Accordingly, we reject Chittenden’s challenge to the district court’s substitute property order.

IX.

For the foregoing reasons, the judgment is

AFFIRMED.

      . Although the government charged Chittenden with twenty-two individual bank fraud counts, only fourteen were submitted to the jury. See J.A. 1746-50.

      . Even though the parties did not provide the sentencing transcript in the Joint Appendix, we may review and rely on it since it is part of the district court record. Fed. R. App. P. 30(a)(2) ("Parts of the record may be relied on by the court or the parties even though not included in the appendix.”).

      . Chittenden also asserts that, because she was denied access to her untainted assets, she was barred from preparing her preferred defense and her attorneys were limited during discovery in violation of the Sixth Amendment. Appellant’s Supp. Br. 6. Chittenden relies on Luis in making this argument, but as discussed above, she was not denied her counsel of choice. Although Chittenden does not frame her argument as such, to the extent she is claiming that the government's pretrial restraint impaired the effectiveness of her chosen counsel, she has failed to explain with particularity how her defense was limited. See United States v. Gordon, 710 F.3d 1124, 1139 (10th Cir. 2013) (rejecting claim that pretrial restraint of defendant’s, property violated Sixth Amendment where defendant’s "counsel remained fully and actively engaged” and defendant failed to "identify any concrete facts that would explain what was actually done in preparation for his defense and what .additional steps his counsel would have taken, if [the defendant] had not been denied access to his funds”). There is no indication that Chittenden's defense was hampered in any way — quite the opposite, Chittenden retained two or three attorneys before, during, and after 'trial who, based on our review of the record, represented her aggressively.

      . The elements of mail fraud under 18 U.S.C. § 1341 are "(1) the existence of a scheme to defraud, and (2) the mailing of a letter, etc., for the purposes of executing the scheme.” United States v. Vinyard, 266 F.3d 320, 326 (4th Cir. 2001) (quotation omitted). A defendant may commit federal bank fraud in one of two ways. The elements of bank fraud under 18 U.S.C. § 1344(1) are "(1) the defendant knowingly executed or attempted a scheme or artifice to defraud a financial institution, (2) he did so with intent to defraud, and (3) the institution was a federally insured or chartered bank.” United States v. Adepoju, 756 F.3d 250, 255 (4th Cir. 2014). The “requirements for a § 1344(2) conviction differ only as to the first element, which is that the defendant knowingly execute a scheme to obtain property held by a financial institution through false or fraudulent pretenses.” Id. The government charged Chittenden under both § 1344(1) and 1344(2).

      . Additionally, Chittenden’s suggestion that the conspiracy revolved solely around Vilchez and Vilchez & Associates is- undercut by her acknowledgement that the indictment included "seven overt acts that nowhere mentioned Vilchez or her business, but rather involved [coconspirators Rocio] Benavides and [J. David] Levy,” after they had left Vilchez & Associates. Appellant's Br. 11; see J.A. 53-63.

      . Chittenden also objects to the fax cover sheet on prejudice grounds under Federal Rule of Evidence 403. She says that she never received the fax cover sheet and argues that because the fax cover sheet lacked a fax stamp (or path or header) at the top of the document, Ramos likely fabricated the document. Even if Chittenden’s hypothesis is true, the court did not err in admitting the document. As we have recognized, a document’s unreliability is not a proper reason for exclusion under Rule 403. Rainey v. Conerly, 973 F.2d 321, 326 (4th Cir. 1992). Such credibility determinations are precisely the type we leave to the jury. Id.

      . We reject Chittenden’s suggestion that the ’ district court erred in finding Ramos’s statements were made in furtherance of the conspiracy. A coconspirator's statement is made in furtherance of the conspiracy if "it was intended to promote the conspiracy’s objectives, whether or not it actually has that effect.” United States v. Shores, 33 F.3d 438, 443 (4th Cir. 1994). The statement need not be "exclusively, or even primarily, made to further the conspiracy” as long as there is "some reasonable basis” for finding it was intended to further the conspiracy. Id. at 444 (quotation omitted). Chittenden offers no serious argument that Ramos’s statements concerning the Linares loan do not meet this standard.

      . See J.A. 1325 (government staling in closing argument that the “testimony of Rocio Bena-vides too is strongly corroborated by the documents and evidence” and referencing Exhibit 7-D).

      . In her third letter pursuant to Federal Rule of Appellate Procedure 28(j), Chittenden argues that she did not violate .§ 1344(2) because the government failed to prove that she knew the property came from a federally insured entity. Chittenden did not raise this argument with respect to § 1344(2) in her opening brief and therefore it is waived. Equal Rights Ctr. v. Niles Bolton Assocs., 602 F.3d 597, 604 n.4 (4th Cir. 2010) (holding that argument not raised in opening brief is waived). In any event, a jury could have easily inferred from Chittenden’s extensive experience as a loan officer and her decade working at GMM that she knew that submitting loan applications would influence a federally insured institution and involve bank property.

      . The Martin court considered Rule 32.2(b)(3) as it existed at the time of the appellant’s sentencing. The rule was subsequently modified in 20.09.

      . We also note that the district court provided Chittenden’s counsel seven days to brief the forfeiture issue and there appeared to be an understanding among the parties that the forfeiture amount would be taken up at a later date. See Sent’g Tr. 32, 43; see United States v. Ferrario-Pozzi, 368 F.3d 5, 10 (1st Cir. 2004) (“Failing altogether to discuss forfeiture at the sentencing hearing is not the same, however, as purposefully postponing further elaboration on the topic....”).

      .To be clear, although the district court retained jurisdiction here, the court’s decision to proceed with Chittenden’s sentencing hearing on October 3, 2014 created substantial confusion and additional litigation. The best practice would have been to postpone the hearing until a time when all aspects of Chittenden's sentence could have been imposed at a single time.


text:
    IN RE: James Edwards WHITLEY, Debtor. Charles M. Ivey, III, Chapter 7 Trustee for the Estate of James Edwards Whitley, Plaintiff-Appellant, v. First Citizens Bank & Trust Company, Defendant-Appellee.
    No. 15-2209
    United States Court of Appeals, Fourth Circuit.
    Argued: October 26, 2016
    Decided: January 31, 2017

      ARGUED: Charles Marshall Ivey, III, IVEY, MCCLELLAN, GATTON & SIEG-MUND, L.L.P., Greensboro, North Carolina, for Appellant. Gary J. Rickner, WARD AND SMITH, P.A., Greenville, North Carolina, for Appellee. ON BRIEF: Charles Marshall Ivey, IV, IVEY, MCCLELLAN, GATTON & SIEG-MUND, L.L.P., Greensboro, North Carolina, for Appellant. Benjamin E.F.B. Waller, WARD AND SMITH, P.A., Greenville, North Carolina, for Appellee.
    Before GREGORY, Chief Judge, WYNN, Circuit Judge, and DAVIS, Senior Circuit Judge.
   GREGORY, Chief Judge:

This appeal is from an adversary proceeding in the bankruptcy of debtor James Edwards Whitley. Charles M. Ivey III, the Chapter 7 trustee for Whitley’s estate, appeals the district court judgment affirming the bankruptcy court’s award of summary judgment for First Citizens Bank and Trust Company (“First Citizens Bank” or “the Bank”) on the trustee’s claim that certain deposits and wire transfers to Whitley’s personal checking account at First Citizens Bank are avoidable as fraudulent transfers. We find that the transactions at issue 'do not constitute transfers within the meaning of the Bankruptcy' Code, and we therefore affirm.

I.

This case arises out of Whitley’s bankruptcy, which in turn stems from Whitley’s Ponzi scheme wherein he defrauded his friends, family, and acquaintances out of millions of dollars under the guise of investing their money in a purchase order factoring contract business. This scheme unraveled in late 2009 when Whitley was unable to secure additional funds to continue his fraudulent operations.

In early 2010, a group of eight individual creditors filed with the bankruptcy court an involuntary petition against Whitley for relief pursuant to 11 U.S.C. § 303. The petition was granted on March 30, 2010. In 2012, after more than two years of bankruptcy proceedings and Whitley’s conviction for wire fraud and money laundering, the trustee filed a complaint on behalf of the bankruptcy estate against First Citizens Bank, where Whitley had a personal checking account in his name. Whitley had used this account to deposit funds, receive wire transfers, and write checks as part of his fraudulent scheme in the two years preceding the filing of the involuntary bankruptcy petition. Administrative Record (“A.R.”) 482. In the complaint, the trustee alleged, among other things, that certain deposits and wire transfers to “Whitley’s account, including personal and cashier’s cheeks and -wire transfers from “Whitley’s “investors,” constituted transfers from Whitley to the Bank that were made with the actual intent to hinder, delay, or defraud creditors, and that they were therefore avoidable as fraudulent transfers under 11 U.S.C. § 548(a)(1)(A). Id.

The bankruptcy court granted summary judgment for First Citizens Bank on the grounds that although the transactions were transfers from Whitley to the Bank, those transfers neither diminished the bankruptcy estate nor placed the funds beyond the creditors’ reach, and they were therefore not avoidable as fraudulent transfers. The district court affirmed on the same grounds. The trustee timely appealed to this Court.

II.

We review de novo the bankruptcy court’s and the district court’s legal conclusions and review for clear error the bankruptcy court’s factual findings. In re Taneja, 743 F.3d 423, 429 (4th Cir. 2014). Summary judgment is appropriate when “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). And “[i]n reviewing the grant of summary judgment, we can affirm on any legal ground supported by the record and are not limited to the grounds relied on by the district court.” Jackson v. Kimel, 992 F.2d 1318, 1322 (4th Cir. 1993).

A.

The trustee alleges that the transactions at issue should be avoided as fraudulent transfers made from Whitley to the Bank with the actual intent to hinder, delay, or defraud Whitley’s creditors. The trustee argues that the bankruptcy and district courts erred by requiring that the transactions diminish the bankruptcy estate in order to qualify as fraudulent transfers under § 548(a)(1)(A). Where actual fraudulent intent is present, the trustee contends, there is no requirement that the transactions diminish or otherwise move property away from the bankruptcy estate.

First Citizens Bank counters that the bankruptcy and district courts properly required that the transactions diminish the bankruptcy estate. The Bank points out that § 548(a)(1)(A) requires that an avoidable transfer be one “of an interest of the debtor in property,” which, the Bank maintains, federal courts have interpreted to mean that the property would have been in the estate if not for the transfer. The Bank also emphasizes the underlying policy of fraudulent transfer law, which is to prevent depletion of the estate. Here, where Whitley deposited checks and received wire transfers in his personal checking account, the Bank argues that he neither transferred his interest in the funds to the Bank nor diminished the bankruptcy estate, since Whitley at all times had access to and control of the funds.

We asked the parties to address at oral argument the significant threshold question of whether the transactions at issue are even transfers within the meaning of § 101(54) of the Bankruptcy Code, such that we might proceed to consider whether the transactions are avoidable transfers under § 548(a)(1)(A). The trustee argued that the transactions did constitute transfers under § 101(54)’s broad definition, which includes any “dispos[al] of or parting with [] property.” The trustee contended that depositing and accepting funds into a bank account as Whitley did here constitutes parting with property under § 101(54) because of the Bank’s access to and interest in the funds. First Citizens Bank responded that no such parting with property occurred. It argued that there was no change to Whitley’s rights and interests in the property after the deposits and wire transfers because Whitley still had access to his account, he could withdraw the funds at will, and any funds in the account were available to the bankruptcy estate.

We now find that the transactions at issue do not constitute transfers within the meaning of the Bankruptcy Code. Because our resolution of this threshold question disposes of the appeal, we need not reach the parties’ other arguments.

B.

Under 11 U.S.C. § 548(a)(1)(A), a “trustee .may avoid any transfer ... of an interest of the debtor in property ... that was made or incurred on or within 2 years before the date of the filing of the petition, if the debtor voluntarily or involuntarily [ ] made such transfer ... with actual intent to hinder, delay, or defraud any” creditor. The Bankruptcy Code defines “transfer,” in pertinent part, as any “mode, direct or indirect, absolute or conditional, voluntary or involuntary, of disposing of or parting with[] (i) property; or (ii) an interest in property.” Id. § 101(54)(D). The threshold question here is whether the transactions at issue are transfers within the meaning of § 101(54), such that they might be'considered under § 548.

Congress sought to make “[t]he definition of transfer” in the Bankruptcy Code “as broad as possible,” drafting it to include “any transfer of an interest in property,” including “[a] deposit in a bank account or similar account.” S. Rep. No. 95-989, at 27 (1978) (stating also that “any transfer of an interest in property is a transfer, including a transfer of possession, custody, or control even if there is no transfer of title, because possession, custody, and control are interests in property”). The Senate Report did not, however, distinguish between different types of deposits; it merely articulated the general principle that “transfer” is meant to encompass an array of transactions. Courts are thus divided on whether § 101(54)’s definition of “transfer,” even interpreted as broadly as Congress intended, includes a debtor’s deposits in his own unrestricted bank account in the regular course of business.

Some courts have found that these types of transactions do constitute “transfers” within the meaning of § 101(54). For instance, in In re Schafer, 294 B.R. 126 (N.D. Cal. 2003), where the debtor opened a new account and deposited his funds there because a creditor had attached his old account, the court found that “[t]here is no ambiguity around the definition of transfer, deposits in bank accounts clearly qualify.” Id. at 132. And in Meoli v. Huntington Nat’l Bank, No. 1:12-CV-1113, 2015 WL 5690953, at *9-10 (W.D. Mich. Sept. 28, 2015), the court found that a customer’s deposits in his bank account were transfers and that the bank was the immediate transferee as a result of the deposits. See also Redmond v. Tuttle, 698 F.2d 414, 417-18, 417 n.8 (10th Cir. 1983) (finding that deposits in debtors’ checking account were transfers within the meaning of § 101(54)). These courts looked to the Senate Report’s statement that the definition of “transfer” should be read as broadly as possible, as well as the broad language of § 101(54) itself.

But courts have just as strongly concluded that deposits by a debtor into his own unrestricted checking account in the regular course of business do not constitute “transfers” within the meaning of § 101(54). The Fourth Circuit said precisely that almost ninety years ago:

An ordinary deposit in a bank, however, is not a “transfer”.... It ... results in substituting for currency, bank notes, checks, drafts, and other bankable items a corresponding credit with the bank, which may be checked against, and which provides the depositor with the medium of exchange in universal use in the transaction of business.... [I]f the deposit is in reality a deposit, made in good faith as such, subject to the withdrawal of the depositor, and not made as a cloak for a payment or other forbidden transaction, it is not a transfer within the meaning of the Bankruptcy Act....

Citizens’ Nat. Bank of Gastonia, N.C. v. Lineberger, 45 F.2d 522, 527-28 (4th Cir. 1980); see also Bank of Commerce & Trs. v. Hatcher, 50 F.2d 719, 720 (4th Cir. 1931) (same) (citing Lineberger, 45 F.2d at 527). The Lineberger and Hatcher courts relied heavily on language from the Supreme Court, which had previously stated that “[i]t cannot be doubted that, except under special circumstances, ... a deposit of money upon general account with a bank creates the relation of debtor and creditor.... It creates an ordinary debt, not a privilege or right of a fiduciary character.” N.Y. Cty. Nat’l Bank v. Massey, 192 U.S. 138, 145, 24 S.Ct. 199, 48 L.Ed. 380 (1904). And this “ordinary debt,” with the Bank’s corresponding obligation to make the funds available at the depositor’s will, does not change the debtor’s interest in the funds. See id. Courts have interpreted Massey to say that this type of transaction therefore does not constitute a transfer within the meaning of the Bankruptcy Code. See, e.g., In re Consol. Pioneer Mortg. Entities, 211 B.R. 704, 714-15 (S.D. Cal. 1997), aff'd in part, rev’d in part on other grounds, 166 F.3d 342 (9th Cir. 1999).

Though Lineberger, Hatcher, and Massey all predate the current Bankruptcy Code, courts continue to rely on these cases in similarly finding that certain deposits do not constitute transfers under § 101(54). In Consolidated Pioneer Mortgage, the court found that “[n]otwithstanding [§ 101(54)’s] broad definition [of ‘transfer’], it is well settled that a customer’s bank deposits into its own unrestricted checking account are not transfers within the meaning of the Bankruptcy Code.” Id. at 714 (citing Massey, 192 U.S. at 145, 24 S.Ct. 199). And relying on the passage from Lineberger quoted above, the court added, “Although the customer ‘disposes of or ‘parts with’ the deposited items in exchange for the credit, this ‘parting’ is not a transfer for bankruptcy purposes because, in effect, the assets available to the customer have not changed.” Id. at 714-15. And at least one bankruptcy court in this Circuit has similarly applied Lineberger to determine that these types of transactions are not transfers under § 101(54). See In re Rood, 459 B.R. 581, 606 (Bankr. D. Md. 2011), aff'd, 482 B.R. 132 (D. Md. 2012), aff'd sub nom. S. Mgmt. Corp. Ret. Trust v. Rood, 532 Fed.Appx. 370 (4th Cir. 2013), and aff'd sub nom. S. Mgmt. Corp. Ret. Trust v. Jewell, 533 Fed.Appx. 228 (4th Cir. 2013) (“[W]ith respect to those ‘transfers’ that were actually deposits of funds into accounts controlled by [the debtor], the court observes that ‘an ordinary deposit in a bank ... is not a “transfer.” ’ ” (quoting Lineberger, 45 F.2d at 527)). According to these courts, such transactions do not change the debtor’s possession, custody, or control of the property because the transactions result in only a substitution of the property for a corresponding credit — a credit that may be redeemed by the debtor at any time.

Other bankruptcy and circuit courts, considering the issue both before and after the enactment of the current Bankruptcy Code, agree. See In re Prescott, 805 F.2d 719, 729 (7th Cir. 1986) (“Deposits into bank accounts clearly can be transfers under the new Bankruptcy Code.... However, ... to the extent a deposit is made into an unrestricted checking account, in the regular course of business and withdrawable at the depositor’s will, it is not avoidable by the trustee(citing Katz v. First Nat’l Bank of Glen Head, 568 F.2d 964, 969 (2d Cir. 1977)); Katz, 568 F.2d at 969 (“It is well settled that deposits in an unrestricted checking account, made in the regular course of business, do not constitute transfers within the meaning of the Bankruptcy Act.”); In re Tonyan Const. Co., Inc., 28 B.R. 714, 728-29 (Bankr. N.D. Ill. 1983) (stating that “[ojrdinarily, a deposit in an unrestricted checking account does not constitute a parting with property, because it ‘[ ] results in substituting for currency, bank notes, checks, drafts, and other bankable items a corresponding credit with the bank, which may be checked against’ ” (quoting Lineberger, 45 F.2d at 527)); In re Perry, 336 F.Supp. 420, 425 (D.S.C. 1972) (finding that “deposits and subsequent set-offs are not transfers” because they “result in a substitution of credit for various forms of commercial paper or currency” and “are withdrawable at the will of the depositor”).

While recognizing that some courts read § 101(54) more broadly, we are persuaded by the precedent in this Circuit and our sister circuits that the better interpretation of “transfer” does not include a debtor’s regular deposits into his own unrestricted checking account — a specific circumstance not explicitly contemplated by the Senate Report. When Whitley made deposits and accepted wire transfers into his checking account at First Citizens Bank, he continued to possess, control, and have custody over those funds, which were freely withdrawable at his will. Indeed, any funds in the account were at all times part of the bankruptcy estate. The Bank’s mere maintenance of Whitley’s checking account does not suffice to make deposits and wire transfers in that account “transfers” from Whitley to the Bank, and we decline to read § 101(54) to say otherwise.

We express no opinion on whether other types of deposits, such as those made to restricted checking accounts, would constitute transfers under § 101(54). Our holding is limited to the narrow circumstances presented here: when a debtor deposits or receives a wire transfer of funds into his own unrestricted checking account in the regular course of business, he has not transferred those funds to the bank that operates the account. When the debtor is still free to access those funds at will, the requisite “disposing of’ or “parting with” property has not occurred; there has not been a “transfer” within the meaning of § 101(54).

Contrary to the bankruptcy and district courts, we find that the deposits and wire transfers at issue here are not § 101(54) “transfers” from Whitley to First Citizens Bank. The transactions therefore cannot be avoidable transfers under § 548(a). Accordingly, summary judgment for First Citizens Bank is proper on this narrower ground.

III.

For all of these reasons, the district court’s judgment is

AFFIRMED.

      . The details of Whitley’s fraudulent scheme are recounted in our earlier opinion affirming his criminal sentence for wire fraud and money laundering. See United States v. Whitley, 544 Fed.Appx. 154 (4th Cir. 2013). As we explained there,
      A "purchase order factoring contract” is needed when a supplier requires that a buyer pay for goods by cash on delivery, but the buyer wants to purchase the goods on 30 to 60 day terms. The purchase order contractor agrees to pay the supplier upon delivery of the goods, which enables the buyer to delay payment for a specified period of time.

        Id. at 155 n.l. Whitley did not invest any of his victims' funds in such a business; he instead spent their funds both to further his Ponzi scheme and for his own personal use. Id. at 156.

      . The bankruptcy court granted the Bank’s motion to dismiss the trustee’s other claims, and the trustee did not appeal the dismissal of those claims.