     Case: 11-20123     Document: 00511731703         Page: 1     Date Filed: 01/20/2012




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                         January 20, 2012
                                     No. 11-20123
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

LATASHA GLODINE LEBLANC,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:10-CR-520-1


Before BENAVIDES, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
        LaTasha Glodine LeBlanc pleaded guilty to one count of mail fraud and
received a within-guidelines sentence of 21 months in prison, to be followed by
a five-year term of supervised release; she was also ordered to pay a $3000 fine.
LeBlanc’s written plea agreement included a provision waiving her right to
appeal the sentence imposed. On appeal, LeBlanc challenges the district court’s
guidelines calculations. She contends that the waiver provision should be
considered invalid because such limitations on judicial review violate the

       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
   Case: 11-20123    Document: 00511731703       Page: 2   Date Filed: 01/20/2012

                                   No. 11-20123

principle of separation of powers and because a defendant can never intelligently
waive her right to challenge a sentence before she knows what that sentence will
be. In its appellate brief, the Government does not invoke the waiver and
instead argues the merits of LeBlanc’s sentencing claims. Thus, the provision
is not binding on the parties. See United States v. Story, 439 F.3d 226, 231 (5th
Cir. 2006). In light of this, we decline to review LeBlanc’s challenges to the
validity of the waiver.
      With respect to the sentencing calculations, LeBlanc contends that the
district court erred in accepting, over her objections, a loss amount exceeding
$30,000 as listed in the presentence report. Although she maintains that she is
challenging the probation officer’s methodology in calculating the loss amount
and that such a claim merits de novo review, a reading of her argument
establishes that she is in fact disputing the factual finding of total loss, which we
review for clear error. United States v. Sanders, 343 F.3d 511, 520 (5th Cir.
2003); cf. United States v. Klein, 543 F.3d 206, 213-14 (5th Cir. 2008) (reviewing
de novo a challenge to the calculation of the loss because it involved the
application of a guideline provision regarding credits). The probation officer
stated that the loss finding was supported by investigative materials created and
gathered by federal and state officials, and thus the calculation had sufficient
indicia of reliability for the district court to rely upon it. See United States v.
Scher, 601 F.3d 408, 413 (5th Cir. 2010); United States v. Shacklett, 921 F.2d
580, 584 (5th Cir. 1991). LeBlanc provided no competent rebuttal evidence
supporting her alternate loss calculations, and thus the record does not show
that the district court clearly erred in adopting the loss amount set forth in the
presentence report. See Sanders, 343 F.3d at 520; United States v. Parker, 133
F.3d 322, 329 (5th Cir. 1998).
      In addition, LeBlanc asserts that the district court erred in assessing a
two-level enhancement based on a finding that the offense involved 10 or more
victims. Because she did not object on this ground in the district court, we

                                         2
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                                 No. 11-20123

review for plain error. See United States v. Neal, 578 F.3d 270, 272 (5th Cir.
2009); United States v. Sudeen, 434 F.3d 384, 392 (5th Cir. 2005). The number
of victims constitutes a finding of fact that could have been resolved by the
district court after a proper objection, and therefore no plain error exists. See
United States v. Vital, 68 F.3d 114, 119 (5th Cir. 1995). Consequently, the
judgment of the district court is AFFIRMED.




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