     Case: 13-30778   Document: 00512820993        Page: 1   Date Filed: 10/30/2014




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT


                                    No. 13-30778                  United States Court of Appeals
                                                                           Fifth Circuit

                                                                         FILED
UNITED STATES OF AMERICA,                                          October 30, 2014
                                                                    Lyle W. Cayce
             Plaintiff - Appellee                                        Clerk

v.

ANGELA MYERS,

             Defendant - Appellant




                Appeals from the United States District Court
                    for the Middle District of Louisiana


Before STEWART, Chief Judge, and BENAVIDES and OWEN, Circuit Judges.
CARL E. STEWART, Chief Judge:
      Angela Myers was charged with and convicted of several counts of
identify-theft-related crimes, including signing false tax returns. She was
sentenced to 132 months imprisonment, due in part to a six-level enhancement
for 250 or more victims and a two-level enhancement for vulnerable victims.
Myers appeals the application of those enhancements: the six-level
enhancement because she argues that an Ex Post Facto Clause violation
occurred wherein the sentencing guidelines effective at the time of the crime
would not have characterized many of the individuals as “victims,” and the
two-level enhancement because she contests whether she knew or should have
known of the vulnerability of the victims. Because we agree that an Ex Post
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Facto Clause violation occurred, we VACATE the sentence and REMAND for
resentencing. Further, the district court did not err in applying the vulnerable
victim enhancement.
             FACTUAL AND PROCEDURAL BACKGROUND
   A. Factual Background
      Angela Myers owned Angela’s Tax Service from 2007 until 2012, through
which she filed fraudulent tax returns for over 285 persons. Myers repeatedly
obtained means of identification of individuals, prepared false tax returns
without the consent of these individuals, and kept the refunds for herself.
Myers obtained about 100 of the names, social security numbers, and other
identifying information for these persons from Clarissa Ayo. Ayo and Myers
had known each other for several years. Ayo worked for a nursing home and,
after speaking with Myers, Ayo gave Myers the roster of the nursing home
residents.   Myers subsequently used the identities of the nursing home
residents to file false tax returns. Because the nursing home residents would
not have filed tax returns otherwise, they did not have any pecuniary loss, and
the only party arguably to suffer pecuniary loss was the IRS.
   B. Procedural Background
      Myers was indicted for nine counts of making false, fictitious, or
fraudulent claims, five counts of wire fraud, five counts of aggravated identity
theft, and two counts of filing a false income tax return. Myers’s total offense
level was 31, including a six-level enhancement under U.S.S.G. §
2B1.1(b)(2)(C) because the offense involved 285 victims and a two-level
enhancement under U.S.S.G. § 3A1.1(b)(1) because at least some of the victims
were vulnerable.
      Prior to sentencing, Myers objected to the six-level enhancement,
arguing that the evidence at trial established only eight victims and that the
means and methodology of arriving at the calculation of 285 victims was not
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explained in the Presentence Report. Myers also objected to the two-level
enhancement because she argued that there was no evidence that she knew or
should have known that some of the victims were vulnerable. The district
court sustained an objection based on the amount of the loss but overruled all
other objections. Therefore, Myers’s guidelines range was 87–108 months
based on a total offense level of 29 and a Category I criminal history score.
      The district court sentenced Myers to concurrent terms of 60 months for
making false, fictitious, or fraudulent claims, 108 months for wire fraud, and
36 months for filing a false tax return. Myers also received a term of 24 months
of imprisonment for aggravated identity theft to be served consecutively to the
terms of imprisonment imposed on the other counts.            Her total term of
imprisonment was 132 months. The district court also ordered Myers to serve
a total of two years of supervised release. Myers filed a timely notice of appeal.
After filing her initial brief, Myers untimely filed a reply brief that was not
accepted into the record. In the untimely reply brief, Myers argued for the first
time that an Ex Post Facto Clause violation occurred when the 2009 sentencing
guidelines in effect at the time of sentencing were applied to Myers instead of
the 2007 guidelines in effect at the time of her offense. Myers argued that if
the 2007 guidelines were applied, the six-level enhancement for 250 or more
victims would not have been imposed, as the 2007 guidelines required a victim
to have suffered pecuniary loss. Because the only party to suffer pecuniary
loss was the IRS, Myers argued, the other persons whose identifying
information was stolen were not “victims.” The government conceded to plain
error in a letter pursuant to Federal Rule of Appellate Procedure 28(j), stating
that this court has the discretion to vacate the sentence and remand for
resentencing if necessary to avoid the miscarriage of justice. The government
also cited to Peugh v. United States in furthering the premise that an Ex Post
Facto Clause violation occurred when the retroactive application of the newer
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guidelines increased Myers’s sentence range. 133 S.Ct. 2072, 2088 (2013).
Myers also argued for the first time in her reply brief that she received
ineffective assistance of counsel.
                                       DISCUSSION
       As a preliminary matter, we recognize that the Appellant’s reply brief
was not timely filed and is thus not a part of the official record on appeal.
Because the Government served its brief on March 10, 2014, Myers had until
March 27, 2014, to file a reply brief. See Fed. R. App. P. 31(a)(1); Fed. R. App.
P. 26(c). According to the clerk’s office, the reply brief was not filed until March
28, 2014. However, the certificate of service in the reply brief indicated that it
was filed on March 27, 2014. Despite this, the reply brief was deemed untimely
and was not accepted for filing. Thus, it is not a part of the record on appeal,
and we generally do not consider arguments made in an untimely reply brief.
See U.S. v. Lewis, 621 F.2d 1382, 1386 (5th Cir. 1980).
       Yet, this is a very close call. There are unique circumstances in this case
that may warrant our supplementing the record: the dates on which the reply
brief was allegedly filed are only one day apart (March 27 versus March 28),
which may be due to the electronic filing process; the issue raised in the
untimely reply brief is a constitutional one of much importance; and the
Government conceded to plain error, referencing the Ex Post Facto Clause
argument raised for the first time in the reply brief without objection to its
untimeliness.       Given these extraordinary circumstances, we exercise our
discretion to supplement the record sua sponte and include the reply brief for
our consideration. 1


       1 Pursuant to Federal Rule of Appellate Procedure 10(e)(2)(c), the court of appeals may
supplement the record “if anything material to either party is omitted from . . . the record by
error or accident . . . .”; see also Creative Consumer Concepts, Inc. v. Kreisler, 563 F.3d 1070,
1074 n.1 (10th Cir. 2009); Yarrington v. Davies, 992 F.2d 1077, 1080–81 (10th Cir. 1993);
Cuello-Suarez v. Puerto Rico Elec. Power Authority, 988 F.2d 275, 277 (1st Cir. 1993).
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                                   No. 13-30778
      A. Ex Post Facto Clause
            a. Standard of Review
      We generally do not consider arguments made for the first time in a reply
brief and deem those arguments waived. See Flex Frac Logistics, L.L.C. v.
NLRB, 746 F.3d 205, 208 (5th Cir. 2014). However, “we ordinarily have the
discretion to decide legal issues that are not timely raised.” United States v.
Rodriguez, 602 F.3d 346, 360–61 (5th Cir. 2010) (citing United States v.
Vontsteen, 950 F.2d 1086, 1091 (5th Cir. 1992)). We review these issues for
plain error. See Rodriguez, 602 F.3d at 360.
      A defendant’s sentence will only be corrected under plain error if the
following elements are met:

      (1) there [is] an error or defect . . . ; (2) the legal error [is] clear or
      obvious, rather than subject to reasonable dispute; (3) the error
      [has] affected the appellant’s substantial rights; and (4) if the
      above three prongs are satisfied, the court of appeals has the
      discretion to remedy the error—discretion which ought to be
      exercised only if the error seriously affect[s] the fairness, integrity
      or public reputation of judicial proceedings.

United States v. Escalante-Reyes, 689 F.3d 415, 419 (5th Cir. 2012)
(internal quotation marks and citation omitted). The fourth element of
the plain error analysis lends this court the discretion to correct error
that clearly affects a defendant’s sentence. See United States v. John,
597 F.3d 263, 285–86 (5th Cir. 2010). When there is a “reasonable
probability that, but for the district court’s misapplication of the
Guidelines, [the appellant] would have received a lesser sentence,” that
error clearly affects a defendant’s sentence. United States v. Blocker, 612
F.3d 413, 416 (5th Cir. 2010) (internal quotation marks and citation
omitted). “[W]hen a district court’s error clearly affects a defendant’s
sentence, that error seriously affects the fairness, integrity, or public

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reputation of judicial proceedings, particularly when the disparity
between the Guidelines’ range applied by the district court and the
correctly calculated range is significant.” John, 597 F.3d at 285.
            b. Applicable Law
      Generally, a district court “must apply the version of the sentencing
guidelines effective at the time of sentencing unless application of that version
would violate the Ex Post Facto Clause of the Constitution.” United States v.
Rodarte-Vasquez, 488 F.3d 316, 322 (5th Cir. 2007) (citation omitted).
Although the sentencing guidelines are now advisory, “[s]uch a violation occurs
when application of the Guidelines in effect at sentencing results in a harsher
penalty than would application of the Guidelines in effect when the offense was
committed.” Id; see Peugh, 133 S. Ct. at 2079–81.
            c. Analysis
      Although Myers argued that there had been an Ex Post Facto Clause
violation for the first time in her untimely filed reply brief, we exercise our
discretion to consider this argument, not only because it is a question of law
but because the misapplication of the guidelines in effect at the time of her
sentencing caused a significant disparity between the sentence Myers received
and the sentence she would have received had the guidelines in effect at the
time of her offense been applied. See Rodriguez, 602 F.3d at 360–61. If the
2007 guidelines were applied, Myers would not have received the six-level
enhancement for 250 or more victims, as the only “victim” to suffer actual
pecuniary loss would have been the IRS. This would significantly decrease
Myers’s sentencing range from 87–108 months, based on an Offense Level of
29, to 46–57 months, based on an Offense Level 23. It is also relevant that the
Government, in its 28(j) letter, conceded that application of the 2012 guidelines
was in plain error, but left the question of vacating the sentence and
remanding for resentencing to this court, stating that we should remand only
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if necessary to avoid a “miscarriage of justice.” United States v. Dominguez-
Alvarado, 695 F.3d 324, 327–28 (5th Cir. 2012).
      We too find plain error in the district court’s application of the 2012
sentencing guidelines. First, there was an error in the sentencing, as a six-
level enhancement was misapplied to Myers’s sentence due to the district
court’s reliance on an improper definition of victims found in the 2012
Guidelines in effect at the time of the sentencing. Because the 2007 Guidelines
required a victim to have suffered pecuniary harm and only one victim (the
IRS), suffered pecuniary harm, the 2012 Guidelines created a harsher sentence
for Myers, further resulting in error. Second, the error was plain, obvious, and
not subject to reasonable dispute because, in light of Peugh, the application of
the 2012 Guidelines imposes a more onerous sentence upon Myers, clearly
implicating a violation of the Ex Post Facto Clause. Peugh, 133 S. Ct. at 2088;
see also United States v. Castillo-Estevez, 597 F.3d 238, 241 (5th Cir. 2010).
Finally, because the application of the 2012 Guidelines imposes a six-level
enhancement to Myers’s sentence, increasing it by 41 to 51 months, this error
affected Myers’s substantial rights by imposing a significant risk of a higher
sentence, just as in Peugh. 133 S.Ct. at 2088.
      Further, because Myers’s sentence is increased by 41 to 51 months, we
hold that the misapplication of the six-level increase seriously affects Myers’s
substantial rights and offends the fairness, integrity, or public reputation of
judicial proceedings. See Rodarte–Vasquez, 488 F.3d at 322; Blocker, 612 F.3d
at 416. As such, we exercise our discretion to VACATE Myers’s sentence and
REMAND to the district court for resentencing.
      B. Vulnerable Victim Enhancement
            a. Standard of Review
      Objections to the district court’s application of enhancements are
reviewed de novo. See United States v. Cisneros-Gutierrez, 517 F.3d 751, 764
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(5th Cir. 2008).     However, the district court’s factual determinations are
decisions “that the district court is best suited to make” and will be reviewed
by this court only for clear error. United States v. Wilcox, 631 F.3d 740, 754
(5th Cir. 2011) (citation omitted); Rocha, 916 F.2d at 244 (“[T]he district court’s
[factual] determination . . . is entitled to due deference.”). “There is no clear
error if the district court’s [factual] finding is plausible in light of the record as
a whole.” United States v. Valdez, 726 F.3d 684, 692 (5th Cir. 2013); see also
United States v. Ekanem, 555 F.3d 172, 175 (5th Cir. 2009).
      Further, “[t]he government must prove sentencing enhancements by a
preponderance of the evidence.” United States v. Juarez, 626 F.3d 246, 251
(5th Cir. 2010); see also United States v. Diaz, 344 F. App’x 36, 43 (5th Cir.
2009) (“The court did not decline to reduce the sentence because there was not
evidence by fifty-one percent, or to the extent of more likely than not, as the
preponderance of the evidence standard requires . . . .” (internal quotation
marks and citation omitted)). This court may draw reasonable inferences to
determine whether the record supports the enhancement by a preponderance
of the evidence. See Wilcox, 631 F.3d at 755 (“The inferences we draw after our
own review of the whole record reinforce the plausibility of the district court’s
application of the enhancement.”); Juarez, 626 F.3d at 251 (“A district court
may draw reasonable inferences from the facts when determining whether an
enhancement applies, and we review those inferences for clear error.”).
             b. Applicable Law
      The Guidelines provide for a two-level enhancement where a defendant
“knew or should have known that a victim of the offense was a vulnerable
victim.” U.S.S.G. § 3A1.1(b)(1) (emphasis added). As relevant here, vulnerable
victim “means a person . . . who is unusually vulnerable due to age, physical or
mental condition, or who is otherwise particularly susceptible to the criminal
conduct.” U.S.S.G. § 3A1.1 cmt. n.2.          The “vulnerable victim guideline is
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primarily concerned with the impaired capacity of the victim to detect or
prevent crime,” United States v. Gill, 99 F.3d 484, 486 (1st Cir. 1996), or a
victim who is “less able to resist than the typical victim of the offense of the
conviction.” United States v. Angeles–Mendoza, 407 F.3d 742, 747 n.5 (5th Cir.
2005) (internal citations and quotations omitted).
      The requirement that a party “knew or should have known” references
both actual and constructive knowledge. When a party “knows” something,
they have “actual knowledge” of it, meaning there is “direct and clear
knowledge.” Black’s Law Dictionary 950 (9th ed. 2009). However, when a
party “should have known” something, they have “constructive knowledge,”
which is a lesser standard meaning “knowledge that one using reasonable care
or diligence should have.” Id.
            c. Analysis
      Myers challenges the application of the two-level enhancement pursuant
to U.S.S.G. § 3A1.1(b)(1) based on a finding that she knew or should have
known that her victims were vulnerable victims. Myers contends that the
evidence on the record that she obtained names and identities from a list of
individuals at a nursing home does not support the enhancement. She argues
that there was no evidence that she should have known that any victim was
unusually vulnerable simply because they were in a nursing home.
      Myers’s argument is unavailing. Viewing the facts in the light most
deferential to the district court’s findings, it is plausible that Myers knew—or
should have known—that the list of more than 100 names coming from a
nursing home would include at least some people who qualified as vulnerable
victims under U.S.S.G. § 3A1.1. Based on Ayo’s testimony and the length of
her relationship with Myers, it was reasonable for the district court to infer
that Myers should have known where Ayo worked and where the names came
from. Even though Myers argues that she did not have actual knowledge of
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the nursing home residents’ mental and physical incapacities, she cannot
successfully argue that she did not have constructive knowledge. A reasonable
person, in Myers’s position, should know that at least some of the residents of
a nursing home are residents due to their mental or physical disabilities. It is
reasonable to impute this common knowledge upon Myers. Thus, the district
court made reasonable inferences and determined, by a preponderance of the
evidence, that Myers’s relationship and discussion with Ayo prior to Ayo giving
her the list supported Myers’s constructive knowledge of the vulnerable
victims. See Wilcox, 631 F.3d at 755. Thus, the district court did not clearly
err in applying the vulnerable victim enhancement based upon its factual
findings. See U.S.S.G. § 3A1.1 cmt. n.2; see also Cisneros–Gutierrez, 517 F.3d
at 764.
      C. Ineffective Assistance of Counsel
      Although Myers argues that she was deprived of effective assistance at
trial, she acknowledges in the reply brief that the claim was not raised at the
district court and may not be properly reviewed on direct appeal. She conceded
that resolution of her claims of ineffective assistant of counsel would require
this court to review evidence outside of the record on appeal. As such, these
claims are properly reserved for collateral attack.        See United States v.
Cantwell, 470 F.3d 1087, 1091 (5th Cir. 2006) (“[A] claim for ineffective
assistance of counsel cannot be resolved on direct appeal when the claim has
not been raised before the district court since no opportunity existed to develop
the record on the merits of the allegations.” (internal quotation marks and
citation omitted)). Therefore, we decline to consider this claim.
                                CONCLUSION
      For the foregoing reasons, we VACATE Myers’s sentence and REMAND
for resentencing due to an Ex Post Facto Clause violation.


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