     Case: 11-30297     Document: 00511731935         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. 11-30297
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

WILLIAM B. CREEL,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                             USDC No. 3:10-CR-11-1


Before WIENER, GARZA, and CLEMENT, Circuit Judges.
PER CURIAM:*
        A jury convicted Defendant-Appellant William B. Creel on one count of
making a false statement to a federal law enforcement agent in violation of 18
U.S.C. § 1001(a)(2). The court sentenced him to 12 months in prison, an increase
from the guidelines-recommended sentence of six months. Creel appeals. We
affirm.
        The false statement was made while state police and the federal Bureau
of Alcohol, Tobacco, and Firearms (ATF) were investigating possible criminal

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-30297   Document: 00511731935     Page: 2   Date Filed: 01/20/2012

                                 No. 11-30297

activity by the Bandidos outlaw motorcycle gang and the LA Riders, an
associated gang, as well as the recent exposure of two police confidential
informants. The verdict established that, during a contentious telephone call
with an ATF agent, Creel falsely denied being at a specific Bandido’s trailer
where the exposure of a confidential informant was discussed.
      Creel contends that the evidence was insufficient to prove that he intended
to deceive the ATF agent. We review preserved claims of insufficient evidence
de novo and will affirm the conviction if, after viewing the evidence, the
reasonable inferences therefrom, and all credibility determinations in favor of
the verdict, we conclude that a rational jury could have found that the
government proved the elements of the crime beyond a reasonable doubt. See
United States v. Moreno, 185 F.3d 465, 471 (5th Cir. 1999).
      Under § 1001, a false statement must have been “made with an intent to
deceive or mislead.” United States v. Guzman, 781 F.2d 428, 431 (5th Cir. 1986).
Creel argues that he made the false statement merely to aggravate the agent
during a heated argument. A false statement was not an exclusive or necessary
method of expressing anger, and its primary aggravating effect would seem to
have been its tendency to deceive the agent. Moreover, Creel’s denial was made
as he defended himself and his motorcycle club, the Arawyns, against
accusations that they had ties to the Bandidos. A reasonable jury could conclude
that Creel made his false statements to deflect suspicion from him and the
Arawyns by deceiving the government. See id.; Moreno, 185 F.3d at 471. This
claim fails.
      Creel also contends that the evidence was insufficient to prove that his
statement was material to the investigation. As he raised this issue in his reply
brief rather than his main brief, we are not required to consider it. See United
States v. Ramirez, 557 F.3d 200, 203 (5th Cir. 2009). We nevertheless exercise
our discretion to review it as a response to the mention of materiality in the



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                                  No. 11-30297

government’s brief. See United States v. Seale, 600 F.3d 473, 488 (5th Cir.), cert.
denied, 131 S. Ct. 163 (2010).
      To determine materiality under § 1001, we seek to ascertain that which
was the false statement and the decision that the agency was attempting to
make. United States v. Najera Jimenez, 593 F.3d 391, 399-400 (5th Cir. 2010).
We then ask whether the statement at issue had “a natural tendency to
influence, or be capable of influencing” that decision. Id. (internal quotation
marks, alteration, and citation omitted). It does not matter whether the false
statement actually or probably influenced the decision, only “whether the
misrepresentation was capable of influencing the agency decision.” Id. at 400
(internal quotation marks and citation omitted).
      The ATF was attempting to determine whether there was an association
between the Arawyns and Creel and the Bandidos. According to the indictment
and the evidence, the ATF wanted to know who was at the trailer to determine
if there was a leak of information to the Bandidos and, if so, who leaked it, and
to include or exclude suspects or witnesses. Creel’s false denial that he was at
the trailer was naturally “capable of influencing” the government’s answer to
that question by suggesting there was no connection between himself and the
Bandidos. See Najera Jimenez, 593 F.3d at 399-400. This claim also fails.
      Before the trial, the district court granted the government’s motion in
limine to exclude evidence that Creel thought he was talking to a state
policeman rather than an ATF agent when he made his false statement. Creel
challenges the exclusion of that evidence on the ground that it prevented him
from showing that his statement was made only to aggravate the state
policeman. Evidence of a misunderstood identity was irrelevant to Creel’s
defense because the government was not required to prove that Creel knew he
was talking to a federal agent or even that his denial might reach a federal
agent. See United States v. Taylor, 582 F.3d 558, 562 (5th Cir. 2009); United
States v. Baker, 626 F.2d 512, 514, 516 (5th Cir. 1980). Moreover, Creel was not

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                                  No. 11-30297

precluded from testifying that he made the statement merely to aggravate
rather than to deceive.
      In any event, and despite the adverse ruling, Creel testified that he did not
believe he was talking to an ATF agent. This testimony failed in the face of the
recorded telephone call that showed in a compelling and essentially irrefutable
manner that the ATF agent clearly identified himself as such and that Creel had
no reason to believe the agent was not who he said he was. If there were any
error, it could not have affected Creel’s substantial rights and therefore would
have been harmless under Federal Rule of Criminal Procedure 52(a). This claim
warrants no relief.
      Creel also challenges his 12-month sentence, which was double the six-
month sentence recommended under the Sentencing Guidelines. The court
justified the sentence as either a departure under the Guidelines or as a
variance outside the Guidelines pursuant to the sentencing factors of 18
U.S.C.§ 3553(a). See United States v. Brantley, 537 F.3d 347, 349 (5th Cir. 2008)
(identifying types of sentences). The court thoroughly explained that a 24-month
sentence would readily be warranted in light of Creel’s failure to abate or
prevent the risk of harm to the exposed confidential informants. The court also
noted that Creel had a close relationship with the Bandidos and had provided
them with information and ammunition. The court nevertheless imposed only
a 12-month sentence in light of Creel’s military service and health issues.
      Creel ultimately asserts only that the district court wrongly weighed the
§ 3553(a) factors in light of his personal history and the facts of the offense. He
thus asks us to reweigh those factors in his favor. This is precisely contrary to
the deferential standard of review for abuse of discretion prescribed by the
Supreme Court. See Gall v. United States, 552 U.S. 38, 51-52 (2007).
      Creel shows no entitlement to relief. The judgment of the district court is
AFFIRMED.



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