     Case: 11-50946       Document: 00512077067         Page: 1     Date Filed: 12/07/2012




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

                                                                            FILED
                                                                         December 7, 2012

                                       No. 11-50946                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff – Appellee
v.

JAMES TROY BROOKS,

                                                  Defendant – Appellant



                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 1:11-CR-340-1


Before HIGGINBOTHAM, ELROD, and HAYNES, Circuit Judges.
PER CURIAM:*
       James Troy Brooks (“Brooks”) appeals his sentence, alleging the district
court committed procedural error in calculating his Guidelines range by applying
a sentencing enhancement based on an amount of loss in excess of $70,000. He
contends that the Government failed to prove by a preponderance of the evidence
that several contested counterfeit checks are attributable to him as relevant
conduct. We AFFIRM.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                 No. 11-50946

     I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
      Brooks pleaded guilty, without a written agreement, to one count of
conspiring to make, utter, and possess counterfeit checks and three counts of
aiding and abetting the making, uttering, and possessing of counterfeit checks
that were passed in March 2011. A search of Brooks’s residence following his
indictment and arrest revealed a personal computer containing images of bank
logos, copies of authorization signatures, and a commercially-available software
program used for producing commercial and payroll checks. The agents also
discovered check stock paper and eight counterfeit checks totaling $6,186.52.
      When pleading guilty, Brooks admitted only the facts alleged in connection
with the three counts of aiding and abetting. These facts included a March 2011
visit to a day labor center in Austin, Texas, during which he enlisted three day-
laborers to assist him in passing counterfeit checks. Brooks told the individuals
he needed their help to “move items,” but then drove the workers to his residence
and used their government identifications to create counterfeit checks payable
to them and written on the account of YCI South, LLC. After creating the
counterfeit checks, Brooks drove these accomplice-payees to a Wal-Mart store
where they successfully passed the checks. The Secret Service investigation
revealed that Brooks used a similar modus operandi to pass ninety-seven
counterfeit checks using fifty-eight separate payees between July 6, 2009, and
May 11, 2011. The amount of these checks totaled $88,641.71.
      Accordingly, the presentence report (“PSR”) calculated the resulting
amount of loss as $94,828.23, which includes (1) ninety-seven counterfeit checks
that were passed and stated to be attributable to Brooks ($88,641.71) and (2)
eight counterfeit checks discovered in his home ($6,186.52). The PSR calculated
an offense level of seventeen, which included an eight-level enhancement to
Brooks’s base offense level of six because the amount of the actual loss exceeded
$70,000. See U.S. SENTENCING GUIDELINES MANUAL (“U.S.S.G.”) § 2B1.1(a)(2),

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                                  No. 11-50946

(b)(1)(E) (2010). In total, Brooks’s offense level, criminal history category of VI,
and certain adjustments resulted in an advisory Guidelines range of fifty-one to
sixty-three months of imprisonment. Brooks objected to the PSR’s amount-of-
loss calculation, asserting that the Government did not establish his
responsibility for a loss greater than $70,000 by a preponderance of the evidence.
      The Government supplemented the PSR with a notebook containing a copy
of each of the checks attributed to Brooks and accompanying affidavits verifying
their counterfeit status. The Government provided this notebook to Brooks’s
attorney and introduced it at sentencing. Also during the sentencing hearing,
the Government presented the testimony of Secret Service Agent Tracy Steed
(“Agent Steed”). Based on his investigation, Agent Steed testified to the details
linking Brooks to the ninety-seven counterfeit checks listed in the Government’s
exhibit. Brooks put forth no evidence to rebut the Government’s proof, but
instead argued that he had admitted only those facts associated with the three
aiding and abetting charges. Because the conduct underlying these charges
occurred only around March 2011, Brooks asserted that the evidence was
insufficient to tie him to all ninety-seven checks, which involved conduct
occurring from July 2009 to May 2011.
      The district court rejected Brooks’s objection to the amount-of-loss
adjustment concluding that there was “no doubt” that Brooks’s conduct during
the relevant period resulted in a loss in excess of $70,000. After sustaining
Brooks’s objection to the sophisticated means enhancement, the court
subsequently calculated an advisory Guidelines range of forty-one to fifty-one
months of imprisonment, upwardly varied, and sentenced Brooks to sixty
months on the conspiracy count and eighty-four months on each of the three
aiding and abetting counts, to run concurrently. Brooks objected to the sentence
as unreasonable, but his objection was overruled.



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                                       No. 11-50946

       On appeal, Brooks effectively concedes checks totaling $34,531.35, which
would support a six-level enhancement pursuant to U.S.S.G. § 2B1.1(b)(1)(D).
Thus, we examine only the contested checks.
                            II. STANDARD OF REVIEW
       While we review a district court’s method of calculating the amount of loss
de novo, we review the underlying factual findings related to the amount of loss
for clear error. See, e.g., United States v. Harris, 597 F.3d 242, 250-51 & n.9 (5th
Cir. 2010); United States v. Ekanem, 555 F.3d 172, 175 (5th Cir. 2009). The
district court exercises “wide latitude to determine the amount of loss and should
make a reasonable estimate based on available information.” United States v.
Jones, 475 F.3d 701, 705 (5th Cir. 2007) (citing United States v. Cothran, 302
F.3d 279, 287 (5th Cir. 2002)). Accordingly, no clear error exists so long as the
district court’s finding “is plausible in light of the record as a whole.” Ekanem,
555 F.3d at 175 (internal quotation marks and citation omitted).
                                   III. DISCUSSION
       The Government must establish by a preponderance of the evidence that
the amount-of-loss sentencing enhancement applies.                  See United States v.
Rodriguez, 523 F.3d 519, 524 (5th Cir. 2008). Brooks argues the Government
failed to meet this burden, and consequently that the district court committed
a reversible procedural error by upwardly adjusting his base offense level by
eight levels based on an amount of loss in excess of $70,000.1
       Specific offense characteristics—such as whether the amount of loss
exceeds $70,000—are based on the relevant conduct of the defendant. U.S.S.G.


       1
         “Bald, conclusionary statements do not acquire the patina of reliability by mere
inclusion in the PSR.” United States v. Elwood, 999 F.2d 814, 817-18 (5th Cir. 1993).
However, here the Government supplemented the PSR’s conclusions with additional evidence,
including an affidavit from Agent Steed, Agent Steed’s testimony during sentencing, and a
detailed exhibit containing copies of all ninety-seven checks with supporting affidavits. Thus,
we need not address the argument that the enhancement is supported by the PSR alone.

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                                  No. 11-50946

§ 1B1.3(a). Relevant conduct includes all acts that the defendant committed or
aided and abetted in the commission of the offense, U.S.S.G. § 1B1.3(a)(1)(A), as
well as the “reasonably foreseeable acts and omissions of others” that occurred
“in furtherance of [a] jointly undertaken criminal activity.”             U.S.S.G.
§ 1B1.3(a)(1)(B). Because Brooks’s offenses involved § 2B1.1 and are grouped
pursuant to § 3D1.2(d), relevant conduct also includes “all acts and omissions
described in [§ 1B1.3(a)(1)(A)-(B), discussed] above[,] that were part of the same
course of conduct or common scheme or plan as the offense of conviction.”
U.S.S.G. § 1B1.3(a)(2). Actions fall within the “same course of conduct” when
“they are sufficiently connected or related to each other as to warrant the
conclusion that they are part of a single episode, spree, or ongoing series of
offenses.” U.S.S.G. § 1B1.3 cmt. n.9(B). Determining whether offenses are
sufficiently related involves considering “the degree of similarity of the offenses,
the regularity (repetitions) of the offenses, and the time interval between the
offenses.” Id.
      When evaluating the actual loss associated with the relevant conduct, the
district “court need only make a reasonable estimate of the loss” and its finding
is “entitled to appropriate deference” because the “sentencing judge is in a
unique position to assess the evidence and estimate the loss based upon that
evidence.” U.S.S.G. § 2B1.1 cmt. n.3(C) (citing 18 U.S.C. § 3742(e) & (f)).
      Brooks challenges sixty-six of the ninety-seven passed counterfeit checks
attributed to him, arguing that the checks fall outside the scope of his criminal
agreement and were not reasonably foreseeable by him in connection with the
criminal activity he agreed to undertake. These checks consist of four categories:
(1) two checks written on the account of Satellite Healthcare; (2) nine checks
written on the account of Colonial Gardens of Austin, Virginia College, LLC,
Advanced Geosciences, Inc., and Acadian Ambulance Services; (3) twenty-one
checks written on the account of Sonic Drive-In; and (4) thirty-four checks

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                                       No. 11-50946

written on the account of Relief Enterprises of Texas. In total, Brooks contests
the district court’s attribution of $60,297.08 of passed counterfeit checks to him.
The evidence connected with each group of checks demonstrates that the district
court did not commit any clear error in attributing these checks to Brooks as
relevant conduct in its amount-of-loss calculation.
       All of these checks were supported by testimony and the notebook exhibit
described above to which no contrary evidence was proffered:2
       Satellite Healthcare—Agent Steed testified that in November 2010,
Brooks’s accomplice, Natasha Walker, was caught attempting to pass a forged
or counterfeit check written on the account of Satellite Healthcare at a grocery
store in Austin, Texas. During this transaction, the Secret Service apprehended
Brooks outside of the grocery store and discovered additional counterfeit
Satellite Healthcare checks in Brooks’s vehicle. Brooks admitted that he would
approach people on the street and ask them to pass checks on his behalf.
       Colonial Gardens, et al.—Agent Steed testified that during the course of
one week, Brooks’s accomplices cashed the checks in this group at the same Shell
Express Food Market in Austin. The similarity of approach, the timing, and the
relationship of the people to Brooks supported Agent Steed’s testimony
regarding this group of checks.
       Sonic Drive-In—Agent Steed explained during the sentencing hearing that
the counterfeit checks in this group are primarily linked to Brooks based on an
investigation by the Austin Police Department (“APD”) involving one of Brooks’s


       2
          Brooks asks us to consider the Guidelines’ comment that indicates that it is
inappropriate to hold a defendant liable for all sales made by a drug dealer when the
defendant participates in the sale of drugs on a particular occasion without the intent to
engage in ongoing criminal activity. See U.S.S.G. § 1B1.3 cmt. n.2(c)(5). The Government,
however, does not base its claim that Brooks is liable for the ninety-seven checks on a common
source or manufacturer, as would be required for this comment to apply, but instead relies on
specific evidence—such as pointing to a common geographical region and similar modus
operandi—to tie him to each check.

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                                  No. 11-50946

accomplice-payees, Alex Bunton. Agent Steed testified that Bunton told the
APD in July 2009 that Brooks had recruited him to pass a counterfeit check
written on the account of Ignite. Brooks pleaded guilty to conspiracy involving
this check and does not object to its inclusion in the amount-of-loss calculation.
Agent Steed testified that Bunton cooperated with the APD to obtain another
counterfeit check from Brooks that was written on Sonic Drive-In’s payroll
account. This transaction plausibly ties him to the group of twenty-one Sonic
Drive-In checks included in the amount-of-loss calculation because these checks
were passed in Austin on July 18, 2009—the same month that Bunton received
the counterfeit Sonic Drive-In check from Brooks and these checks were each
written for approximately $900 payable to individuals who were not Sonic
employees.
      Relief Enterprises—As Agent Steed explained during his testimony, these
checks were numbered relatively sequentially, cashed around the same time in
July 2009, and written for approximately $900 each. The Government ties
Brooks to these checks based on their similarity to the Sonic Drive-In checks.
Specifically, all the checks from these two groups were payable for
approximately $900 and were cashed in July 2009 in the Austin area, and eleven
of the payees from the Sonic Drive-In checks were the same payees listed on the
Relief Enterprises checks.
      In the absence of any countervailing evidence, we conclude that the district
court did not commit clear error in attributing the foregoing checks to Brooks
and applying the eight-level enhancement. Accordingly, we AFFIRM Brooks’s
sentence.




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