     Case: 17-30138       Document: 00514295903         Page: 1     Date Filed: 01/05/2018




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

                                     No. 17-30138                                  FILED
                                   Summary Calendar                          January 5, 2018
                                                                              Lyle W. Cayce
                                                                                   Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

CURTIS ROLLER,

                                                  Defendant - Appellant


                   Appeals from the United States District Court
                       for the Western District of Louisiana
                              USDC No. 5:13-CR-37-1


Before BARKSDALE, PRADO, and OWEN, Circuit Judges.
PER CURIAM: *
       Curtis Roller pleaded guilty to one count of wire fraud, in violation of 18
U.S.C. § 1343, as a result of his submission of materially false applications to
the Assistance to Firefighters Grant (AFG) program of the Federal Emergency
Management Agency (FEMA). Based in part on an evidentiary hearing at
sentencing, Roller was sentenced to a below-Guidelines sentencing range of 24
months’ imprisonment based on, inter alia, attributable losses of $403,355


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 17-30138

across five charged wire-fraud counts.      U.S.S.G. § 2B1.1.     The court also
ordered restitution in that amount to FEMA. Roller challenges the court’s
finding he abused a position of public or private trust, or used a special skill to
facilitate the fraud; the attributable-loss finding; and the restitution award.
U.S.S.G. § 3B1.3.
      Although Guideline § 3B1.3 is disjunctive, the court found Roller
satisfied both bases for enhancement. In challenging the court’s findings,
however, Roller addresses at length only the finding that he used a special skill
or talent to commit the offense. Therefore, his purely conclusory challenge to
the court’s alternative “abuse of a position of trust” finding is deemed
abandoned.    United States v. Charles, 469 F.3d 402, 408 (5th Cir. 2006).
Accordingly, that finding stands, and permits the enhancement.
      Next, the court did not clearly err in finding Roller acted with specific
intent to defraud FEMA by submitting AFG applications containing falsified
demographic, service, and budget data, including data from areas not
primarily served by the fire departments in question. E.g., United States v.
Coleman, 609 F.3d 699, 708 (5th Cir. 2010). At the evidentiary hearing at
sentencing, at which Roller testified, Government witnesses, whom the court
found credible, testified:   the extraterritorial data was prohibited by the
application’s own terms; and Roller’s use of such data increased the likelihood
certain applications would be approved. The evidence also established clear
financial motive, in that companies affiliated with Roller could bid to equip the
recipient fire departments in exchange for grant funds. Roller admitted he
profited from such sales.
      Roller relies heavily on his own testimony that he acted in good faith in
the light of the ambiguous application language as well as industry practice.
Nonetheless, the court did not find this testimony credible; a decision we will



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                                 No. 17-30138

not second guess. E.g., United States v. Garza, 118 F.3d 278, 283 (5th Cir.
1997). In any event, the defense testimony established, at most, that “there
are two permissible views of the evidence” of fraudulent intent, in which case
“the factfinder’s choice between them cannot be clearly erroneous”. United
States v. Hebert, 813 F.3d 551, 560 (5th Cir. 2015) (internal citation omitted).
      In addition, a FEMA subject-matter expert testified the falsified data
was essential to the application-review process and weighed in favor of grant
approval. From these facts, the court could plausibly infer Roller’s fraudulent
conduct likely caused actual loss to FEMA. E.g., United States v. Bernegger,
661 F.3d 232, 242 (5th Cir. 2011); United States v. Caldwell, 448 F.3d 287, 290
(5th Cir. 2006).
      For the first time in his reply brief, Roller challenges the court’s finding
as to the existence of a common scheme or plan. U.S.S.G. § 1B1.3(a)(2). We
need not consider such belated assertions but may do so in our discretion.
United States v. Davis, 602 F.3d 643, 648 n.7 (5th Cir. 2010). There is no clear
error. The court found the relevant counts shared three common factors, and
Roller challenges its finding only as to common purpose. U.S.S.G. § 1B1.3 cmt.
n.5 (B)(i). Therefore, he has waived any challenge to the court’s other findings,
either of which sufficed to support its commonality determination. Guideline
§ 1B1.3 cmt. n.5 (B)(i); United States v. Reagan, 596 F.3d 251, 254 (5th Cir.
2010).   And, to the extent Roller asserts he was entitled to a downward
departure because the attributable loss amount overstates the seriousness of
his offense, we lack jurisdiction to review this issue as he does not show “the
district court’s denial resulted from a mistaken belief that the Guidelines do
not give it authority to depart”. United States v. Tuma, 738 F.3d 681, 691 (5th
Cir. 2013).




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                                   No. 17-30138

        Roller also fails to show the court abused its discretion in ordering full
restitution to FEMA in the amount of $403,355. United States v. Adams, 363
F.3d 363, 365 (5th Cir. 2004). If a restitution award is permitted by law, our
court reviews the propriety of a particular award for abuse of discretion. Id. at
365.    In this case, restitution was required under the Mandatory Victims
Restitution Act, which directs district courts to order restitution for victims of,
inter alia, “any offense committed by fraud or deceit”. 18 U.S.C. § 3663A(a)(1),
(c)(1)(A)(ii).
        The plea agreement reflects the parties’ accord that restitution may be
ordered for losses beyond “the amounts or victims” in the count of conviction.
Adams, 363 F.3d at 366. And, because “a fraudulent scheme is an element of
the conviction”, the court could award restitution “for actions pursuant to that
scheme”, which included the conduct alleged in each of the five relevant counts.
Id.; 18 U.S.C. § 3663A(a)(2). Roller’s narrow and contrary reading of the plea
documents and our precedents fails. Adams, 363 F.3d at 366.
        AFFIRMED.




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