     Case: 11-60702     Document: 00511821923         Page: 1     Date Filed: 04/16/2012




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

                                                                            FILED
                                                                           April 16, 2012
                                     No. 11-60702
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

SCOTT ANTHONY THOMAS,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                             USDC No. 2:10-CR-78-3


Before REAVLEY, SMITH, and PRADO, Circuit Judges.
PER CURIAM:*
        Scott Anthony Thomas pleaded guilty to one count of conspiracy to commit
wire fraud. The district court sentenced him to 90 months in prison. On appeal,
Thomas argues that the sentence of 90 months in prison was procedurally flawed
and substantively unreasonable. See Gall v. United States, 552 U.S. 38, 51
(2007).
        Thomas argues that the district court erred in holding him responsible for
the amount of loss from the entire conspiracy, $448,084.                     In “a jointly

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-60702    Document: 00511821923      Page: 2   Date Filed: 04/16/2012

                                  No. 11-60702

undertaken criminal activity” such as this offense, a defendant is accountable
pursuant to relevant conduct for “all reasonably foreseeable acts and omissions
of others in furtherance of the jointly undertaken criminal activity.” U.S.S.G.
§ 1B1.3(a)(1)(B). “A determination of relevant conduct is a finding of fact,” which
we review under the clearly-erroneous standard. United States v. Ekanem, 555
F.3d 172, 175 (5th Cir. 2009).      A factual “finding will be deemed clearly
erroneous if, based on the record as a whole, we are left with the definite and
firm conviction that a mistake has been committed.” Id. (internal quotation
marks and citation omitted).
      This scheme involved individuals, impersonating Internal Revenue Service
agents, who called victims and informed them that they had won a large cash
prize that could not be collected until the taxes had been paid. The “caller”
would have the victim wire the money to one of the “runners” involved in the
scheme and when the transaction was complete the caller and the runner would
divide the proceeds. Thomas argues that, as a runner, he should be held
responsible only for those transactions in which he participated personally as a
runner. The runners did not operate independently but acted in unison because
it was necessary to have different individuals pick up the wired money to spread
the risk. The district court found that all of the participants in the scheme
understood the entire scheme and were essential for the success of the jointly
undertaken criminal activity. Thomas has not shown that this factual finding
is clearly erroneous.
      Thomas argues that the district court committed procedural error by not
reducing his offense level by two levels pursuant to U.S.S.G. § 3B1.2 due to his
minor role in the offense, a runner. The district court’s denial of a reduction for
a mitigating role is also a factual determination that is reviewed for clear error.
United States v. Villanueva, 408 F.3d 193, 203 (5th Cir. 2005). To warrant the
reduction, a defendant must be “peripheral to the advancement of the criminal
activity.” United States v. Martinez-Larraga, 517 F.3d 258, 272 (5th Cir. 2008).

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                                   No. 11-60702

As discussed above, in relation to the jointly-undertaken-criminal-activity, the
district court concluded that the role of runner was not peripheral but was an
essential part of the scheme. Thomas has not shown that the district court
clearly erred by not awarding him a minor-role adjustment.
      Finally, Thomas argues that the within-guidelines sentence was
substantively unreasonable because it failed to account adequately for his
cooperation with the Government and gave undue weight to his criminal history.
When, as here, the district court imposes a sentence within a properly calculated
guidelines range, the sentence is entitled to a presumption of reasonableness.
United States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006). That an appellate
court “might reasonably have concluded that a different sentence was
appropriate is insufficient to justify reversal of the district court.” Gall, 552 U.S.
at 51. Thomas has not shown that the district court failed to give proper weight
to his arguments or any particular factor under 18 U.S.C. § 3553(a). United
States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009).
      AFFIRMED.




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