     Case: 17-20031      Document: 00514539197         Page: 1    Date Filed: 07/03/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                       United States Court of Appeals
                                                                                Fifth Circuit
                                    No. 17-20031                              FILED
                                  Summary Calendar                         July 3, 2018
                                                                         Lyle W. Cayce
UNITED STATES OF AMERICA,
                                                                              Clerk


                                                 Plaintiff-Appellee

v.

CHRISTOPHER DONRICK DALEY,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:15-CR-512-1


Before JOLLY, OWEN, and HAYNES, Circuit Judges.
PER CURIAM: *
       A jury convicted Christopher Donrick Daley of three counts of wire fraud,
in violation of 18 U.S.C. § 1343, and one count of mail fraud, in violation of 18
U.S.C. § 1341. On appeal, Daley argues that the district court erred by (1)
constructively amending the indictment; (2) imposing a 14-level enhancement
pursuant to U.S.S.G. § 2B1.1(b)(1)(H) based on the actual losses; (3) ordering
restitution in the amount of $614,950; (4) imposing a two-level enhancement


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-20031

pursuant to § 2B1.1(b)(2)(A)(i) based on the number of victims; and (5)
imposing a procedurally and substantively unreasonable sentence.            Daley
concedes that plain error review applies because he did not raise these issues
in the district court. See Puckett v. United States, 556 U.S. 129, 135 (2009).
Plain error review, in turn, encompasses four prongs: that there was an error,
the error was clear or obvious, and the error affected substantial rights. If
those requirements are met, then the court of appeals should exercise its
discretion to correct the error if it “seriously affects the fairness, integrity or
public reputation of judicial proceedings.”      Id.; see also Rosales-Mireles v.
United States, 138 S. Ct. 1897, 1905 (2018) (discussing plain error review and
focusing on the discretionary fourth prong).
      First, Daley argues that the district court erroneously constructively
amended the indictment by instructing the jury that wire fraud could be
committed via interstate telephone calls, but the indictment only charged wire
fraud via emails and a wire transfer. Even assuming that the district court
committed an error that was clear or obvious, it is questionable, under the
particular facts of this case, whether Daley’s substantial rights were actually
affected. We note that (1) the offense mistakenly instructed to the jury could
have been charged in the indictment, (2) the jury rejected Daley’s theory of the
case, (3) there was “overwhelming evidence of guilt of both the charged offense
and the instructed offense,” and (4) a vacatur of the conviction and reversal
“would encourage the kind of sandbagging that the plain error rule is, in part,
designed to prevent.” Puckett, 556 U.S. at 135; United States v. Reyes, 102 F.3d
1361, 1366 (5th Cir. 1996).
      But assuming arguendo that all alleged constructive amendments,
regardless of any other facts, affect substantial rights, we address the fourth
prong here and conclude that we should not exercise our discretion to correct



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any such error here for the reasons stated above. The Supreme Court recently
clarified the boundaries of this discretion in cases involving errors in
calculating the sentencing guidelines for a particular case. Rosales-Mireles,
138 S. Ct. at 1906-07. In so doing, it repeatedly noted that the case did not
involve the complexities and strategic issues of a case that was tried on the
merits. Id. at 1908-09.     As set forth above, we conclude that any error here
did not “seriously affect” matters such as the fairness or integrity of judicial
proceedings. Rosales-Mireles does not support a contrary conclusion here.
         In his second, third, and fourth stated issues, Daley contends that the
district court’s calculation of the actual loss caused by his fraud was erroneous,
leading to its mistaken imposition of the 14-level and two-level enhancements
and its order of restitution. The factual determinations underlying the district
court’s loss amount and restitution award are reviewed in the same manner as
other findings of fact, see United States v. Read, 710 F.3d 219, 231 (5th Cir.
2012). Here, the determination of both the amount of actual loss and the
number of victims was based on the evidence introduced by the Government at
trial.     We conclude that the evidence supports the district court’s
determination.
         Further, the court only ordered an award of $798,454, representing the
total amount of investments minus the payments made to the victims. The
$614,950 restitution order was intended to compensate the identified victims
with addresses, and the court ordered forfeiture of the difference between the
actual loss and the restitution order. Therefore, the overall amount ordered in
restitution and forfeiture represents the actual loss, and Daley has not shown
any error that affects his substantial rights. See United States v. Miller, 406
F.3d 323, 331-32 (5th Cir. 2005).




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      Finally, Daley contends that his sentence was both procedurally and
substantively unreasonable. While the district court did not specifically list
the applicable 18 U.S.C. § 3553(a) sentencing factors, its reasons were fact-
specific and consistent with the factors, including the nature and
circumstances of the offense, the seriousness of the offense, the need to protect
the public, and deterrence. See United States v. Smith, 440 F.3d 704, 707 (5th
Cir. 2006). Moreover, Daley’s sentence was not procedurally unreasonable
because the record shows that the court weighed the evidence and mitigating
factors offered by Daley and his counsel. See United States v. Alvarado, 691
F.3d 592, 596 (5th Cir. 2012). Further, Daley’s counsel did not expressly object
to a Rule 32 error in district court and, although given several opportunities to
do so, did not indicate to the district court that he had additional arguments to
make. The record reflects the district court gave counsel an opportunity to
present his arguments on several occasions during the sentencing hearing.
      Daley also argues that the upward variance was substantively
unreasonable because it was greater than necessary to achieve the § 3553(a)
sentencing factors. In reviewing an above-guidelines sentence for substantive
reasonableness, we consider the totality of the circumstances, including the
extent of any variance from the guidelines range, to determine whether the
§ 3553(a) factors support the sentence. United States v. Gerezano-Rosales, 692
F.3d 393, 400 (5th Cir. 2012). An above-guidelines sentence is unreasonable if
“it (1) does not account for a factor that should have received significant weight,
(2) gives significant weight to an irrelevant or improper factor, or (3) represents
a clear error of judgment in balancing the sentencing factors.” United States
v. Smith, 440 F.3d 704, 708 (5th Cir. 2006). This court defers to the district
court’s determination that the § 3553(a) factors, on the whole, merit an upward
variance. United States v. Brantley, 537 F.3d 347, 349 (5th Cir. 2008).



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                                  No. 17-20031

      In this case, the district court relied on appropriate § 3553(a) factors in
determining that an upward variance was warranted, as its reasons addressed
the nature and circumstances of Daley’s offense, the need to protect the public
from further crimes by Daley, and the need to deter him from future criminal
activity. Nothing suggests that the district court failed to consider a factor that
should have received significant weight, gave significant weight to an improper
factor, or made a clear error of judgment in balancing the sentencing factors.
See Smith, 440 F.3d at 708.        We therefore defer to the district court’s
determination that the § 3553(a) factors, on the whole, warrant the variance,
see Brantley, 537 F.3d at 349, and justify the extent of the upward variance
imposed, see United States v. Broussard, 669 F.3d 537, 551 (5th Cir. 2012).
      Accordingly, Daley’s sentence is AFFIRMED.




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