     Case: 09-10112     Document: 00511073671          Page: 1    Date Filed: 04/07/2010




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

                                                  FILED
                                                                             April 7, 2010
                                       No. 09-10112
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee
v.

WILMIRE U. JONES, III,

                                                   Defendant-Appellant




                   Appeal from the United States District Court
                        for the Northern District of Texas
                       USDC No. 5:08-CR-00013-C-BG-2


Before JONES, Chief Judge, and BENAVIDES and PRADO, Circuit Judges.
EDITH H. JONES, Chief Judge:*
        Appellant Wilmire U. Jones, III, pled guilty to fraud in connection with
access devices and aiding and abetting an operation that used identification and
credit information of others to open store charge accounts.                  See 18 U.S.C.
§§ 1029(a)(2) and 2.        Jones contends that the district court erred in the
calculation of the loss amount for sentencing purposes. We disagree and affirm.
        Jones was part of an organization operating in Houston, Texas that used
fraudulent drivers licenses and identifying information to open charge or credit



        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-10112

accounts at various stores. Jones and Michael David Fautt, another member of
the organization, traveled to different cities in a vehicle provided by the
organization. Jones and Fautt used false identities to open accounts at stores,
made small purchases at stores, and then purchased gift cards up to the credit
limit on the accounts. Fautt, who entered the stores to open the accounts, was
paid $3,000 per trip.       Jones, who drove the vehicle and was aware of the
unlawful purpose of the trips, was paid $500 per trip.
       In October and November of 2007, Jones and Fautt traveled twice to New
Orleans, Louisiana, twice to Oklahoma City, Oklahoma, and once to Lubbock,
Texas. In Lubbock, Jones and Fautt used the stolen identification and credit
information to charge over $23,000 at various stores.
       After he was caught, Jones pled guilty pursuant to a written plea
agreement. The Presentence Report (“PSR”) assigned Jones a base offense level
of six. See U.S.S.G. §§ 2B1.1(a)-(b)(1)(E). The probation officer calculated the
intended loss amount by extrapolating the actual loss inflicted during the
Lubbock trip to three additional trips.1 The actual losses from the additional
trips are unknown. The calculation resulted in an intended loss amount of about
$92,000. Jones’s base offense level was increased by eight levels because the
amount of loss exceeded $70,000. At sentencing, as on appeal, Jones objected to
this loss calculation, arguing that no evidence supported a finding that the
Lubbock loss amount was representative of the loss amounts from other trips.
The district court overruled the objection and sentenced Jones to 41 months of
imprisonment.


       1
        Jones admitted to being involved in four trips in addition to the Lubbock trip.
However, the PSR only holds Jones responsible for a total of four trips, including the Lubbock
trip.

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                                    No. 09-10112

      We review for clear error the trial court’s findings of fact concerning a
guidelines sentence. United States v. Klein, 543 F.3d 206, 213 (5th Cir. 2008).
A determination of the loss amount is a factual finding. United States v. John,
597 F.3d 263, 279 (5th Cir. 2010).       Under this standard, “ ‘as long as the
determination is plausible in light of the record as a whole, clear error does not
exist.’ ” Id. (quoting United States v. Ismoila, 100 F.3d 380, 396 (5th Cir.1996)).
Further, in determining the amount of loss, “[t]he court need only make a
reasonable estimate.” U.S.S.G. § 2B1.1 cmt. n. 3(C). The district courts have a
“wide latitude” in this regard. John, 597 F.3d at 279. “The method used to
calculate the amount of loss, however, must bear some reasonable relation to the
actual or intended harm of the offense.” Id. (citation omitted).
      Relevant to this case, the guidelines suggest several different factors
courts may consider when estimating loss, including the “approximate number
of victims multiplied by the average loss to each victim,” and the “scope and
duration of the offense and revenues generated by similar operations.”
§ 2B1.1 cmt. n. 3(C).    The PSR’s extrapolation of the actual loss from the
Lubbock trip to each of the three other trips in which Jones participated was
based on these principles.
      Jones argues that because there was no evidence as to how many false
identities were used on the other trips, or how many charges were made, the
amount of loss should be limited to the actual loss from the Lubbock trip. Jones
also argued that extrapolating the total amount of loss from one trip as the
average was unreasonable. On the facts of this case, the district court’s estimate
of the amount of loss was reasonable and the district court did not clearly err in
using the PSR’s estimate of loss.


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                                  No. 09-10112

      Jones admitted to completing these trips with Fautt. He also admitted
that he and Fautt charged up to the full limit of the accounts they opened. They
were found with identification documents and credit cards not in their names.
The regularity of their trips establishes a pattern. Each time, Jones and Fautt
used a car provided by the organization and were paid generously for their work,
suggesting that the organization reaped considerable reward from their
activities. Moreover, although Jones admitted to taking four trips in addition
to the Lubbock trip, the PSR only held him accountable for one loss, so it is likely
that the PSR’s estimate is conservative. Given these circumstances, it would be
unreasonable to limit the amount of loss to the actual loss from the Lubbock trip
alone. The district court’s loss calculation was not clearly erroneous.
      For the foregoing reasons, the sentence is
                                                                     AFFIRMED.




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