     Case: 11-20680       Document: 00512095604         Page: 1     Date Filed: 12/27/2012




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

                                                                            FILED
                                                                        December 27, 2012
                                     No. 11-20680
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

SYBIL SUAREZ,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:10-CR-543-1


Before STEWART, Chief Judge, and OWEN and GRAVES, Circuit Judges.
PER CURIAM:*
       Sybil Suarez appeals the sentence imposed following her guilty plea
conviction for filing a false claim for a tax refund. She argues that the district
court erred by finding that the false claims she filed with the Federal Emergency
Management Agency (FEMA) were relevant conduct and adding the intended
loss amount from the FEMA fraud to the intended loss amount from the IRS
fraud.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-20680     Document: 00512095604     Page: 2   Date Filed: 12/27/2012

                                  No. 11-20680

      The district court found that the total intended loss from Suarez’s IRS
fraud was $265,931 and the amount of intended loss for the FEMA fraud was
$20,161, for a total loss amount of $286,092. Pursuant to the relevant guidelines
provision, the total intended loss amount resulted in a 12-level enhancement.
See U.S.S.G. § 2B1.1(b)(1)(G). Under § 2B1.1(b)(1)(G) a total loss amount
between $200,000 and $400,000 results in a 12-level enhancement. Thus, the
12-level enhancement would have been applicable whether or not the FEMA
fraud was considered relevant conduct and included in the total loss amount.
See id. Accordingly, any possible error in considering the FEMA fraud to be
relevant conduct and including the loss from the FEMA fraud in the total loss
amount did not affect Suarez’s guidelines sentence range and was harmless. See
United States v. Harris, 932 F.2d 1529, 1539 (5th Cir. 1991).
      Suarez maintains that the district court erred by applying a two-level
enhancement for her being a organizer, leader, manager, or supervisor of
criminal activity. We review the district court’s factual finding that Suarez was
an organizer, leader, manager, or supervisor of criminal activity for clear error.
See United States v. Gonzales, 436 F.3d 560, 584 (5th Cir. 2006).
      In the presentence report (PSR) and the Addendum to the PSR, the
probation officer stated that Suarez recruited Michael Green to find indigent and
homeless people for whom Suarez would file fraudulent tax returns and that
Suarez paid Green $250 for each person he referred to her. The PSR showed
that Suarez received the majority of the proceeds of the IRS fraud. As Suarez
did not present any evidence to rebut the factual findings set forth in the PSR
and the Addendum to the PSR, the district court did not err by adopting those
factual findings. See United States v. Cabrera, 288 F.3d 163, 173-74 (5th Cir.
2002). Because Suarez recruited Green and Suarez received the majority of the
proceeds, the district court’s determination that Suarez was the organizer,
leader, manager, or supervisor of one or more other participants was not clearly
erroneous. See United States v. Giraldo, 111 F.3d 21, 24-25 (5th Cir. 1997).

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                                  No. 11-20680

      For the first time on appeal, Suarez asserts that the district court erred
by basing a one-month upward variance on the FEMA fraud because the FEMA
fraud was not relevant conduct. Because Suarez did not raise this challenge to
her sentence in the district court, we review for plain error only. See United
States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007).
      Under 18 U.S.C. § 3553(a)(1), a district court, in making an upward
variance, may consider criminal activity of a defendant that was not relevant
conduct as part of the history of the defendant. United States v. Rhine, 637 F.3d
525, 528-29 (5th Cir. 2011), cert. denied 132 S. Ct. 1001 (2012). Thus, assuming
arguendo that the FEMA fraud was not relevant conduct, the district court did
not commit error, plain or otherwise, by basing an upward variance on the
FEMA fraud. See id.
      AFFIRMED.




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