     Case: 13-50642       Document: 00512724550         Page: 1     Date Filed: 08/06/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit
                                     No. 13-50642                                FILED
                                   Summary Calendar                         August 6, 2014
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

DAVID JULIUS MCMILLIAN, also known as Cowboy,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 7:12-CR-343-1


Before JOLLY, BARKSDALE, and OWEN, Circuit Judges.
PER CURIAM: *
       Following a jury trial, David Julius McMillian was convicted of
interstate transportation of stolen property, in violation of 18 U.S.C. § 2314.
McMillian was sentenced to six months’ imprisonment and three years’
supervised release. As a condition of his supervised release, McMillian was
ordered, inter alia, to pay $18,000 in restitution to Jerry McKay, the owner of
the property at issue. McMillian contends: there was insufficient evidence to


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 13-50642

convict him of a violation of § 2314; and the district court erred in ordering
restitution as a condition of his supervised release.
      The sufficiency challenge was preserved in district court. Therefore, in
determining whether the evidence was sufficient, the relevant question is
“whether the evidence, when reviewed in the light most favorable to the
[G]overnment with all reasonable inferences and credibility choices made in
support of a conviction, allows a rational fact finder to find every element of
the offense beyond a reasonable doubt”. United States v. Cannon, 750 F.3d
492, 506 (5th Cir. 2014) (citations omitted). This standard “leaves juries broad
discretion in deciding what inferences to draw from the evidence presented at
trial, requiring only that jurors draw reasonable inferences from basic facts to
ultimate facts”. Coleman v. Johnson, 132 S. Ct. 2060, 2064 (2012) (citation and
internal quotation marks omitted). “[W]e accept all credibility choices and
reasonable inferences made by the trier of fact which tend to support the
verdict” and “will not second guess the jury in its choice of which witnesses to
believe”. United States v. Jefferson, 751 F.3d 314, 320–21 (5th Cir. 2014)
(citations and internal quotation marks omitted).
      A conviction for interstate transportation of stolen property requires
proof of “(1) the interstate transportation of (2) goods, merchandise, wares,
money, or securities valued at $5,000 or more . . . (3) with knowledge that such
items have been stolen, converted, or taken by fraud”.         United States v.
Onyiego, 286 F.3d 249, 253 (5th Cir. 2002); see 18 U.S.C. § 2314. As noted by
both parties, the only element at issue is whether McMillian took the property
(an indirect heater) by fraud. The jury could have reasonably inferred from
the evidence that McMillian entered into the lease-purchase agreement with
McKay in order to induce McKay to release possession of the indirect heater to
him. McMillian’s failure to make a single payment and his lack of a response



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                                  No. 13-50642

to McKay’s numerous attempts to discuss and settle the matter support the
inference that McMillian possessed the intent to defraud. See, e.g., United
States v. Saks, 964 F.2d 1514, 1518–19 (5th Cir. 1992) (discussing intent in
bank fraud context).     Accordingly, the record, viewed in the light most
favorable to the verdict, contains sufficient evidence to support McMillian’s
conviction.
      Regarding McMillian’s having to pay restitution to McKay as a condition
of supervised release pursuant to 18 U.S.C. § 3583(d) (inclusion of supervised
release term after imprisonment), “[a] federal court cannot order restitution
except when authorized by statute”. United States v. Espinoza, 677 F.3d 730,
732 (5th Cir. 2012) (citation and internal quotation marks omitted). Because
McKay ultimately sold the indirect heater for a profit, there was no “victim”
within the meaning of the Victim and Witness Protection Act or the Mandatory
Victims Restitution Act. Therefore, as the Government concedes, the court
could not order restitution to McKay as a condition of McMillian’s supervised
release pursuant to § 3583(d). See United States v. Maturin, 488 F.3d 657,
660–61 & n.1 (5th Cir. 2007). As the Government states, “the district court’s
reliance upon the supervised release statute as authority for the imposition of
a restitution order . . . was misplaced”.
      AFFIRMED IN PART; VACATED IN PART; REMANDED FOR
RESENTENCING REGARDING SUPERVISED RELEASE.




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