     Case: 17-20490      Document: 00515173699         Page: 1    Date Filed: 10/25/2019




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

                                    No. 17-20490
                                                                              Fifth Circuit

                                                                            FILED
                                  Summary Calendar                   October 25, 2019
                                                                       Lyle W. Cayce
UNITED STATES OF AMERICA,                                                   Clerk


                                                 Plaintiff-Appellee

v.

TAMARA MITCHELL,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:15-CR-640-1


Before STEWART, HIGGINSON, and COSTA, Circuit Judges.
PER CURIAM: *
       Tamara Mitchell appeals the sentence imposed after a jury convicted her
of five offenses arising from a drug-trafficking and prescription fraud scheme.
She contends that the district court committed reversible error by finding that
the scheme had more than 10 victims and that she was leader or organizer of
the criminal operation.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-20490     Document: 00515173699     Page: 2    Date Filed: 10/25/2019


                                  No. 17-20490

       The district court’s application of the Guidelines is reviewed de novo,
and its findings of fact are reviewed for clear error. United States v. Trujillo,
502 F.3d 353, 356 (5th Cir. 2007). “A factual finding is not clearly erroneous if
it is plausible in light of the record as a whole.” Id. “Ultimately, the district
court need only determine its factual findings at sentencing by a
preponderance of the relevant and sufficiently reliable evidence.”         United
States v. Alaniz, 726 F.3d 586, 618-19 (5th Cir. 2013) (internal quotation marks
and citation omitted). Accordingly, a district court may consider any evidence
bearing sufficient indicia of reliability, including hearsay evidence and the
PSR.     United States v. Nava, 624 F.3d 226, 230-31 (5th Cir. 2010).
       Whether a defendant was a leader or organizer is a factual question.
Alaniz, 726 F.3d at 622. Likewise, a sentencing court’s determination of the
number of victims is a factual finding. United States v. Beacham, 774 F.3d
267, 276-77 (5th Cir. 2014).
       Pertinent to this appeal, a “victim” in cases involving means of
identification, includes “any individual whose means of identification was used
unlawfully or without authority.” U.S.S.G. § 2B1.1, comment. (nn.1 & 4(E)(ii)).
The Government presented sufficient and reliable evidence that the scheme
involved the unlawful, unauthorized use of identity information from more
than 10 persons.      Mitchell’s assertion that these victims did not suffer
pecuniary loss is irrelevant. See § 2B1.1, comment. (nn.1 & 4(E)(ii)); United
States v. Minor, 831 F.3d 601, 606 (5th Cir. 2016).
       Factors relevant to being an organizer or leader include
       the exercise of decision making authority, the nature of
       participation in the commission of the offense, the recruitment of
       accomplices, the claimed right to a larger share of the fruits of the
       crime, the degree of participation in planning or organizing the
       offense, the nature and scope of the illegal activity, and the degree
       of control and authority exercised over others.


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    Case: 17-20490    Document: 00515173699     Page: 3   Date Filed: 10/25/2019


                                 No. 17-20490

U.S.S.G. § 3B1.1, comment. (n.4); see United States v. Lewis, 476 F.3d 369, 389
(5th Cir. 2007). More than one person can qualify as a leader or organizer.
§ 3B1.1, comment. (n.4).
      Reliable evidence fully supported the district court’s conclusion that the
aggravating-role factors “almost without exception” applied to Mitchell.
Evidence showed that Mitchell managed the internal workings of the business
at two successive pharmacies; she helped recruit others into the scheme; she
provided and managed billing software; she received a larger share of the
proceeds; and she taught others how to file fraudulent claims.        Mitchell’s
challenge to the leader-organizer increase lacks merit. See Alaniz, 726 F.3d at
621-22.
      Mitchell shows no reversible error with respect to either of her claims.
The judgment is AFFIRMED.




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