     Case: 11-40982     Document: 00511995083         Page: 1     Date Filed: 09/21/2012




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

                                                                            FILED
                                                                        September 21, 2012
                                     No. 11-40982
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

JOHN JEFF WOODARD, JR.,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 1:09-CR-638-1


Before WIENER, ELROD, and GRAVES, Circuit Judges.
PER CURIAM:*
        John Jeff Woodard, Jr., pleaded guilty, pursuant to a written plea
agreement, to one count of bank fraud, in violation of 18 U.S.C. §§ 1344(1) and
2. The district court sentenced him to 51 months of imprisonment, to be followed
by 60 months of supervised release. The court also ordered Woodard to pay
$2,474,579.30 in restitution, consisting of $1,062,611.86, payable to Mitchell
Chaney; $900,800, payable to Elsa State Bank; and $511,167.44, payable to
Texas State Bank.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-40982

      Woodard challenges the district court’s compliance with Rule 11 of the
Federal Rules Criminal Procedure. In that vein, he argues that the district court
erred by accepting his guilty plea because there was no factual basis for his plea,
as demonstrated by the evidence presented during the sentencing hearing.
However, as the Government correctly asserts, Woodard waived any challenge
to the Rule 11 admonishments by advising the district judge at rearraignment
that he had complied with Rule 11. See United States v. Reveles, 190 F.3d 678,
683 & n.6 (5th Cir. 1999). Further, because Woodard withdrew his motion to
withdraw guilty plea (which included the argument that he lacked the requisite
criminal intent to support a bank fraud conviction), review of his present
challenge to the factual basis is foreclosed. See id. at 683.
      Next, he challenges the correctness of the restitution order. “This court
reviews the legality of a restitution order de novo and the amount of the
restitution order for an abuse of discretion.” United States v. Arledge, 553 F.3d
881, 897 (5th Cir. 2008). Although Woodard generally objected to the proposed
restitution order in the district court, he did not present his instant challenges.
Accordingly, our review is limited to plain error. See Puckett v. United States,
556 U.S. 129, 135 (2009); United States v. Maturin, 488 F.3d 657, 659-60 (5th
Cir. 2007). “[A]n order of restitution must be limited to losses caused by the
specific conduct underlying the offense of conviction.” Arledge, 553 F.3d at 899.
However, “[w]here a fraudulent scheme is an element of the conviction, the court
may award restitution for ‘actions pursuant to that scheme.’” United States v.
Cothran, 302 F.3d 279, 289 (5th Cir. 2002) (citation omitted). A scheme or
artifice to defraud is an element of bank fraud. See 18 U.S.C. § 1344.
      At sentencing, Woodard presented no evidence to support his current claim
that the three identified victims of the check kiting scheme were complicit in or
accomplices to the scheme. In fact, Woodard’s arguments regarding his business
partner, Mitchell Chaney, stand in stark contrast to statements Woodard made
in his objections to the presentence report that Chaney was not aware of the

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                                 No. 11-40982

scheme. The district court did not err by determining that Chaney, Elsa State
Bank, and Texas State Bank were victims for restitution purposes. See United
States v. Inman, 411 F.3d 591, 595 (5th Cir. 2005); Cothran, 302 F.3d at 289.
      Also without merit is Woodard’s argument that restitution payable to
Chaney was improper because he was not named in Count One of the
indictment, i.e., the offense of conviction. See United States v. Pepper, 51 F.3d
469, 473 (5th Cir. 1995); United States v. Stouffer, 986 F.2d 916, 928 (5th Cir.
1993).   Similarly without merit is Woodard’s conclusory argument that
restitution to Texas State Bank was improper because Count One did not set
forth any specific dollar amount or checks attributable to that bank. See United
States v. Wright, 496 F.3d 371, 380-82 (5th Cir. 2007). Finally, with respect to
Elsa State Bank, Woodard points to no authority that would make it plain that
it was error to order restitution in the same amount as a civil judgment award
rendered for the same loss. This claim therefore fails plain error review. See
Puckett, 556 U.S. at 135.
      Woodard also challenges the 16-level enhancement pursuant to U.S.S.G.
§ 2B1.1(b)(1), arguing only that the district court “committed plain error by
using a sentence enhancement based on an improper restitution amount.”
However, as recognized by the district court, the enhancement was based on the
“actual loss” sustained by the victims, not the amount of the restitution order.
See § 2B1.1, comment. (n.3(a)(1)). Moreover, Woodard has not sufficiently
briefed an argument that the district court erred in its methodology or in the
amount of loss it calculated when it applied a 16-level enhancement for the total
loss amount under the Guidelines.          Further, he does not challenge the
alternative loss amount adopted by the district court. Thus, Woodard has
waived any challenge to the enhancement. See United States v. Thames, 214
F.3d 608, 611 n.3 (5th Cir. 2000).
      AFFIRMED.



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