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

                                                 FILED
                                                                             July 2, 2009

                                       No. 08-30740                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA

                                                   Plaintiff-Appellee
v.

JAMES ELLIS ASHFORD

                                                   Defendant-Appellant




                   Appeal from the United States District Court
                      for the Western District of Louisiana
                              USDC No. 1:08-CR-22


Before DAVIS, OWEN, and HAYNES, Circuit Judges.
PER CURIAM:*
       Appellant James Ellis Ashford challenges the district court’s restitution
order imposed after he pled guilty to one count of a three count indictment
charging him with theft of government funds and a scheme to defraud the
United States via mail fraud. Finding no error, we AFFIRM the district court’s
restitution order.
       Ashford was indicted for filing fraudulent claims for disaster relief with
the Federal Emergency Management Agency (“FEMA”) after Hurricane Katrina.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                       No. 08-30740

Count 1 charged him with knowingly stealing more than $1,000 in federal funds
by claiming disaster assistance to which he was not entitled between September
14, 2005, and March 31, 2006. Counts 2 and 3 alleged a scheme to defraud the
federal government from on or about September 15, 2005, through December 10,
2005,1 via two instances of mail fraud. On the morning of a scheduled trial,
Ashford pled guilty to Count 2 of the indictment without a plea agreement.
      At sentencing, the district court ordered that Ashford pay $11,573.11 in
restitution, which included the value of the two FEMA checks and an additional
$7,215.11 in hotel bills that FEMA improperly paid for Ashford’s post-Katrina
housing. The hotel bills were not mentioned in the indictment, and they relate
to housing expenses from October 2005 through February 2006 – dates
exceeding in part the time alleged in Count 2 of the indictment. Ashford claims
that the restitution order should be limited to the $4,358 specifically mentioned
in the indictment, because some of the hotel expenses were incurred outside the
time frame alleged in Count 2.
      The legality of a restitution order is reviewed de novo. United States v.
Adams, 363 F.3d 363, 365 (5th Cir. 2004). If the restitution order is found to be
permitted by law, the propriety of the particular restitution award is reviewed
for abuse of discretion. Id. Under the Mandatory Victims Restitution Act, 18
U.S.C. § 3663A (2000) (“MVRA”), a defendant is only responsible for paying
restitution for the conduct underlying the offense of conviction. United States
v. Wright, 496 F.3d 371, 381 (5th Cir. 2007). However, “[w]here a fraudulent
scheme is an element of the conviction, the court may award restitution for
actions pursuant to that scheme.” Id. (quoting United States v. Inman, 411 F.3d
591, 595 (5th Cir. 2005)) (internal quotation marks omitted). The restitution for
a scheme to defraud is limited to the specific temporal scope of the indictment.



      1
          The indictment stated that the “exact dates [are] uncertain.”

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Inman, 411 F.3d at 595. Because there is no written plea agreement in this case
and no plea terms are contained in the record, we must look to the actions
alleged in the charging document, rather than speculating upon the mutual
understanding of the parties, to determine the scope of Ashford’s fraudulent
scheme. See Adams, 363 F.3d at 366.
      Ashford was charged with, and pled guilty to, devising and executing “a
scheme and artifice to defraud the United States and for obtaining money and
property by means of false and fraudulent pretenses, representations, and
promises[.]” To accomplish this crime, Ashford was specifically accused of (1)
filing a claim for $4,358 in emergency benefits from FEMA; (2) falsely stating
that his primary residence was damaged by a hurricane; and (3) committing two
instances of mail fraud corresponding to the checks he improperly obtained. We
conclude that the conduct that resulted in the receipt of $7,215.11 in hotel
payments falls within the temporal scope of this count of conviction.
      Ashford is correct that some of the hotel payments reimbursed expenses
incurred outside the time frame set forth in Count 2 of the indictment; however,
our analysis is not dependent upon the dates Ashford received the benefit of his
fraudulent conduct. We consider instead whether the hotel scheme itself was
part of the same course of wrongdoing as the acts of conviction and arose out of
the false statement regarding damage to his primary residence. See Wright, 496
F.3d at 382; see also United States v. Cothran, 302 F.3d 279, 289 & n.11 (5th Cir.
2002) (“Although we sometimes have struggled to define the outer bounds of a
particular fraudulent scheme, we have focused on the actions alleged in the
indictment and their temporal scope.”).      The record is clear that Ashford
committed the same false and fraudulent pretenses, representations, and
promises that wrongly established his eligibility for the two emergency benefit
checks to also obtain improper payment for his hotel stay. In short, there was
but one scheme that led to Ashford’s conviction for Count 2, and the restitution

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amount correctly reflected losses caused by that scheme. See United States v.
Stouffer, 986 F.2d 916, 928-29 (5th Cir. 1993). The only conduct resulting in
losses occurring after December 10, 2005 was Ashford’s continued residence in
the hotel; everything else, most notably the planning, preparation, and request
for reimbursement, occurred within the dates contained in the indictment. See
Wright, 496 F.3d at 382 (distinguishing Inman, 411 F.3d at 595). The district
court was correct to treat the $7,215.11 hotel reimbursement as a loss caused by
the offense of conviction, and appropriately included that amount in the
restitution ordered pursuant to the MVRA.       Accordingly, we AFFIRM the
restitution order.




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