                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                              F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  August 11, 2006

                                                           Charles R. Fulbruge III
                                                                   Clerk
                           No. 05-31098
                         Summary Calendar



UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

ANTHONY LARRY, III,

                                     Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
              for the Western District of Louisiana
                     USDC No. 5:04-CR-50171-2
                       --------------------

Before GARZA, DENNIS, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Anthony Larry, III appeals his conviction and sentence for

conspiracy to commit mail fraud, healthcare fraud, and bankruptcy

fraud, pursuant 18 U.S.C. § 371. Larry argues that the evidence

presented at trial was insufficient to sustain his conviction and

that the district court erred in calculating his sentence and in

imposing an unreasonable sentence.   We affirm.




     *
       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this opinion should not be published and is not precedent except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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     Larry challenges the sufficiency of the evidence supporting

his conviction.1   By moving for a judgment of acquittal at the

close of the evidence, Larry preserved his claim for appellate

review.   See United States v. Izydore, 167 F.3d 213, 219 (5th

Cir. 1999).   We review the evidence in the light most favorable

to the verdict and affirm if a rational trier of fact could have

found that the evidence establishes the essential elements of the

offense beyond a reasonable doubt.     United States v. Williams,

985 F.2d 749, 753 (5th Cir. 1993).

     To prove conspiracy under 18 U.S.C. § 317, the government

must prove 1) an agreement between two or more persons 2) to

commit a crime against the United States, and 3) an overt act by

one of the conspirators to further the objectives of the

conspiracy.    United States v. Morrow, 177 F.3d 272, 286 (5th Cir.

1999).    Direct evidence need not be presented; the jury can infer

a conspiracy from the circumstances.     United States v. Stephens,

964 F.2d 424, 427 (5th Cir. 1992).     The evidence showed that

Larry had caused his attorney to issue notice of his motion for a

hardship bankruptcy discharge through the United States mail that

was based on a false claim that his wife had brain cancer.    The

evidence further demonstrated that Larry’s wife had applied for

and received through the United States mail payments totaling

     1
      Larry was indicted on forty-four counts; he was convicted
of one count of conspiracy and acquitted of the other forty-three
substantive counts that pertained to the execution of the
conspiracy.

                                  2
over $17,000 for dental care that was never performed.    Larry had

endorsed one such check.    Larry’s wife admitted that she had

submitted the false dental claims and that she had lied about her

brain cancer diagnosis.    Larry received several thousand dollars

in donations and loans as the result of the false claim that his

wife had brain cancer.    Although Larry and his wife testified

that Larry had no knowledge of the healthcare fraud and did not

learn until after the mail and bankruptcy fraud were complete

that his wife had lied about having cancer, the evidence showed

that Larry had been aware that his wife did not have brain cancer

as early as September 2000, prior to the issuance of their notice

of a hardship discharge in bankruptcy.

     The jury was instructed, without objection, that it was

entitled to find Larry had knowledge of a fact if it found that

Larry deliberately closed his eyes to what would otherwise be

obvious to him.   From this instruction, the jury reasonably could

have concluded that Larry had deliberately blinded himself to

facts indicating that his wife did not have brain cancer and

that, therefore, he had conspired with his wife to file a false

motion for a hardship discharge of their bankruptcy and caused

notice of their motion for the discharge to be sent through the

United States mail.   The jury also could reasonably have

concluded that Larry had deliberately blinded himself to the fact

that his wife had filed false dental claims and had demonstrated

his complicity in the scheme by signing one of the fraudulently

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obtained checks.   The jury’s decision to accept or reject Larry’s

and his wife’s testimony to the contrary was a credibility

determination not to be disturbed by this court.    See United

States v. Runyan, 290 F.3d 223, 240 (5th Cir. 2002).    His

conviction is affirmed.

     Larry next argues that the district court committed various

errors in calculating his sentence.   Even after United States v.

Booker, 543 U.S. 220 (2005), the sentencing court “is entitled to

find by a preponderance of the evidence all the facts relevant to

the determination of a Guideline sentencing range.”    United

States v. Johnson, 445 F.3d 793, 797-98 (5th. Cir 2006).      We

continue to review the district court’s application of the

guidelines de novo and its factual findings for clear error.

United States v. Charon, 442 F.3d 881, 887 (5th Cir. 2006).

     Larry maintains that the district court erred in attributing

to him a $17,398 loss as the result of the dental fraud scheme

because the evidence was insufficient to support a finding that

he was aware of the dental fraud scheme.    Based on our conclusion

that the evidence was sufficient to find beyond a reasonable

doubt that Larry had conspired with his wife to file false dental

claims, we affirm the finding of attributable loss.    The amount

of loss attributable to a defendant’s relevant conduct is a

factual finding reviewed for clear error.    United States v.

Messervey, 317 F.3d 457, 464 (5th Cir. 2002).    To be upheld, the

finding need only be “plausible in light of the record as a

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whole.”    United States v. Humphrey, 104 F.3d 65, 71 (5th Cir.

1997).    In light of the record in this case, such a finding is

more than plausible.

     Larry also challenges the enhancements to his sentence for

an offense involving bankruptcy fraud and ten or more victims,

arguing that he did not become involved in the conspiracy until

after the fraud had been committed.    We reject his argument.

Evidence showed that Larry had been aware that his wife did not

have brain cancer as early as September 2000, well before the

time he acknowledged his awareness of that fact, and before the

Larrys caused notice of their hearing on the motion for a

hardship bankruptcy discharge to be sent through the United

States mail.    As a result of the healthcare, mail, and bankruptcy

fraud, ten bankruptcy debtors and the City of Shreveport were

defrauded.    In addition, the Larrys received loans and donations

from several other individuals, police organizations, churches,

and companies based on their misrepresentation that Larry’s wife

had brain cancer.    These are factual findings that are not

clearly erroneous.

     Larry urges that the district court erred in awarding him a

two-level enhancement for obstruction of justice, claiming that

deliberate ignorance of his wife’s fraud does not equate to a

finding that he committed perjury.    Generally, it is proper for

the district court to enhance a defendant's sentence for

obstruction of justice where the defendant committed perjury by

                                  5
giving false testimony at trial.       See United States v. Dunnigan,

507 U.S. 87, 94 (1993) (upholding obstruction of justice

enhancement where district court did not believe defendant's

trial testimony that she was not involved in a conspiracy).       In

Dunnigan, the Supreme Court defined perjury as giving “false

testimony concerning a material matter with the willful intent to

provide false testimony, rather than as a result of confusion,

mistake or faulty memory.”   507 U.S. at 94.     It is enough if the

district court found “the defendant untruthful at trial with

respect to material matters in th[e] case.”       Id. at 95.

Additionally, the enhancement is adequately supported if the

court’s finding “encompasses all of the factual predicates for a

finding of perjury.”   United States v. Laury, 985 F.2d 1293, 1308

(5th Cir. 1993).

     Larry’s denial of awareness of his wife’s deception

regarding her cancer diagnosis concerned a material aspect of the

case, and the jury’s verdict supports the district court’s

conclusion that the testimony was false.       See id. at 1309.

Because the district court made an adequate and well-supported

finding that Larry committed perjury, the court properly enhanced

his sentence for obstruction of justice.       See id.; United States

v. Storm, 36 F.3d 1289, 1295 (5th Cir. 1994).

     Larry further argues that the district court clearly erred

by denying him a minor-role reduction because he was not an


                                   6
active participant in the conspiracy and, therefore, should be

viewed as substantially less culpable than his wife.      The

defendant bears the burden of proving that he was a minor

participant in the event. United States v. Garcia, 242 F.3d 593,

597 (5th Cir. 2001).    Larry has not met this burden.    Larry

participated in the conspiracy to commit healthcare, mail, and

bankruptcy fraud, took steps to conceal the conspiracy, and

received a substantial financial benefit from the conspiracy.

Based on these facts, it cannot be said that Larry’s role was

“peripheral” to the advancement of the conspiracy or that he was

“substantially less culpable than the average participant” in the

conspiracy, as would be required to qualify for the minor-role

reduction.     The district court did not clearly err by finding

Larry ineligible for the minor-role reduction.

     Finally, Larry contends that, because his sentencing

guidelines range was miscalculated, his sentence was

unreasonable.    The district court sentenced Larry within a

properly calculated guideline range.    Larry’s sentence is thus

presumed to be reasonable, and he has failed to rebut the

presumption.     See United States v. Alonzo, 435 F.3d 551, 554 (5th

Cir. 2006).    Accordingly, we affirm Larry’s sentence.

     AFFIRMED.




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