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

                                                                               FILED
                                                                              April 10, 2008

                                         No. 07-30398                    Charles R. Fulbruge III
                                                                                 Clerk

UNITED STATES OF AMERICA

                                                     Plaintiff-Appellee
v.

JOHN MICHAEL MCCONNELL

                                                     Defendant-Appellant



                     Appeal from the United States District Court
                        for the Western District of Louisiana
                              USDC No. 5:07-cr-50022-1


Before DAVIS and SOUTHWICK, Circuit Judges, and DRELL, District Judge.*
PER CURIAM:**
       John Michael McConnell (“McConnell”) appeals his sentence from his
conviction under 18 U.S.C. § 1001 for making false statements to the City of
Faith (“COF”) halfway house in Shreveport, Louisiana. McConnell challenges
the sentence arguing that the district court erred by considering that his
embezzlement of funds from his employer was “related conduct” for purposes of
increasing his sentence.           The false statements made to COF consisted of

       *
           District Judge of the Western District of Louisiana, sitting by designation.
       **
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-30398

McConnell misrepresenting his whereabouts to COF on the sign-in / sign-out
sheet by listing “work” as his location upon leaving COF when he instead went
to a local casino where he gambled with the money he had embezzled from his
employer. The district judge imposed a sentence of nine months after concluding
that the embezzlement from his employer was relevant conduct.            For the
following reasons, we affirm.
                        I. Facts and Prior Proceedings
      In 2004, McConnell was sentenced to serve a thirty-month term of
imprisonment for violating 18 U.S.C. § 656 for theft, embezzlement, or
misapplication by a bank officer or employee. He began serving this thirty-
month term in November 2004. In July 2006, McConnell was transferred to
COF to serve the remainder of his sentence. Pursuant to its agreement with the
Bureau of Prisons, COF maintains certain records including an inmate sign-in
/ sign-out log.
      McConnell received a handbook upon his arrival at COF, which explained
that the staff at COF must at all times know a resident’s location and that the
resident is accountable for advising the staff of his whereabouts. McConnell was
also informed of the following requirements: that when he left COF, he was
required to sign out; that when he arrived at his destination, he was to call and
report his arrival; that before leaving his destination, he was required to report
his imminent return to COF; and that upon his arrival at COF, he was then
required to sign in.
      McConnell obtained employment at Haltom Construction Company
(“Haltom”) in Marshall, Texas shortly after arriving at COF in July 2006.
During his employment at Haltom, McConnell embezzled $80,000.00. Before the
offense was detected, McConnell had repaid $54,000.00, leaving a balance of
$24,000.00 unpaid at the time the offense was detected. Upon his repayment of



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the remaining $24,000.00, a Harrison County Grand Jury no true billed him,
and the Texas state charges were dropped.
       McConnell was indicted under 18 U.S.C. § 10011 for making false
misrepresentations or statements to COF, including misrepresenting his location
on COF’s sign-in / sign-out log. He pled guilty to one count of the indictment,
which charged that on September 26, 2006, he reported to COF that he was at
work when in fact he was at a casino for much of the day. McConnell began his
play at the black jack table by cashing an $8,000.00 check from Haltom, payable
to McConnell and dated that same day.
       Prior to sentencing, the government argued that McConnell’s $80,000.00
embezzlement should be included in his relevant conduct to enhance his
guideline sentencing range by eight levels, resulting in an offense level of 12
with a criminal history category of III and an imprisonment range of fifteen to
twenty-one months. The district court agreed that the embezzlement constituted
relevant conduct, however it found that because McConnell had repaid
$56,000.00 of the $80,000.00 by the time the offense was detected, the amount
of loss for relevant conduct was reduced to $24,000.00.2 Thus, the district court
found that the relevant conduct increased McConnell’s offense level to 8 and
sentenced him to nine months, which is within the applicable six to twelve



       1
          “Except as otherwise provided in this section, whoever, in any matter within the
jurisdiction of the executive, legislative, or judicial branch of the Government of the United
States, knowingly and willfully . . . (1) falsifies, conceals, or covers up by any trick, scheme, or
device a material fact; (2) makes any materially false, fictitious, or fraudulent statement or
representation, or (3) makes or uses any false writing or document knowing the same to
contain any materially false, fictitious, or fraudulent statement or entry; shall be fined under
this title, [or] imprisoned not more than 5 years . . . or both.” 18 U.S.C. § 1001(a).
       2
         In applying $24,000.000 as the loss for purposes of relevant conduct, the district court
relied on Sentencing Guideline § 2B1.1, which controls the issue of the amount of
embezzlement for sentencing purposes. A comment to this guideline explains that the amount
of loss shall be reduced by “[t]he money returned . . . to the victim before the offense was
detected.” U.S. SENTENCING GUIDELINES MANUAL § 2B1.1 cmt. 3(E).

                                                 3
                                          No. 07-30398

month guideline range. McConnell timely appeals, arguing that the district
court erred by considering the embezzlement to be relevant conduct.
                                    II. Standard of Review
       After Booker,3 this Court reviews a district court’s interpretation and
application of the sentencing guidelines de novo and reviews its findings of fact
for clear error.4 The determination of relevant conduct is a finding of fact
reviewed for clear error.5 To determine an appropriate sentence, a district court
must consider a properly calculated guideline sentencing range and the
sentencing factors in 18 U.S.C. § 3553(a).6 The ultimate sentence is reviewed for
reasonableness.7 This Court may apply a presumption of reasonableness to a
district court sentence that reflects a proper application of the Sentencing
Guidelines.8
                                          III. Analysis
       The district court found that McConnell’s sentence for his violation of 18
U.S.C. § 1001 should be enhanced by his embezzlement from Haltom as relevant
conduct, pursuant to Sentencing Guideline § 1B1.3. McConnell argues that the
court erred in considering this as relevant conduct.
       To determine whether the district court properly applied the guidelines,
we look first to the language of § 1B1.3. Section 1B1.3(a)(1) provides that for the
conduct in question to be relevant conduct that would enhance a defendant’s



       3
           United States v. Booker, 543 U.S. 220, 261 (2005).
       4
         United States v. Caldwell, 448 F.3d 287, 290 (5th Cir. 2006) (citing inter alia United
States v. Villegas, 404 F.3d 355, 359 (5th Cir. 2005)).
       5
           United States v. Anderson, 174 F.3d 515, 526 (5th Cir. 1999).
       6
           United States v. Mares, 402 F.3d 511, 519 (5th Cir.), cert. denied, 546 U.S. 828 (2005).
       7
           Id. at 520 (citing Booker, 543 U.S. at 261).
       8
           Rita v. United States, 127 S.Ct. 2456, 2462–63 (2007).

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                                        No. 07-30398

sentence, it must be conduct by the defendant “that occurred during the
commission of the offense of conviction, in preparation for that offense, or in the
course of attempting to avoid detection or responsibility for that offense.”9
Section 1B1.3(a)(2) provides that relevant conduct includes, “solely with respect
to offenses of a character for which § 3D1.2(d) would require grouping of multiple
counts, all acts and omissions . . . [of defendant] that were part of [1] the same
course of conduct or [2] common scheme or plan as the offense of conviction.”10
       Further, according to the Sentencing Guidelines Commentary to § 1B1.3,
offenses may qualify as being in the same course of conduct for purposes of §
1B1.3(a)(2) “if they are sufficiently connected or related to each other as to
warrant the conclusion that they are part of a single episode, spree, or ongoing
series of offenses.”11 Alternatively,“[f]or two or more offenses to constitute part
of a common scheme or plan, they must be substantially connected to each other
by at least one common factor, such as common victims, common accomplices,
common purpose, or similar modus operandi.”12 Further, “[i]t is not necessary
for the defendant to have been charged with or convicted of carrying out the
other acts before they can be considered relevant conduct. However, for the acts
to constitute relevant conduct, the conduct must be criminal.”13 Finally, in
discussing the breadth of relevant conduct applicable pursuant to § 1B1.3, this
Court has explained that

       9
           U.S. SENTENCING GUIDELINES MANUAL § 1B1.3(a)(1) (2006).
       10
            Id. at § 1B1.3(a)(2).
       11
            Id. at cmt. 9.
       12
            U.S. SENTENCING GUIDELINES MANUAL § 1B1.3 cmt. 9; see also Anderson 174 F.3d at
526.
       13
         Anderson, 174 F.3d at 526 (citing United States v. Thomas, 969 F.2d 352, 355 (7th
Cir. 1992); United States v. Moore, 927 F.2d 825, 827 (5th Cir. 1991); United States v. Powell,
124 F.3d 655, 665 (5th Cir. 1997); United States v. Peterson, 101 F.3d 375, 385 (5th Cir. 1996)).
See also U.S. SENTENCING GUIDELINES MANUAL § 1B1.3 cmt. 3.

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       conduct that is not an element of the offense of conviction may enter
       into the district court’s determination of the applicable guideline
       range . . . . One of the clear purposes of § 1B1.3 of the guidelines is
       to include different transactions that are relevant to the charged
       conduct, particularly if they are part of a common scheme or plan.
       To accord with this purpose, we have consistently interpreted
       relevant conduct broadly.14

       The government argues that § 1B1.3(a)(2) applies because McConnell
made false statements to conceal the fact that he was gambling at the casino and
misappropriated funds from his employer to facilitate such gambling, and that
as such, these acts constituted either the same course of conduct or a common
scheme or plan of gambling.
       According to § 1B1.3(a)(2), we must first inquire whether we are dealing
with offenses the character of which would require grouping of multiple counts
under § 3D1.2(d).            Section 2B1.1 is the guideline applicable to both
embezzlement and violations of § 1001, the statute under which McConnell was
convicted. Offenses covered by § 2B1.1 are specifically listed among those which
shall be grouped together under § 3D1.2(d). Thus, the Haltom embezzlement
can be grouped with McConnell’s § 1001 false statement offense                      under §
1B1.3(a)(2). Secondly, we agree with the government that § 1B1.3(a)(2) applies
because the district court was entitled to find that McConnell committed the
embezzlement and made the false statements as part of a common scheme or
plan to permit him to go to the casino and gamble. Under the common scheme
or plan analysis, the guidelines only require that the two offenses “be
substantially connected to each other by at least one common factor.”15 We have


       14
         United States v. Smallwood, 920 F.2d 1231, 1237 (5th Cir. 1991) (internal citations
and quotations omitted) (finding that possession of a legal chemical, phenylacetic acid, which
was necessary to manufacture methamphetamine, was relevant conduct to defendant’s
sentence for production of methamphetamine).
       15
            United States v. Hinojosa, 484 F.3d 337, 341 (5th Cir. 2007).

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also explained that the words “‘scheme’ and ‘plan’ are ‘words of intention,
implying that the [offenses were] jointly planned, or at least that it have been
evident [sic] that the commission of one would entail the commission of the other
as well.’”16 Here, where the common purpose of gambling applies to both the
offense of lying to COF and to the embezzlement, this test is clearly met. As the
district court explained: “How can you find a more seamless web than you file
a false statement to go out of the halfway house to go to your employer to get
money to go to the casino? That’s as seamless as it gets to be.”
       McConnell argues, however, that the common purpose in this test must be
a criminal purpose for this guideline to apply. This argument is inconsistent
with our case law. We have previously held that a non-criminal purpose
satisfies the common purpose factor for relevant conduct.17
                                     IV. Conclusion
       Based on the foregoing reasons, we affirm McConnell’s sentence.


AFFIRMED.




       16
          United States v. Alvarado-Santilano, 434 F.3d 794, 799 (quoting United States v.
Robinson, 187 F.3d 516, 520 (5th Cir. 1999) (quoting United States v. Ali, 951 F.2d 827, 828
(7th Cir. 1992))).
       17
         See United States v. Sanders, 343 F.3d 511, 530–31 (5th Cir. 2003) (finding obtaining
funds to purchase a dry cleaning business to be a “common purpose” for purposes of §
1B1.3(a)(2)).

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