     Case: 09-30522     Document: 00511161082          Page: 1    Date Filed: 07/01/2010




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

                                                 FILED
                                                                             July 1, 2010
                                     No. 09-30522
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

MORRIS VIRDEAN WARNER, also known as Morris V. Warner,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                       for the Eastern District of Louisiana
                              USDC No. 2:07-CR-10-1


Before KING, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*
        Morris Virdean Warner appeals from his conviction of access device fraud
and bank fraud. Warner moves that appointed counsel be relieved and new
counsel be appointed; that motion is denied.
        Warner contends that the district court erred by ordering him to pay
restitution to several banks that were not listed in the indictment and as to
which no evidence was produced at trial. He argues that the Mandatory Victim
Restitution Act (MVRA) limits restitution to harm caused by the conduct

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-30522    Document: 00511161082 Page: 2        Date Filed: 07/01/2010
                                 No. 09-30522

underlying the offense of conviction. Because the bank fraud statute requires
that specific banks be targeted, Warner argues that only those banks could serve
as targets of his bank fraud scheme or artifice and that, therefore, only those
banks may be considered victims of the offense of conviction.
      “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), cert. denied, 129 S. Ct. 2028 (2009).
“[A]n order of restitution must be limited to losses caused by the specific conduct
underlying the offense of conviction.” Id. 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.
      Warner was charged with one scheme to defraud the three banks named
in the redacted superseding indictment.         The evidence presented at his
sentencing hearing indicated that he employed the same methods to deprive the
seven financial institutions not listed in the redacted superseding indictment
that he used against the three named institutions. He also committed his acts
against the nonlisted institutions during the time frame listed in the indictment.
The district court did not err by determining that the seven financial institutions
were victims for MVRA purposes, and the restitution portion of Warner’s
sentence is affirmed. See United States v. Inman, 411 F.3d 591, 595 (5th Cir.
2005); Cothran, 302 F.3d at 289. We also conclude that Warner’s motion to
substitute counsel is neither timely nor well-taken.
      AFFIRMED. MOTION TO SUBSTITUTE COUNSEL DENIED.




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