     Case: 11-31109     Document: 00511957606         Page: 1     Date Filed: 08/15/2012




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

                                                                            FILED
                                                                          August 15, 2012
                                     No. 11-31109
                                                                           Lyle W. Cayce
                                   Summary Calendar
                                                                                Clerk


UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

WILLIAM JOSEPH JOHNSON, JR.,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 1:11-CR-73-1


Before SMITH, DENNIS, and HAYNES, Circuit Judges.
PER CURIAM:*
        William Joseph Johnson Jr. appeals the sentence imposed following his
guilty plea conviction for bank fraud, knowingly making, uttering, and
possessing counterfeit securities, and aggravated identity theft. Johnson argues
that the district court erred by determining that his conduct in French Lick,
Indiana, Spokane, Washington, and New Orleans, Louisiana, was relevant
conduct because that conduct was not part of a common scheme or plan as his
offense conduct, because that conduct was too remote in time from his offense

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-31109

conduct, and because he could face double jeopardy if he is prosecuted for that
conduct in another jurisdiction. He maintains that the district court’s erroneous
relevant conduct determination caused his enhancement for amount of loss to
be too high. Johnson further argues that the district court erred by applying a
two-level enhancement for his relocating a fraudulent scheme to another
jurisdiction to evade law enforcement or regulatory officials. He asserts that he
did not relocate his offense conduct anywhere because he did not attempt to
defraud Dimension Development, the victim of his offense conduct, while in a
different jurisdiction. He states that he was arrested in Indiana for his fraud in
French Lick, and he contends that this shows he was not evading law
enforcement.
      We review the district court’s application or interpretation of the
Guidelines de novo and its factual findings for clear error. United States v.
Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). “Unless the factual
finding is implausible in light of the record as a whole, it is not clearly
erroneous.” United States v. Griffith, 522 F.3d 607, 611-12 (5th Cir. 2008). A
district court’s determination of what is relevant conduct is a factual finding
reviewed for clear error. United States v. Buck, 324 F.3d 786, 796 (5th Cir.
2003).
      In his offense conduct, Johnson was hired as an assistant controller,
obtained prior invoices that had already been paid, altered the invoices, printed
checks made payable to the financial institution at which he was banking, and
deposited the checks into his personal accounts. In French Lick and Spokane,
Johnson also obtained employment as an accounting professional at a hotel, and
he counterfeited hotel checks for deposit in his personal accounts. In New
Orleans, Johnson obtained employment as an accounting professional at a hotel,
and he diverted hotel money into his personal accounts. Accordingly, Johnson’s
relevant conduct had a similar modus operandi as his offense conduct, making
it part of a common scheme or plan as his offense conduct. See U.S.S.G. § 1B1.3,

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                                  No. 11-31109

comment. (n.9(a)). While Johnson’s relevant conduct had different victims and
may have had slightly different methods than his offense conduct, “the evidence
does not so differentiate them to render the district court’s ruling clearly
erroneous.” Buck, 324 F.3d at 797.
      Given the similar modus operandi, Johnson’s relevant conduct was not too
temporally remote. See United States v. Hinojosa, 484 F.3d 337, 341-42 & n.1
(5th Cir. 2007). The enhancement of Johnson’s sentence because of the relevant
conduct does not raise double jeopardy concerns. See Witte v. United States, 515
U.S. 389, 401-02 (1995). The district court did not clearly err by finding that
Johnson’s conduct in French Lick, Spokane, and New Orleans was relevant
conduct and including the loss amounts from that conduct in its total loss
calculation. See Buck, 324 F.3d at 796-97.
      The facts set forth in the PSR showed that Johnson frequently moved from
jurisdiction to jurisdiction in the time period that he performed his offense
conduct and relevant conduct, that Johnson would leave the jurisdiction where
he was located when it appeared that his fraudulent scheme would be
discovered, that Johnson used false social security numbers to obtain
employment where he conducted his fraudulent scheme, and that Johnson
performed the same fraudulent scheme against different victims in different
jurisdictions. As Johnson did not present evidence contradicting these facts, the
district court was free to rely on these facts without further inquiry. See United
States v. Huerta, 182 F.3d 361, 364-65 (5th Cir. 1999). From these facts, the
district court could conclude that Johnson “relocated, or participated in
relocating, a fraudulent scheme to another jurisdiction to evade law enforcement
or regulatory officials.” U.S.S.G. § 2B1.1(b)(9)(A) (2009). Johnson has not shown
that the district court clearly erred by applying the enhancement. See id.
      AFFIRMED.




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