     Case: 10-50847     Document: 00511669445         Page: 1     Date Filed: 11/17/2011




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

                                                                            FILED
                                                                        November 17, 2011
                                     No. 10-50847
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

ELLIS MORGANFIELD,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:03-CR-10-2


Before GARZA, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
        A jury convicted Ellis Morganfield of aiding and abetting bank fraud. See
18 U.S.C. §§ 2, 1344. Following our prior remand order, United States v.
Morganfield, 501 F.3d 453, 456 (5th Cir. 2007), the district court sentenced
Morganfield to 115 months of imprisonment, to be followed by five years of
supervised release, and imposed a restitution order in the amount of
$387,405.87. He challenges his sentence on the basis that the district court



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 10-50847

erred in calculating the amount of loss involved in the offense. He challenges the
restitution order on the same basis.
      Morganfield was released from prison on May 24, 2011. His appeal is not
moot because he remains subject to a term of supervised release, an element of
his overall sentence, and he is appealing the as yet unsatisfied restitution order.
See United States v. Lares-Meraz, 452 F.3d 352, 355 (5th Cir. 2006).
      Morganfield argues that the loss calculation in the revised presentence
report (PSR), a significant factor in the district court’s determination of his
sentence, and the amount of restitution were based on an unreliable and
unsubstantiated Federal Bureau of Investigation (FBI) report that was not
provided to him, is not part of the record, and was not contained in any of the
exhibits that were offered or admitted into evidence at trial. He does not provide
an alternate report or alternate figures to contradict the district court’s loss
calculation. He argues that the district court should have separated the checks
attributable to him from those not attributable to him in making the loss
calculation. Regarding restitution, he argues that the amount is not explained
by the record.
      The Government has supplemented the record with documents used to
calculate the challenged amounts. The first page of the submitted loss report
provides calculations of the restitution owed to identified victims and to
unidentified victims. Attached to this page is a list of the names of the payees,
the amount and date of each check, the check numbers, the city and business
where each check was cashed, the signatory on each check, and the name of the
business on the checking account. The list is more than 30 pages long. The
amounts in the report match some, but not all, of the amounts listed in the
revised PSR.
      “The calculation of the amount of loss is a factual finding, reviewed for
clear error.” See United States v. Sanders, 343 F.3d 511, 520 (5th Cir. 2003).
(internal quotation marks and citation omitted). A factual finding is not clearly

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                                  No. 10-50847

erroneous if it is plausible in light of the record as a whole. See id. “In making
factual determinations at sentencing, the district court is entitled to rely upon
the information in the PSR as long as the information bears some indicia of
reliability.” United States v. Scher, 601 F.3d 408, 413 (5th Cir. 2010). “The
defendant bears the burden of presenting rebuttal evidence to demonstrate that
the information in the PSR is inaccurate or materially untrue.” Id.
      On the basis of debriefings of coconspirators and information from the FBI,
the PSR estimated that the loss resulting from the bank fraud scheme was
between $500,000 and $800,000. The PSR reflected that the FBI had identified
more than $500,000 in fraudulent activity attributable to Morganfield and some
of his codefendants. Morganfield did not provide evidence to rebut the PSR’s
calculations.   Nor has he provided this court with record support for his
arguments. Although it is not entirely clear from the record how the district
court arrived at the amount of loss and restitution owed, Morganfield “simply
failed to produce reliable evidence supporting an alternate number or
demonstrating that the information in the PSR was inaccurate or materially
untrue.” Id. at 414. Because Morganfield did not present sufficient rebuttal
evidence, the record does not show that the district court clearly erred in
adopting the PSR’s factual finding regarding the amount of loss. See id.
      Because the district court used the same figures to calculate the
restitution amount that it used to calculate the amount of loss, it follows that
Morganfield has not produced sufficient evidence to show that the restitution
award was an abuse of discretion. See id.
      AFFIRMED.




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