     Case: 10-30431     Document: 00511581468         Page: 1     Date Filed: 08/24/2011




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

                                                                            FILED
                                                                          August 24, 2011
                                     No. 10-30431
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

LAKEISHA SCHAFFER; FREDDIE G. ANDERSON, JR.,

                                                  Defendants-Appellants


                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                              USDC No. 3:08-CR-3-5


Before HIGGINBOTHAM, DAVIS, and ELROD, Circuit Judges.
PER CURIAM:*
        A jury convicted Freddie G. Anderson and his wife, LaKeisha Schaffer, of
one count of conspiracy to steal and possess goods valued over $1000 and one
count of interstate theft of goods, violations of 18 U.S.C. §§ 371 & 659. The
district court sentenced Schaffer to concurrent terms of 33 months in prison and
sentenced Anderson to concurrent terms of 41 months in prison. Schaffer argues
that the district court erred in determining the amount of loss to calculate her
guidelines offense level, while Anderson argues that the district court abused its

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 10-30431

discretion by allowing a FBI agent to present opinion testimony on the subject
of historical cell site analysis.
         We review the district court’s calculation of the loss amount and other
background factual determinations for clear error and legal questions about the
interpretation of the Guidelines, such as the method of determining loss,
de novo. United States v. Harris, 597 F.3d 242, 251 & n.9 (5th Cir. 2010).
Schaffer’s assertion that the district court erred in determining that the
intended loss was $341,000, the fair market value of the 31 stolen special edition
Honda motorcycles, is without merit.
         Schaffer and her co-conspirators initially believed that they were stealing
a trailer containing four-wheelers; however, upon discovering that they had
actually stolen the more expensive motorcycles, the conspirators did not attempt
to return the goods or call the authorities, but instead continued with their plan
to sell the stolen merchandise. This continued plan evidenced the group’s intent
to possess the motorcycles, even though the motorcycles were an unexpected
discovery. Schaffer has not shown that she withdrew from the conspiracy. See
United States v. Caicedo, 103 F.3d 410, 412 (5th Cir. 1997). Based upon the
entire record, Schaffer has not demonstrated that the district court clearly erred
in concluding that the conspirators intended to possess the stolen motorcycles.
See United States v. Caldwell, 448 F.3d 287, 290 (5th Cir. 2006).
         Moreover, the actual loss also equaled the $341,000 fair market value of
the 31 stolen motorcycles.          Even though the motorcycles were eventually
recovered, the conspirators were not entitled to a reduction in the actual loss
amount because they did not return the merchandise prior to the discovery of the
theft.    U.S.S.G. § 2B1.1, comment. (n.3(E)).       Accordingly, it is immaterial
whether the intended loss was less than the actual loss because, in general, “loss
is the greater of actual loss or intended loss.” § 2B1.1, comment. (n.3(A)); see
also United States v. Urias-Escobar, 281 F.3d 165, 167 (5th Cir. 2002).



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                                  No. 10-30431

      Anderson’s assertion that the district court erred by allowing the expert
testimony of Agent Chad Michael Creasey in the field of historical cell site
analysis because the field “bears none of the indicia of scientific reliability that
would justify an exception to the general prohibition against opinion testimony”
is equally without merit. We review the district court’s decision to admit or
exclude evidence for abuse of discretion. United States v. Morgan, 505 F.3d 332,
339 (5th Cir. 2007).
      In Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993), the United
States Supreme Court set forth a nondispositive, nonexhaustive list of factors
that the district court could use to assess the reliability of scientific expert
testimony, including (1) whether the expert’s theory or technique can be tested
or challenged in some objective sense; (2) whether the technique or theory has
been subject to peer review or publication; (3) the known or potential rate of
error of the technique or theory when applied; (4) the existence and maintenance
of standards and controls; and (5) the degree to which the technique or theory
has been generally accepted in the scientific community. Daubert, 509 U.S. at
593-95. Rule 702 of the Federal Rules of Evidence encompasses the Daubert
inquiry, and also gives district courts flexibility in determining whether an
expert’s testimony is reliable. See Guy v. Crown Equip. Corp., 394 F.3d 320, 325
(5th Cir. 2004); FED. R. EVID. 702 advisory committee’s note (2000
Amendments). The Daubert factors are meant to be helpful and not definitive,
and the Supreme Court has recognized that all five factors do not “necessarily
apply even in every instance in which the reliability of scientific testimony is
challenged.” Kumho Tire Co., Ltd v. Carmichael, 526 U.S. 137, 151 (1999).
      Testimony established that the field is neither untested nor unestablished.
Agent Creasey detailed his extensive knowledge and experience in the field.
According to Agent Creasey, he had used the technique, without error, on at
least 100 occasions, and the FBI had been successful at least 1000 times. Agent
Creasey taught courses on the subject. Furthermore, individuals whom Agent

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                                  No. 10-30431

Creasey taught and supervised had used their historical cell site analysis
training to provide expert testimony, and the technique has been accepted by
approximately federal courts as a field of expertise.       See United States v.
Weathers, 169 F.3d 336, 339 (6th Cir. 1999) (allowing expert testimony based on
cell site analysis); United States v. Sepulveda, 115 F.3d 882, 891 (11th Cir. 1997)
(same).
      Accordingly, Anderson has not demonstrated that the district court abused
its considerable discretion by allowing Agent Creasey to testify as to his
knowledge of historical cell site analysis and to use his knowledge to analyze the
data contained in Anderson’s Verizon cell phone bill to determine the past
locations of Anderson’s cell phone. See Morgan, 505 F.3d at 339. Even if the
district court had abused its discretion by allowing Agent Creasey’s testimony,
Anderson cannot establish that his substantial rights were violated given that
Jim Morris, the manager of system performance at Verizon Wireless Company,
was qualified, without objection, as an expert in cell site analysis and provided
similar testimony and conclusions as Agent Creasey. See Morgan, 505 F.3d at
339. The judgment of the district court is AFFIRMED.




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