     Case: 12-60706       Document: 00512433350         Page: 1     Date Filed: 11/07/2013




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

                                                                            FILED
                                                                         November 7, 2013
                                     No. 12-60706
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

PEGGY THORNTON,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                              USDC No. 4:11-CR-2-1


Before REAVLEY, JONES, and PRADO, Circuit Judges.
PER CURIAM:*
       Peggy Thornton was found guilty by a jury of five counts of wire fraud, one
count of engaging in monetary transactions, and one count of identity
theft/fraud. She was sentenced within the guidelines range to concurrent terms
of 41 months of imprisonment, to be followed by a total of three years of
supervised release. Appealing her conviction on the five counts of wire fraud,
Thornton challenges the sufficiency of the evidence. Thornton asserts that,
because Lillie Barrett had a right to withdraw all of the funds from the jointly

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-60706

held account, there was no victim and that the jury erred in finding that she
intended to defraud Beatrice Boler. Additionally, she asserts that she intended
to pay the money back to Barrett, which shows that she had no intent to
defraud. In conclusory fashion, Thornton also argues that the evidence was
insufficient to support her conviction on the remaining counts of engaging in
monetary transactions and identity theft/fraud.
      We will uphold the jury’s verdict if a rational trier of fact could conclude
that “the elements of the offense were established beyond a reasonable doubt,
viewing the evidence in the light most favorable to the verdict and drawing all
reasonable inferences from the evidence to support the verdict.” United States
v. Percel, 553 F.3d 903, 910 (5th Cir. 2008) (internal quotation marks and
citation omitted). The essential elements of wire fraud are “(1) a scheme to
defraud and (2) the use of, or causing the use of, wire communications in
furtherance of the scheme.” United States v. Gray, 96 F.3d 769, 773 (5th Cir.
1996); see 18 U.S.C. § 1343. The Government was also required to show that
Thornton had a specific intent to defraud. See United States v. Brown, 459 F.3d
509, 519 (5th Cir. 2006).
      Though she asserts that Barrett had the absolute right to withdraw money
from the account, it was explained at trial that Barrett had this authority only
when a letter of authorization was signed by both Boler and Barrett. Boler
unequivocally testified that she did not sign the documents providing such
authorization. There was testimony establishing that Thornton admitted to
forging Barrett’s signature to the documents in order to transfer the money. The
jury could reasonably infer that Thornton also forged Boler’s name.
      Additionally, there was evidence that Thornton called Miley and purported
to be Barrett. She arranged for the monetary transfers and used the money to
pay for credit card expenses, a car, and a swimming pool.            Contrary to
Thornton’s argument, there was sufficient evidence to establish that she had the
requisite intent to defraud.

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                                  No. 12-60706

      Regarding her challenges to the convictions for engaging in monetary
transactions and identity theft/fraud, Thornton does not adequately brief the
issue as it relates to these counts. Thus, we do not address these counts of
conviction.
      Thornton also contends that the district court erred by applying the
U.S.S.G. § 3A1.1(b)(1) enhancement based on the finding that Barrett was a
vulnerable victim. She argues that Barrett could not be a victim in light of the
jury’s finding on the verdict form that Thornton did not intend to defraud
Barrett. To the extent that she argues that the district court cannot consider
evidence on counts for which she was acquitted, the argument is foreclosed by
United States v. Watts, 519 U.S. 148, 157 (1997). See United States v. Farias,
469 F.3d 393, 399 (5th Cir. 2006).
      Further, Thornton argues that the evidence did not support a finding that
Barrett was unusually vulnerable to being a victim of fraud. We review the
district court’s interpretation and application of the Sentencing Guidelines de
novo and its findings of fact for clear error. United States v. Cisneros-Gutierrez,
517 F.3d 751, 764 (5th Cir. 2008). For purposes of § 3A1.1(b)(1), a “vulnerable
victim” is defined as a person “who is unusually vulnerable due to age, physical
or mental condition, or who is otherwise particularly susceptible to the criminal
conduct.” § 3A1.1, comment. (n.2).
      In the instant case, there was evidence to establish that Barrett was
unusually vulnerable to fraud. Both expert witnesses provided uncontradicted
testimony that Barrett suffered from dementia or Alzheimer’s. James Gilbert
testified that Barrett was significantly impaired in decision making and
judgment. Though Dr. Jeffrey McGilbra acknowledged that Barrett was able to
hold a conversation, he nevertheless believed that Barrett’s judgment was
questionable and that she would have difficulty dealing with finances. Thus, the
district court did not err in finding that Barrett was unusually vulnerable to
being a victim of fraud. See Cisneros-Gutierrez, 517 F.3d at 764. Moreover, the

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district court specifically stated that if the two-level enhancement had not
applied, the resulting guidelines range would be insufficient to satisfy the
sentencing factors of 18 U.S.C. § 3553(a) and that the sentence would be the
same. Therefore, even if there was error, it was harmless. See United States v.
Richardson, 676 F.3d 491, 511 (5th Cir. 2012).
      Accordingly, the judgment of the district court is AFFIRMED.




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