     Case: 12-60562       Document: 00512189723         Page: 1     Date Filed: 03/27/2013




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

                                                                            FILED
                                                                          March 27, 2013
                                     No. 12-60562
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

THELBERT LAMONT LESURE,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                             USDC No. 3:11-CR-14-1


                         ON PETITION FOR REHEARING

Before JOLLY, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
       Treating Appellant’s Petition for Rehearing En Banc as a Petition for
Panel Rehearing, the Petition for Panel Rehearing is GRANTED. We withdraw
the prior opinion, 2013 WL 657775 (5th Cir. Feb. 22, 2013), and substitute the
following opinion.




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-60562

      Thelbert Lamont Lesure (Lesure) appeals his 36-month within-guidelines
sentence imposed following his conviction for making false, fictitious, and
fraudulent claims to the Internal Revenue Service (IRS). Lesure argues that the
district court erred in applying the 16-level enhancement under United States
Sentencing Guidelines § 2B1.1(b)(1)(I) based on an amount of loss greater than
$1,000,000 but less than $2,500,000. Specifically, he challenges the amounts
that IRS Agent Ashley Allen obtained from the IRS Fraud Detection Center for
tax years 2005 and 2006, which totaled $1,334,768. Lesure contends that Agent
Allen failed to show the methodology by which she derived the figures, and that
therefore, the district court failed to make a reasonable estimate of the amount
of loss. He does not challenge Allen’s calculations regarding the 40 returns from
the taxpayers listed in the indictment and his own fraudulent return.
      The Guidelines provide for a 16-level increase if the amount of loss was
more than $1,000,000 but less than $2,500,000. U.S.S.G. § 2B1.1(b)(1)(I). The
sentencing court should use the greater of the actual or intended loss. § 2B1.1,
comment. (n.3(A)). “Actual loss” is the “reasonably foreseeable pecuniary harm
that resulted from the offense.” Id. at (n.3(A)(i)). “Intended loss” is “the
pecuniary harm that was intended to result from the offense” and “includes
intended pecuniary harm that would have been impossible or unlikely to occur.”
Id. at (n.3(A)(ii)). “The court need only make a reasonable estimate of the loss.”
§ 2B1.1, comment. (n.3(C)). This Court reviews the district court’s method of
determining loss de novo and its factual findings regarding the amount of loss
for clear error. United States v. Harris, 597 F.3d 242, 250-51 (5th Cir. 2010).
      In his objections to the Presentence Report (PSR), Lesure argued that the
amount of loss was inaccurate and excessive because it was based on a ratio. At
the sentencing hearing, the Government called Agent Allen, who testified that
there was no ratio involved in determining the amount of loss. Allen testified
that the amount of intended harm was determined by the amount of refunds
that were falsely claimed on the tax returns that were filed. In 2005, in addition

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                                  No. 12-60562

to the returns Allen thoroughly reviewed, an investigation by the IRS Fraud
Detection Center revealed that Lesure filed 37 fraudulent returns. The intended
harm, the total amount in refunds sought from these 37 returns, totaled
$162,390. In 2006, Lesure submitted 230 fraudulent returns in addition to the
ones that Allen reviewed. Agent Allen explained that the amount of loss was
determined by comparing the difference between the “W-2 information” provided
on the fraudulent returns with the information that the employers had provided
the IRS.    Agent Allen further testified that this method of determining
attempted or intended harm was based on corroborated data and had been used
by other courts. The intended harm on the 230 returns totaled $1,172,378.
Allen simply added the amounts ($162,390 + $1,172,378), resulting in a total of
$1,334,768. Lesure did not submit any evidence in rebuttal at the hearing.
Indeed, at the hearing, Lesure’s counsel “concede[d] that based on the
information that Mr. Lesure has available to him, he cannot come back in and
make an argument as to what the precise amount should be, nor could he come
back in and make a strong claim that the amount of loss would go below the
$1 million mark, which would be required in order for the guideline range to be
lowered.” The district court overruled Lesure’s objection, stating as follows: “the
Government has put forth sufficient proof to establish the amount of loss in this
case. And I think the calculations by the IRS are accurate and based on
reasonable proof. And I don’t think the defendant gave us an alternative
amount.”
      On appeal, Lesure contends that the district court erred in determining
the amount of loss because it did not provide the methodology used for
calculating the majority of the amount of loss. As stated above, we review “a
district court’s method of determining the amount of loss de novo.” Harris, 597
F.3d at 251. Contrary to Lesure’s contention, Allen explained how the intended
loss was calculated. Agent Allen testified that the loss was determined by
calculating the difference between the numbers listed on the fraudulent returns

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                                  No. 12-60562

with respect to “W-2 information,” which is the amount of earnings and
withholdings, with the information filed by the employers. Thus, Lesure’s
contention is without merit.
      Further, to the extent Lesure is challenging the factual finding, we
recognize that the district court “‘need only make a reasonable estimate of the
loss’ based upon the evidence.” Harris, 597 F.3d at 249 (quoting § 2B1.1,
comment. (n.3(C))). District courts are given “wide latitude in determining the
amount of loss resulting from fraud.” United States v. Sowels, 998 F.2d 249, 251
(5th Cir. 1993). Moreover, as previously set forth, Lesure offered no evidence
in rebuttal at the sentencing hearing. Under those circumstances, the district
court was free to adopt the factual findings in the PSR. United States v. Mir,
919 F.2d 940, 943 (5th Cir. 1990). The district court therefore did not clearly err
in its factual finding that the intended loss was greater than $1,000,000. Lesure
has not shown that the district court committed reversible error in applying the
16-level enhancement under § 2B1.1(b)(1)(I) based on a finding that the amount
of intended loss was greater than $1,000,000 but less than $2,500,000.
      Accordingly, the judgment of the district court is AFFIRMED.




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