     Case: 17-50116      Document: 00514446214         Page: 1    Date Filed: 04/25/2018




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

                                      No. 17-50116                           FILED
                                                                         April 25, 2018
                                                                        Lyle W. Cayce
UNITED STATES OF AMERICA,                                                    Clerk

              Plaintiff - Appellee

v.

ROBERTO LOYA; CLARENCE COUNTERMAN,

              Defendants - Appellants




                  Appeals from the United States District Court
                        for the Western District of Texas
                            USDC No. 3:15-CR-1442-1


Before ELROD, COSTA, and HO, Circuit Judges.
PER CURIAM:*
       Appellants Clarence Counterman and Roberto Loya were charged with
operating a Ponzi scheme in El Paso, Texas.                 A jury convicted them of
conspiracy to commit wire fraud and of multiple counts of wire fraud. On
appeal, they raise multiple challenges to their convictions and sentences.
       Counterman first argues (as does Loya, by adopting the relevant portion
of Counterman’s brief under Federal Rule of Civil Procedure 28(i)) that the


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-50116
district court abused its discretion by impaneling jurors to whom the
defendants had objected. Counterman and Loya contend that the indictment’s
use of the word “victim” might have led the jurors to assume that someone had
indeed been victimized, and that in light of this risk, the district court failed to
properly inquire into the jurors’ ability to render a fair and impartial verdict.
But the judge explicitly cautioned the jurors against making such an
assumption based on the language of the indictment.                    And we have long
recognized that “deference must be paid to the trial judge who sees and hears
the [prospective] juror.” United States v. Duncan, 191 F.3d 569, 573 (5th Cir.
1999) (alteration in original) (citation omitted). Lacking any evidence that
these jurors were actually biased against Counterman and Loya, we find no
error.
         Counterman next appeals from the district court’s denial of his motion
for acquittal, alleging the evidence against him was insufficient to support his
conviction. 1 “We review a claim of insufficiency of the evidence in the light
most favorable to the verdict, affording the government the benefit of all
reasonable inferences.” United States v. Ingles, 445 F.3d 830, 834–35 (5th Cir.
2006).       The record here was plainly sufficient to support Counterman’s
conviction for both offenses.
         Both defendants challenge the district court’s imposition of the
sophisticated means and leadership role enhancements under the Sentencing
Guidelines. Counterman additionally challenges the court’s application of the
abuse of trust enhancement and argues that the district court failed to explain
its sentence. See U.S.S.G. §§ 2B1.1(b)(10), 3B1.3, 3B1.1. But as the record



         1Loya also seeks to adopt this point; however, he may not do so. Insufficiency-of-the-
evidence arguments are necessarily fact-specific, and we do not allow appellants to adopt
such arguments by reference. See United States v. Alix, 86 F.3d 429, 434 n.2 (5th Cir. 1996)
(citations omitted).
                                              2
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                                 No. 17-50116
shows, these enhancements were properly applied. Counterman and Loya’s
scheme was highly complex, and both men played leading roles in
administering this fraud. Moreover, Counterman leveraged his position as a
tax preparer to lure his targets into the Ponzi scheme, so the abuse of trust
enhancement was appropriate.          And the district court did provide an
explanation of its sentence—albeit a succinct one—so Counterman’s claim
lacks merit.
      Finally,   Counterman     and    Loya   challenge   their    sentences   as
unreasonable under 18 U.S.C. § 3553(a).         But both defendants received
Guidelines sentences, and in our circuit “[a] discretionary sentence imposed
within a properly calculated guidelines range is presumptively reasonable.”
United States v. Campos-Maldonado, 531 F.3d 337, 338 (5th Cir. 2008). We
have no basis for second-guessing the district court’s decision.
      The judgment of the district court is AFFIRMED.




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