     Case: 11-60615     Document: 00511901757         Page: 1     Date Filed: 06/27/2012




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

                                                                            FILED
                                                                           June 27, 2012
                                     No. 11-60615
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

DAVID BEASLEY,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                             USDC No. 2:10-CR-78-5


Before KING, JOLLY, and GRAVES, Circuit Judges.
PER CURIAM:*
        David Beasley pleaded guilty to conspiracy to commit wire fraud through
a telemarketing scheme that victimized ten or more persons over the age of 55.
See 18 U.S.C. §§ 1343, 1349, 2326. Beasley admitted that he, George Coe, Jr.,
and others defrauded several people through a scheme in which they called
victims on the phone. The caller would falsely state that the victim had won a
large cash prize that could not be claimed until the victim paid taxes or other
fees via wire transmission to a person named by the caller.                     Several co-

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-60615

conspirators acted as runners who picked up money wired by the victims at
various locations, kept a portion of the proceeds for themselves, and then
forwarded the remainder to the callers. Beasley and the other callers used these
runners to avoid directly receiving money from the victims. The district court
sentenced Beasley to 262 months of imprisonment and payment of restitution.
      Beasley challenges his sentence on several grounds. We review sentences
for reasonableness under an abuse-of-discretion standard. Gall v. United States,
552 U.S. 38, 46-50 (2007). First, we determine whether the district court
committed any significant procedural error, such as improperly calculating the
guideline range. Id. at 51. If there is no procedural error or the error is
harmless, we may review the substantive reasonableness of the sentence. Id.;
United States v. Delgado-Martinez, 564 F.3d 750, 752-53 (5th Cir. 2009).
      Beasley argues that the district court erred in holding him accountable for
the harm to the victims whom he did not personally call, which resulted in a 14-
level enhancement under U.S.S.G. § 2B1.1(b)(1). Because he preserved this
claim in the district court, we review the district court’s application of the
Sentencing Guidelines de novo and its factual findings for clear error. United
States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). The Government
has the burden of proving by a preponderance of the evidence the facts that
support a sentencing enhancement. United States v. Rodriguez, 523 F.3d 519,
524 (5th Cir. 2008). We will uphold a district court’s factual finding on clear
error review so long as the finding is plausible in light of the record as a whole.
United States v. Gonzales, 436 F.3d 560, 584 (5th Cir. 2006). The § 2B1.1(b)(1)
enhancement is a specific offense characteristic. Because Beasley’s offense
involved “a jointly undertaken criminal activity,” U.S.S.G. § 1B1.3(a)(1)(B), we
affirm the district court’s application of the 14-level enhancement.           See
§ 1B1.3(a) & comment. (n.2(c)(2)); § 2B1.1, comment. (n.3(A)).
      Although Beasley argues that the district court erred in applying a four-
level enhancement under U.S.S.G. § 3A1.1(b), the Government correctly observes

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that this argument challenges two distinct adjustments under § 3A1.1(b)(1) and
§ 3A1.1(b)(2).   Here, we consider Beasley’s challenge to the § 3A1.1(b)(1)
adjustment. The Government has the burden of establishing the facts necessary
to support such an adjustment by a preponderance of the evidence. United
States v. Leonard, 61 F.3d 1181, 1188 (5th Cir. 1995). “The determination that
a victim is vulnerable is a factual finding which the district court is best suited
to make.” United States v. Burgos, 137 F.3d 841, 843 (5th Cir. 1998). Beasley
preserved this issue, and we review the district court’s factual finding for clear
error. See Cisneros-Gutierrez, 517 F.3d at 764.
      Beasley’s relevant conduct under § 1B1.3 harmed more than 90 victims.
More than 60 of those were over the age of 55. Beasley conceded that the names
of some of the victims that he chose to call sounded like the names of elderly
individuals, and he admitted that he could tell by the sound of a prospective
victim’s voice whether the person was elderly. In addition, Beasley admitted
that he conducted a prior telemarketing fraud with Coe in which he did
“basically the same thing,” and that the prior fraud involved targeting elderly
victims because he had “more chance of being successful” in defrauding them.
The district court’s finding that Beasley “knew or should have known” that at
least one of the many victims of the scheme was a vulnerable victim was
plausible in light of the record as a whole. § 3A1.1(b)(1); see § 3A1.1, comment.
(n.4); Gonzales, 436 F.3d at 584.
      Next, Beasley challenges the district court’s finding that he was a leader
or organizer of criminal activity involving five or more persons. Based on that
finding, the district court applied the four-level adjustment in U.S.S.G.
§ 3B1.1(a). Because Beasley preserved his claim, we review the district court’s
factual finding that Beasley was a leader or organizer for clear error. See United
States v. Curtis, 635 F.3d 704, 720 (5th Cir.), cert. denied, 132 S. Ct. 191 (2011).
      Beasley and Coe made the majority of the phone calls and received a larger
percentage of the proceeds from the criminal activity. Beasley admitted that he

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would inform a runner when money had been wired, tell the runner where to
retrieve the funds, and give the runner a reference number for the transaction.
He admitted that runners sometimes wired funds to him directly. Beasley also
admitted that he purchased leads independently of Coe, in addition to receiving
some leads from him. Although Beasley testified that he did not personally
recruit the runners, the other factors listed in the commentary to § 3B1.1
support the district court’s finding that Beasley was an organizer of the
conspiracy with Coe. See § 3B1.1, comment. (n.4); Gonzales, 436 F.3d at 584.
      Beasley also argues that the district court erred by increasing his offense
level under both § 2B1.1(b)(2)(B) and § 3A1.1(b). Because he failed to object on
this basis in the district court, we review the claim for plain error. See United
States v. Campos-Maldonado, 531 F.3d 337, 339 (5th Cir. 2008). To show plain
error, Beasley must show a forfeited error that is clear or obvious and that
affects his substantial rights. Puckett v. United States, 556 U.S. 129, 135 (2009).
If he makes such a showing, we have the discretion to correct the error but only
if it seriously affects the fairness, integrity, or public reputation of judicial
proceedings. Id.
      Application Note 4(D) to § 2B1.1 prohibits the application of both
§ 2B1.1(b)(2)(B) and § 3A1.1(b)(2). The application of § 3A1.1(b)(2) therefore
constituted clear or obvious error. See United States v. Villegas, 404 F.3d 355,
363-64 (5th Cir. 2005). However, the Government correctly notes that this does
not affect the propriety of the two-level adjustment under § 3A1.1(b)(1). See
§ 2B1.1, comment. (n.4(D)).
      “In the sentencing context, we have held that an appellant can show an
impact on substantial rights—and therefore a basis for reversal on plain error
review—where the appellant can show a reasonable probability that, but for the
district court’s error, the appellant would have received a lower sentence.”
United States v. Davis, 602 F.3d 643, 647 (5th Cir. 2010); see also United States
v. Mudekunye, 646 F.3d 281, 289-90 (5th Cir. 2011) (applying this test in

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circumstances similar to this case). If the district court had not mistakenly
applied the § 3A1.1(b)(2) adjustment, Beasley’s guideline range of imprisonment
would have been 168 to 210 months. Instead, the district court calculated an
incorrect range of 210 to 262 months and sentenced Beasley at the top of that
range. The district court’s statements at the sentencing hearing reflect its intent
to impose a guidelines sentence and therefore show a reasonable probability that
Beasley would have received a lower sentence but for the error. See Mudekunye,
646 F.3d at 290-91; Davis, 602 F.3d at 647. In addition, the error seriously
affected the fairness, integrity, or public reputation of judicial proceedings. See
Mudekunye, 646 F.3d at 291. Accordingly, we vacate Beasley’s sentence and
remand for resentencing. We do not reach Beasley’s challenge to the district
court’s weighing of the 18 U.S.C. § 3553(a) factors.
      AFFIRMED IN PART, VACATED IN PART, AND REMANDED FOR
RESENTENCING.




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