     Case: 16-30523    Document: 00513846289    Page: 1   Date Filed: 01/24/2017




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                   United States Court of Appeals
                                                                            Fifth Circuit
                                No. 16-30523                              FILED
                              Summary Calendar                     January 24, 2017
                                                                     Lyle W. Cayce
                                                                          Clerk
UNITED STATES OF AMERICA,

                                           Plaintiff-Appellee

v.

GLAY H. COLLIER, II,

                                           Defendant-Appellant


                Appeal from the United States District Court
                   for the Western District of Louisiana


Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge:
      Glay Collier, II, appeals the 34-month term of imprisonment imposed
following his guilty plea conviction of bankruptcy fraud. He argues that the
district court procedurally erred when it enhanced his sentence under United
States Sentencing Guideline § 2B1.l(b)(E) based on the intended loss resulting
from his improper collection of and attempted improper collection of repayment
for filing fees from both his clients and the Chapter 13 Trustee.                   The
Government asserts that Collier invited the error or waived his right to
challenge the error.
      The presentence report (PSR) initially increased Collier’s offense level by
ten levels pursuant to U.S.S.G. § 2B1.1(b)(1)(F) based on the probation officer’s
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                                 No. 16-30523

determination that the offense involved $155,112 in intended losses. Collier
objected, arguing that the calculation should include only the initial payments
made to the Shreveport division of the Bankruptcy Court as part of its filing
fee installment plan. He asserted that the total intended loss for his offense
was no more than $94,404 and that the loss warranted an eight-level
adjustment.
      Although the probation officer pointed out in the second addendum to
the PSR that a loss of $94,404 would warrant only a six-level increase, Collier
ultimately agreed with the Government and the district court at sentencing
that an eight-level adjustment was appropriate for intended loss in his case.
Based on that admission, the district court found that Collier’s objection
regarding intended loss was moot.
      On appeal, Collier again asserts that his offense involved only $94,404
in intended losses, but now contends that the loss warranted only a six-level
increase in his offense level. He contends that his defense attorney erroneously
referenced an older version of the Sentencing Guidelines Manual before
agreeing that $94,404 in intended loss warranted an eight-level increase.
      We agree with the Government that Collier has waived the right to
challenge his loss calculation. “[W]aiver is the ‘intentional relinquishment or
abandonment of a known right.’” United States v. Olano, 507 U.S. 725, 733
(1993) (quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)); see also United
States v. Arviso-Mata, 442 F.3d 382, 384 (5th Cir. 2006). At sentencing, Collier
intentionally forwent his previously raised challenge to the loss calculation
when he repeatedly conceded that the eight-level increase for intended loss was
appropriate. Because Collier’s challenge is waived, it is unreviewable. United
States v. Rodriguez, 602 F.3d 346, 350 (5th Cir. 2010).




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                                 No. 16-30523

      In any event, Collier would not prevail even if we reviewed the district
court’s sentencing decision for plain error. See Puckett v. United States, 556
U.S. 129, 135 (2009); United States v. Fernandez-Cusco, 447 F.3d 382, 384 (5th
Cir. 2006) (reviewing an arguably invited error for plain error “out of an
abundance of caution”). He has not shown that the district court failed to make
a reasonable estimate of the loss.
      The judgment of the district court is AFFIRMED.




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