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

                                                                            FILED
                                                                            May 2, 2012

                                       No. 11-30521                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee
v.

JOSEPH MATTHEW EVANS,

                                                  Defendant - Appellant



                    Appeal from the United States District Court
             for the Western District of Louisiana, Shreveport Division
                               USDC No. 10-00168


Before JOLLY, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
        Pursuant to a plea agreement, Joseph Matthew Evans (“Evans”) pleaded
guilty to one count of wire fraud in violation of 18 U.S.C. § 1343. The district
court imposed a nonguidelines sentence of 60 months of imprisonment. Evans
appeals his sentence, arguing that the district court erred: (1) by finding that he
had obstructed the administration of justice under U.S.S.G. § 3C1.1; (2) by
denying him a reduction in his offense level based on his acceptance of



        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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responsibility under U.S.S.G. § 3E1.1; and (3) by imposing an unreasonable
sentence. We AFFIRM.
      I.    BACKGROUND
      Evans was indicted for three counts of bank fraud, nine counts of wire
fraud, and one count of access device fraud. The charges related to Evans’s
writing worthless checks to two banks, defrauding an electronic payment
processor of debit and credit cards, and using an access device without
authorization and with the intent to defraud. As part of the scheme, Evans,
doing business as Evans Consolidated Industries (ECI), obtained an account
with Elavon, an electronic payment processor of debit and credit cards, by
representing that ECI was a retail business that sold miscellaneous oil company
parts and accessories. Evans then processed non-existent sales using invalid
credit cards. After his account was put in collection due to unpaid processing
fees, Evans claimed that he had to change ECI’s bank accounts due to a break-in
at their office. The funds were not repaid and ECI’s account was closed. About
two months later, Evans obtained a new merchant account from Elavon by
providing different bank information. He then submitted fraudulent payment
requests using valid credit card information. When most of these charges were
disputed, Elavon lost $38,609.29 because ECI’s designated bank account did not
have funds to satisfy these chargebacks.
      Evans was originally released on bond, but the government moved to
revoke his bond due to his commission of new criminal conduct. Evans had
executed a contract to purchase a house in Bossier City, Louisiana, for $359,000.
Evans represented that he had cash available to close the sale and produced a
fraudulent proof of funds document purportedly from Bank of Nova Scotia. Prior
to and on the day of closing, Evans continued to represent that he had sufficient
funds to purchase the house, stating that the funds had been wired to another
bank, which had placed a hold on the funds, but that the funds had cleared and

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                                  No. 11-30521

he would deliver a certified cashier’s check at closing. He did not deliver such
a check, and the title company and seller withdrew from the deal.              The
government also noted in the motion to revoke that Evans had not complied with
the court’s order to pay $1,000 a month to help defray the cost of his appointed
attorney. The district court granted the government’s motion to revoke bond and
also granted the government’s motion for a psychiatric exam of Evans to
determine whether he was competent to proceed to trial in light of his refusal to
meet with his attorney and to participate in his defense. Evans was determined
competent to stand trial.
      Thereafter, Evans pleaded guilty to count 10 of the indictment, which
charged him with wire fraud in the amount of $18,500 for one of the fraudulent
credit card charges made through Elavon. As part of the plea agreement, the
government stated that it was moving, pursuant to U.S.S.G. § 3E1.1(b), for an
extra one-point reduction in Evans’s offense level—if the district court calculated
it at 16 levels or greater—due to his assistance to authorities in the investigation
by timely notifying them of his intention to enter a guilty plea. The government
also agreed to dismiss the remaining 12 counts of the indictment.
      The Presentence Report (PSR) recommended an adjustment for
obstruction of justice based on Evans’s providing false information to the
probation officer during the presentence interview. According to the probation
officer, Evans stated that, through ECI, he was in the process of obtaining a
$20 million contract from Globalstar, an international telecommunications
company. Evans originally indicated that he was involved in developing satellite
technology for this company, but when questioned regarding his lack of
background in such technology, he indicated that the contract was to construct
buildings in India and other countries to house telecommunications equipment.
Evans admitted that he had no background as a general contractor, but stated
that he was in the process of obtaining a contractor’s license. The probation

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officer contacted Marty Nielsen, a representative of Globalstar, who verified that
he had contact with Evans via telephone and e-mails, but stated that no contract
had been discussed or agreed upon. The representative indicated that Evans had
sought a 1%-2% security fee for the construction project to begin.
      While Evans was free on bond, he also attempted to acquire a $10 million
Cessna Citation Xjet. During the negotiations for this transaction, Evans
provided a fraudulent balance confirmation notice from Wachovia Bank
representing that he had over $98 million available for immediate use. Evans
told the probation officer that he intended to use funds from the contract with
Globalstar to facilitate the purchases of the house and aircraft. However, the
probation officer noted that, in light of the fact that there was no such contract,
Evans should have known that he did not have access to funds that would have
enabled him to purchase either the house or the jet. This representation and the
representation that Evans was in the process of obtaining a $20 million contract
were the two false statements on which the probation officer relied in
recommending the enhancement for obstruction of justice.
      Further, the probation officer found that Evans did not qualify for a
downward adjustment for acceptance of responsibility because he had not
voluntarily terminated or withdrawn from criminal conduct. Given a base
offense level of seven, an upward adjustment of six levels based on the amount
of loss attributable to Evans ($48,090.05), and a two-level increase for
obstruction of justice, Evans’s base offense level was 15. Evans had zero
criminal history points, which placed him in criminal history category I. This
resulted in an advisory guidelines range of 18-24 months of imprisonment. The
statutory maximum was 30 years. 18 U.S.C. § 1343.
      Evans filed objections to the PSR, arguing that the adjustment for
obstruction of justice was not warranted because the information Evans provided
regarding the contract was not false or material. Evans also argued that he

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should receive the adjustment for acceptance of responsibility because he did not
engage in criminal conduct in violation of his plea agreement, and he timely
notified the government of his intent to plead guilty. In response to Evans’s
objections, the government wrote in support of the PSR and stated that a
nonguidelines sentence was warranted under 18 U.S.C. § 3553(a). The district
court overruled the objections, noting that Evans had tried to purchase the
house and the jet while he was out on bond and that he had initiated contact
with Globalstar regarding a $20 million contract when he did not have the
background, the equipment, or the means to provide such services. The court
found that Evans had continued to engage in criminal activity after being
indicted and released on bond and that this was inconsistent with the acceptance
of responsibility. After considering the factors in 18 U.S.C. § 3553(a), the district
court imposed a nonguidelines sentence of 60 months of imprisonment and five
years of supervised release. The court noted the lengths to which Evans had
gone in stringing others along, including inventing people and financial
documents, and stated that he exhibited “plain, simple crookedness.” Evans
timely appealed.
      II.    ANALYSIS
             A.     Obstruction of Justice
      Evans argues that the district court erred in finding that he obstructed
justice under § 3C1.1. More specifically, the court ruled that Evans had provided
the probation officer with materially false information during the presentence
investigation. Whether the district court correctly interpreted § 3C1.1 is a legal
question that is reviewed de novo, whereas the district court’s finding that Evans
obstructed justice is a factual finding that is reviewed for clear error. See United
States v. Huerta, 182 F.3d 361, 364 (5th Cir. 1999). A factual finding is not
clearly erroneous if it is plausible in light of the record as a whole. Id.



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      Pursuant to § 3C1.1, a two-level increase in the defendant’s offense level
is warranted if “the defendant willfully obstructed or impeded, or attempted to
obstruct or impede, the administration of justice with respect to the
investigation, prosecution, or sentencing of the instant offense of conviction” and
this conduct related to his offense of conviction and any relevant conduct, or to
a closely related offense. The commentary to § 3C1.1 specifically provides that
such conduct includes “providing materially false information to a probation
officer in respect to a presentence or other investigation for the court.” § 3C1.1,
comment. (n.4(H)). However, the commentary excludes providing “incomplete
or misleading information, not amounting to a material falsehood,” with respect
to a PSR.    § 3C1.1, comment. (n.5(C)).       “Material evidence” is defined as
“evidence, fact, statement, or information that, if believed, would tend to
influence or affect the issue under determination.” § 3C1.1, comment. (n.6).
This Court has noted that there is a “low threshold of materiality” in this
context. United States v. Ahmed, 324 F.3d 368, 373 (5th Cir. 2003).
      During the presentence interview, Evans told the probation officer that his
company was in the process of obtaining a $20 million contract with Globalstar,
an international telecommunications company. Initially, Evans represented to
the probation officer that “he was involved with the development of satellite
technology” for Globalstar. However, after Evans admitted that he had no
background in satellite technology, he changed his story and stated that the
contract    actually    involved   building    multiple   structures    to   house
telecommunications equipment in India and other countries. Evans admitted
that he had no experience working as a general contractor but claimed that he
had recently begun the process of obtaining a contractor’s license. Evans further
told the probation officer that he had planned to use the proceeds from this




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contract to pay for a house and an aircraft.1 After interviewing Evans, the
probation officer contacted Marty Nielsen, a representative of Globalstar.
Nielsen verified that he had communicated with Evans via telephone and email;
however, no contract had been discussed. Evans had requested a security fee to
begin a construction project. The probation officer’s investigation “revealed that
the defendant did not possess the means, equipment or ability to accomplish this
project.”   The probation officer concluded that Evans appeared to be
“fraudulently soliciting funds for work he had no intention of completing.” The
district court adopted the PSR.
      Evans first contends that the government did not introduce any evidence
supporting the adjustment and that the only evidence on which the district court

      1
             Here, the PSR provided that:

      During the course of conducting the presentence interview in this case, the
      defendant obstructed justice by providing false information to the Probation
      Officer. This was pursuant to the defendant’s continued assertion that he was
      in the process of obtaining a $20,000,000.00 contract from Globalstar, through
      his company, ECI., for the purpose of completing a construction project in India.
      Additionally, Globalstar is a telecommunications company, and the contract was
      reportedly secured for the purpose of constructing multiple buildings in India
      and other countries in order to house telecommunications equipment. Contact
      was subsequently made with a representative of Globalstar, Marty Nielsen, who
      verified that he had corresponded with the defendant via telephone and e-mails,
      but that no contract had been discussed or agreed upon between Globalstar and
      the defendant.

             Furthermore, pursuant to the defendant’s attempted acquisition of a
      $10,000,000.00 Cessna Citation X jet, in addition to the defendant’s new
      conviction for Forgery on January 11, 2011, which involved the attempted
      purchase of a $359,000.00 house; the defendant has asserted to this officer that
      in both of these instances he had intended to utilize funds obtained from the
      reported $20,000,000.00 contract with Globalstar in order to facilitate these
      purchases. However, as noted above, the defendant had not obtained a
      multi-million dollar contract from Globalstar or any other company, and should
      have known that while attempting to make the above noted purchases that he
      did not have access to any funds which would have enabled the acquisition of
      a house or a Cessna jet.



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relied in sentencing him was the PSR, which did not have sufficient indicia of
reliability. This argument is without merit. “As a general rule, a PSR bears
sufficient indicia of reliability, such that a sentencing judge may consider it as
evidence in making the factual determinations required by the Sentencing
Guidelines.” Huerta, 182 F.3d at 364. The district court may adopt the facts in
the PSR if they have an adequate evidentiary basis and the defendant does not
present rebuttal evidence. Id. Mere objections to the PSR are not competent
rebuttal evidence. Id. A defendant bears the burden of demonstrating that the
information in the PSR relied on by the district court is materially untrue.
United States v. Trujillo, 502 F.3d 353, 356 (5th Cir. 2007). Although Evans
objected to the conclusion in the PSR that he provided materially false
information, he failed to provide any rebuttal evidence. Accordingly, the district
court did not err in relying on the information in the PSR in determining that
the obstruction of justice enhancement applied.
      Evans contends that the information he provided the officer was neither
false nor material. Instead, Evans asserted that he had simply made some poor
business decisions.    Both in his written objections filed below and in his
appellate brief, Evans asserts that “[a]ny business decisions” he made “should
not be equated to fraud.” This assertion is puzzling in that Evans has pleaded
guilty to wire fraud in the case at bar. Also, Evan has admitted to producing a
fraudulent proof of funds document —purporting to originate from Bank of Nova
Scotia—in an attempt to purchase a home. That conduct, which occurred while
he was out on bond for the instant offense, underlies his conviction for
“misdemeanor attempted felony theft” in state court. Further, Evans provided
a fraudulent balance confirmation notice from Wachovia Bank, representing that




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                                     No. 11-30521

he had nearly $100,000,000 available in his account for immediate use in his
attempt to purchase a jet.2
      Nonetheless, Evans insists that he did not provide materially false
information because he admitted to the officer that he had used a fraudulent
document in an attempt to purchase the house and “explored the possibility of
buying an airplane.” Evans does not claim, however, that he admitted to the
probation officer that he used a separate, fraudulent balance confirmation in his
attempt to purchase the jet.          Although Evans attempted to paint these
transactions simply as poor business decisions, the district court rejected that
attempt, stating as follows:
      It’s whether somebody is providing materially false information to
      a probation officer in respect to a presentence investigation for the
      Court. That’s what is before us at this minute because I find that
      he, in respect to the contracting [with Globalstar in] India to build
      $20 million worth of buildings, the contract or the attempt to
      contract to buy a $10 million jet aircraft, this is akin to what I used
      to think was called the Munchausen syndrome [sic]. He’s telling
      this probation officer stuff that’s simply not true. That obstructs the
      writing of the Presentence Report and the information given to the
      Court. And I think the two points is relatively well-suited to the
      circumstances of Mr. Evans.

The court then overruled Evans’s objection, specifically pointing out the
“Wachovia Bank false paper [that] said that the $98,336,441.69 . . . was
available as a balance confirmation.” Subsequently, the court stated that “five
or six months after you were indicted, you were still involved in trying to
hornswoggle your way into a contract for which you were neither qualified nor
prepared.”
      Evans asserts that “[a]t most, an argument could be made that the
defendant provided incomplete or misleading information to the probation

      2
           At the time of the instant sentencing, Evans had not been prosecuted for that
conduct.

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                                  No. 11-30521

officer,” which does not qualify for an enhancement under the guidelines.
§ 3C1.1, comment. (n.5(C)). Contrary to Evans’s assertion, as quoted above, the
district court expressly recognized that § 3C1.1 requires that a defendant
provide “materially false information to a probation officer.” We understand the
district court found that Evans made materially false representations to the
probation officer regarding his attempt to purchase the aircraft.            More
specifically, Evans denies that he lied when he told the probation officer that he
expected to pay for the jet from the proceeds of the $20 million construction
contract with Globalstar. The district court did not believe Evans. Evans had
no contract with Globalstar at the time he made an offer for the jet. Globalstar’s
representative stated that there had been no discussions involving a contract.
Evans admitted that he had no background or experience in construction and
that he did not have a contractor’s license. There is no basis in the record for
Evans to have had a legitimate belief that he could provide the services needed
to obtain a $20 million contract with Globalstar. After reviewing the record,
including the transcript of the sentencing hearing, we are convinced that the
district court’s factual finding “is plausible in light of the record as a whole.”
Huerta, 182 F.3d at 364. Thus, Evans has not shown that the district court’s
finding that Evans provided the probation officer with false information is
clearly erroneous. Id.
      We now turn to materiality. As previously set forth, a statement is
material when, “if believed, [it] would tend to influence or affect the issue under
determination.” § 3C1.1, comment. (n.6). The government argues that Evans’s
misrepresentation regarding the contract was an attempt to mitigate or vitiate
any claim of fraudulent conduct in connection with his attempts to purchase the
jet and the house. We agree. The district court cited Evans’s post-indictment
fraudulent conduct as a “concern” when it imposed his sentence. Indeed, the
court principally relied on this conduct in choosing the above-the-guidelines

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                                  No. 11-30521

sentence. It is clear that, had the district court believed Evans’s statements that
his conduct was not fraudulent, those statements would have tended to influence
the district court’s choice of sentence. We therefore conclude that Evans’s lying
about his post-indictment conduct was relevant to a determination of his
sentence and thus material. Cf. United States v. Tello, 9 F.3d 1119, 1122-23 (5th
Cir. 1993) (affirming obstruction of justice enhancement where the defendant
omitted information regarding his prior criminal history); see also United States
v. Milton, 147 F.3d 414, 422 (5th Cir. 1998) (affirming application of obstruction
of justice enhancement where defendant failed to disclose significant assets to
the probation officer). Accordingly, Evans has not shown that the district court
clearly erred in applying the two-level enhancement for obstruction of justice.
            B.     Acceptance of Responsibility
      Evans contends that the district court erred in denying him a reduction
in his offense level based on his acceptance of responsibility under § 3E1.1. A
defendant’s offense level may be reduced by as many as three levels if the
defendant “clearly demonstrates acceptance of responsibility for his offense.”
§ 3E1.1. We review a determination of acceptance of responsibility with even
greater deference than under a clearly erroneous standard; the district court’s
ruling on acceptance of responsibility “should not be disturbed unless it is
without foundation.” United States v. Washington, 340 F.3d 222, 227 (5th Cir.
2003) (internal citations and quotations omitted).
      The district court denied the reduction because Evans continued
committing fraud “while he was out on bond for this offense.” More specifically,
after Evans was indicted for the instant federal offense, he committed fraudulent
conduct in an attempt to purchase a house. As a result, Evans pleaded guilty to
theft in state court. During sentencing in the instant case, Evans objected to the
PSR, arguing that he “refrain[ed] from criminal activity after entering into the



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Plea Agreement, but he accepted responsibility for his criminal conduct in state
court prior to entering into the Plea Agreement.”
       The commentary to § 3E1.1 provides that when determining whether a
defendant qualifies for a reduction based on acceptance of responsibility, it is
appropriate to consider whether there had been “voluntary termination or
withdrawal from criminal conduct or associations.” In denying the instant
reduction, the district court found that Evans “hasn’t stopped his criminal
activity while he’s . . . on this Court’s bond. His acceptance of responsibility is
totally inappropriate.” Evans objected to the PSR’s recommending denial of the
reduction, arguing that he terminated his criminal conduct after he entered into
the plea agreement. Evans clearly had not voluntarily terminated his criminal
conduct because he committed fraud after being indicted for the instant offense.
Indeed, Evan’s criminal conduct only terminated once his bond was revoked, and
he was returned to custody. Under these circumstances, the district court’s
decision to deny the reduction for acceptance of responsibility is not without
foundation.3
       Additionally, in the plea agreement, the government had moved for Evans
to receive a one-point reduction in his offense level “should that offense level be
16 or greater” based on Evans’s assisting the authorities in the investigation and
his timely notifying the government of his intent to plead guilty. For the first
time on appeal, Evans argues that the government breached the plea agreement
because it argued against the reduction for acceptance of responsibility. Thus,
this claim must be reviewed for plain error. United States v. Puckett, 505 F.3d
377, 386 (5th Cir. 2007).         To show plain error, Evans must demonstrate:



       3
         Moreover, conduct resulting in an enhancement for obstruction of justice “ordinarily
indicates that the defendant has not accepted responsibility for his criminal conduct.” § 3E1.1,
comment. (n.4). However, a defendant can receive adjustments under both §§ 3C1.1 and 3E1.1
in an “extraordinary” case. Id. Evans has not shown that this case is extraordinary.

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(1) error; (2) that is plain; and (3) affects substantial rights. Id. at 384. If these
“three elements of plain error are present, relief on appeal is discretionary, not
mandatory. A court of appeals should exercise its discretion only when a plain
error seriously affect[s] the fairness, integrity, or public reputation of judicial
proceedings.” Id. (citation and internal quotation marks omitted) (brackets in
opinion).
      The plea agreement contained only one reference to a reduction for
acceptance of responsibility. As set forth above, the government had agreed to
move for Evans to receive a one-point reduction in his offense level “should that
offense level be 16 or greater.” Because Evan’s offense level was not 16 or
greater, Evans has not shown any error was plain with respect to whether the
government breached the plea agreement. Even assuming there was error that
was plain, Evans “has made no showing that, absent the government’s
recommendation, the district court would have disregarded his criminal conduct
and granted the reduction for acceptance of responsibility.” Puckett, 505 F.3d at
386. Thus, he has not shown that his substantial rights were affected.
             C.    Reasonableness of Sentence
      Evans argues that the district court abused its discretion by imposing a
60-month sentence. The probation officer calculated a guideline range of 18 to
24 months. Evans asserts that even had the district court hypothetically given
him three criminal history points for both his dealings with Globalstar and his
attempt to buy an airplane, this would have put him in criminal history category
III, and his guidelines range still would have been only 24-30 months. He
contends that he has no prior criminal history, he has no history of the use or
sale of illegal drugs, and he is educated and able to be rehabilitated. Based on
his circumstances, Evans asserts that the length of his sentence is unreasonable.
      The substantive reasonableness of a sentence is reviewed in light of the
sentencing factors in 18 U.S.C. § 3553(a). United States v. Key, 599 F.3d 469,

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475 (5th Cir. 2010); United States v. Mares, 402 F.3d 511, 519–20 (5th Cir. 2005).
However, because Evans did not challenge the substantive reasonableness of the
sentence after it was imposed, this issue is reviewable only for plain error. See
United States v. Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir. 2009). Here,
the district court expressed concern regarding Evans’s continuing deceptive and
criminal behavior following his indictment on thirteen charges. The court also
noted the extensive and inventive nature of Evans’s deception.                          These
considerations supported an above guidelines sentence based on the nature and
circumstances of the offense and the offender’s characteristics, as well as the
need to protect the public, to provide a just punishment, to deter Evans from
future criminal conduct, and to provide restitution to victims of the offense. See
§ 3553(a). The record demonstrates that the district court properly considered
the § 3553(a) factors.4
      Further, despite Evans’s lack of criminal history, the district court was in
the best position to judge the defendant and the circumstances of the offense, the
court considered the appropriate sentencing factors, and it articulated reasons
for the sentence imposed. See Gall v. United States, 552 U.S. 38, 51-52 (2007)
(recognizing the district court’s superior position to make the § 3553(a)

      4
          At the end of the sentencing hearing, the district court stated as follows:

      I will adopt the findings of the Presentence Report, and pursuant to the Sentencing
      Reform Act of 1984, and particularly pursuant to the sentencing factors in [§] 3553(a)
      where the Court is required to consider to impose a sentence sufficient but not greater
      than necessary. And in particular, the Court will look at the kinds of sentencing
      available and the range established by the guidelines, but also an appreciation of the
      nature and circumstances of the offense, the history and characteristics of the
      defendant, the need to reflect [the] seriousness of the offense, and provide a just
      punishment, promote respect for the law. It also adds: The need to a full, adequate
      deterrence, that is, deterrence of any future criminal conduct. The need to protect the
      public from further crimes of the defendant, and the need to provide the defendant with
      needed educational or vocational training, medical care, or other correctional treatment
      in the most effective manner, to avoid unwarranted sentencing disparities between you
      and the other guys that I have to sentence on similar subjects, and the need to provide
      restitution. All of these factors in [§] 3553(a) have been considered.

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                                 No. 11-30521

determination and holding that the fact that an appellate court might have
imposed a different sentence is not sufficient to reverse the district court’s
decision). Although Evans’s sentence is two and a half times the guideline
range, we have upheld more significant variances. See, e.g., United States v.
Brantley, 537 F.3d 347, 349–50 (5th Cir. 2008) (upholding an upward variance
to 180 months from an advisory maximum of 51 months); United States v. Jones,
444 F.3d 430, 433, 441–42 (5th Cir. 2006) (affirming an upward variance or
departure to 120 months from a range of 46 to 57 months). Evans has shown no
error, plain or otherwise, with respect to the substantive reasonableness of his
60-month sentence.
      III.   CONCLUSION
      Accordingly, the district court’s judgment is AFFIRMED.




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