     Case: 12-41297      Document: 00512563126         Page: 1    Date Filed: 03/17/2014




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

                                                                               FILED
                                      No. 12-41297                        March 17, 2014
                                                                          Lyle W. Cayce
UNITED STATES OF AMERICA,                                                      Clerk


                                                 Plaintiff - Appellee
v.

ANDREA C. ANDERSON; NORMAN STAUBYN ANDERSON,

                                                 Defendants - Appellants




                  Appeals from the United States District Court
                        for the Eastern District of Texas
                            USDC No. 4:10-CR-194-1


Before JOLLY, HIGGINBOTHAM, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Andrea C. Anderson and Norman Staubyn Anderson were indicted on
one count of conspiracy to commit wire fraud and eleven counts of wire fraud.
A federal jury convicted the Andersons on all counts and the district judge
sentenced them to 57 months of imprisonment. The Andersons now appeal
their conviction and sentence. We will affirm.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 12-41297
                                                I
                                                A
      On September 8, 2010, a grand jury returned an indictment charging
Andrea C. Anderson and Norman Staubyn Anderson on twelve counts. Count
One charged the Andersons with conspiracy to commit wire fraud, in violation
of 18 U.S.C. § 1349. Count Two through Twelve charged the Andersons with
wire fraud, in violation of 18 U.S.C. § 1343. 1 The Andersons pled not guilty to
these counts.
      The Andersons were tried before a jury. When the Government finished
its case-in-chief, the Andersons moved for judgment of acquittal in accordance
with Federal Rule of Criminal Procedure 29, 2 but that motion was denied. The
Andersons presented no witnesses, and the Government presented no rebuttal
case. The jury returned verdicts of guilty as to both the Andersons for all twelve
counts.
      The Andersons were sentenced on November 15, 2012. The district court
sentenced each Anderson to 57 months of imprisonment followed by 3 years on
supervised release with respect to Counts One through Twelve, to be served
concurrently. While the fines were waived, the district court made a special
assessment of $1,200 for each Anderson, ordered restitution in the amount of
$915,687.63 be paid jointly and severally, and imposed special conditions on
supervised release.
                                                B
      Between 2005 and 2009, the Andersons ran a Ponzi scheme that
defrauded several victims of their money. As the evidence at trial adduced, the



      1  The Andersons were also indicted for 18 U.S.C. § 2, which makes it a crime to aid
and abet a crime. However, their final convictions were only for the conspiracy charge and
the substantive charges of wire fraud.
       2 Fed. R. Crim. P. 29.

                                            2
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                                  No. 12-41297
Andersons claimed to potential victims that they were successful investors and
wanted to help their families and friends find success in investing. The
Andersons would usually tell their victims that Andrea Anderson had a sister,
often named Lenore Lawrence, who worked at Goldman Sachs. They also
claimed that they had an investment account at Goldman Sachs with a huge
sum of money. They claimed that Lenore would be the one purchasing the
stocks for which the victims were paying. For example, one victim was
informed that he was buying stocks of Rosetta Stone, while another was
informed that he was buying the initial public stock offering of VISA. Victims
sent their money to the Andersons’ personal bank accounts in a variety of ways,
including wire transfers, cashier’s checks, personal checks, and cash. The
Andersons sent the victims emails confirming that the payments had been
made, and sometimes even asked for more money so that the Andersons could
finish the purported transaction. The Andersons did own a few investing
accounts at TD Ameritrade. Some victims did receive some money back from
their investment. But usually this was money taken from one victim and given
to another; for example, as Special Agent Scott Nicoll of the U.S. Secret Service
testified, “[t]he same day, in fact that funds came in from one investor, the
money went right back out to another investor.” At other times, instead of
sending the principal and interest back to the victim as promised, the
Andersons would claim that they had reinvested the money because “[n]ow is
not the time not to invest.”
      Victims also got emails that were supposedly from Lenore Lawrence that
claimed that the victims’ instructions (to sell off stocks and return their money)
were being followed. But no one ever met Lawrence or spoke to her on the
phone. Some victims demanded their money back repeatedly to no avail.
Andrea Anderson responded to some victims by forwarding emails that were
supposedly from Goldman Sachs employees, but the evidence showed that
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                                    No. 12-41297
these emails were forgeries. For instance, Andrea Anderson met with Goldman
Sachs employees acting as though she wanted to open an account, and they
would email her to follow up on their initial meeting. Anderson would proceed
to modify these emails and forward them to the victims.
      The evidence showed that Goldman Sachs did not employ a “Lenore
Lawrence” and that the Andersons did not own an investment account at
Goldman Sachs. The evidence also showed that though the Andersons did
invest some of the money, they had never made handsome returns on their
investments and mostly had losses. The evidence also demonstrated that the
Andersons had no other source of income, and that they used the victims’
money for personal expenses. Ultimately, 11 victims lost a grand total of
$915,687.63.
                                                C
      After a Presentence Investigation Report (PSR) was made available as
to both the Andersons, they filed joint objections contending that the loss
amount and the number of victims had been wrongly calculated.
      First, the PSRs calculated the loss amount as $1,009,712.72. This led to
a 16-level increase under U.S.S.G. § 2B1.1(b)(1)(I), which applies if the loss is
more than $1,000,000. 3 The Andersons contended that the loss amount was
less than $1,000,000, and the Government conceded this point. The Andersons
argued    that   only    a   14-level    increase    should     have     applied   under
§ 2B1.1(b)(1)(H), which applies if the loss is more than $400,000. 4
      Second, the PSRs calculated the number of victims as 11. This led to a 2-
level increase under § 2B1.1(b)(2)(A)(i), which applies if the offense involves 10
or more victims. 5 The Andersons contended that only 9 victims were involved.


      3 See U.S. Sentencing Guidelines Manual § 2B1.1(b)(1)(I) (2012).
      4 Id. § 2B1.1(b)(1)(H).
      5 Id. § 2B1.1(b)(2)(A)(i).

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                                       No. 12-41297
The Andersons argued that no increase should have been applied.
       Revised PSRs issued which took into account these objections. The loss
amount was now changed to $915,687.63, leading to a 14-level enhancement
under § 2B1.1(b)(1)(H). But the amount of victims was still calculated to be 11,
and the 2-level increase under § 2B1.1(b)(2)(A)(i) still applied.
       At the sentencing hearing, the Andersons indicated they were satisfied
with the resolution of the objection as to the loss amount. 6 However, they
renewed their objection as to the amount of victims and the application of
§ 2B1.1(b)(2)(A)(i). The district court overruled that objection. The district
court proceeded to adopt the revised PSRs. The total offense level for each
defendant was 23, and both defendants had a criminal history level of I, which
yielded a Guidelines range of 46 to 57 months. The Andersons urged a sentence
on the lower end, but denied the allegations and did not express remorse. The
district court sentenced the Andersons to 57 months of imprisonment followed
by 3 years on supervised release with respect to Counts One through Twelve,
to be served concurrently, as well as ordering restitution and special
assessments.
       The Andersons now appeal.
                                                  II
       The Andersons first argue that the evidence is insufficient to sustain the
jury’s verdict of guilty on the twelve counts of conviction.
       We review a challenge to the sufficiency of evidence following a proper




       6 Andrea Anderson still had some objections as to the way the specific loss amount
was calculated for one of the victims (Shamla Naidoo) for purposes of restitution, but clearly
conceded that it would not make a difference as to sentencing because the revised PSR
already recommended the 14-level increase. In any case, the district court overruled this
objection, with the proviso that if some documentation later supported the objection, then it
would be reviewed again.
                                              5
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                                         No. 12-41297
motion for acquittal de novo. 7 “When reviewing the sufficiency of the evidence,
we view all evidence, whether circumstantial or direct, in the light most
favorable to the government, with all reasonable inferences and credibility
choices to be made in support of the jury’s verdict.” 8 We “must affirm if a
rational trier of fact could have found that the evidence established the
essential elements of the offense beyond a reasonable doubt.” 9
          The Andersons were convicted of one count of conspiracy to commit wire
fraud under 18 U.S.C. § 1349. To prove a conspiracy to commit wire fraud, the
Government had to prove beyond a reasonable doubt that (1) two or more
persons made an agreement to commit wire fraud; (2) that the defendant knew
the unlawful purpose of the agreement; and (3) that the defendant joined in
the agreement willfully, in other words, with the intent to further the unlawful
purpose. 10 The agreement may be silent and does not need to be formal or
spoken. 11 “An agreement may be inferred from concert of action, voluntary
participation may be inferred from a collection of circumstances, and
knowledge may be inferred from surrounding circumstances.” 12
          The Andersons were also convicted of eleven counts of the substantive
crime of wire fraud under 18 U.S.C. § 1343. To prove wire fraud, the
Government had to prove beyond a reasonable doubt “(1) a scheme to defraud
and (2) the use of, or causing the use of, wire communications in furtherance
of the scheme.” 13 Additionally, even though not within the language of § 1343,


          7 United States v. Winkler, 639 F.3d 692, 696 (5th Cir. 2011).
          8 United States v. Ford, 558 F.3d 371, 375 (5th Cir. 2009).
          9 Winkler, 639 F.3d at 696 (quoting United States v. Lopez, 74 F.3d 575, 577 (5th Cir.

1996)).
           United States v. Grant, 683 F.3d 639, 643 (5th Cir. 2012).
          10

           Id.
          11
        12 United States v. Stephens, 571 F.3d 401, 404 (5th Cir. 2009) (quoting United States

v. Bieganowski, 313 F.3d 264, 276 (5th Cir. 2002)).
        13 United States v. Radley, 632 F.3d 177, 184 (5th Cir. 2011) (quoting United States v.

Ingles, 445 F.3d 830, 838 (5th Cir. 2006)).
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                                       No. 12-41297
“materiality of falsehood is an element” of the crime. 14 “A material statement
has a natural tendency to influence, or is capable of influencing, the decision
of the decision-making body to which it was addressed.” 15 “Violation of the
wire-fraud statute requires the specific intent to defraud, i.e., a ‘conscious
knowing intent to defraud.’” 16
       For the conspiracy conviction, the Andersons assert that there is
insufficient evidence as to all the essential elements. However, the
Government points to evidence from which a rational trier of fact could have
drawn the necessary inferences.
       Several victims testified that the Andersons worked in tandem. For
example, victim Phillip Douglas was introduced to the Andersons by another
victim, his ex-girlfriend Deborah Ford. “She just said [that she was investing
with] Andrea and Norman, because they were like one. One person, basically.
They were a couple.” Victim Rafael Green testified that he was in frequent
email contact with Andrea Anderson, then she forwarded him a “Goldman
Sachs” email, and he later got repayment from Norman Anderson as promised
by the email. Norman Anderson convinced victim Deborah Ford to invest, but
the payment instruction were sent by both spouses. Victim Donel Miller
communicated with both spouses about the investment: “Norman stopped
responding and then Andrea started responding.” Victim Don Henrique was in
touch with Andrea Anderson, but then Norman Anderson responded when
legal action was threatened. Victim Danta Mason talked to both the spouses
about the details of the investment.
       Not     only    that     but    both       spouses    were     making       material


       14 Neder v. United States, 527 U.S. 1, 25 (1999).
       15 United States v. Valencia, 600 F.3d 389, 426 (5th Cir. 2010) (citation omitted)
(internal quotation marks omitted).
       16 United States v. Brooks, 681 F.3d 678, 700 (5th Cir. 2012) (quoting United States v.

Reyes, 239 F.3d 722, 736 (5th Cir. 2001)).
                                              7
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                                     No. 12-41297
misrepresentations. Both spouses met with victims Tom Parrish and his wife:
“They told us that they . . . had a private family hedge fund with Andrea’s sister
and her cousin, her sister Lenore and her cousin Joy. That one of them worked
for Goldman Sachs, and the other worked for BlackRock in New York City.”
Both statements were false. The record is replete with similar evidence. Given
all this evidence, a rational trier of fact could have found all three elements of
conspiracy to commit wire fraud beyond a reasonable doubt.
      As to the substantive crime of wire fraud, the Andersons argue there is
insufficient evidence to show the specific intent to defraud. However, a rational
trier of fact could have found this specific intent beyond a reasonable doubt
simply from the fact that the Andersons were lying about their connection to
Goldman Sachs, among other things. These lies were intended to get people to
invest with them.
      The evidence at trial was sufficient to support the Andersons’ convictions
on all counts.
                                           III
      The Andersons claim that Count One of the indictment should have been
dismissed because it fails to state an offense. The Andersons argue that 18
U.S.C. § 1349 is a penalty provision only, and that it is unconstitutional to
apply it as a criminal offense because it gives no notice to the public of what
constitutes a conspiracy to commit wire fraud.
      We review de novo the district court’s denial of the Andersons’ motion to
dismiss the indictment. 17 The district court’s factual findings in connection
with the ruling are accepted unless clearly erroneous. 18
      Enacted as part of the Sarbanes-Oxley Act of 2002, 19 18 U.S.C. § 1349


      17 United States v. Villanueva-Diaz, 634 F.3d 844, 848 (5th Cir. 2011)
      18 Id.
      19 Pub. L. No. 107-204, 116 Stat. 745.

                                            8
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                                       No. 12-41297
provides:
              Any person who attempts or conspires to commit any
              offense under this chapter shall be subject to the same
              penalties as those prescribed for the offense, the
              commission of which was the object of the attempt or
              conspiracy. 20

       According to the Andersons the fatal flaw in this language is that it does
not contain the requirements of a conspiracy. Looking to 18 U.S.C. § 371, 21 the
Andersons complain that § 1349 does not contain the essential elements of an
overt act or even conspiratorial agreement between two or more people. The
Government responds by explaining that § 1349 parallels 21 U.S.C. § 846, a
freestanding drug conspiracy offense. The two provisions are almost identical.
Section 846 provides:
              Any person who attempts or conspires to commit any
              offense defined in this subchapter shall be subject to
              the same penalties as those prescribed for the offense,
              the commission of which was the object of the attempt
              or conspiracy. 22

Like § 1349, § 846 also lacks an overt act requirement. But the Supreme Court
has held that there is no constitutional problem with the lack of an overt act




       20 18 U.S.C. § 1349.
       21 18 U.S.C. § 371 provides:
                      If two or more persons conspire either to commit any
              offense against the United States, or to defraud the United
              States, or any agency thereof in any manner or for any purpose,
              and one or more of such persons do any act to effect the object of
              the conspiracy, each shall be fined under this title or imprisoned
              not more than five years, or both.
                      If, however, the offense, the commission of which is the
              object of the conspiracy, is a misdemeanor only, the punishment
              for such conspiracy shall not exceed the maximum punishment
              provided for such misdemeanor.
18 U.S.C. § 371.
       22 21 U.S.C. § 846.

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                                       No. 12-41297
requirement in § 846, and has upheld convictions under that provision. 23 The
Supreme Court has similarly found other conspiracy statutes lacking an overt
act requirement constitutional. 24 Similarly, we have clarified that § 1349
indeed does not contain an overt act requirement, and have refused to dismiss
an indictment where the defendant was arguing that being charged under both
§§ 1349 and 371 violated the prohibition on multiplicity. 25
       That § 1349 does not contain an explicitly stated requirement of two or
more persons agreeing should not be problematic given that § 846 and similar
conspiracy statutes also do not have this language. Finally, the fact that
“attempts” and “conspires” are undefined is not a problem because even the
Andersons’ prime example, § 371, does not define “conspire.”
       The Andersons’ contention that § 1349 is penalty provision because of
the circumstances of its legislative birth is also unpersuasive. Section 1349 was
originally in Title IX of the Sarbanes-Oxley Act of 2002, 26 which was entitled
“White-Collar Crime Penalty Enhancements.” 27 However, as the Supreme
Court has previously clarified, the heading of a statute is only helpful if there
is some doubt about the meaning of the statute. 28 Here, this is no ambiguity.



       23  United States v. Shabani, 513 U.S. 10, 15 (1994) (“What the Ninth Circuit failed to
recognize we now make explicit: In order to establish a violation of 21 U.S.C. § 846, the
Government need not prove the commission of any overt acts in furtherance of the
conspiracy.”).
        24 See Whitfield v. United States, 543 U.S. 209, 214 (2005) (upholding money

laundering conspiracy provision despite lack of overt act requirement); Salinas v. United
States, 522 U.S. 52, 63 (1997) (upholding RICO conspiracy provision despite lack of overt act
requirement).
        25 United States v. Jones, 733 F.3d 574, 584 (5th Cir. 2013).
        26 Section 1349 appeared as § 902 in the Act. See Sarbanes-Oxley Act of 2002, Pub. L.

No. 107-204, § 902, 116 Stat. 745, 805.
        27 See Sarbanes-Oxley Act of 2002, Pub. L. No. 107-204, § 901, 116 Stat. 745, 804.
        28 Almendarez-Torres v. United States, 523 U.S. 224, 234 (1998) (“We also note that

the title of a statue and the heading of a section are tools available for the resolution of a
doubt about the meaning of a statute.”) (citations omitted) (internal quotation marks
omitted).
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                                     No. 12-41297
Section 1349 is clearly a freestanding criminal charge. The Andersons’
contention that the district court erred by not dismissing the indictment fails.
                                           IV
       The Andersons argue that the district court erred by admitting into
evidence the Maryland Securities Board Cease and Desist Order in violation
of Federal Rule of Evidence 404(b).
       The Cease and Desist Order was submitted as the Government’s Exhibit
127. The Order alleges that in July 2007, Norman Anderson solicited money
from a Maryland resident and promised to pay back the principal and a
substantial amount of interest in a short period of time. Even though the
investor got back some money, he never got back the full promised amount.
       We review the admission of evidence under Rule 404(b) under a
“heightened” abuse of discretion standard. 29 “[E]vidence in criminal trials must
be ‘strictly relevant to the particular offense charged.’” 30 But even if the district
court abuses its discretion, we do not reverse if the error was harmless. 31 An
error is considered harmless when it does not affect the substantial rights of
the defendant, but the government has the burden of establishing such
harmlessness beyond a reasonable doubt. 32
       Under Rule 404(b), “[e]vidence of a crime, wrong, or other act is not
admissible to prove a person’s character in order to show that on a particular
occasion the person acted in accordance with the character.” 33 But such
evidence may be admissible for another purpose, such as to prove “motive,
opportunity, intent, preparation, plan, knowledge, identity, absence of



       29 United States v. Templeton, 624 F.3d 215, 221 (5th Cir. 2010)
       30 United States v. Hays, 872 F.2d 582, 587 (5th Cir. 1989) (quoting Williams v. New
York, 337 U.S. 241, 247 (1949)).
       31 United States v. Jackson, 339 F.3d 349, 354 (5th Cir. 2003).
       32 United States v. McCall, 553 F.3d 821, 827 (5th Cir. 2008).
       33 Fed. R. Evid. 404(b).

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                                      No. 12-41297
mistake, or lack of accident.” 34
       Under United States v. Beechum, 35 we engage in a two-step process in
analyzing whether extrinsic evidence was admissible. “First, it must be
determined that the extrinsic offense evidence is relevant to an issue other
than the defendant’s character.” 36 “Second, the evidence must possess
probative value that is not substantially outweighed by its undue prejudice
and must meet the other requirements of [Federal Rule of Evidence] 403.” 37
       As to the first step of Beechum, both conspiracy and the substantive
charge of wire fraud require the government to prove intent, 38 and for the
conspiracy charge the government also has to prove knowledge. 39 By pleading
not guilty and requiring the Government to prove the elements of its case, the
Andersons made evidence of their intent and knowledge relevant. 40 The Cease
and Desist Order surely goes to their intent to defraud and knowledge of the
unlawfulness of the conspiracy, which are issues other than character.
       However, the Government’s contention that this evidence was relevant
as to absence of mistake or lack of accident is problematic. From the record, it
does not appear that the Andersons claimed that they accidentally or
mistakenly committed wire fraud or conspired to commit wire fraud.
“[A]bsence of mistake or accident need not be proved by the government unless
raised by the defense.” 41 Therefore, this extrinsic evidence could not have been



       34 Id.
       35 582 F.2d 898 (5th Cir. 1978) (en banc).
       36 Id. at 911.
       37 Id.
       38 Brooks, 681 F.3d at 699–700 (explaining that conspiracy has two intent

requirements “intent to further the unlawful purpose and the level of intent required for
proving the underlying substantive offense,” and that the offense of wire fraud, which is the
underlying substantive offense here, “requires the specific intent to defraud”).
       39 Grant, 683 F.3d at 643.
       40 See McCall, 553 F.3d at 828.
       41 Id.

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                                      No. 12-41297
admissible to show absence of mistake or lack of accident.
       As to the second step of Beechum, the Cease and Desist Order does not
present a problem. There was extensive evidence from victims about how much
money they had lost and the operations of the scheme. Given this evidence, the
probative value of the Order was not substantially outweighed by unfair
prejudice or any other Rule 403 dangers. The district court did not err in
admitting the Order.
                                             V
       The Andersons argue that the district court erred by admitting into
evidence the testimony of those victims who were not named in the indictment:
Peter Palmer, Don Henriques, Danta Mason, Rafael Green, Andrew Anderson,
Phillip Douglas, and Deborah Ford.
       Before getting to the Rule 404(b) inquiry, it is important to examine
whether this evidence is even extrinsic, because “[i]nstrinsic evidence is
generally admissible, and its admission is not subject to” Rule 404(b). 42
“Evidence of an uncharged offense arising out of the same transactions as the
offenses charged in the indictment is not extrinsic evidence within the meaning
of Rule 404(b), and is therefore not barred by the [R]ule.” 43 Evidence is intrinsic
“when the evidence of the other act and the evidence of the crime charged are
inextricably intertwined or both acts are part of a single criminal episode or
the other acts were necessary preliminaries to the crime charged.” 44
       Here, the Government contends that this evidence is intrinsic because
the victims who were not named in the indictment were part and parcel of the
same conspiracy and scheme, and this evidence allowed the jury to consider all



       42 United States v. Freeman, 434 F.3d 369, 374 (5th Cir. 2005).
       43 United States v. Maceo, 947 F.2d 1191, 1199 (5th Cir. 1991).
       44 Freeman, 434 F.3d at 374 (quoting United States v. Williams, 900 F.2d 823, 825 (5th

Cir. 1990)) (internal quotation marks omitted).
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                                      No. 12-41297
the circumstances of the crimes. For example, Peter Palmer (an unnamed
victim) referred the Parrishes (named victims) to the Andersons. Similarly,
when Jan Desper (a named victim) “started getting nervous” she reached out
to Danta Mason (an unnamed victim): “[W]e would talk, and I would just share
notes with her as to whether or not you’re getting your money back, how easy
are you getting your money back.” Such connections between the named and
unnamed victims show that the evidence of the other act is inextricably
intertwined with the charged crime. In United States v. Freeman, 45 we held
that evidence of an uncharged Ponzi scheme was intrinsic to the charged Ponzi
scheme because the “uncharged offense arose out of the same series of
transactions, because the funds were co-mingled and used to make lulling
payments to investors from both schemes.” 46 We find similar inextricable
intertwinement here.
      Even if this were extrinsic evidence, it would still be admissible through
Rule 404(b). This evidence would go to prove intent and knowledge (as
discussed with the Cease and Desist Order). Finally, we find that the probative
value of this evidence was not substantially outweighed by its prejudicial effect
or any other Rule 403 dangers. The district court did not err in admitting this
evidence.
                                             VI
      The Andersons contend that the district court erred in calculating the
number of victims, and thus in imposing the 2-level increase under U.S.S.G.
§ 2B1.1(b)(2)(A)(i).
      We review a district court’s interpretation or application of the
Sentencing Guidelines de novo and its factual findings for clear error. 47 No


      45 434 F.3d 369 (5th Cir. 2005).
      46 Id. at 374.
      47 United States v. Trujillo, 502 F.3d 353, 356 (5th Cir. 2007).

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                                     No. 12-41297
clear error has occurred if the district court’s finding is plausible in light of the
record as a whole. 48
      Under § 2B1.1(b)(2)(A)(i), if the offense involved 10 or more victims, the
offense level is increased by two levels. 49 The commentary to § 2B1.1 defines
“victim” as, among other things, “any person who sustained any part of the
actual loss.” 50 “Actual loss” is defined as “the reasonably foreseeable pecuniary
harm that resulted from the offense.” 51
      The Andersons contend that there were just 9, not 11, victims because
Phillip Douglas collected and combined his investments with those of two
others investors, his former girlfriend Deborah Ford and his friend Derek
Bailey. Since the Andersons returned more money to Douglas than he put in,
the Andersons contend that Ford and Bailey do not count as victims because
that extra money was really directed at Ford and Bailey.
      At the sentencing hearing, the district court rejected this argument,
saying “I think that the number of victims was at least 10 and probably 11.”
First, the district court found that neither Ford nor Bailey got their money
back. Second, even if Bailey had pooled his money with Douglas, the district
court found that Ford had not done so and could be counted as a separate
victim: “[S]he didn’t get paid back because they didn’t pay people back.”
      This factual finding is clearly plausible in light of the record as a whole.
On the one hand, Phillip Douglas testified at trial that at some point he was
“forced to be the go-to person” between the Andersons and Ford and Bailey,
and therefore accepted payments on their behalf from the Andersons. But he
also testified that the Andersons never gave him instructions on how to divide



      48 United States v. Harris, 597 F.3d 242, 250 (5th Cir. 2010).
      49 U.S. Sentencing Guidelines Manual § 2B1.1(b)(2)(A)(i) (2012).
      50 Id. § 2B1.1 cmt. n.1.
      51 Id. § 2B1.1 cmt. n.3(A)(i).

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                                      No. 12-41297
up the money he received as returns from them. On the other hand, Ford
transmitted money directly to the Andersons. And she testified that while she
gave about $10,000, she got back about $6,000. The district court did not
clearly err in finding that Ford was a victim who suffered actual loss.
Furthermore, while Bailey did pool his investment and gave his share of
$15,000 to the Anderson via Douglas, he never got any money back. During the
sentencing hearing, Special Agent Nicoll testified that “while the funds given
to the Andersons between Mr. Bailey and Mr. Douglas were intermingled, the
actual returns were not clear as to what money would be going where and Mrs.
Ford had direct dealings.” Thus, the district court would not have clearly erred
had it found Bailey was a victim as well.
      The district court did not clearly err in finding that there were at least
10 victims, justifying the § 2B1.1(b)(2)(A)(i) enhancement.
                                            VII
      The Andersons argue that the district court imposed a substantively
unreasonable sentence under 18 U.S.C. § 3553(a).
      It is well settled that the Sentencing Guidelines are advisory, 52 and
sentencing decisions are examined for reasonableness. 53 Because the
Andersons did not challenge the reasonableness of their sentence at the district
court level, we review for plain error. 54 Under plain error review, the
sentencing decision can be corrected only if “(1) there is error (and in light of
Booker, an ‘unreasonable’ sentence equates to a finding of error); (2) it is plain;
and (3) it affects substantial rights. 55 Even with a finding of all three prongs,
Federal Rule of Criminal Procedure 52(b) “leaves the decision to correct the



      52 United States v. Booker, 543 U.S. 220, 245 (2005).
      53 Gall v. United States, 552 U.S. 38, 45–46 (2007).
      54 United States v. Peltier, 505 F.3d 389, 391–92 (5th Cir. 2007).
      55 Id. at 392.

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                                       No. 12-41297
forfeited error within the sound discretion of the court of appeals, and the court
should not exercise that discretion unless the error seriously affect[s] the
fairness, integrity or public reputation of judicial proceedings.” 56
       “Properly calculated within-Guidelines sentences enjoy a presumption of
reasonableness that is rebutted only upon a showing that the sentence does
not account for a factor that should receive significant weight, it gives
significant weight to an irrelevant or improper factor, or it represents a clear
error of judgment in balancing sentencing factors.” 57 When a district court
imposes a within-Guidelines sentence, we “infer that the judge has considered
all the factors for a fair sentence . . . , and it will be rare for a reviewing court
to say such a sentence is ‘unreasonable.’” 58
       Here, the district court sentenced the Andersons to 57 months in prison,
a within-Guidelines sentence. The district court correctly noted that the
Sentencing Guidelines are advisory. And it stated that “[t]he court has fully
considered the U.S. Sentencing Guidelines as well as provision of [18 U.S.C.
§ 3553(a)] in determining an appropriate sentence for these defendants.” The
district court noted that it found the sentences reasonable “in view of the
nature and circumstances of the offense.” As to both sentences, the court found
that they would “serve as just punishment, promote respect for the law, and
deter future violations of the law.” Given the within-Guidelines sentences and
the district court’s consideration of § 3553(a), the Andersons have not overcome
the presumption of reasonableness. The sentences imposed were reasonable,


       56 United States v. Olano, 507 U.S. 725, 732 (1993) (citations omitted) (internal
quotation marks omitted).
       57 United States v. Brown, 727 F.3d 329, 342 (5th Cir. 2013) (citation omitted) (internal

quotation marks omitted). The Andersons also take issue with this presumption, arguing
that within-Guidelines sentences should not be presumed to be reasonable. However, this
argument is clearly foreclosed by our precedent.
       58 United States v. Smith, 440 F.3d 704, 707 (5th Cir. 2006) (quoting United States v.

Mares, 402 F.3d 511, 519 (5th Cir. 2005)).
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                                 No. 12-41297
and the district court did not commit plain error.
                                        VIII
      For the foregoing reasons, all of the Andersons challenges to their
convictions and sentences fail. The district court is AFFIRMED.




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