                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                  April 20, 2006

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 05-30229
                          Summary Calendar



                      UNITED STATES OF AMERICA,

                         Plaintiff-Appellee,

                               versus

             ROBERT H. THOMAS, also known as Bob Thomas;
         WILLIAM M. THORNHILL, also known as Bill Thornhill,

                       Defendants-Appellants.

                         --------------------
            Appeal from the United States District Court
                for the Western District of Louisiana
                      USDC No. 1:03-CR-10022-2
                         --------------------

Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

     Robert H. Thomas and William M. Thornhill were convicted of

conspiracy to commit wire fraud, wire fraud, and structuring

financial transactions to evade reporting requirements. Thomas was

convicted of only one count of wire fraud, whereas Thornhill was

convicted of two counts of wire fraud.    The Guidelines sentencing

range was 63-78 months.      However, the district court upwardly

departed from the Guidelines and imposed concurrent sentences of 60

months of imprisonment on the conspiracy count, 96 months 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this opinion should not be published and is not precedent except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.
                                    No. 05-30229
                                         -2-

imprisonment       of     the    wire   fraud    counts,      and     96   months   of

imprisonment on the structuring count.                On appeal, Thornhill and

Thomas challenge the sufficiency of the evidence regarding their

intent to defraud, the reasonableness of the 96-month sentences

imposed above the guidelines range after United States v. Booker,

543 U.S. 220 (2005), and the legality of the 96-month sentences

imposed in connection with the structuring convictions.                        Thomas

also argues insufficient evidence on the structuring conviction

because the Government failed to prove federal jurisdiction.

       The standard for evaluating the sufficiency of the evidence

is “whether, after viewing the evidence in the light most favorable

to the prosecution, any rational trier of fact could have found the

essential    elements       of   the    crime    beyond   a    reasonable     doubt.”

Jackson v. Virginia, 443 U.S. 307, 319 (1979).                   Intent to defraud

is established if the defendant acted knowingly and with the

specific intent to deceive, ordinarily for the purpose of causing

some financial loss to another or bringing about some financial

gain to himself.        United States v. Saks, 964 F.2d 1514, 1518 (5th

Cir. 1992).    Proof of such intent can arise by inference from all

of   the   facts    and    circumstances        surrounding     the    transactions.

United States v. Ismoila, 100 F.3d 380, 387 (5th Cir. 1996).

       The evidence is sufficient to allow a jury to infer that

Thomas and Thornhill intended to defraud individuals in order to

obtain money as part of investment schemes.                   Thomas and Thornhill

used a routine to recruit investors and obtain more money from
                            No. 05-30229
                                 -3-

these investors.    The investors were promised large returns on

relatively small investments in a very short period of time.    The

investors were informed that the money was simply waiting in

overseas accounts belonging to Thornhill and that the investments

were not risky.    However, the returns were never provided to the

investors.   The excuses as to why the money was not returned or

distributed were numerous and often irrational. Rather than return

the money to the individuals or discontinue the investments,

Thornhill and Thomas would continue to seek and obtain more money

from these individuals and even recruit new persons to invest.

This routine continued for three years.

     Although Thornhill and Thomas claim that they did not profit

from the money given to them by investors, the record shows that

Thornhill wired only less than half the money taken. Additionally,

evidence was introduced showing that Thornhill and Thomas were

previously involved in similar financial schemes. The routine was

identical.   The evidence supports a reasonable inference that they

intended to defraud persons out of money.     See Saks, 964 F.2d at

1518; Ismoila, 100 F.3d at 387.

     Thornhill and Thomas next argue that the 96-month sentences

imposed above the recommended guidelines range of 63-78 months are

unreasonable.     After Booker, appellate courts ordinarily will

review sentences for reasonableness.       Booker, 543 U.S. at 261;

United States v. Mares, 402 F.3d 511, 520 (5th Cir.), cert. denied,

126 S. Ct. 43 (2005).    Under the discretionary sentencing system
                                No. 05-30229
                                     -4-

established by Booker, district courts retain the duty to consider

the Guidelines, along with the sentencing factors set forth in 18

U.S.C. § 3553(a).       Mares, 402 F.3d at 518-19.          If the sentencing

judge imposes a non-guidelines sentence, the judge must articulate

fact specific reasons consistent with the sentencing factors of 18

U.S.C. § 3553(a), to support his conclusion that the sentence is

appropriate for that defendant.          Id. at 519; United States v. Smith

___ F.3d ___, 05-30313, 2006 WL 367011 at *2 (5th Cir. Feb. 17,

2006).

      This court determines whether the sentencing factors in

§ 3553(a) support the sentence imposed.           Smith, 2006 WL 367011 at

*3.      A    non-guideline   sentence    will   not   be   supported   by   the

sentencing factors if it “(1) does not account for a factor that

should have received significant weight, (2) gives significant

weight to an irrelevant or improper factor, or (3) represents a

clear error of judgment in balancing the sentencing factors.”                Id.

      The district court evaluated the guideline range for Thomas

and Thornhill and articulated fact-specific reasons for deviating

from the range.       The court engaged in a lengthy discussion of the

sentencing factors and ultimately concluded that the seriousness of

the offense and the defendants’ roles in the offense warranted a

deviation from the Guidelines. “Permissible reasons” were provided

for the district court’s variance from the guidelines range.                 Id.

at *5.       Therefore, the sentences are not unreasonable.
                                   No. 05-30229
                                        -5-

     Thornhill and Thomas contend that the 96-month sentences

imposed in connection with their structuring convictions are in

excess of the statutory maximum and are therefore illegal.                  The

Government concedes that the sentences are illegal.                A sentence

which   exceeds      the   statutory   maximum     is   an   illegal   sentence

constituting plain error and requiring remand.               United States v.

Sias,   227   F.3d    244,   246    (5th   Cir.   2000).     Accordingly,   the

sentences of Thomas and Thornhill on the structuring convictions

are vacated.    The matter is remanded to the district court in order

to resentence Thornhill and Thomas on the structuring convictions.

     Finally, Thomas challenges the sufficiency of the evidence on

the structuring conviction regarding the definition of a financial

institution.      Thomas asserts that the Government failed to prove

federal jurisdiction because it did not show that Hibernia and

Hancock Banks were insured by the FDIC and therefore did not show

that they are domestic financial institutions.

     The definition of a financial institution is found in 31

U.S.C. § 5312, which provides 26 different definitions, including

a FDIC insured bank. § 5312(a)(2)(A). Financial institutions also

are commercial banks, credit unions, insurance companies, travel

agencies, and other institutions not required to be insured by the

FDIC.   The Government was not required to proved that Hibernia and

Hancock Banks are insured by the FDIC.

     The Government presented evidence that a bank qualifies as a

financial institution. The testimony of Agent Adams explained that
                           No. 05-30229
                                -6-

banks are included within the definition of financial institutions

and are subject to the reporting requirements of 31 U.S.C. §

5313(a). His testimony provides sufficient evidence for a rational

trier of fact to conclude that Hibernia and Hancock Banks are

financial institutions within the meaning of 31 U.S.C. § 5324.

     Accordingly,   Thornhill’s   and   Thomas’s   convictions   are

AFFIRMED. The sentences on the conspiracy convictions and the wire

fraud convictions are AFFIRMED.   The sentences on the structuring

convictions are VACATED, and the case is REMANDED for RESENTENCING.
