     Case: 19-10430      Document: 00515392937         Page: 1    Date Filed: 04/23/2020




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


                                    No. 19-10430
                                                                                FILED
                                                                            April 23, 2020
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

              Plaintiff - Appellee

v.

DEBORAH PETTY,

              Defendant - Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:14-CR-498-1


Before JOLLY, JONES, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Deborah Petty seeks vacatur of her conviction for seven counts of identity
fraud under 18 U.S.C. § 1028 and one count of aggravated identity theft under
18 U.S.C. § 1028A, contending that venue was improper.                      We conclude,
however, that the government met its light burden to prove proper venue and
AFFIRM the conviction.          Alternatively, Petty seeks vacatur of the court’s
restitution award of $44,438 and the forfeiture order of $15,562. Because the
restitution was awarded for the wrong set of acts, and the forfeiture order


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 19-10430
appears inextricably tied to restitution, we VACATE the restitution award and
forfeiture order and REMAND for reconsideration in light of this decision.
                                        I.
      Petty was convicted of seven counts of identity theft, which is committed
where one
      knowingly transfers, possesses, or uses, without lawful authority,
      a means of identification of another person with the intent to
      commit, or to aid or abet, or in connection with, any unlawful
      activity that constitutes a violation of Federal law, or that
      constitutes a felony under any applicable State or local law.
18 U.S.C. § 1028(a)(7) (2012).
      Petty was also convicted of one count of aggravated identity theft, which
is committed where
      during and in relation to [knowingly and with intent to defraud
      possess[ing] fifteen or more . . . unauthorized access devices], [one]
      knowingly transfers, possesses, or uses, without lawful authority,
      a means of identification of another person.
18 U.S.C. §§ 1028A(a)(1), 1029(a)(3) (2012).
      Petty maintains that these convictions were improper because she was
prosecuted in the wrong venue.        Federal Rule of Criminal Procedure 18
establishes that a “prosecution shall be had in a district in which the offense
was committed.” Petty denies that her offense took place in the Northern
District of Texas. On this ground, she made an oral motion for judgment of
acquittal, but after supplemental briefing the district court denied that motion.
Petty contends that this denial was erroneous.
      This court “review[s] a district court’s denial of a motion for judgment of
acquittal de novo.” United States v. Campbell, 52 F.3d 521, 522 (5th Cir. 1995).
“Where a defendant argues that the government failed to adduce evidence
sufficient to support venue for a particular count, ‘we view the evidence in the
light most favorable to the Government, drawing all reasonable inferences in
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                                  No. 19-10430
favor of the verdict.’” United States v. Solis, 299 F.3d 420, 444 (5th Cir. 2002)
(quoting United States v. Loe, 248 F.3d 449, 465 (5th Cir. 2001)).             The
government must prove venue only by a preponderance of the evidence and
may rely entirely on circumstantial evidence. Loe, 248 F.3d at 465. Thus, this
court “will affirm the verdict where a rational jury could conclude ‘that the
government established venue by a preponderance of the evidence.’” United
States v. Thomas, 690 F.3d 358, 368 (5th Cir. 2012) (quoting United States v.
Garcia Mendoza, 587 F.3d 682, 686 (5th Cir. 2009)).
      Petty does not contest that, in the Northern District of Texas, she
“knowingly . . . possesse[d] . . . without lawful authority, [some] means of
identification” of seven other persons. Indeed, she does not deny that she had
a box full of other people’s medical records. Instead, she denies that she illicitly
possessed the documents in the Northern District “with intent to commit, or to
aid or abet, or in connection with, any unlawful activity.” For this reason, she
contends that she did not commit identity theft in the Northern District.
      Yet a rational jury could well conclude otherwise by a preponderance of
the evidence. Leave aside that Petty’s documents were plainly connected with
previous unlawful activity, namely food-stamp fraud in Florida that was
established by evidence presented to the jury. Beyond that, there is evidence
of “intent to commit” unlawful activity in the Northern District. For example,
Petty sought a job in Dallas at Epic Health Services, where she could gain
access to patient information.     Also, there was a notation in her notepad
indicating that, in Texas, food-stamp applicants must be on Medicaid.
Moreover, Petty tried to retrieve the box of stolen identities from her
daughter’s house after law enforcement began to investigate her. A rational
jury could infer by a preponderance of the evidence that Petty intended to keep
committing fraud in Texas.


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                                  No. 19-10430
      Similarly, a rational jury could well conclude by a preponderance of the
evidence that Petty committed aggravated identity theft in the Northern
District of Texas. Petty does not deny that she possessed the requisite number
of food-stamp access devices nor that she possessed means of identification
without lawful authority during and in relation to her knowing possession of
access devices. Instead, she insists that she had no intent to defraud while in
the Northern District. The same evidence, however, that supports Petty’s
“intent to commit” fraud for purposes of § 1028(a)(7) also supports her “intent
to defraud” for purposes of § 1029(a)(3) and § 1028A(a)(1).          Thus, Petty’s
challenges to venue fail.
                                        II.
      Petty also contests the restitution award of $44,438, maintaining that
this amount represents losses suffered by the victim(s) of Petty’s fraud before
the date range charged in the indictment. Because Petty did not object to the
restitution award in the district court, this court reviews the district court’s
restitution order for plain error. See United States v. Lozano, 791 F.3d 535,
537 (5th Cir. 2015). In this case, though, the government concedes that the
restitution award contains an “error or defect” that is “clear or obvious”
and affected Petty’s “substantial rights.” Puckett v. United States, 556 U.S.
129, 135, 129 S. Ct. 1423, 1429 (2009). Thus, Petty must show only that the
error “‘seriously affect[s] the fairness, integrity or public reputation of judicial
proceedings.’”   Id. (quoting United States v. Olano, 507 U.S. 725, 736,
113 S. Ct. 1770, 1779 (1993)).
      Petty meets that standard by pointing to multiple cases in which this
court has remedied plain error in similar circumstances. Cf. United States v.
Lozano, 791 F.3d 535, 539 (5th Cir. 2015); United States v. Mason, 722 F.3d
691, 695 (5th Cir. 2013); United States v. Inman, 411 F.3d 591, 595 (5th Cir.
2005); United States v. Maturin, 488 F.3d 657, 663 (5th Cir. 2007). Of course,
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                                   No. 19-10430
the facts of each case must be considered, but against the background of those
cases, erroneously ordering payment of more than $40,000 from a defendant
who is not wealthy and whose criminal gains may be subject to a forfeiture
order, lead us to conclude that this error seriously affects the fairness or public
reputation of judicial proceedings and merits correction.
                                        III.
      Finally, Petty challenges the order of forfeiture against her because it
was indexed to the erroneous restitution award. At sentencing, she raised the
more extensive objection that the “unusual” combination of this restitution
award and forfeiture order constitute “double payment to the government.”
Determining that the more extensive objection at sentencing preserved the
more modest objection on appeal, “[w]e review the district court’s findings of
fact under the clearly erroneous standard of review, and the question of
whether those facts constitute legally proper forfeiture de novo.” United States
v. Marmolejo, 89 F.3d 1185, 1197 (5th Cir. 1996). We note that the order of
forfeiture was based on a finding that Petty could not forfeit more than
$15,562, which finding was, in turn, based on the finding that Petty would have
to pay $44,438 in restitution.      This last finding is clearly erroneous, and
therefore the order of forfeiture must be reconsidered.          In vacating the
forfeiture and restitution orders, we do not instruct or confine the district
court’s exercise of discretion to assess those amounts on remand.
                                  CONCLUSION
      The judgment of conviction is AFFIRMED. The restitution award and
the order of forfeiture are VACATED and REMANDED for resentencing in
light of this decision.




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