United States v. Bryant ( 2021 )

Case: 20-40108 Document: 00515847910 Page: 1 Date Filed: 05/04/2021
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
No. 20-40108
FILED
May 4, 2021
Summary Calendar
Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Thurman P. Bryant, III; Arthur Franz Wammel,
Defendants—Appellants.
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:17-CR-213-1
Before Davis, Stewart, and Dennis, Circuit Judges.
Per Curiam:*
Defendant Arthur Franz Wammel appeals his conviction for
conspiracy to commit wire fraud and Defendant Thurman P. Bryant appeals
the district court imposing an upward variance to his sentence. For the
reasons stated below, we AFFIRM.
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
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No. 20-40108
I. BACKGROUND
A jury convicted co-defendants Bryant and Wammel of one count of
conspiracy to commit wire fraud, in violation of 18 U.S.C. §§ 1343 and 1349.
The district court sentenced Bryant to the statutory maximum of 240 months
in prison, which was above his advisory sentencing guidelines range of 108 to
135 months. The district court sentenced Wammel to a sentence of 136
months in prison, which was within his guidelines range.
On appeal, Wammel asserts that the Government did not provide
sufficient evidence to prove that he had the requisite specific intent to
commit wire fraud. He also argues that the district court erred in giving the
jury a deliberate ignorance instruction. Meanwhile, Bryant asserts that his
term of imprisonment is substantively unreasonable because it is greater than
necessary to achieve the goals of 18 U.S.C. § 3553(a). Specifically, Bryant
argues that the extent of the upward variance was too high and that the
district court should have placed more consideration on the following facts:
he was a first time offender, he had lived the majority of his adult life as an
upstanding citizen, the Government did not request an upward variance, and
his co-defendant received a sentence of only 136 months in prison.
II. DISCUSSION
1. Wammel’s challenge to the sufficiency of the evidence
This Court reviews preserved challenges to the sufficiency of the
evidence de novo.1 We must “view all evidence . . . 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,” to determine whether “a rational
trier of fact could have found the essential elements of the crime beyond a
1
See United States v. Grant, 683 F.3d 639, 642 (5th Cir. 2012).
2
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reasonable doubt.”2 To prove wire fraud, the Government must prove: (1) a
scheme to defraud; (2) “the use of, or causing the use of, wire
communications in furtherance of the scheme”; and (3) a specific intent to
defraud.3 To prove conspiracy to commit wire fraud, the Government must
prove that: (1) two or more persons made an agreement to commit wire fraud;
(2) “the defendant knew the unlawful purpose of the agreement”; and (3)
“the defendant joined in the agreement willfully, that is, with the intent to
further the unlawful purpose.”4
Wammel does not dispute the existence of a conspiracy, a scheme to
defraud, or that wire communications were used in the scheme; accordingly,
he has abandoned those issues on appeal.5 He does argue that the evidence
established, at most, that he was on the periphery of the conspiracy, which
was not sufficient to establish specific intent.
Contrary to Wammel’s assertions, the evidence reveals that he played
an essential role in the scheme and was privy to most, if not all of the details.
Therefore, he could not be considered a minor participant in the scheme.
Moreover, the Government (1) did not need to establish that Wammel knew
all of the details of the conspiracy, (2) only needed to introduce minimal
evidence to connect Wammel to the conspiracy, and (3) could obtain a
2
Id. (quoting United States v. Ford, 558 F.3d 371, 375 (5th Cir. 2009)).
3
United States v. Stalnaker, 571 F.3d 428, 436 (5th Cir. 2009) (citation and internal
quotation marks omitted); see 18 U.S.C. § 1343.
4
Grant, 683 F.3d at 643; see 18 U.S.C. § 1349.
5
See United States v. Harrison, 777 F.3d 227, 236 (5th Cir. 2015) (concluding that
defendant waived an issue where he failed to provide a legal standard, facts, or a sufficient
discussion); Error! Main Document Only.Yohey v. Collins, 985 F.2d 222, 225 (5th Cir.
1993) (explaining that this Court “require[s] that arguments must be briefed to be
preserved”).
3
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conviction even if Wammel played only a minor role.6 Based on the evidence
presented at trial, it was reasonable for the jury to infer that Wammel had the
requisite specific intent to participate in the wire fraud conspiracy.
2. Wammel’s challenge to the deliberate ignorance instruction
We review “preserved error in jury instructions under an abuse of
discretion standard.”7 A deliberate ignorance instruction “should rarely be
given” and “is appropriate only when a defendant claims a lack of guilty
knowledge and the proof at trial supports an inference of deliberate
[ignorance].”8 Accordingly, it was arguably error for the district court to give
the jury a deliberate ignorance instruction.
Assuming arguendo that the district court committed error, this Court
has held that giving the deliberate ignorance instruction is harmless where
there is substantial evidence of actual knowledge.9 Here, the Government
presented ample evidence that Wammel had actual knowledge of and
knowingly participated in the wire fraud conspiracy. Therefore, we conclude
that any error in giving the deliberate ignorance instruction to the jury was
harmless.
6
See United States v. Posada-Rios, 158 F.3d 832, 858 (5th Cir. 1998); United States
v. Krenning, 93 F.3d 1257, 1265 (5th Cir. 1996) (conspiracy to commit mail fraud).
7
United States v. Brooks, 681 F.3d 678, 697 (5th Cir. 2012) (internal quotation
marks omitted).
8
United States v. McElwee, 646 F.3d 328, 341 (5th Cir. 2011) (internal quotation
marks and citations omitted); see also United States v. Cartwright, 6 F.3d 294, 301 (5th Cir.
1993) (“Because the deliberate ignorance instruction may confuse the jury, the instruction
should rarely be given.” (internal quotation marks and citation omitted)).
9
See, e.g., United States v. St. Junius, 739 F.3d 193, 204–05 (5th Cir. 2013) (“Even
if the district court errs in its decision to give the deliberate ignorance instruction, any such
error is harmless where substantial evidence of actual knowledge is presented at trial.”
(internal quotation marks omitted)).
4
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3. Bryant’s assertion of a substantively unreasonable sentence
We review sentences—whether inside or outside the Guidelines
range—for reasonableness in light of the sentencing factors set forth in
§ 3553(a) and review the substantive reasonableness of a sentence under the
abuse-of-discretion standard.10 A sentence is not unreasonable merely
because it is outside the Guidelines range.11 Moreover, “[t]he fact that the
appellate court might reasonably have concluded that a different sentence
was appropriate is insufficient to justify reversal of the district court.”12
The record demonstrates that the district court assessed the facts and
arguments of the parties and determined that a sentence within the advisory
guidelines range was insufficient to achieve the sentencing goals set forth in
§ 3553(a). The district court adopted the presentence report and considered
the advisory sentencing guidelines range, the policy statements of the
Guidelines, and the § 3553(a) sentencing factors, specifically noting the
nature and circumstances of the offense, the seriousness of the offense, the
history and characteristics of the defendant, and the need for the sentence to
promote respect for the law, provide just punishment for the offense, and
afford adequate deterrence from crime.
Bryant’s arguments on appeal constitute a disagreement with the
district court’s weighing of the § 3553(a) factors. However, this disagreement
does not show error in connection with his sentence, nor does it show that
the sentence imposed was not reasonable.13 Moreover, this Court does not
10
Gall v. United States, 552 U.S. 38, 46–47, 49–51 (2007).
11
Id. at 51.
12
Id.13
See id.; United States v. Warren, 720 F.3d 321, 332 (5th Cir. 2013) (“A sentence
is substantively unreasonable 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)
5
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No. 20-40108
reweigh the § 3553(a) factors and reexamine their relative import, nor will it
reverse the district court on the basis that this court could reasonably
conclude that a different sentence was proper.14 Bryant’s sentence is
supported by numerous § 3553(a) factors and is within the statutory
maximum.15
As to the extent of the variance, Bryant’s 240-month sentence is 105
months greater than the top of his advisory guidelines range, and this Court
has upheld similarly significant variances.16 Moreover, although the extent of
the variance is substantial, the district court provided a detailed justification
for imposing the variance.17 Given the significant deference that is due a
district court’s consideration of the § 3553(a) factors, Bryant has not
demonstrated that the district court committed any error in imposing his
above-guidelines sentence.18
III. CONCLUSION
For the reasons stated above, the district court’s judgment is
AFFIRMED.
represents a clear error of judgment in balancing the sentencing factors.” (internal
quotation marks and citation omitted)).
14
See Gall, 552 U.S. at 51; United States v. McElwee, 646 F.3d 328, 344–45 (5th Cir.
2011).
15
See 18 U.S.C. §§ 1343, 1349.
16
See, e.g., United States v. Gutierrez, 635 F.3d 148, 154–55 (5th Cir. 2011)
(affirming a sentence more than double the high end of the guideline range); United States
v. Key, 599 F.3d 469, 475–76 (5th Cir. 2010) (affirming a sentence of 216 months where the
guidelines range was 46 to 57 months).
17
United States v. Diehl, 775 F.3d 714, 724 (5th Cir. 2015); McElwee, 646 F.3d at
344–45.
18
See Gall, 552 U.S. at 50–53.
6