United States v. Hyde ( 2021 )

Case: 20-10772 Document: 00515885554 Page: 1 Date Filed: 06/03/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
June 3, 2021
No. 20-10772 Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff—Appellee,
versus
Richard Ross Hyde,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:19-CR-229-1
Before Higginbotham, Jones, and Costa, Circuit Judges.
Per Curiam:*
Richard Ross Hyde was charged in a single-count information with
making a false claim against the United States related to a single Vista
Machining Company, Inc. (VMC) contract with the Defense Logistics
Agency (DLA), in violation of 18 U.S.C. § 287. Hyde pleaded guilty, and he
*
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opinion should not be published and is not precedent except under the limited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.
Case: 20-10772 Document: 00515885554 Page: 2 Date Filed: 06/03/2021
No. 20-10772
was sentenced within the guidelines imprisonment range to a 55-month term
of imprisonment and to a three-year period of supervised release. He was
ordered to pay a $100,000 fine and to make restitution to the United States
in the amount of $12,897.50.
In determining the amount of the intended loss for purposes of
calculating the applicable guidelines range, the probation officer extrapolated
a failure rate from a random sample of 195 contracts awarded to VMC
between February 2012 and October 2017 and multiplied that rate by the total
value of the 3,652 contracts awarded to VMC during that period. The district
court overruled Hyde’s objection to probation officer’s calculation of the loss
amount, rejecting Hyde’s proposed alternative calculation based only on the
value of the 195 contracts considered in the random sample. Hyde contends
that the district court erred.
“Although we review the district court’s loss calculations for clear
error, we review the district court’s method of determining the amount of
loss, as well as its interpretations of the meaning of a sentencing guideline, de
novo.” United States v. Harris, 821 F.3d 589, 601 (5th Cir. 2016) (internal
quotation marks, citation, and emphasis omitted). “The district court
receives wide latitude to determine the amount of loss and should make a
reasonable estimate based on available information.” United States v. Jones,
475 F.3d 701, 705 (5th Cir. 2007). “The sentencing judge is in a unique
position to assess the evidence and estimate the loss based upon that
evidence.” United States v. Hearns, 845 F.3d 641, 649 (5th Cir. 2017)
(internal quotation marks and citation omitted). We will not upset the
district court’s findings with respect to the amount of the loss “unless they
are implausible in light of the record as a whole.” Id. (internal quotation
marks and citation omitted).
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Case: 20-10772 Document: 00515885554 Page: 3 Date Filed: 06/03/2021
No. 20-10772
We have approved of the use of “extrapolation methodologies” in
applying the Sentencing Guidelines. United States v. Betancourt, 422 F.3d
240, 247 (5th Cir. 2005). Such methodologies have also been employed in
determining the loss amounts in fraud cases. See, e.g., United States v. Fairley,
880 F.3d 198, 215-16 (5th Cir. 2018).
Where, as here, “the government has shown that the fraud was so
extensive and pervasive that separating legitimate benefits from fraudulent
ones is not reasonably practicable, the burden shifts to the defendant to make
a showing that particular amounts are legitimate.” United States v. Hebron,
684 F.3d 554, 563 (5th Cir. 2012). Pervasiveness under Hebron is a factual
finding reviewed for clear error. United States v. Barnes, 979 F.3d 283, 311-
12 (5th Cir. 2020). The district court adopted the probation officer’s
extrapolation analysis of the amount of the intended loss, necessarily finding
that Hyde’s fraud was extensive and pervasive. On this record, Hyde cannot
show that this finding was clearly erroneous. See id. Thus, Hyde had the
burden of showing that the loss calculation was materially untrue, that is, that
particular contracts considered in determining the loss amount were
legitimate. See Hebron, 684 F.3d at 563. Hyde has not attempted to make
such a showing. Nor has he shown that the district court erred in its method
of determining the amount of the intended loss. See id.
We conclude also that the Government’s alternate assertion that the
judgment may be affirmed under the harmless error standard has merit. The
district court was aware of the alternative guidelines range because Hyde
advised the court of this range in his objections to the presentence report.
The district court stated unambiguously that it would have imposed the same
sentence, even if it had accepted the defense’s proposed loss calculation. See
United States v. Medel-Guadalupe, 987 F.3d 424, 429 (5th Cir.), cert. denied,
No. 20-7483, 2021 WL 1520967 (U.S. Apr. 19, 2021). The judgment is
AFFIRMED.
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