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United States v. Szloboda ( 1997 )


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  •                IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    No. 96-10052
    Summary Calendar
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    ANTHONY PRUITT DAVIS, STEVEN
    MICHAEL SZLOBODA, JULIAN PHILLIP
    RAMIREZ,
    Defendants-Appellants.
    - - - - - - - - - -
    Appeal from the United States District Court
    for the Northern District of Texas
    USDC No. 3:95-CR-213-R
    - - - - - - - - - -
    June 3, 1997
    Before KING, JOLLY and DENNIS, Circuit Judges.
    PER CURIAM:*
    A jury found Anthony Pruitt Davis, Steven Michael Szloboda,
    and Julian Phillip Ramirez guilty of dealing in stolen motor
    vehicles with removed or altered identification numbers,
    transporting stolen vehicles in interstate and foreign commerce,
    removing motor vehicle identification numbers, possession with
    intent to sell or dispose of a motor vehicle with an altered
    *
    Pursuant to Local 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    that this opinion should not be published and is not precedent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 Local Rule
    47.5.4.
    No. 96-10052
    - 2 -
    identification number, mail fraud, and making false statements to
    a lending institution.
    Davis argues that the evidence was insufficient to convict
    him of conspiracy.   The record was not devoid of evidence which
    showed that Davis prearranged with others the theft of
    automobiles on his behalf.     United States v. Thomas, 
    12 F.3d 1350
    , 1358 (5th Cir. 1994); United States v. Wieschenberg, 
    604 F.2d 326
    , 334 (5th Cir. 1979).
    Davis and Ramirez challenge the sufficiency of the evidence
    to convict them of the substantive counts with which they were
    charged.   Insamuch as Davis and Ramirez were conspirators, each
    could be convicted of substantive offenses based on acts his
    coconspirator committed in furtherance of the conspiracy because
    said acts fell within the scope of the conspiracy and were
    reasonably foreseeable.     Unites States v. Patterson, 
    962 F.2d 409
    , 412 (5th Cir. 1992).
    Davis and Ramirez argue that the court's instruction to the
    jury on the conspiracy count unlawfully amended and expanded the
    scope of the indictment.    The court's instruction was not a
    constructive amendment to the indictment, United States v. Leahy,
    
    82 F.3d 624
    , 631-32 (5th Cir. 1996), and was not plain error.
    United States v. Reyes, 
    102 F.3d 1361
    , 1365 (5th Cir. 1996).
    Davis and Ramirez argue that the trial court omitted an
    essential element of the offense with which they were charged in
    its instructions to the jury on Counts Three, Four, Five, and
    No. 96-10052
    - 3 -
    Eleven.   The court's instruction, however, tracked the language
    of the statute with which they were charged of violating.     See 
    18 U.S.C. § 2321
    .
    Szloboda argues that the trial court failed to instruct the
    jury on the issue of materiality on Counts Six and Nine (charging
    a violation of 
    18 U.S.C. § 1014
    ), and on Count Eight (charging a
    violation of § 1341).    Materiality of the false statement is not
    an element of the offense of violating § 1014.    United States v.
    Wells, 
    117 S. Ct. 921
    , 931 (1997).    Szloboda makes no appreciable
    argument that the false statements he made when he violated §
    1341 were not material.    See Kungys v. United States, 
    485 U.S. 759
    , 770 (1988).    Alternatively, the court's instruction on Count
    Eight was not plain error because it mentioned materiality.
    See United States v. McGuire, 
    99 F.3d 671
    , 672 (5th Cir. 1996)
    (en banc).
    Davis challenges the increase in his base offense level
    pursuant to U.S.S.G. § 2B1.1(b)(4)(A) for more than minimal
    planning.    The court's increase was not clear error.   United
    States v. Clements, 
    73 F.3d 1330
    , 1341 (5th Cir. 1996).
    Davis and Ramirez challenge the court's refusal to reduce
    their base offense levels under § 3B1.2 for minimal
    participation.    The court's refusal was not plain error.   United
    States v. Pofahl, 
    990 F.2d 1456
    , 1479 (5th Cir. 1993); United
    States v.    Lopez, 
    923 F.2d 47
    , 50 (5th Cir. 1991).
    The Appellants' convictions and sentences are AFFIRMED.