United States v. James Williams, II , 544 F. App'x 531 ( 2013 )

Case: 13-10509 Document: 00512432451 Page: 1 Date Filed: 11/06/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 13-10509
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
November 6, 2013
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff-Appellee
v.
JAMES LEE WILLIAMS, II, also known as James Lee Williams,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:12-CR-225-1
Before JOLLY, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM: *
James Lee Williams, II, appeals the 120-month above-guidelines
sentence imposed following his conviction for wire fraud. Williams challenges
the two-level enhancement under U.S.S.G. § 2B1.1(b)(10)(C) that was applied
based on a finding that the offense involved sophisticated means. He argues
that the district court plainly erred in applying the enhancement because the
fraudulent scheme was basic rather than sophisticated.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-10509
Because Williams failed to object to the enhancement in the district
court, we review for plain error only. See United States v. Mondragon-
Santiago, 564 F.3d 357, 361 (5th Cir. 2009). To meet this standard, he must
show a forfeited error that is clear or obvious and that affects his substantial
rights. See Puckett v. United States, 556 U.S. 129, 135 (2009).
Section 2B1.1(b)(10)(C) provides for a two-level adjustment if the offense
involved sophisticated means. The commentary to § 2B1.1 notes that
“‘[s]ophisticated means’ means especially complex or especially intricate
offense conduct pertaining to the execution or concealment of an offense.”
§ 2B1.1, comment. (n.8(B)).
Williams’s scheme involved numerous steps as well as a variety of means
to conceal the fraud. He took steps to disguise the fraud by establishing a toll-
free telephone number, representing himself as a ticket broker or employee of
an airline, and sending fraudulent confirmation emails to purchasers. In light
of these facts, the district court did not commit clear or obvious error in
applying the sophisticated means enhancement, and he fails to establish plain
error in the application of the enhancement. See United States v. Conner, 537
F.3d 480, 492 (5th Cir. 2008) (upholding enhancement on clear-error review
when defendant resold goods on eBay that were fraudulently purchased and
used a fictitious account in the offense).
He also argues that the district court plainly erred in failing to articulate
its reasons for the above-guidelines sentence imposed. He contends that the
court did not take into account his previous convictions and that, therefore, his
prior criminal history was not the basis for the upward variance. Further,
Williams asserts that this court cannot look to the district court’s written
statement of reasons to support the sentence because these reasons were
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No. 13-10509
“already represented in the court’s Guidelines calculations of the criminal
history category and the rejection of the acceptance of responsibility decrease.”
As Williams failed to present this argument in the district court, we
review for plain error. See Mondragon-Santiago, 564 F.3d at 361. While
within-guidelines sentences require “little explanation,” the district court must
give a more detailed explanation for a non-guidelines sentence. United States
v. Mares, 402 F.3d 511, 519 (5th Cir. 2005).
Contrary to Williams’s assertion, the court was clear in its consideration
of Williams’s prior convictions as a reason for a sentence outside the guidelines
range. The court did not consider charged conduct for which it was unable to
determine whether Williams had been convicted; however, the court
considered the actual convictions. Additionally, Williams’s prior criminal
history was not completely taken into account by the calculation of his criminal
history score because many convictions did not receive criminal history points.
Regardless, the district court was not precluded from considering factors
already incorporated into the guidelines calculation. See United States v.
Brantley, 537 F.3d 347, 350 (5th Cir. 2008).
The district court’s justification for the sentence imposed was “fact-
specific and consistent with the sentencing factors enumerated in [§] 3553(a).”
United States v. Smith, 440 F.3d 704, 707 (5th Cir. 2006). Moreover, the court
adequately explained the reasons for the sentence in its Statement of Reasons.
See United States v. Gore, 298 F.3d 322, 325-26 (5th Cir. 2002). Williams fails
to show that the district court plainly erred in this regard.
Accordingly, the judgment of the district court is AFFIRMED.
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