United States v. Anthony Malfitano , 690 F. App'x 218 ( 2017 )

Case: 16-20126 Document: 00514019233 Page: 1 Date Filed: 06/05/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fif h Circuit
No. 16-20126 FILED
Summary Calendar June 5, 2017
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ANTHONY MALFITANO,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:10-CR-393-2
Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM: *
Anthony Malfitano appeals the within-guidelines-range sentences
imposed following his jury convictions for conspiracy to commit wire fraud and
aiding and abetting wire fraud. Malfitano argues that the district court erred
by applying (1) a four-level enhancement pursuant to U.S.S.G. § 3B1.1(a) for
his role as an organizer or leader and (2) a two-level enhancement pursuant to
U.S.S.G. § 2B1.1(b)(10(C) based on sophisticated means.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 16-20126 Document: 00514019233 Page: 2 Date Filed: 06/05/2017
No. 16-20126
We review the district court’s application of the Sentencing Guidelines
de novo. United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).
The district court’s determination that a defendant is an organizer or leader
under § 3B1.1(a) is a factual determination that we review for clear error.
United States v. Cabrera, 288 F.3d 163, 173 (5th Cir. 2002). A factual finding
is not clearly erroneous if it is plausible in light of the record as a whole. United
States v. Gonzales, 436 F.3d 560, 584 (5th Cir. 2006). A close examination of
the record in this case, including the transcript of the trial, shows that there
was sufficient evidence to support the district court’s leadership enhancement.
Further, even if, as Malfitano suggests, his co-conspirator Laura Glass was a
leader within the mortgage fraud conspiracy, the Guidelines commentary
provides that “[t]here can, of course, be more than one person who qualifies as
a leader or organizer of a criminal association or conspiracy.” § 3B1.1,
comment. (n.4). Accordingly, the district court’s finding that Malfitano was a
leader or organizer for purposes of § 3B1.1(a) was not clearly erroneous. See
United States v. Curtis, 635 F.3d 704, 720 (5th Cir. 2011); United States v.
Cooks, 589 F.3d 173, 185 (5th Cir. 2009).
We also review for clear error the district court’s factual determination
that the defendant used sophisticated means. United States v. Conner, 537
F.3d 480, 492 (5th Cir. 2008). The record reflects that although Malfitano
provided his true identity, he attempted to avoid detection and to conceal the
fraudulent nature of the transactions at issue, and he attempted to legitimize
the proceeds distributed to him through his company United Builders. In view
of the foregoing, the district court did not clearly err in finding that Malfitano
intentionally employed “especially complex or especially intricate offense
conduct pertaining to the execution or concealment of an offense.” § 2B1.1,
comment. (9(B)); see Conner, 537 F.3d at 492.
Accordingly, the judgment of the district court is AFFIRMED.
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