United States v. Petty ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
REVISED MAY 3, 2004
April 15, 2004
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 03-40594
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALLEN PETTY. JR., also known as Al Petty,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:02-CR-45-1
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Before SMITH, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
Allen Petty, Jr. (Petty) appeals the 292-month sentence
imposed after a jury convicted him of 44 counts of mail and wire
fraud (fraud counts) and 54 counts of money-laundering and other
illegal financial transactions (money-laundering counts) arising
from a “Ponzi scheme.” Petty contends that the district court
wrongly determined that (1) the losses caused by the crime exceeded
$7 million; (2) there were more than 50 victims of the scheme;
*
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that this opinion should not be published and is not precedent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.
(3) Petty was relocating his operation to Canada to evade law
enforcement or regulators; (4) Petty was an organizer or leader of
a criminal activity with five participants or that was otherwise
extensive; and (5) Petty abused a position of trust to further the
crime.
Under the United States Sentencing Guidelines’ provisions
pertaining to the grouping of counts, the Probation Officer
preparing the Presentence Report (PSR) calculated two separate
offense levels, one for the fraud counts and one for the money-
laundering counts. The money-laundering offense level was based in
part on the fraud offense level. Petty’s ultimate sentence was
based on the offense level for the money-laundering counts, which
was higher than the offense level for the fraud counts. See
U.S.S.G. §§ 2S1.1, comment. (n.6) (directing application of
§ 3D1.2(c) in money-laundering cases), § 3D1.2(c) (directing
grouping of fraud and money-laundering accounts), § 3D1.3(a)
(directing use of highest offense level where offenses are grouped
pursuant to § 3D1.2(c)).
The sentencing court did not exceed its “great latitude” in
making a “reasonable estimate” that the amount of loss exceeded $7
million. See U.S.S.G. § 2B1.1(b)(1)(K) & comment. (n.2(C)); United
States v. Ravitch, 128 F.3d 865, 870 (5th Cir. 1997) (“great
latitude”). The calculation was in accord with United States v.
Deavours, 219 F.3d 400, 402 (5th Cir. 2000), and U.S.S.G. § 2B1.1,
comment. (n.2(F)(iv)). The court committed no error.
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The finding of the number of victims is reviewed only for
plain error because Petty failed to apprise the district court
specifically of the ground for his objection. See United States v.
Maldonado, 42 F.3d 906, 910-12 (5th Cir. 1995); U.S.S.G.
§ 2B1.1(b)(2)(A). The PSR found, and the record shows, that there
were more than 2000 victims. Petty stipulated that more than 50
investors had not received repayment, and he provides no reasonable
basis for excluding any of them from the number of victims. Petty
fails to show that the determination of the number of victims was
erroneous in any way.
Petty’s offense level was increased because he was
participating in a relocation of his scheme to Canada in order to
evade law enforcement. See U.S.S.G. § 2B1.1(b)(8). Petty admitted
that he was relocating his operation, and his unsworn assertions of
a legitimate motive for the relocation failed to rebut the PSR’s
findings that indicated Petty was hoping to evade law enforcement.
Absent rebuttal evidence, the district court was entitled to rely
on the PSR’s findings without further inquiry. See United States
v. Huerta, 182 F.3d 361, 364-66 (5th Cir. 1999). The district
court did not err.
Petty makes no argument on appeal relevant to the increase of
the money-laundering offense level based upon Petty’s role as “an
organizer or leader of a criminal activity that involved five or
more participants or was otherwise extensive.” U.S.S.G.
§ 3B1.1(a). He waives appeal of this issue by failing to address
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it. See United States v. Reyes, 300 F.3d 555, 558 n.2 (5th Cir.
2002) (failure to provide legal or factual analysis of issue
results in its waiver). The arguments Petty does make about the
role-adjustment pertain only to the fraud counts. Lowering the
fraud-count offense level based on the role adjustment would not
reduce Petty’s sentence because this adjustment was not used to
calculate the money-laundering offense level or, therefore, the
total offense level. Accordingly, any error would be harmless
under FED. R. CRIM. P. 52(a). In any event, Petty failed to show
any error in the court’s finding that he was the leader or
organizer of a criminal activity that was extensive. See United
States v. Fullwood, 342 F.3d 409, 414-15 (5th Cir. 2003).
Petty’s claim concerning the adjustment for abuse of a
position of trust pertains only to the fraud offense level and
would not affect his sentence. Nonetheless, we hold that the
district court committed no error, clear, plain, or otherwise by
concluding that Petty used a “position of trust” to further his
crime. See U.S.S.G.§ 3B1.3; United States v. Buck, 324 F.3d 786,
793 (5th Cir. 2003); United States v. Dahlstrom, 180 F.3d 677, 685
(5th Cir. 1999).
The judgment of the district court is AFFIRMED.
AFFIRMED.
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