United States v. Turner ( 2023 )

Case: 22-30144 Document: 00516680727 Page: 1 Date Filed: 03/17/2023
United States Court of Appeals
for the Fifth Circuit
____________ United States Court of Appeals
Fifth Circuit
No. 22-30144
FILED
March 17, 2023
Summary Calendar
____________ Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Lynn D. Cawthorne,
Defendant—Appellant,
consolidated with
_____________
No. 22-30152
_____________
United States of America,
Plaintiff—Appellee,
versus
Belena C. Turner,
Defendant—Appellant.
______________________________
Case: 22-30144 Document: 00516680727 Page: 2 Date Filed: 03/17/2023
No. 22-30144
c/w No. 22-30152
Appeals from the United States District Court
for the Western District of Louisiana
USDC Nos. 5:18-CR-107-1, 5:18-CR-107-2
______________________________
Before Higginbotham, Graves, and Ho, Circuit Judges.
Per Curiam: *
Lynn D. Cawthorne and Belena C. Turner pleaded guilty to one count
of wire fraud in violation of 18 U.S.C. § 1343. 1 The charges against
Cawthorne and Turner stemmed from their having used their organization,
United Citizens and Neighborhoods, Inc. (UCAN), to defraud, from 2011 to
2014, the Food and Nutrition Service of the United States Department of
Agriculture (USDA), specifically the Summer Feeding Service Program
(SFSP), which in Louisiana was administered by the Louisiana Department
of Education (LDOE).
For sentencing purposes, the district court determined that the
amount of intended loss resulting from the wire fraud offense was
$987,919.72; this resulted in a 14-level enhancement pursuant to
U.S.S.G. § 2B1.1(b)(1)(H) for both Cawthorne and Turner. The court
sentenced each defendant within the applicable guidelines range to 46
months of imprisonment, followed by three years of supervised release. The
court also ordered Cawthorne and Turner to pay, jointly and severally,
restitution in the amount of $837,690.01 to the USDA.
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
1
In a separate criminal case, which was joined with the instant action in the district
court, Cawthorne pleaded guilty to aiding and assisting in making and subscribing a false
return, in violation of 26 U.S.C. § 7206(2). He was sentenced to 36 months of
imprisonment, to run concurrently with his wire fraud sentence, and ordered to pay
$58,183.95 in restitution to the Internal Revenue Service. Cawthorne does not challenge
the tax conviction and sentence in the instant appeal.
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On appeal, Cawthorne and Turner first argue that the district court
erred in its loss determination because the Government’s calculations were
unreliable, and they urge that the court should have instead used
$132,257.25, which was the loss amount calculated by the LDOE in its
pending civil action against Cawthorne and Turner. We “review the district
court’s loss calculations for clear error,” but “the district court’s method of
determining the amount of loss, as well as its interpretations of the meaning
of a sentencing guideline, [are reviewed] de novo.” United States v. Harris,
821 F.3d 589, 601 (5th Cir. 2016) (internal quotation marks, citation, and
emphasis omitted). “There is no clear error if the district court’s finding is
plausible in light of the record as a whole.” United States v. Cisneros-
Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008) (internal quotation marks and
citation omitted). Given the “unique position” the district court occupies to
assess the loss amount, its loss calculation is entitled to appropriate
deference. United States v. Hebron, 684 F.3d 554, 560 (5th Cir. 2012); see also
§ 2B1.1, comment. (n.3(C)).
The district court was entitled to rely on the presentence report
(PSR)’s findings of fact as long as that information bore some indicia of
reliability. United States v. Simpson, 741 F.3d 539, 557 (5th Cir. 2014). When
challenging the PSR, the defendant has the burden of presenting rebuttal
evidence to show that the information in the PSR is inaccurate or materially
untrue. Id. Here, testimony and other evidence established that FBI agents
looked at several types of documents, interviewed employees of the feeding
centers, and performed an accounting into UCAN’s expenses via its bank
statements to determine the $987,919.72 loss amount. As the district court
noted, and as the sentencing exhibits show, the LDOE’s investigation was
more limited than the FBI’s and covered only 2012 and 2014. Additionally,
the LDOE’s investigation covered primarily only one feeding site—and only
two sites total—to determine a loss amount of $132,257.25. Cawthorne and
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Turner did not otherwise offer any evidence demonstrating that the
Government’s calculations were inaccurate or unreliable, nor did they offer
any evidence reflecting additional legitimate expenses. Therefore, they have
failed to show that the district court clearly erred in its loss calculation and
its assessment of the 14-level enhancement. See Harris, 821 F.3d at 601;
Cisneros-Gutierrez, 517 F.3d at 764.
Cawthorne and Turner next assert that district court impermissibly
engaged in double counting when it applied both a misrepresentation
enhancement pursuant to U.S.S.G. § 2B1.1(b)(9)(A) and an abuse of trust
enhancement pursuant to U.S.S.G. § 3B1.3 to the same conduct. The
application of two different enhancements to the same course of conduct
does not constitute impermissible double counting if each enhancement
targets a different aspect of the defendant’s behavior. See United States v.
Scurlock, 52 F.3d 531, 540 (5th Cir. 1995); see also § 2B1.1, comment.
(n.8(E)(i)) (providing that § 3B1.3 cannot be applied “[i]f the conduct that
forms the basis for an enhancement under [§ 2B1.1(b)(9)(A)] is the only
conduct that forms the basis for an adjustment under § 3B1.3”).
Here, the district court expressly determined that § 2B1.1(b)(9)(A)
applied to Cawthorne and Turner’s misrepresentations to the LDOE that
they were operating a charitable food program that the SFSP was funding.
On the other hand, the district court found that § 3B1.3 applied to Cawthorne
and Turner’s abuses of their positions at UCAN to divert funding received
by UCAN into their personal accounts and to secure feeding sites throughout
the community. Accordingly, the court did not erroneously double count, as
each enhancement targeted different aspects of the defendants’ behavior.
See Scurlock, 52 F.3d at 540-41; § 2B1.1, comment. (n.8(E)(i)). Even if the
district court erred in this regard, the Government has convincingly shown
that any error was harmless, as the district court stated that it would have
imposed the same 46-month sentences on both Cawthorne and Turner if it
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had applied only one of the enhancements. See United States v. Redmond, 965
F.3d 416, 420 (5th Cir. 2020).
Cawthorne also claims that restitution should be paid to the LDOE,
not the USDA. However, any error concerning to whom the restitution is to
be paid will not harm Cawthorne: whether the recipient is the USDA or the
LDOE, he remains liable for paying the same amount of $837,690.01 in
restitution. Therefore, the Government is correct that Cawthorne lacks
constitutional standing to challenge the recipient of the award. See Steel Co.
v. Citizens for a Better Env’t, 523 U.S. 83, 103 (1998).
Lastly, Turner asserts that her within-guidelines sentence is
substantively unreasonable, as the district court failed to give significant
weight to her history as a public servant and her good deeds to her
community. Because she preserved this challenge, our review is for an abuse
of discretion. See Holguin-Hernandez v. United States, 140 S. Ct. 762, 766-67
(2020); United States v. Hernandez, 876 F.3d 161, 166 (5th Cir. 2017).
Turner has not shown that the district court considered an improper
factor, failed to consider a relevant factor, or committed a clear error of
judgment in balancing the 18 U.S.C. § 3553(a) factors. See United States v.
Cooks, 589 F.3d 173, 186 (5th Cir. 2009). At sentencing, the district court
indicated that it considered the § 3553(a) factors in determining Turner’s
sentence, noting Turner’s criminal history, personal characteristics, and
involvement in the wire fraud offense, as well as Turner’s argument for a
sentence below the guidelines range. The district court expressly
acknowledged Turner’s “good deeds in the community,” but found that her
good deeds were “overshadowed by the harm that she [had] done.” Turner
is essentially asking us to reweigh the § 3553(a) factors, which we may not do.
See Gall v. United States, 552 U.S. 38, 51 (2007). Accordingly, Turner has
failed to rebut the presumption of reasonableness applicable to her within-
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guidelines sentence and has not shown that the district court abused its
discretion. See Cooks, 589 F.3d at 189; Hernandez, 876 F.3d at 166-67.
The judgments of the district court are AFFIRMED.
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