United States v. Jackson ( 2021 )

Case: 20-30415 Document: 00515940239 Page: 1 Date Filed: 07/15/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
July 15, 2021
No. 20-30415
Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff—Appellee,
versus
Frank Jackson,
Defendant—Appellant.
Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:18-CR-164-5
Before Davis, Stewart, and Dennis, Circuit Judges.
Per Curiam:*
Frank Jackson appeals the concurrent 33-month, within guidelines-
range sentences imposed upon his guilty pleas to mail fraud and conspiracy
to commit mail fraud, contending that the district court committed
procedural error by (1) applying a guidelines enhancement for being a leader
*
Pursuant to 5th Circuit 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opinion should not be published and is not precedent except under the limited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 5th Circuit Rule 47.5.4.
Case: 20-30415 Document: 00515940239 Page: 2 Date Filed: 07/15/2021
No. 20-30415
of the conspiracy and (2) holding him accountable, as relevant conduct, for
conspiracy proceeds accrued by other members during several January 2017
trips to Louisiana in which he did not personally take part. Jackson concedes
that the district court’s relevant conduct finding did not affect his guidelines
range but avers that it increased the amount of restitution he owes.
The district court did not clearly err by finding Jackson to be an
“organizer, leader, manager, or supervisor” of the conspiracy. U.S.S.G.
§ 3B1.1(c); see United States v. Ochoa-Gomez, 777 F.3d 278, 281-82 (5th Cir.
2015). Jackson’s sole argument is that the court erroneously found that he
recruited a young woman, NH, into the conspiracy. See § 3B1.1, comment.
(n.4). However, the court was entitled to rely on presentence report (PSR)’s
assertions that Jackson did in fact recruit NH as well as statements to that
effect by other co-conspirators. See United States v. Harris, 702 F.3d 226,
230 (5th Cir. 2012). Jackson did not object that the PSR lacked sufficient
indicia of reliability to support that finding and did not present any evidence
rebutting the PSR facts. See id.; United States v. Ollison, 555 F.3d 152, 164
(5th Cir. 2009). In any event, Jackson admitted that he helped recruit
another young woman, BB, into the conspiracy. He further admitted that he
taught HN how to conduct the fraudulent scheme. These facts support the
application of § 3B1.1(c). See United States v. Posada-Rios, 158 F.3d 832, 881
(5th Cir. 1998).
Nor did the district court clearly err in its attributable loss finding and
attendant restitution award. See United States v. Wall, 180 F.3d 641, 644 (5th
Cir. 1999); United States v. Beydoun, 469 F.3d 102, 107 (5th Cir. 2006). The
record supports a plausible finding that conspiracy members’ January 2017
conduct, including the victims’ fraud-induced losses, was reasonably
foreseeable to Jackson. See United States v. Coleman, 609 F.3d 699, 708 (5th
Cir. 2010); U.S.S.G. § 1B1.3(a)(1)(B). Jackson was a leader of the
conspiracy, whose members made frequent trips to Louisiana from
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Case: 20-30415 Document: 00515940239 Page: 3 Date Filed: 07/15/2021
No. 20-30415
December of 2016 through February of 2017. Jackson himself made a number
of trips to Louisiana in January and February in furtherance of the conspiracy
aims. Jackson also recruited and trained NH, who took part in the January
2017 trips at issue. Accordingly, there is no error in the district court’s
restitution award. See United States v. Ismoila, 100 F.3d 380, 398 (5th Cir.
1996).
The judgment is AFFIRMED.
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