United States v. Moreira ( 2023 )

Case: 21-40811 Document: 00516881432 Page: 1 Date Filed: 09/01/2023
United States Court of Appeals
for the Fifth Circuit
____________ United States Court of Appeals
Fifth Circuit
No. 21-40811 FILED
Summary Calendar September 1, 2023
____________ Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Moses Moreira,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:19-CR-316-1
______________________________
Before Willett, Duncan, and Douglas, Circuit Judges.
Per Curiam:*
Moses Moreira pleaded guilty to conspiracy to commit wire fraud and
wire fraud. He was sentenced to 168 total months in prison and three years
of supervised release. He raises multiple challenges to his sentence.
Moreira contends that the district court wrongly applied a three-level
adjustment under U.S.S.G. § 3B1.1(b) on the ground that he was a manager
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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No. 21-40811
or supervisor of a criminal activity that involved five or more participants or
was otherwise extensive. Whether a defendant occupied a role as a manager
or supervisor is a finding of fact that is reviewed for clear error. United States
v. Ochoa-Gomez, 777 F.3d 278, 281 (5th Cir. 2015). We consider whether the
record plausibly supports a finding that a defendant either controlled other
participants or exercised management responsibility over property, assets, or
activities. See id. at 283.
There is record evidence to support the finding that Moreira exercised
control over the assets, property, and activities of the “romance scheme” in
which he participated. In particular, he opened and oversaw bank accounts
in which the proceeds of the scheme were deposited and had authority over
the proceeds. See United States v. Aderinoye, 33 F.4th 751, 756 (5th Cir. 2022).
Moreira effectively was accountable for overseeing and handling the victims’
funds for the purpose of carrying out the offense. He, inter alia, arranged for
receipt of the funds and advised his coconspirators how the money should be
sent to him, addressed issues as to the delivery and availability of the funds,
oversaw and facilitated the disbursement of funds to pay his coconspirators
and others, used the funds to effectuate trade-based money laundering, and
retained a portion of the funds as compensation. Furthermore, the record
reflects that the scheme was otherwise extensive and involved a large number
of participants, both witting and unwitting, to achieve its aims. See § 3B1.1 &
comment. (n.3). The scam operated on a relatively large scale and relied on
the services of myriad participants to defraud numerous people and entities.
See Aderinoye, 33 F.4th at 756; United States v. Fullwood, 342 F.3d 409, 415
(5th Cir. 2003). Thus, the § 3B1.1(b) adjustment was properly applied.
Moreira argues that the district court wrongly decided that an 18-level
increase applied under U.S.S.G. § 2B1.1(b)(1) because the loss attributable
to him was between $3,500,000 and $9,500,000. We need not resolve the
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question of whether Moreira preserved the issue because his claim fails under
any standard. See United States v. Infante, 404 F.3d 376, 389 (5th Cir. 2005).
The district court did not err, clearly or otherwise, in determining that
Moreira was accountable for a loss exceeding $3,500,000. While he disputes
the loss finding, he effectively makes a bare denial of its correctness. Moreira
has not offered evidence to rebut the loss calculation, which was detailed in
the presentence report (PSR) and explained and verified by testimony at the
sentencing hearing, was incorrect or unreliable. See United States v. Simpson,
741 F.3d 539, 557 (5th Cir. 2014). He cites no evidence that undermines the
calculated amount, identifies no valid sources for the funds that were deemed
victims’ losses, and alleges no source of income that could legitimize those
funds. The district court properly relied on the amount of funds in the bank
accounts opened by Moreira to further the scheme. Investigators identified
deposits and transfers into the accounts from known victims and recognized
transactions that fit the pattern of funds that were fraudulently obtained via
the scheme. Those transactions were attributed to the scheme based on the
plausible inference that they were victims’ funds. See United States v. Masha,
990 F.3d 436, 446-47 (5th Cir. 2021). The district court reasonably decided
that most of the unexplained deposits into the accounts were fraudulent. See
id. at 446-47; United States v. De Nieto, 922 F.3d 669, 675 (5th Cir. 2019);
United States v. Jones, 475 F.3d 701, 705 (5th Cir. 2007).
Moreira argues that the district court incorrectly assessed a two-level
adjustment under U.S.S.G. § 3A1.1(b)(1) that applies when an offense affects
an unusually vulnerable victim. He contends that the district court baselessly
reasoned that the scam targeted elderly or otherwise vulnerable women and
argues that there was insufficient record evidence to support that he knew or
should have known that victims of the offense were especially vulnerable. We
review this claim, which Moreira asserts for the first time on appeal, for plain
error. See United States v. Mazkouri, 945 F.3d 293, 305 (5th Cir. 2019).
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The district court did not plainly err in concluding that the vulnerable-
victim enhancement applied. The record established that at least one victim
was unusually vulnerable. See § 3A1.1(b)(1). The evidence—including the
unrebutted PSR and the evidence offered at sentencing—reflected that the
advanced age, lack of sophistication, and personal circumstances of many of
the victims made them susceptible to the skillful deceit of the perpetrators of
the scheme. The evidence plausibly supported that the point of the scam was
to identify people online who appeared to be vulnerable and to develop close
relationships with them based on a belief that they could be deceived and later
defrauded. The description of specific victims’ experiences, and the impact
statements that some victims submitted, detailed their unique vulnerabilities.
Also, the record plausibly establishes that, given his involvement in the scam,
Moreira should have known that the funds placed into his accounts were from
women who were deceived and entrapped by a scheme that focused on and
exploited their specific vulnerabilities. Many of the women were targeted on
more than one instance and made multiple transfers or deposits into the bank
accounts controlled by Moreira. Thus, he at least should have known that
the victims included at least one person who was a vulnerable victim under
§ 3A1.1. See United States v. Myers, 772 F.3d 213, 221 (5th Cir. 2014).
Finally, Moreira argues that a heightened burden of proof should have
been used for the sentencing enhancements in this case. He alleges that his
ability to discuss the case with his counsel was limited and that his counsel
was ineffective on multiple grounds. We review this claim, which Moreira
raises for the first time on appeal, for plain error. See United States v. Cabral-
Castillo, 35 F.3d 182, 188-89 (5th Cir. 1994).
Although we have noted the possibility that a heightened standard of
proof may be required in cases involving a dramatic increase in sentencing
based on judicial factfinding, we have never required such a burden for factual
findings at sentencing. See United States v. Simpson, 741 F.3d 539, 558 (5th
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Cir. 2014); United States v. Mergerson, 4 F.3d 337, 344 (5th Cir.1993). Rather,
after United States v. Booker, 543 U.S. 220 (2005), we have held that all facts
relevant to sentencing—that do not affect the statutory range—may be found
by a preponderance of the evidence. See United States v. Scroggins, 485 F.3d
824, 834 (5th Cir. 2007); United States v. Mares, 402 F.3d 511, 519 (5th Cir.
2005). Thus, the district court’s use of the preponderance-of-the-evidence
standard was not clear or obvious error. See United States v. Fuchs, 467 F.3d
889, 901 (5th Cir. 2006); Mares, 402 F.3d at 519. To the extent that Moreira
seeks to assert a claim of ineffective assistance of counsel, the record is not
adequately developed to allow us to review such a claim in the first instance.
See United States v. Isgar, 739 F.3d 829, 841 (5th Cir. 2014); United States v.
Aguilar, 503 F.3d 431, 436 (5th Cir. 2007).
Accordingly, the judgment of the district court is AFFIRMED.
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