United States v. Gardner

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-40201
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JEFFREY WAYNE GARDNER,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:97-CR-54-ALL
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November 16, 1998
Before DAVIS, DUHE’, and PARKER, Circuit Judges.
PER CURIAM:*
Jeffrey Wayne Gardner appeals his sentence following a
guilty plea conviction of theft concerning programs receiving
federal funds in violation of 18 U.S.C. § 666(a)(1)(A). Gardner
argues that the district court erred by increasing his base
offense level (1) by two levels for his role as an organizer,
leader, manager or supervisor of criminal activity pursuant to
U.S.S.G. § 3B1.1(c); (2) by six levels because he “otherwise
used” a firearm pursuant to § 2B3.1(b)(2); and (3) by one level
*
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that this opinion should not be published and is not precedent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.
No. 98-40201
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pursuant to § 2B3.1(b)(6) because the loss to the victim was more
than $10,000.
We have reviewed the record including the presentence report
(PSR) and have determined that the district court did not clearly
err in its factual findings and did not misapply the Sentencing
Guidelines in sentencing Gardner. See United States v. Manthei,
913 F.2d 1130, 1135-37 (5th Cir. 1990)(the “offense” for purposes
of § 3B1.1 includes criminal activity greater in scope than the
activity comprising the elements of the offense charged); United
States v. Fletcher, 121 F.3d 187, 198 (5th Cir. 1997)(the
"otherwise-used" enhancement includes a situation where a
defendant both points a weapon at a victim and also explicitly
threatens the victim); United States v. Cockerham, 919 F.2d 286,
289 (5th Cir. 1990)(loss under § 2B1.1 “includes the value of all
property taken, even that recovered or returned”).
AFFIRMED.