United States v. Fuselier

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 20, 2004
Charles R. Fulbruge III
Clerk
No. 03-30438
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAVID ANTHONY FUSELIER,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 2:02-CR-20116-02
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Before JOLLY, JONES, and SMITH, Circuit Judges.
PER CURIAM:*
David Anthony Fuselier appeals the sentence imposed
following his convictions for conspiracy to violate the victims’
federal civil rights, interference with the victims’ housing
rights, and using fire or explosives to commit a felony.
Fuselier argues that the district court clearly erred in finding
that he was a leader or organizer of the offenses and in
increasing his offense level by four levels under U.S.S.G.
§ 3B1.1(a).
*
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that this opinion should not be published and is not precedent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. 03-30438
-2-
The Presentence Report (PSR) provided that Fuselier was the
Great Titan of a district within America’s Invisible Empire, a
faction of the Ku Klux Klan. All of the defendants were members
of this group, and Fuselier was the highest ranking official in
this group of defendants. The PSR provided that Fuselier
instructed Christopher Hammer to build a cross. Fuselier
instructed Samuel Trahan and Berry Harris to place the cross in
the victims’ front yard and to set it on fire. He told Holly
Dartez to drive to the victims’ house, to park in a particular
place, to drive back to her residence, and to stay within the
speed limit. He also told the group not to look at the cross as
they drove away so that they would not seem suspicious. The
district court was entitled to rely on the facts set forth in the
PSR as Fuselier did not present any rebuttal evidence or
demonstrate that the information in the PSR was unreliable. See
United States v. Cabrera, 288 F.3d 163, 173-74 (5th Cir. 2002).
Because the district court’s finding that Fuselier was a leader
or organizer of the offense is “plausible in light of the record
as a whole,” Fuselier has not shown clear error. See United
States v. Parker, 133 F.3d 322, 330 (5th Cir. 1998).
AFFIRMED.