United States v. LeBlanc ( 2002 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-40509
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MELANIE LEBLANC,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:00-CR-195-1
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October 15, 2002
Before BARKSDALE, DeMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Melanie LeBlanc has appealed her conviction and sentence for
mail fraud. For reasons discussed below, the district court’s
judgment is affirmed and the appeal is dismissed in part.
LeBlanc’s motion to expedite the appeal is denied as moot.
LeBlanc’s base-offense level was raised by eight levels,
pursuant to U.S.S.G. § 2F1.1(b)(1)(I) (2000), because the total
intended loss was $278,226.92. This sum included as relevant
conduct $138,800 related to a mortgage loan obtained fraudulently
*
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this opinion should not be published and is not precedent except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. 02-40509
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from Ameriquest Mortgage Company. LeBlanc contends that the loss
should have been reduced to reflect the value of the collateral
securing the Ameriquest loan. Because LeBlanc made no showing
that she intended to repay the Ameriquest loan, the district
court did not err by calculating LeBlanc’s sentence on the basis
of the intended loss. See United States v. Henderson, 19 F.3d
917, 928 (5th Cir. 1994); United States v. Tedder, 81 F.3d 549,
551 (5th Cir. 1996). Because LeBlanc did not offer competent
evidence undermining the factual findings in the presentence
report regarding the amount of the intended loss, the district
court did not clearly err by adopting those findings. See United
Stats v. Morrow, 177 F.3d 272, 300-01 (5th Cir. 1999).
LeBlanc contends that the district court erred by refusing
to depart downward from the guideline imprisonment range because
she made substantial restitution prior to the sentencing hearing.
Because the district court’s ruling was premised on its
conclusion that a departure was not warranted, this issue is not
reviewable and this portion of the appeal must be dismissed.
See United States v. Wilson, 249 F.3d 366, 380 (5th Cir. 2001).
Citing FED. R. CRIM. P. 11(e)(1)(C), LeBlanc argues that the
district court should have given her an opportunity to withdraw
her guilty plea after rejecting paragraph 5 of the plea
agreement, pursuant to which the Government agreed to recommend
that LeBlanc be placed on probation and that the court consider a
term of home detention. We review this issue for plain error.
No. 02-40509
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See United States v. Rhodes, 253 F.3d 800, 804 (5th Cir. 2001).
Because there is no reason to believe that the parties intended
that the district court would be bound by the Government’s
recommendation, there was no error, plain or otherwise, in
failing to give LeBlanc an opportunity to withdraw her guilty
plea. See id. at 805.
JUDGMENT AFFIRMED; APPEAL DISMISSED IN PART; MOTION DENIED
AS MOOT.