United States v. Joseph Clements , 583 F. App'x 309 ( 2014 )

Case: 14-60105 Document: 00512805874 Page: 1 Date Filed: 10/16/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-60105
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
October 16, 2014
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff - Appellee
v.
JOSEPH ANTHONY CLEMENTS, also known as Joey Clements,
Defendant - Appellant
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 1:13-CR-69-1
Before SMITH, BARKSDALE, and PRADO, Circuit Judges.
PER CURIAM: *
Joseph Anthony Clements pleaded guilty to three counts of mail fraud,
in violation of 18 U.S.C. § 1341. Clements defrauded the fund reserved for
victims of the 2010 Deepwater Horizon oil spill by misrepresenting he was a
shrimp-boat captain who lost his livelihood. He challenges his sentence of 53
months’ imprisonment.
* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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.
Case: 14-60105 Document: 00512805874 Page: 2 Date Filed: 10/16/2014
No. 14-60105
Clements contends the district court erred in applying advisory-
Sentencing Guideline § 2B1.1(b)(10)(C), the sophisticated-means enhance-
ment, because he provided his true identification and location and did not
attempt to obscure the link between himself and the scheme. He also asserts
the offense was neither complex nor intricate in its execution.
Although post-Booker, the Guidelines are advisory only, and a properly
preserved objection to an ultimate sentence is reviewed for reasonableness
under an abuse-of-discretion standard, the district court must still properly
calculate the Guidelines-sentencing range for use in deciding on the sentence
to impose. Gall v. United States, 552 U.S. 38, 51 (2007). In that respect, for
issues preserved in district court, its application of the Guidelines is reviewed
de novo; its factual findings, only for clear error. E.g., United States v. Cisneros,
517 F.3d 751, 764 (5th Cir. 2008).
As stated in United States v. Conner, “[t]he district court’s factual
determination that the defendant used sophisticated means is reviewed for
clear error.” 537 F.3d 480, 492 (5th Cir. 2008) (citation omitted). Clements
asserts, however, that this court should conduct de novo review of the
sophisticated-means enhancement because he does not dispute any facts and,
where no facts are disputed, other circuits apply de novo review to
interpretations of § 2B1.1(b)(10)(C). We need not decide this assertion because
his claim fails under either standard of review.
“‘[S]ophisticated means’ means especially complex or especially intricate
offense conduct pertaining to the execution or concealment of an offense”.
U.S.S.G. § 2B1.1 cmt. 9(B). In concluding the enhancement was applicable,
the district court considered Clements’ conduct: he recruited a number of
individuals to corroborate his fraudulent story; he obtained a commercial
license, a boat registration, and a boat outrigged for shrimping; and he made
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Case: 14-60105 Document: 00512805874 Page: 3 Date Filed: 10/16/2014
No. 14-60105
200 telephone calls to the agency he defrauded, seeking the $36,000 he was
ultimately awarded by misrepresenting that he was about to lose his home and
vehicle.
Although Clements provided his true identity, and his offense was locally
based and did not involve any intricate financial transactions, he employed the
requisite especially complex and intricate offense conduct regarding execution
of the offense. (Because the district court did not err, we need not reach its
alternative basis for imposing the same sentence.)
AFFIRMED.
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