United States v. Nix ( 2023 )

Case: 22-40675 Document: 00516758533 Page: 1 Date Filed: 05/22/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
____________ Fifth Circuit
FILED
No. 22-40675 May 22, 2023
Summary Calendar Lyle W. Cayce
____________ Clerk
United States of America,
Plaintiff—Appellee,
versus
James Clark Nix,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:20-CR-355-2
______________________________
Before Barksdale, Elrod, and Haynes, Circuit Judges.
Per Curiam: *
A jury convicted James Clark Nix of one count of conspiracy to
commit wire fraud, one count of wire fraud, and two counts of money
laundering. See 18 U.S.C. §§ 2, 1343, 1349, 1957. The district court
sentenced him to consecutive terms of 168 months, 168 months, 120 months,
and 120 months, respectively, resulting in his aggregate sentence of 576-
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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No. 22-40675
months’ imprisonment. It also ordered, inter alia, approximately $6.6
million in restitution.
Nix challenges the court’s, over his objections, in reaching the
Guidelines sentencing range, applying: a two-level enhancement under
Guideline § 2B1.1(b)(10)(C) for offense conduct involving “sophisticated
means”; and a two-level enhancement under Guideline § 3B1.3 for
“abus[ing] a position of public or private trust, or us[ing] a special skill, in a
manner that significantly facilitated the commission or concealment of the
offense”.
Although post-Booker, the Sentencing Guidelines are advisory only,
the district court must avoid significant procedural error, such as improperly
calculating the Guidelines sentencing range. Gall v. United States, 552 U.S.
38, 46, 51 (2007). If no such procedural error exists, a properly preserved
objection to an ultimate sentence is reviewed for substantive reasonableness
under an abuse-of-discretion standard. Id. at 51; United States v. Delgado-
Martinez, 564 F.3d 750, 751–53 (5th Cir. 2009). In that respect, for issues
preserved in district court, as in this instance, its application of the
Guidelines is reviewed de novo; its factual findings, only for clear error. E.g.,
United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).
Nix contends Guideline § 2B1.1(b)(10)(C) should not have been
applied because his scheme was straightforward and uncomplicated, and he
did not attempt to conceal his fraudulent conduct. In that regard, Nix for
years prepared and filed tax returns for individuals and businesses and
convinced approximately 30 of his clients to transfer funds from their
retirement and savings accounts to him for investing. Instead of investing
those funds, however, Nix converted them for his personal use. He, at the
very least, generated falsified documents showing that his clients’ funds were
stable and had grown when, in reality, they were being used to purchase lavish
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gifts for himself. “[V]iewing the scheme in its entirety, it was not clearly
erroneous for the district court to conclude that [Nix’s] overall conduct
warranted the sophisticated means enhancement”. United States v. Miller,
906 F.3d 373, 380 (5th Cir. 2018).
Next, and as provided supra, the Guideline § 3B1.3 enhancement
applies if “defendant abused a position of public or private trust, or used a
special skill, in a manner that significantly facilitated the commission or
concealment of the offense”. U.S.S.G. § 3B1.3. Nix contends this
enhancement should not have applied, asserting: he did not abuse a position
of public or private trust, or use a special skill, because he is merely “a tax
preparer, with a bachelor’s degree”, lacking “substantial education, training,
or licensing”; and, even if he did, the record does not show he “used his
accounting position or skill in any way that increased his chance of
succeeding on his scheme”.
Nix, as his clients’ trusted and long-standing tax preparer, was
entrusted with their valuable financial information, had complete control
over their investment funds after they were transferred to him, and used his
knowledge of taxes and retirement funds to persuade his clients to invest with
him and to create the appearance of legitimacy. His victims relied on his
expertise and advice to their collective detriment of over $6 million. The
court did not commit clear error. See United States v. Rorex, 16 F.3d 1214,
1994 WL 57266, at *1–2 (5th Cir. 1994) (unpublished, but precedent pursuant
to 5th Cir. R. 47.5.3) (affirming application of § 3B1.3 enhancement where
defendant’s background suggested he “had greater knowledge of
bookkeeping and tax preparation than did the general public” and “relied
upon his superior knowledge . . . to ensure the success of his scheme”).
Nix additionally claims his sentence violates the Eighth Amendment.
As he concedes, he did not raise this issue in district court. The failure to
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preserve the issue results in our review being only for plain error. E.g., United
States v. Broussard, 669 F.3d 537, 546 (5th Cir. 2012). Under that standard,
Nix must show a forfeited plain error (clear-or-obvious error, rather than one
subject to reasonable dispute) that affected his substantial rights. Puckett v.
United States, 556 U.S. 129, 135 (2009). If he makes that showing, our court
has the discretion to correct the reversible plain error, but generally should
do so only if it “seriously affect[s] the fairness, integrity or public reputation
of judicial proceedings”. Id. (citation omitted).
Nix fails to show the requisite clear-or-obvious error in maintaining
his sentence is grossly disproportionate to the severity of his offenses. See
United States v. Ayelotan, 917 F.3d 394, 406–07 (5th Cir. 2019) (affirming on
plain-error review what defendant maintained was “effective life sentence[]”
for financial crime); United States v. Mills, 843 F.3d 210, 217 (5th Cir. 2016)
(“[T]he Guidelines are a convincing objective indicator of proportionality”.
(citation omitted)).
Finally, we note sua sponte that the court at sentencing ordered Nix
make $6,628,394.66 in restitution, in accordance with the presentence
investigation report. The court’s written judgment, however, orders
restitution in the amount of $6,631,894.66. We remand for the court to
amend the written judgment to conform to its oral restitution order. See
United States v. Martinez, 250 F.3d 941, 942 (5th Cir. 2001) (“In this Circuit,
it is well settled law that where there is any variation between the oral and
written pronouncement of sentence, the oral sentence prevails.” (citation
omitted)); see also United States v. Garcia, 604 F.3d 186, 191 (5th Cir. 2010)
(“Generally, we remand and direct the court to amend the written judgment
to conform to the oral pronouncement.”).
AFFIRMED and REMANDED to conform the written judgment
to the oral pronouncement of restitution at sentencing.
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