United States v. Larry , 199 F. App'x 321 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 11, 2006
Charles R. Fulbruge III
Clerk
No. 05-31098
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANTHONY LARRY, III,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 5:04-CR-50171-2
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Before GARZA, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Anthony Larry, III appeals his conviction and sentence for
conspiracy to commit mail fraud, healthcare fraud, and bankruptcy
fraud, pursuant 18 U.S.C. § 371. Larry argues that the evidence
presented at trial was insufficient to sustain his conviction and
that the district court erred in calculating his sentence and in
imposing an unreasonable sentence. We affirm.
*
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this opinion should not be published and is not precedent except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.
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Larry challenges the sufficiency of the evidence supporting
his conviction.1 By moving for a judgment of acquittal at the
close of the evidence, Larry preserved his claim for appellate
review. See United States v. Izydore, 167 F.3d 213, 219 (5th
Cir. 1999). We review the evidence in the light most favorable
to the verdict and affirm if a rational trier of fact could have
found that the evidence establishes the essential elements of the
offense beyond a reasonable doubt. United States v. Williams,
985 F.2d 749, 753 (5th Cir. 1993).
To prove conspiracy under 18 U.S.C. § 317, the government
must prove 1) an agreement between two or more persons 2) to
commit a crime against the United States, and 3) an overt act by
one of the conspirators to further the objectives of the
conspiracy. United States v. Morrow, 177 F.3d 272, 286 (5th Cir.
1999). Direct evidence need not be presented; the jury can infer
a conspiracy from the circumstances. United States v. Stephens,
964 F.2d 424, 427 (5th Cir. 1992). The evidence showed that
Larry had caused his attorney to issue notice of his motion for a
hardship bankruptcy discharge through the United States mail that
was based on a false claim that his wife had brain cancer. The
evidence further demonstrated that Larry’s wife had applied for
and received through the United States mail payments totaling
1
Larry was indicted on forty-four counts; he was convicted
of one count of conspiracy and acquitted of the other forty-three
substantive counts that pertained to the execution of the
conspiracy.
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over $17,000 for dental care that was never performed. Larry had
endorsed one such check. Larry’s wife admitted that she had
submitted the false dental claims and that she had lied about her
brain cancer diagnosis. Larry received several thousand dollars
in donations and loans as the result of the false claim that his
wife had brain cancer. Although Larry and his wife testified
that Larry had no knowledge of the healthcare fraud and did not
learn until after the mail and bankruptcy fraud were complete
that his wife had lied about having cancer, the evidence showed
that Larry had been aware that his wife did not have brain cancer
as early as September 2000, prior to the issuance of their notice
of a hardship discharge in bankruptcy.
The jury was instructed, without objection, that it was
entitled to find Larry had knowledge of a fact if it found that
Larry deliberately closed his eyes to what would otherwise be
obvious to him. From this instruction, the jury reasonably could
have concluded that Larry had deliberately blinded himself to
facts indicating that his wife did not have brain cancer and
that, therefore, he had conspired with his wife to file a false
motion for a hardship discharge of their bankruptcy and caused
notice of their motion for the discharge to be sent through the
United States mail. The jury also could reasonably have
concluded that Larry had deliberately blinded himself to the fact
that his wife had filed false dental claims and had demonstrated
his complicity in the scheme by signing one of the fraudulently
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obtained checks. The jury’s decision to accept or reject Larry’s
and his wife’s testimony to the contrary was a credibility
determination not to be disturbed by this court. See United
States v. Runyan, 290 F.3d 223, 240 (5th Cir. 2002). His
conviction is affirmed.
Larry next argues that the district court committed various
errors in calculating his sentence. Even after United States v.
Booker, 543 U.S. 220 (2005), the sentencing court “is entitled to
find by a preponderance of the evidence all the facts relevant to
the determination of a Guideline sentencing range.” United
States v. Johnson, 445 F.3d 793, 797-98 (5th. Cir 2006). We
continue to review the district court’s application of the
guidelines de novo and its factual findings for clear error.
United States v. Charon, 442 F.3d 881, 887 (5th Cir. 2006).
Larry maintains that the district court erred in attributing
to him a $17,398 loss as the result of the dental fraud scheme
because the evidence was insufficient to support a finding that
he was aware of the dental fraud scheme. Based on our conclusion
that the evidence was sufficient to find beyond a reasonable
doubt that Larry had conspired with his wife to file false dental
claims, we affirm the finding of attributable loss. The amount
of loss attributable to a defendant’s relevant conduct is a
factual finding reviewed for clear error. United States v.
Messervey, 317 F.3d 457, 464 (5th Cir. 2002). To be upheld, the
finding need only be “plausible in light of the record as a
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whole.” United States v. Humphrey, 104 F.3d 65, 71 (5th Cir.
1997). In light of the record in this case, such a finding is
more than plausible.
Larry also challenges the enhancements to his sentence for
an offense involving bankruptcy fraud and ten or more victims,
arguing that he did not become involved in the conspiracy until
after the fraud had been committed. We reject his argument.
Evidence showed that Larry had been aware that his wife did not
have brain cancer as early as September 2000, well before the
time he acknowledged his awareness of that fact, and before the
Larrys caused notice of their hearing on the motion for a
hardship bankruptcy discharge to be sent through the United
States mail. As a result of the healthcare, mail, and bankruptcy
fraud, ten bankruptcy debtors and the City of Shreveport were
defrauded. In addition, the Larrys received loans and donations
from several other individuals, police organizations, churches,
and companies based on their misrepresentation that Larry’s wife
had brain cancer. These are factual findings that are not
clearly erroneous.
Larry urges that the district court erred in awarding him a
two-level enhancement for obstruction of justice, claiming that
deliberate ignorance of his wife’s fraud does not equate to a
finding that he committed perjury. Generally, it is proper for
the district court to enhance a defendant's sentence for
obstruction of justice where the defendant committed perjury by
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giving false testimony at trial. See United States v. Dunnigan,
507 U.S. 87, 94 (1993) (upholding obstruction of justice
enhancement where district court did not believe defendant's
trial testimony that she was not involved in a conspiracy). In
Dunnigan, the Supreme Court defined perjury as giving “false
testimony concerning a material matter with the willful intent to
provide false testimony, rather than as a result of confusion,
mistake or faulty memory.” 507 U.S. at 94. It is enough if the
district court found “the defendant untruthful at trial with
respect to material matters in th[e] case.” Id. at 95.
Additionally, the enhancement is adequately supported if the
court’s finding “encompasses all of the factual predicates for a
finding of perjury.” United States v. Laury, 985 F.2d 1293, 1308
(5th Cir. 1993).
Larry’s denial of awareness of his wife’s deception
regarding her cancer diagnosis concerned a material aspect of the
case, and the jury’s verdict supports the district court’s
conclusion that the testimony was false. See id. at 1309.
Because the district court made an adequate and well-supported
finding that Larry committed perjury, the court properly enhanced
his sentence for obstruction of justice. See id.; United States
v. Storm, 36 F.3d 1289, 1295 (5th Cir. 1994).
Larry further argues that the district court clearly erred
by denying him a minor-role reduction because he was not an
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active participant in the conspiracy and, therefore, should be
viewed as substantially less culpable than his wife. The
defendant bears the burden of proving that he was a minor
participant in the event. United States v. Garcia, 242 F.3d 593,
597 (5th Cir. 2001). Larry has not met this burden. Larry
participated in the conspiracy to commit healthcare, mail, and
bankruptcy fraud, took steps to conceal the conspiracy, and
received a substantial financial benefit from the conspiracy.
Based on these facts, it cannot be said that Larry’s role was
“peripheral” to the advancement of the conspiracy or that he was
“substantially less culpable than the average participant” in the
conspiracy, as would be required to qualify for the minor-role
reduction. The district court did not clearly err by finding
Larry ineligible for the minor-role reduction.
Finally, Larry contends that, because his sentencing
guidelines range was miscalculated, his sentence was
unreasonable. The district court sentenced Larry within a
properly calculated guideline range. Larry’s sentence is thus
presumed to be reasonable, and he has failed to rebut the
presumption. See United States v. Alonzo, 435 F.3d 551, 554 (5th
Cir. 2006). Accordingly, we affirm Larry’s sentence.
AFFIRMED.
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