IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-31335

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

JENNIFER PANOS, also known as Nancy,

Defendant - Appellant

No. 14-31337 

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

JAMES PANOS, also known as Jim Panos,

Defendant - Appellant

Appeals from the United States District Court

for the Western District of Louisiana

USDC No. 6:12-CR-344-3

USDC No. 6:12-CR-344-1

United States Court of Appeals

Fifth Circuit

FILED

December 21, 2015

Lyle W. Cayce

Clerk

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Before BARKSDALE, DENNIS, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

Jennifer and James Panos pleaded guilty to a racketeering conspiracy, 

in violation of 18 U.S.C. § 1962(d). They were charged with conspiring to 

operate a criminal enterprise, Desperado’s Gentlemen’s Cabaret, which was 

used for, inter alia, prostitution, and the distribution and use of controlled 

substances. Defendants were sentenced below the Sentencing Guidelines 

advisory sentencing range to 72 months’ imprisonment for James Panos and 

48 for Jennifer Panos. Their sentences are challenged on several bases.

Defendants assert their rights against ex post facto laws were violated 

by the enhancement of their sentences, pursuant to Guideline § 2D1.1(b)(11), 

which provides a two-level enhancement to the base offense level “[i]f the 

defendant bribed, or attempted to bribe, a law enforcement officer to facilitate 

the commission of the offense”. They maintain the Government did not provide 

evidence demonstrating bribery of a law enforcement officer after 1 November 

2010, when the enhancement went into effect. Along that line, Jennifer Panos 

contends: she never knowingly bribed a law enforcement officer; and there was 

no evidence she was personally involved in any payments to law enforcement 

officers after the effective date of the Guidelines amendment. James Panos 

asserts there is no “legitimate evidence” he bribed, or attempted to bribe, a law 

enforcement officer after the effective date. Each defendant objected to the 

enhancement at sentencing on ex post facto grounds, and Jennifer Panos 

further objected on additional factual grounds; accordingly, the objections were 

adequately preserved for appeal.

 

* 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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Although post-Booker, the Sentencing 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 Guideline-sentencing range for use in deciding on 

the sentence to impose. Gall v. United States, 552 U.S. 38, 48–51 (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-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008); United 

States v. Villegas, 404 F.3d 355, 359 (5th Cir. 2005). “A factual finding is not 

clearly erroneous if it is plausible in light of the record as a whole.” United 

States v. Alaniz, 726 F.3d 586, 618 (5th Cir. 2013). 

The bribery enhancement was adopted by the Sentencing Commission in 

Guidelines Amendment 748, effective November 1, 2010. See U.S.S.G. App. C, 

Vol. III, amend. 748. “A sentencing court must apply the version of the 

sentencing guidelines effective at the time of the sentencing unless application 

of that version would violate the [Ex Post Facto] Clause of the Constitution.” 

United States v. Kimler, 167 F.3d 889, 893 (5th Cir. 1999). The Ex Post Facto

Clause “generally prohibits the retroactive application of the sentencing 

guidelines if it results in a more onerous penalty”, id., in which case “the court 

shall use the Guidelines Manual in effect on the date that the offense of 

conviction was committed”. U.S.S.G. § 1B1.11(b)(1).

A court’s determination a conspiracy continued for Guidelines purposes 

is a factual finding; therefore, review is for clear error. United States v. 

Thomas, 12 F.3d 1350, 1371 (5th Cir. 1994). Because they were convicted of 

conspiracy, defendants are responsible for all reasonably foreseeable acts and 

omissions of others in furtherance of the jointly undertaken criminal activity 

that occurred during the commission of the offense. See U.S.S.G. 

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§ 1B1.3(a)(1)(B). The court noted bribes were paid to law enforcement officers 

throughout the course of the conspiracy, which spanned from 1 January 2006 

to 5 December 2012. Where, as here, a conspiracy has continued after the 

effective date of a Guidelines enhancement, the Ex Post Facto Clause is not 

violated by application of the enhancement in sentencing a conspirator, who 

has not withdrawn from the conspiracy, and to whom it was foreseeable that 

the conspiracy would continue past the effective date of the amendment. See 

United States v. Olis, 429 F.3d 540, 545 (5th Cir. 2005); see also Thomas, 12 

F.3d at 1370–71; United States v. Devine, 934 F.2d 1325, 1332 (5th Cir. 1991). 

Defendants’ contention that Peugh v. United States, 133 S.Ct. 2072 

(2013), altered existing law on this issue is unavailing. See United States v. 

Nunez, 604 F. App’x 353, 354 (5th Cir.) (applying Peugh and Olis, holding no 

Ex Post Facto Clause violation in sentencing defendant convicted of conspiracy 

under Guidelines enhancements that became effective during the existence of 

the conspiracy), cert. denied, 136 S.Ct. 338 (2015). Accordingly, the court did 

not err in applying the Guidelines in effect on the date the conspiracy was 

terminated; nor did it err in its finding bribes paid by James Panos during the 

existence of the conspiracy were attributable to Jennifer Panos as relevant 

conduct, as it was foreseeable to her that the bribes had been paid and were 

ongoing. See Olis, 429 F.3d at 545; see also Alaniz, 726 F.3d at 618–19. 

James Panos contends the Government violated its immunity agreement 

with him by citing facts learned during his debriefings in its opposition to his 

sentencing memorandum. He further maintains the court erred in relying on 

those facts in denying his objection to the bribery enhancement. He did not 

claim in district court, however, that the Government breached the immunity 

agreement; at sentencing, his general statement regarding the facts contained 

in the agreement was insufficient to “alert the . . . court to the nature of the 

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alleged error and . . . provide an opportunity for correction”. United States v. 

Neal, 578 F.3d 270, 272 (5th Cir. 2009). Accordingly, review is only for plain 

error. United States v. Munoz, 408 F.3d 222, 226 (5th Cir. 2005). Under this 

standard, he must show a forfeited plain (clear or obvious) error that affected 

his substantial rights. E.g., Puckett v. United States, 556 U.S. 129, 135 (2009). 

If he does so, our court has discretion to correct the reversible plain error, but 

should do so only if it seriously affects the fairness, integrity, or public 

reputation of the proceedings. Id.

Pursuant to Guideline § 1B1.8(a), “Where a defendant agrees to 

cooperate with the [G]overnment by providing information concerning 

unlawful activities of others, and as part of that cooperation . . . the 

[G]overnment agrees that self-incriminating information will not be used 

against the defendant, . . . such information shall not be used in determining

the applicable guideline range, except to the extent provided in the agreement”. 

Even assuming, arguendo, the Government’s reference to facts learned during 

his debriefing was clear-or-obvious error, James Panos cannot show his 

substantial rights were affected. He is unable to demonstrate “a reasonable 

probability that, but for the alleged error, he would have received a lesser 

sentence”. United States v. Adesoye, 383 F. App’x 421, 424 (5th Cir. 2010)

(citing United States v. Mondragon-Santiago, 564 F.3d 357, 364–65 (5th Cir. 

2009)). As noted supra, the record provides ample independent evidence he 

bribed law enforcement officials during the conspiracy, which supports

imposition of the enhancement. See United States v. Yzaguirre, 406 F. App’x 

919, 921 (5th Cir. 2011).

Additionally, he has not shown the court relied on the improper 

information in imposing the bribery enhancement. His reliance on Santobello 

v. New York, 404 U.S. 257 (1971) and United States v. Harper, 643 F.3d 135 

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(5th Cir. 2011), in support of his contention he is not required to show the 

Government’s breach of the immunity agreement affected the court’s 

sentencing decision, is unavailing. In Harper, our court applied Santobello in 

vacating the defendant’s sentence and remanding for resentencing because the 

Government had breached an immunity agreement. 643 F.3d at 139–43. The 

error in Harper, however, was preserved, and an unpreserved breach-ofimmunity-agreement issue was reviewed by the Court in Puckett under the

plain-error standard, which required the defendant to show prejudice. Id. at 

139; Puckett, 556 U.S. at 140–41.

Jennifer Panos asserts the court erred by increasing her offense level by 

two levels, pursuant to Guideline § 2D1.1(b)(12), for maintaining a drugrelated premises. A court’s determination regarding the application of 

§ 2D.1.1(b)(12) is a factual finding, reviewed for clear error. E.g., United States 

v. Haines, 803 F.3d 713, 744 (5th Cir. 2015). She further contends, for the first 

time on appeal, that the enhancement does not apply because it went into effect 

on 1 November 2010. She adopts the assertions discussed supra regarding an 

ex post facto violation. The objection was not preserved; therefore, review is 

only for plain error. See United States v. Whitelaw, 580 F.3d 256, 259–60 (5th 

Cir. 2009).

Under § 2D1.1(b)(12), a two-level enhancement is imposed if a defendant 

“maintained a premises for the purpose of manufacturing or distributing a 

controlled substance”. Jennifer Panos claims the court erred in finding drug 

distribution was one of the primary or principal uses for the premises because: 

the evidence does not show drug trafficking facilitated other illicit activities at 

the club; the record shows Desperado’s was a legitimate business; the extent of 

drug distribution at the club, and her own involvement in the business, was 

overstated in the presentence investigation reports (PSRs); and she did not 

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personally participate in, or profit from, drug distribution, because drug 

proceeds were not a primary source of her livelihood. These contentions are 

without merit. The court’s finding Jennifer Panos maintained a premises for 

the purpose of manufacturing or distributing a controlled substance is 

plausible in light of the unrebutted findings in the PSRs showing the extensive 

role of drugs in fueling and enhancing the Panos’ business; therefore, it is not 

clearly erroneous. See Alaniz, 726 F.3d at 618–19; Haines, 803 F.3d at 744–

45. 

With regard to Jennifer Panos’ ex post facto claim, as noted above, the 

Guidelines in effect on the date the conspiracy was terminated (here, December 

5, 2012), may be applied without violating the Ex Post Facto Clause; 

accordingly, there is no plain error. See Olis, 429 F.3d at 545; see also 

§ 1B1.3(a)(1)(A)–(B).

Finally, Jennifer Panos contends the court erred by increasing her 

offense level by four, pursuant to Guideline § 3B1.1(a), because she did not act 

as an organizer or leader of criminal activity involving five or more 

participants, or that was “otherwise extensive”. This factual determination is 

reviewed for clear error. E.g., United States v. Ismoila, 100 F.3d 380, 394 (5th 

Cir. 1996).

More than one person involved in a conspiracy can qualify as a leader or 

organizer for purposes of the enhancement, and a defendant’s role can be 

inferred from available facts. United States v. Ventura, 353 F.3d 84, 90 (5th 

Cir. 2003); United States v. Cabrera, 288 F.3d 163, 174–75 (5th Cir. 2002). The 

racketeering conspiracy involved prostitution and drug distribution. Jennifer

Panos maintains she supervised prostitution activities but not drug 

distribution. As the Government asserts, however, it was proper for the court 

to consider all of the illegal activities of the conspiracy in applying the role 

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adjustment. See Ismoila, 100 F.3d at 395 (all relevant conduct is considered in 

applying the role adjustment); United States v. Ceballos-Amaya, 470 F. App’x 

254, 262 (5th Cir. 2012) (same). The record amply supports the court’s finding 

that Jennifer Panos: exercised decision-making authority over the 

racketeering enterprise; recruited accomplices by hiring and firing the 

employees who ultimately performed the acts of prostitution and/or sold

controlled substances; worked with her husband to manage the day-to-day 

operation of the enterprise; and, along with him, took the greatest share of its 

profits. See Ventura, 353 F.3d at 89–90. 

AFFIRMED.

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