United States Court of Appeals

for the Fifth Circuit ____________

No. 23-30292

Summary Calendar

____________

United States of America, 

Plaintiff—Appellee, 

versus

Michael Ansezell Tolliver, 

Defendant—Appellant. 

______________________________

Appeal from the United States District Court 

for the Western District of Louisiana

USDC No. 3:21-CR-271-1 

______________________________

Before King, Haynes, and Graves, Circuit Judges.

Per Curiam:*

Michael Ansezell Tolliver appeals the 120-month sentence imposed 

for his conviction of money laundering. He contends that the district court 

committed two reversible guidelines errors, his sentence is substantively 

unreasonable under 18 U.S.C. § 3553(a), and his sentence constitutes cruel 

and unusual punishment under the Eighth Amendment.

_____________________

* This opinion is not designated for publication. See 5th Cir. R. 47.5.

United States Court of Appeals

Fifth Circuit

FILED

September 7, 2023

Lyle W. Cayce

Clerk

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No. 23-30292

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In his first guidelines challenge, Tolliver argues that the district court

erred in determining the loss applicable under U.S.S.G. § 2B1.1(b)(1). He 

concedes that the applicable loss in his case was the greater of the actual loss 

or intended loss. For challenges that have been preserved, the district court’s 

interpretation of the Sentencing Guidelines is reviewed de novo. United 

States v. Dowl, 619 F.3d 494, 502 (5th Cir. 2010). We review the calculation 

of the loss amount and other factual findings for clear error. Id.

The district court’s loss determination was supported by factual 

findings in the presentence report (PSR) about Tolliver’s fraudulent 

applications under the Paycheck Protection Program (PPP) and Economic 

Injury Disaster Loan Program (EIDL). Tolliver did not provide any evidence 

rebutting the PSR’s findings. Additionally, given the PSR’s details about the 

dates of the applications; the names of the businesses used by Tolliver in the 

applications; the amounts sought; the amounts funded; and the names of the 

lenders associated with the applications, the PSR’s information about the 

applications had sufficient indicia of reliability. Accordingly, the district 

court was permitted to rely on that information without further inquiry. See 

United States v. Murray, 648 F.3d 251, 255 (5th Cir. 2011). Tolliver’s 

intention to divert $7,607,096 from the government for unintended uses 

qualifies that amount as the intended loss for purposes of § 2B1.1(b)(1). See 

Dowl, 619 F.3d at 502.

Tolliver also contends that the district court misunderstood the 

parties’ stipulation regarding the applicable loss. The stipulation was not 

binding on the district court, and the record reflects a deliberate decision by 

the district court to use the definition of loss under § 2B1.1(b)(1) as the 

appropriate way to calculate the applicable amount. Tolliver’s contention 

that a misunderstanding of the stipulation affected the loss calculation is 

unavailing.

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With respect to the second guidelines issue, the parties agree that the 

district court misapplied U.S.S.G. § 2S1.1(b)(2)(A) by assessing a two-level 

enhancement when only a one-level enhancement was applicable. Because 

this error was not raised in the district court, we review it under the plain 

error standard. See Murray, 648 F.3d at 253. To establish an effect on his 

substantial rights, Tolliver “must show a reasonable probability that, but for 

the error, the outcome of the proceeding would have been different.” 

Molina-Martinez v. United States, 578 U.S. 189, 194 (2016)(internal quotation 

marks and citation omitted).

The district court’s comments at sentencing make clear that its 

sentencing decision was driven by the statutory maximum and that the 

district court would not have imposed any sentence that was “a day less than 

the [statutory] maximum sentence” of 120 months of imprisonment. Thus, 

Tolliver has not shown a reasonable probability that he would have received 

a lesser sentence if the district court had considered the correct guidelines 

range of 110 to 120 months of imprisonment. See United States v. SanchezHernandez, 931 F.3d 408, 411-12 (5th Cir. 2019); United States v. NinoCarreon, 910 F.3d 194, 197-98 (5th Cir. 2018). Accordingly, the district 

court’s misapplication of § 2S1.1(b)(2)(A) is not reversible plain error.

For both substantive reasonableness and the Eighth Amendment, 

Tolliver relies on the same arguments: (1) his sentence is disproportionately 

greater than sentences for similarly situated convictions involving PPP and 

EIDL fraud; (2) his sentence is greater than necessary to deter him from 

future criminal conduct and to protect the public, given that the COVID-19 

economic relief programs are over, he is 57 years old, and he has a history of 

heart issues; and (3) a shorter prison term would allow him to return to the 

workforce more quickly and increase the likelihood of restitution payments.

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In evaluating substantive reasonableness, we consider whether the 

district court “abused [its] discretion in determining that the § 3553(a) 

factors supported the sentence imposed.” Holguin-Hernandez v. United 

States, 140 S. Ct. 762, 766 (2020). Tolliver points to four cases in arguing 

that his sentence is disproportionately high, but he fails to show whether 

those cases had comparable aggravating or mitigating facts. Thus, he has not 

shown that any sentencing disparity with those cases was unwarranted. See

§ 3553(a)(6); United States v. Willingham, 497 F.3d 541, 544-45 (5th Cir. 

2007).

Moreover, the district court was aware of his arguments for a lesser 

sentence but determined that the statutory maximum of 120 months of 

imprisonment was appropriate. In doing so, the district court specifically 

noted Tolliver’s extensive criminal history, a factor that the district court was 

permitted to consider. See United States v. Smith, 440 F.3d 704, 709 (5th Cir. 

2006). “The sentencing judge is in a superior position to find facts and judge 

their import under § 3553(a) in the individual case.” Gall v. United States, 

552 U.S. 38, 51 (2007). We give due deference to the district court’s 

sentencing decision and decline to reweigh the applicable sentencing factors. 

See id. Tolliver’s sentence is not substantively unreasonable.

Lastly, we review Tolliver’s Eighth Amendment claim for plain error 

because he did not raise such a claim in the district court. See United States 

v. Ayelotan, 917 F.3d 394, 406 (5th Cir. 2019). He has not shown that his 

sentence is grossly disproportionate to the severity of his offense. See United 

States v. Neba, 901 F.3d 260, 264-65 (5th Cir. 2018).

AFFIRMED.

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