IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-20686

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

ALLAN LOHRMAN; JIMMY FRAZIER,

Defendants - Appellants

Appeals from the United States District Court

for the Southern District of Texas

USDC No. 4:07-CR-392-1

Before BARKSDALE, DENNIS, and OWEN, Circuit Judges.

PER CURIAM:

*

Allan Lohrman appeals: his convictions for conspiracy to commit mail

fraud and 31 counts of mail fraud, in violation of 18 U.S.C. §§ 1349 and 1341,

respectively; and his resulting sentence of 135 months’ imprisonment. Jimmy

Frazier appeals: his convictions for conspiracy to commit mail fraud and six

counts of mail fraud, in violation of 18 U.S.C. §§ 1349 and 1341, respectively; and

the award of restitution for $21,613.17 made against him, jointly and severally.

United States Court of Appeals

Fifth Circuit

F I L E D

February 22, 2011

Lyle W. Cayce

Clerk

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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Lohrman and Frazier preserved their sufficiency-of-the-evidence claims

by moving for a judgment of acquittal at the close of the Government’s case and

renewing their motions at the close of all the evidence. E.g., United States v.

Ferguson, 211 F.3d 878, 882 (5th Cir. 2000). (The Government asserts Lohrman

waived his sufficiency-of-the-evidence claim by inadequately briefing it, in

violation of Federal Rule of Appellate Procedure 28(a)(9)(A). Although it is a

close call, Lohrman adequately briefed this issue. Counsel is cautioned to

comply fully with the rules concerning briefing.)

The sufficiency claims having been preserved, the denials of the motions

for judgment of acquittal are reviewed de novo. Id. In reviewing the sufficiency

of the evidence, we ask whether, “viewing the evidence and the inferences that

may be drawn from it in the light most favorable to the verdict, a rational jury

could have found the essential elements of the offenses beyond a reasonable

doubt”. United States v. Clark, 577 F.3d 273, 284 (5th Cir. 2009) (internal

citations and quotation marks omitted).

Along this line, Lohrman contends the Government failed to produce

sufficient evidence showing he was involved in the below-described “back-door

sales pitch” and in selling nonexistent magazines. The evidence reflects that

Lohrman was a major player in the scheme to sell advertisements in nonexistent magazines, or published magazines without public circulation. He

admitted: he rented the office space where the scheme took place; leased the

mail boxes used for the scheme; chose to do business on a cash basis; paid the

participants; and the salesmen used a written sales pitch most likely written by

Guillory.

Guillory testified that the “back-door sales pitch” was the primary one

used to sell the advertisements. This involved telling customers they had

previously agreed to purchase an ad, the magazine had been printed, and

payment was due. The salesmen would confirm these sales to customers

through false backdated invoices. These invoices were found in the office during

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a search and many of the victims testified about receiving such invoices and

being told to make an immediate payment.

Viewing the evidence in the light most favorable to the verdict, a rational

juror could have found, beyond a reasonable doubt, that Lohrman and his coconspirators agreed to enter into a fraudulent scheme to defraud victims through

use of the “back-door sales pitch”, as well as through other deceptive practices,

and used the mails to achieve their purpose of obtaining funds from their

victims. In short, there was sufficient evidence for a rational juror to find him

guilty of conspiracy to commit mail fraud and 31 charges of mail fraud. See, e.g.,

Clark, 577 F.3d at 286; United States v. Ingles, 445 F.3d 830, 838 (5th Cir. 2006).

Frazier contends the Government failed to prove he conspired to use the

mails to sell advertisements for fraudulent magazines or committed mail fraud

because: he was a mere salesman; he did not use the “back-door sales pitch”;

and there was no evidence tying him to the advertising sales for the Highway

Patrolman, which was the publication involved in the six mail fraud counts on

which he was found guilty.

There was sufficient evidence that Frazier was involved in the fraudulent

scheme and made sales for advertisements in the Highway Patrolman. The

“back-door sales pitch” was regularly used in the office as part of the scheme, in

conjunction with the mailing of backdated invoices to customers. Accordingly,

viewing the evidence in the light most favorable to the verdict, a rational juror

could have found that Frazier agreed to participate in the scheme to use

deceptive practices, including the use of the “back-door sales pitch”, and use the

mails to obtain payments from the victims. See, e.g., Clark, 577 F.3d at 286;

Ingles, 445 F.3d at 838.

Lohrman maintains the district court erred in finding the applicable

amount of loss was $455,000, and applying the resulting 14-level enhancement

pursuant to advisory sentencing Guideline § 2B1.1(b)(1)(H). He asserts the

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district court erred in relying on undated documents not clearly used in the

conspiracy.

Amount of loss is a factual finding reviewed only for clear error; the

district court “receives wide latitude to determine the amount of loss and should

make a reasonable estimate based on available information”. United States v.

Jones, 475 F.3d 701, 705 (5th Cir. 2007). Because the district court “is in a

unique position to assess the evidence and assess the loss based upon that

evidence”, its “loss determination is entitled to appropriate deference”. U.S.S.G.

§ 2B1.1 cmt. n.3(C). The “loss is the greater of actual loss or intended loss”, the

latter being determined by defendant’s actual intent. U.S.S.G. § 2B1.1 cmt.

n.3(A); see also United States v. Pennell, 409 F.3d 240, 244 (5th Cir. 2005).

The court determined: because the fraudulent conduct had continued over

an extended period of time, the inability to precisely determine the dates the

money was solicited was not fatal to the loss calculation. There was reliable

evidence, in addition to the information in the presentence investigation report,

that the loss amount was limited to evidence found at the business, and that the

intended-loss estimation was reasonable. See, e.g., Pennell, 409 F.3d at 244.

Many documents were excluded because they did not contain dollar amounts or

were found in Lohrman’s home.

Finally, regarding the district court’s ruling that Frazier was to make

$21,613.17 in restitution, he asserts the court erred because: none of the alleged

victims who lost money testified at trial; and he was not connected to any of

those victims. Because the offenses involved fraud or deceit, the court was

entitled to award restitution to the victims. See 18 U.S.C. § 3663A(a)(1),

(c)(1)(A)(ii); United States v. Cothran, 302 F.3d 279, 289-90 (5th Cir. 2002). A

restitution award is reviewed for abuse of discretion. United States v. McMillan,

600 F.3d 434, 459 (5th Cir.), cert. denied, 131 S. Ct. 504 (2010). Such award

“must be limited to losses caused by the specific conduct underlying the offense

of conviction”. Id. (internal citation and quotation marks omitted).

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The evidence shows that Frazier acted in furtherance of the fraudulent

scheme by selling advertisements in publications that were non-existent or, if

published, would not be circulated to the public. Accordingly, the district court

did not abuse its discretion in holding Frazier accountable for the actual losses

to victims arising from the fraudulent scheme. See, e.g., United States v.

Gutierrez-Avascal, 542 F.3d 495, 498 (5th Cir. 2008).

AFFIRMED.

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