IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-30297

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

WILLIAM B. CREEL,

Defendant-Appellant

Appeal from the United States District Court

for the Middle District of Louisiana

USDC No. 3:10-CR-11-1

Before WIENER, GARZA, and CLEMENT, Circuit Judges.

PER CURIAM:*

A jury convicted Defendant-Appellant William B. Creel on one count of

making a false statement to a federal law enforcement agent in violation of 18

U.S.C. § 1001(a)(2). The court sentenced him to 12 months in prison, an increase

from the guidelines-recommended sentence of six months. Creel appeals. We

affirm.

The false statement was made while state police and the federal Bureau

of Alcohol, Tobacco, and Firearms (ATF) were investigating possible criminal

United States Court of Appeals

Fifth Circuit

F I L E D

January 20, 2012

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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No. 11-30297

activity by the Bandidos outlaw motorcycle gang and the LA Riders, an

associated gang, as well as the recent exposure of two police confidential

informants. The verdict established that, during a contentious telephone call

with an ATF agent, Creel falsely denied being at a specific Bandido’s trailer

where the exposure of a confidential informant was discussed. 

Creel contends that the evidence was insufficient to prove that he intended

to deceive the ATF agent. We review preserved claims of insufficient evidence

de novo and will affirm the conviction if, after viewing the evidence, the

reasonable inferences therefrom, and all credibility determinations in favor of

the verdict, we conclude that a rational jury could have found that the

government proved the elements of the crime beyond a reasonable doubt. See

United States v. Moreno, 185 F.3d 465, 471 (5th Cir. 1999).

Under § 1001, a false statement must have been “made with an intent to

deceive or mislead.” United States v. Guzman, 781 F.2d 428, 431 (5th Cir. 1986). 

Creel argues that he made the false statement merely to aggravate the agent

during a heated argument. A false statement was not an exclusive or necessary

method of expressing anger, and its primary aggravating effect would seem to

have been its tendency to deceive the agent. Moreover, Creel’s denial was made

as he defended himself and his motorcycle club, the Arawyns, against

accusations that they had ties to the Bandidos. A reasonable jury could conclude

that Creel made his false statements to deflect suspicion from him and the

Arawyns by deceiving the government. See id.; Moreno, 185 F.3d at 471. This

claim fails. 

Creel also contends that the evidence was insufficient to prove that his

statement was material to the investigation. As he raised this issue in his reply

brief rather than his main brief, we are not required to consider it. See United

States v. Ramirez, 557 F.3d 200, 203 (5th Cir. 2009). We nevertheless exercise

our discretion to review it as a response to the mention of materiality in the

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government’s brief. See United States v. Seale, 600 F.3d 473, 488 (5th Cir.), cert.

denied, 131 S. Ct. 163 (2010). 

To determine materiality under § 1001, we seek to ascertain that which 

was the false statement and the decision that the agency was attempting to

make. United States v. Najera Jimenez, 593 F.3d 391, 399-400 (5th Cir. 2010). 

We then ask whether the statement at issue had “a natural tendency to

influence, or be capable of influencing” that decision. Id. (internal quotation

marks, alteration, and citation omitted). It does not matter whether the false

statement actually or probably influenced the decision, only “whether the

misrepresentation was capable of influencing the agency decision.” Id. at 400

(internal quotation marks and citation omitted). 

The ATF was attempting to determine whether there was an association

between the Arawyns and Creel and the Bandidos. According to the indictment

and the evidence, the ATF wanted to know who was at the trailer to determine

if there was a leak of information to the Bandidos and, if so, who leaked it, and

to include or exclude suspects or witnesses. Creel’s false denial that he was at

the trailer was naturally “capable of influencing” the government’s answer to

that question by suggesting there was no connection between himself and the

Bandidos. See Najera Jimenez, 593 F.3d at 399-400. This claim also fails. 

Before the trial, the district court granted the government’s motion in

limine to exclude evidence that Creel thought he was talking to a state

policeman rather than an ATF agent when he made his false statement. Creel

challenges the exclusion of that evidence on the ground that it prevented him

from showing that his statement was made only to aggravate the state

policeman. Evidence of a misunderstood identity was irrelevant to Creel’s

defense because the government was not required to prove that Creel knew he

was talking to a federal agent or even that his denial might reach a federal

agent. See United States v. Taylor, 582 F.3d 558, 562 (5th Cir. 2009); United

States v. Baker, 626 F.2d 512, 514, 516 (5th Cir. 1980). Moreover, Creel was not

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precluded from testifying that he made the statement merely to aggravate

rather than to deceive.

In any event, and despite the adverse ruling, Creel testified that he did not

believe he was talking to an ATF agent. This testimony failed in the face of the

recorded telephone call that showed in a compelling and essentially irrefutable

manner that the ATF agent clearly identified himself as such and that Creel had

no reason to believe the agent was not who he said he was. If there were any

error, it could not have affected Creel’s substantial rights and therefore would

have been harmless under Federal Rule of Criminal Procedure 52(a). This claim

warrants no relief. 

Creel also challenges his 12-month sentence, which was double the sixmonth sentence recommended under the Sentencing Guidelines. The court

justified the sentence as either a departure under the Guidelines or as a

variance outside the Guidelines pursuant to the sentencing factors of 18

U.S.C.§ 3553(a). See United States v. Brantley, 537 F.3d 347, 349 (5th Cir. 2008)

(identifying types of sentences). The court thoroughly explained that a 24-month

sentence would readily be warranted in light of Creel’s failure to abate or

prevent the risk of harm to the exposed confidential informants. The court also

noted that Creel had a close relationship with the Bandidos and had provided

them with information and ammunition. The court nevertheless imposed only

a 12-month sentence in light of Creel’s military service and health issues. 

Creel ultimately asserts only that the district court wrongly weighed the

§ 3553(a) factors in light of his personal history and the facts of the offense. He

thus asks us to reweigh those factors in his favor. This is precisely contrary to

the deferential standard of review for abuse of discretion prescribed by the

Supreme Court. See Gall v. United States, 552 U.S. 38, 51-52 (2007). 

Creel shows no entitlement to relief. The judgment of the district court is

AFFIRMED.

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