### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 11-31049

UNITED STATES OF AMERICA, Plaintiff–Appellee,
v. RENEE GILL PRATT, Defendant–Appellant.

A ppeal from the United States District Court for the Eastern District of Louisiana

Before HIGGINBOTHAM, OWEN, and GRAVES, Circuit Judges. PRISCILLA R. OWEN, Circuit Judge: Renee Gill Pratt appeals her sentence and c o n v i c t i on of o ne count of conspiracy t o violate t he Racketeer Influenced and Corrupt O rg a n i z ations Act (RICO) 1 pursuant to 18 U.S.C. § 1962(d). W e affirm Pratt’s conviction b ut vacate her sentence and remand for resentencing. I Pratt, a member of the Louisiana H ouse of R epresentatives from 1991 to 2002 a nd a New Orleans city councilmember from 2002 to 2006, was prosecuted in c o nnection with a federal i nvestigation of several Louisiana politicians and U n i t e d S t a te s C o u r t o f A p p e al s

F i f t h C i rc u i t 

### F I L E D Aug ust 28, 2013 Ly l e W . Cay ce Clerk

1 18 U

. S. C. §§ 1961- 1968. Case: 11-31049 Document: 00512356970 Page: 1 Date Filed: 08/28/2013No. 11-31049

b u s i n e s s people who a llegedly abused their positions and misappropriated public funds. The Government accused Pratt of using her political influence and power to further the objectives of a c riminal e nterprise (“the E nterprise”) comprising Pratt, members of a well-known Louisiana family, and various nonprofit entities they controlled. Pratt allegedly conspired with members of the Enterprise to illegally funnel stat e a n d f e d e ral funds and property to members of the conspiracy for their personal benefit. Initially, the G overnment indicted M ose Jefferson, Angela C oleman, and Betty Jefferson (“the Jeffersons”) o n m u ltiple felony c h arges including embezzlement, money laundering, mail fraud, a nd conspiracy to commit the

same. As t he investigation progressed, the Government obtained a f irst
supe r s e ding indictment that added Pratt as a defendant a nd recast the conspiracy charge as a RICO c onspiracy. P r att was charged only with the RICO conspiracy count and not under any of the substantive counts. Pratt moved to
sever, a rguing that t h e i ndictment alleged only a minor r o l e i n t h e conspiracy and that her defense would be prejudiced by the pres e n t a t i on of evidence concerning her codefendants’ substantive crimes. The court denied the motion. After a second superseding indictment was issued, Betty Jeffe r s o n a nd Angela Coleman pleaded guilty, a nd the Government obtaine d a t h ird superseding indictment against only Pratt and Mose Jefferson. P r a t t filed a motion to dismiss, arguing that the indictment d i d not allege facts to support the court’s subject matter jurisdiction and failed to allege actual criminal c onduct by Pratt. The court denied the motion. Due to Mose Jefferson’s health problems, the Government then proceeded to trial against P ratt alone. That trial resulted in a hung jury. In anticipation of a sec o n d t r i a l , the Government obtained a fourth s uperseding indictment, w hich named P ratt as the only d efendant. As a result, this indictment omitted the substantive-crime counts, but r e t a ined

2 Case: 11-31049 Document: 00512356970 Page: 2 Date Filed: 08/28/2013No. 11-31049

r e f e r e n c es to the Jeffersons and d etails of their conduct as it related to t he alleged conspiracy. Jury selection for P ratt’s second trial began w i t h a t hirty-page questionna i r e sent to each p otential juror. Several o f the q uestions concerned
p retrial publicity a nd potential bias. In a ddition to general questions a b o u t media exposure and consumption, potential jurors were s p e c i fically asked if they had h eard of Pratt, the J e f f e r s o ns, or any of s everal r elated individuals and entities and, if so, what opinions t he potential j urors had formed. The district court struck some p otential jurors based on their answers to the questionnaire. After c onducting voir dire of the remaining potential jurors as a group, the court q uestioned each potential juror individually. At first t h e district court
p e r m i t ted the attorneys t o ask questions directly, but d uring individu a l questioning of the fourth potential juror, the court took control. Pratt’s lawyer objected to the c ourt’s decision and e xclaimed that he had “never seen or met a judge who knew how to conduct a v oir dire, except to clean up a witness who [was] already tainted.” H owever, the c ourt refused to cede control and admonished Pratt’s attorney not to argue further. During the subsequent two days of questioning, the c ourt entertained o bjections and p ermitted the parties to reques t a d d i t i onal questioning of the venire but did not allow either side to question potential jur o r s d i r e c t l y . A t v a r i o us times during the questioning, Pratt moved to strike jurors for cause, but the court o verruled her objections. At the

c o n c l u s i o n o f t h e i n d i v i d u a l q u e s t i o n i n g , t he district court entertained chal l e n g e s for cause one l ast time. Pratt cha l l e n g e d o n l y two jurors, a nd the court overruled b oth challenges. 2 Both sides then exercised their peremptory strikes, and Pra t t u sed some of her challenges to strike jurors that she had

2 The court als o overruled all of the G overnm ent’s challenges

. 3 Case: 11-31049 Document: 00512356970 Page: 3 Date Filed: 08/28/2013No. 11-31049

unsuccessfully challenged for cause. Pratt never moved to dismiss for cause any of the jurors ultimately empaneled. The Government used five of its eight peremptory strikes t o e xcuse black jurors, leaving only one black juror on the p anel. Pratt objected , a rguing that t h e Government’s strikes were racially motivat e d

. T h e G o v e r n m e n t o f f e r e d r a c e neutral reasons for e a c h o f t h e strikes, after which Pratt was given an opportunity to argue th a t t h o s e reasons were pretext for discrimination. The district court denied Pratt’s objection, f inding the Go v e rnment’s proffered

reasons credible. The court t hen e mpaneled the jury and two alternates without further objection from either side. After a 10-day tri a l , t h e j ury convicted Pratt on the single c ount of conspiracy to violate RICO. At sentencing, the court calculated a recommended sentencing range u nder the United States Sentencing G uidelines (the Guidelines) of 78-97 months and sentenced Pratt to 87 months of imprisonment. Pratt a p p e a l ed a nd now asserts four p oints of error: ( 1) the court failed to
q uestion the venire adequately about pretrial publicity, (2) the G ov e r n m e n t u s e d its peremptory challen g es to exclude jurors on the basis of r ace, (3) the fourth superseding indictment failed to identify sufficiently the pattern of racketeering activity underlying the conspiracy, and (4) t h e d i strict court i m p r o perly calculated the Guidelines sentenci n g r a nge. We f irst address the issues pertaining to Pratt’s conviction. II Pratt raises two objections to the manner in which th e c o urt conducted voir d ire. F irst, she asserts that the d istrict court failed to question the venire sufficiently about their b iases, making i t i m possible to determine whether the seated jury was impartial. Second, she arg u e s t h at the court improperly rehabilitated jurors who were clearly b iased and therefore erred in not

4 Case: 11-31049 Document: 00512356970 Page: 4 Date Filed: 08/28/2013No. 11-31049

dismissing several specific jurors for cause. A s a result, Pratt claims she was deprived of effective use of her twelve peremptory challenges. 3 We review the district c ourt’s v oir dire procedures for abuse o f discretion. 4 The district court has great latitude to conduct voir d ire, including the f orm and
scope of questioning

. 5 “ [ O ] n ly ‘when there is insufficient questioning to allow defense c ounsel to e xercise a reasonably knowledgeable challenge t o unqualified jurors,’” does the d istrict court abuse its discretion. 6 To demonst r a t e that questioning about p retrial publicity was inadequate, a defendant must show “(1) that pretrial publicity about the case raised a significant possibility of prejudice, and (2) that the district court’s voir dire procedure failed to provide a reasonable

assurance that prejudice would be d iscovered if present.” 7 The p a r t i e s do not dispute that pretrial publicity was substantial and raised a significa nt possibility of prejudice. The Jeffersons w ere the subject of significant media attention, as wa s P r a t t herself, much of it n egative. The only question is whether the district court’s voir dire was sufficient to reveal biased jurors. We h ave r esisted c ategorically requiring any specific voir dire procedures

o r q u e stions, and we give great deference to the trial court’s determination o f impartiality. 8 It is clear, however, that a court may not rely solely on a juror’s

3 The G overnm ent w as allotted eight s trik es and P ratt tw elve; both received tw o more than m and ated

. See F E D

. R

. C R I M

. P. 24( b) ( 2)

.

4 U ni ted Sta tes v
. B i ega now ski , 313 F. 3d 264, 272 ( 5th Cir. 2002) ( citing U ni t ed Sta tes v
. Beckner , 69 F. 3d 1290, 1291 ( 5th Cir. 1995) )

.

5 Id. ; see M

u’M i n v
. V i rgi ni a , 500 U

. S. 415, 423 ( 1991) ( “[ F] ed eral jud ges have been accord ed am p le dis cretion in d eterm ining how bes t to cond uct the voir dire. ” ( quoting Rosa l esLop ez v. U

ni ted Sta t es , 451 U

. S. 182, 189 ( 1981) ) ( internal quotation m ark s om itted ) )

.
6 Bi ega now ski , 313 F. 3d at 272- 73 ( quoting Beckner , 69 F

. 3d at 1291)

.
7 Id. at 273 ( quoting Beckner , 69 F. 3d at 1292) ( internal quotation m ark s om itted )

.
8 See Bi ega now ski , 313 F. 3d a t 2 7 2

- 7 3 ; s ee al so M u’M i n , 500 U

. S. at 425- 26 ( hold ing that a court need not as k ques tions about the s p ecif ic content of m ed ia exp os ure unles s “the 5 Case: 11-31049 Document: 00512356970 Page: 5 Date Filed: 08/28/2013No. 11-31049

assertion of impartiality b ut instead m ust conduct a sufficiently probing inquiry to permit the c ourt t o reach its own conclusion. 9 For example, in United States

v. Davis , 1 0 we held that merely asking p otential jurors t o r a i s e t h eir hands if they could not be impartial was not a d e q u ate voir dire in light of significant pretrial publicity of the defendant’s participation in a sensational jail break in Mexico. 1 1 Other than that s ingle, group question, the district court in Davis only
gave a g eneral admonishment to the venire that they would be required to decide the case impartially. 1 2 The court asked no f ollow-up questi o n s a nd made no specific inquiries of any individual juror. 1 3 “Without establishing an inflexible rule” for voir dire, we held t hat the district court failed to “make s u f f i c i e n t inquiry into the possibility of prejudice” given the circumstances. 1 4 Our subsequent cases have affirmed t hat such a perfunctory inquiry is insufficient when there is a reasonable probability of bias,. 1 5

trial court’s f

ailure to as k thes e ques tions [ would neces s arily] rend er the d ef end ant’s trial f und am entally unf

air”)

.
9 Beckner , 69 F. 3d at 1291 ( “[ B] ecaus e jurors exp os ed to p retrial p ublicity are in a p oor p os ition to d eterm ine their ow n im partiality

. . . di s t r i c t c o u rts m us t m ak e ind ep end ent d eterm inations of

the im p artiality of each juror. ”)

.
1 0 583 F. 2d 190 ( 5th Cir. 1978)

.

1 1 D a v i s , 583 F. 2d at 196.

1 2 Id.

1 3 Id.

1 4 Id. at 198.

1 5 See U ni ted Sta tes v
. Beckner , 69 F. 3d 1290, 1293- 94 ( 5th Cir. 1995) (hold ing that the d is trict court’s f

ailure to mak e any inquiry into the s ubs tance or ef f ects of m ed ia exp os ure w as an abus e of d is cretion and that s im p ly as k ing the p anel as a group w hether “anyone

. . . could not be com p letely f

air and im p artial” w as not s uf f icient) ; U

ni ted Sta tes v. H

aw ki ns , 658 F

. 2d 279, 285 ( 5th Cir. U nit A 1981) ( “[ W] hen the nature of the p ublicity as a w hole rais es a s ignif icant p os s ibility of prejud ice, and a juror ack now led ges s om e exp os ure to that p ublicity,
m ore than the abbreviated ques tioning cond ucted in D a v i s and in the cas e s ub jud ice is
neces s ary. ”)

. 6 Case: 11-31049 Document: 00512356970 Page: 6 Date Filed: 08/28/2013No. 11-31049

Recently, the S u preme Court closely examined t he sufficiency of voir dire concerning pretrial publicity in Skilling v. United States

. 1 6 Affirming that “[n]o hard-and-fast formula dictates the necessary depth or breadth of voir d ire,” the Court considered whether the district court’s questioning of potential jurors was sufficient in the high

- p r o f ile criminal t rial of Jeffrey Skilling, t he former president of Enron C orporation. 1 7 The Court held that it was n o t an abuse of discretion for the district c o u rt to question p otential jurors unilaterally rather than permitting the lawyers to pose questions. 1 8 Noting that the district court “did not simply take the venire members who proclaimed their im p a rtiality at their word,” the Court concluded that the q uestioning was adequate to “uncover concealed b ias” and gave t he court sufficient “face-to-face opportunity t o gauge demeanor and credibility.” 1 9 The district court’s determinations in Skilling were the “culmination of a lengthy process” that included screening questionnaires, individual probing on the question of bias, repeated encouragements of candor, and the opportunity for counsel to ask follow-up questions. 2 0 We a re convinced that the voir dire in this case was sufficient. Unlike the perfunctory i nquiries in Davis and similar c ases, the district court’s q uestioning here was extensive a nd probing. The court’s procedures were substantially the

same as those in Skilling

. The potential jurors completed an e ight-page screening questionnaire that included multiple questions about m edia exposure and bias. During voir dire, the court questioned all potential j urors individually and out of the presence o f t h e o ther potential j urors about their a bility to be

1 6 130 S. Ct. 2896 ( 2010)

.

1 7 Ski l l i ng , 130 S. Ct. at 2917; see id. 2917- 23.

1 8 Id. at 2918, 2923.

1 9 Id. at 2922- 23.

2 0 Id. at 2919. 7 Case: 11-31049 Document: 00512356970 Page: 7 Date Filed: 08/28/2013No. 11-31049

impartial. The c o u r t f o l l owed up with additional q uestions to each p otential juror who indicated any possibility of bias. Furthermore, the court repeatedly admonished potential jurors that they must put a side any preconceived beliefs and decide the case based only on the e vidence presented. 2 1 A lthough the court d i d n o t allow the lawyers to directly question jurors during the individual
q u e s t ioning, b oth lawyers were present and could suggest lines o f inquiry , request follo w - u p questions, and make objections. Like S killing , this case involved allegations of complex financial c r i m e s w i t h s u b s t a n t i a l m edia c overage prior to trial a nd similar risk of bias. 2 2 Arguably the risk of bi a s w as much higher in Skilling , because the defendant himself was prominently featured in voluminous pretrial media coverage whereas the publicity in this case focused primarily on Pratt’s code f e n dants, the Jeffersons. I n sum, we s ee no evidence that the district court abused its discretion. W e reject P ratt’s contention that only a trial lawyer is capable of as k i n g the sufficiently probing and nuanced questions to u ncover bias. It is well established t hat vo i r d ire is the district court’s r e sponsibility. 2 3 Although we have recognized that t he participation of counsel for t he parties i s important, we have never held that the parties have any right to ask questions directly. 2 4 To the contrary, the Federal Rules of Criminal P rocedure e xplicitly p r ovide that the

2 1 S ee Ski l l i ng , 130 S. Ct. at 2918 n. 21.

2 2 See U ni t ed Sta tes v
. Bi ega now ski , 313 F. 3d 264, 273- 74 ( 5th Cir. 2002) (cons id ering the context of

m ed ia coverage in evaluating the s uf f iciency of

voir d ire)

.
2 3 See U ni ted Sta tes v
. Cerv a ntes , 706 F. 3d 603, 613 ( 5th C ir. 2013) ( “The trial court has broad d is cretion to d eterm ine w ho w ill ques tion p otential jurors and w hat ques tions w ill be
as k ed

. ” ( quoting U

ni ted S ta tes v
. Ra sco , 123 F. 3d 222, 231 ( 5th C ir. 1997) ) ( internal quotation
m ark s om itted ) ) ; see al so G onz a l ez v
. U ni ted Sta tes , 553 U

. S. 242, 250 ( 2008) ( “[ T] he p res id ing jud ge has s ignif

icant d is cretion over the s tructure of voir d ire. The jud ge m ay as k ques tions of the jury p ool or
. . . allow the attorneys f or the p arties to d o s o. ”)

.
2 4 See U ni t ed Sta tes v
. L e d e e , 549 F. 2d 990, 993 ( 5th Cir. 1977) ( noting that the op p ortunity to s ubm it ques tions during voir dire aid s couns el in uncovering bias )

. 8 Case: 11-31049 Document: 00512356970 Page: 8 Date Filed: 08/28/2013No. 11-31049

court may conduct the questioning of t he venire itself and require the court only to a llow counsel to “submit further que s t i ons that the court may ask if it considers them proper.” 2 5 Furthermore, w e h ave repeatedl y h eld that the presiding judge has broad discretion in determining the scope of questioning. 2 6 Pratt’s coun s e l w a s p resent for voir dire and was able to and did submit questions. The court complied with the Rules and did not abuse its discretion. We also find no merit in Pratt’s argument that she w as improperly forced to u se her peremptory challenges to s trike potentially biased jurors. Peremptory challenges are provided for b y the Federal Rules of Criminal Procedure and are not a p a rt of the defendant’s c onstitutional right to a trial b y a n impartial jury. 2 7 As a result, “ a defendant’s exercise of peremptory challenges

. . . is not impaired when the defendant chooses to use a peremptory c hallenge t o remove a juror who should h ave been excused f or c ause.” 2 8 A defendant who believes that a juror should be struck for cause faces the “ h ard choice” of using a peremptory challenge or accepting the potentially biased juror and arg u i n g a Sixth Amendment v iolation o n appea l

. 2 9 If t h e defendant c h ooses the f ormer, then there is no error u nless “the trial court deliberately m isapplied the law in order to force the defendant[] to u se a peremptory challenge” or the loss of the

2 5 F E D

. R. C R I M

. P. 24( a) ( 2) ( B)

.
2 6 See, e. g. , Cerv a ntes , 706 F. 3d at 613; U ni ted Sta tes v
. Rodri guez , 993 F. 2d 1170, 1176 ( 5th Cir. 1993) ( hold ing that the court abus es its d is cretion onl y “ w h e n there is ins uf f icient ques tioning to p rod uce s om e bas is f or d ef ens e couns el to exercis e a reas onably k now led geable right of challenge”)

.

2 7 U ni ted S t a t e s v. M

a rti nez - Sa l a z a r , 528 U

. S. 304, 311 (2000) ( exp laining that p erem p tory challenges “are auxiliary; unlik e the right to an im partial j ury guaranteed by the Sixth Am end m ent, p erem p tory challenges are not of f ed eral cons titutional d im ens ion”) ; F E D R. C R I M

. P

. 24( b)

.

2 8 M a rti nez - Sa l a z ar , 528 U

. S. at 317.

2 9 Id. at 315. 9 Case: 11-31049 Document: 00512356970 Page: 9 Date Filed: 08/28/2013No. 11-31049

peremptory challenge “result[ed] i n t h e seating of any juror who should have been d ismissed for cause.” 3 0 H e r e , Pratt does n ot argue t hat the court deliberately misapplied the law, and there i s no i ndication tha t a n y o f the empaneled jurors was biased. Even assuming that t he court erred in denying any of Pratt’s motions to

remove jurors for cause, P ratt concedes that she m ade the h ard choice to use her peremptory strikes to remove those biased jurors. D uring v oir dire, P ratt did not raise objections to any of the jurors who were actually e mpaneled although she did move to disqualify several other potential jurors. When a sked whether the j u r y a nd the alternates w ere acceptable Pratt’s lawyer replied “Yes, Your Honor.” Whether impartiality in t he jury is achieved through d i s q u a lification by the court or through t he use of p e remptory strikes, the absence of biased jurors from the panel is all the Sixth Amendment requires. In her reply brief, Pratt appears t o suggest t h a t a s ingle juror, Pitman, should not have been seated because of bias. In his initial questionnaire, Pitman stated that h e t h o u g h t the Jeffersons were “corrupt” and “generally b elieve[d] t h e m t o be guilty.” However, when asked to explain these statements dur i n g voir dire, Pitman said he had “ thought about that question since the questionnaire” and concluded that h e c o u l d judge Pratt on the evidence alone. Furthermore, because Pitman was questi o n e d b e fore t he court t ook over the entire p rocess, P ratt’s lawyer was able to q uestion P itman extensively. Pratt’s lawyer pressed Pitman repeatedly about bias, and Pitman’s a ns w e r s d o not suggest any hedging on h is p art. Tellingly, Pratt never m oved to s trike Pitman f o r c a u s e at a ny point during j ury selection and raised no objection to his selection as the first member of the panel.

3 0 U ni ted S ta tes v
. Sa n c h e z - H erna ndez , 507 F. 3d 826, 830 ( 5th Cir. 2007) ( citing M a rti nez - Sa l a z a r , 528 U

. S. at 316)

. 10 Case: 11-31049 Document: 00512356970 Page: 10 Date Filed: 08/28/2013No. 11-31049

Nor does our own review of the rec o rd compel the conclusion that the district court committed manifest abuse of discretion in empaneling the twelve jurors and two alternates who finally d e cided t his cas e
. 3 1 To be sure, several jurors r e p o rted exposure to pretrial publicity, and some even admitted to forming negative opin i ons of the Jeffersons and their associates, potentially in c l u d i n g P r a t t

. N e v e r t h eless, we see nothing in these comments to demonstrate that the jurors would have been unable to perform t heir d uties. 3 2 T he district court carefully questioned each j uror about media exposure a n d , where appropriate, asked p robing questions to ferret out possible bias. All jurors who had expressed any potential b i a s w e re questioned in d etail and affirmatively state d that they c ould set aside their preconceptions and apply the law as instructed. We are mi n d f ul that the district c ourt was present to observe the demeanor and tone of the jurors as they a nswered and find no reason to second guess the court’s decision. 3 3 III Pratt n ext challeng e s the Government’s u se of its peremptory strikes, arguing that the strikes were racially motivated in viola t i o n of Batson v. Kentucky

. 3 4 We review for clear error the district court’ s d e t e r mination of

3 1 U ni ted Sta tes v. Sna rr , 704 F. 3 d 3 6 8 , 3 8 6 ( 5th Cir. 2013) ( “The ap p ellate court review s th e d is trict court’s ruling on jury im p artiality f or ‘m anif

es t abus e of d is cretion. ’” ( quoting U

ni ted Sta tes v. Wha rton , 320 F. 3d 526, 535 ( 5th Cir. 2003) ) )

.
3 2 Id. at 386 ( hold ing that d is m is s al f or caus e is ap p rop riate only i f “the p ros p ective juror’s view s w ould p revent or s ubs tantially im p air the p erf orm ance of his d uties as a juror in accord ance w ith his ins tructions and his oath” ( quoting Sori a v
. Johnson , 207 F

. 3d 232, 242 ( 5th Cir. 2000) ) ( internal quotation m ark s om itted ) )

.

3 3 Ski l li ng v
. U

ni ted Sta tes , 130 S. C t. 2896, 2923 ( 2010) ( noting that, when review ing
a d is trict court’s d ecis ion to s eat a juror over an objection of bias , “the def erence d ue to d is trict courts is at its p innacle”)

.

3 4 476 U

. S. 79 ( 1986)

. 11 Case: 11-31049 Document: 00512356970 Page: 11 Date Filed: 08/28/2013No. 11-31049

whether the use of peremptory strikes was racially motivated. 3 5 To succeed in

a Batson challenge, P r a t t m u s t first establish a prima facie case t hat the Government exercised its peremptory c hallenges on t he basis of r a c e
. 36 The burden then shifts t o the Government to p resent a r a ce-neutral explanation for each strike. 3 7 Once the Government presents race-neutral reasons, the burden shifts back to Pratt to prove “purposeful discrimination.” 3 8 We are concerned only with the third st e p o f the Batson analysis. The parties do not dispute that Pra t t established a prima facie case of purposeful discrimination, and in any event, the Government’s offer of race-neutral reasons

removes the question f rom our review. 3 9 Nor does Pratt argu e t h a t t h e Government failed to present at least one race-neutral reason for each strike. 4 0 Pratt’s sole a ssertion is t hat the Government’s nondiscriminatory reasons lack credibility in light of the stark effect of the G ov e r n m e nt’s strikes on the composition of the jury. The G overnment struck five of the six potential jurors who were black. I n doing so, the Government used m ore t han half of its allotted peremptory strikes on black jurors, and only one j uror of the twelve-member jury that ultimately convicted Pratt was black.

3 5 U ni ted Sta tes v
. Wi l l ia mson , 533 F. 3d 269, 274 ( 5th Cir. 2008)

.
3 6 S m i th v
. C

a i n , 708 F. 3d 628, 636 ( 5th Cir. 2013)

.
3 7 Id.

3 8 Id.

3 9 U ni ted Sta tes v
. Wi l l i a m s , 610 F. 3d 271, 280 ( 5th Cir. 2010) ( “Where, as here, the p ros ecutor tend ers a race- neutral exp l a n a t i o n f or his p erem ptory s trik es , the ques tion of D ef end ant’s p rim a facie cas e is rend ered m oot. ” ( quoting U ni ted Sta tes v
. Wi l l i a m s , 264 F

. 3d 561, 571 ( 5th C ir. 2001) ) ( internal quotation m ark om itted ))

.

4 0 See Purkett v
. El em , 514 U

. S. 765, 768 ( 1995) ( p er curiam ) ( “At this [ s econd ] s tep of the inquiry, the i s s ue is the f acial valid ity of the p ros ecutor’s exp lanation. U nles s a d is crim inatory intent is inherent in the p ros ecutor’s exp lanation, t h e r e a s on of f ered w ill be d eem ed race neutral. ” ( alteration in original) ( quoting H erna ndez v
. N

ew York , 500 U

. S. 352, 360 ( 1991) ( plurality op inion) ) ). 12 Case: 11-31049 Document: 00512356970 Page: 12 Date Filed: 08/28/2013No. 11-31049

When challenged, the Government of f e red reasons for each o f the five black j urors it struck—Graves, Blanchard, Allen, Williamson, and Cosse. The Government claimed that j u ror Graves h ad expressed a positive view of Pratt as

someone h e admires and that he had communicated with his stepfather about “people who work in city hall,” potentially including Pratt. The Government also claimed that Graves gave a “bizarre nonresponsive answer” when asked about possible pri or contact with Pratt. Next, the G overnment c l aimed that juror Blanchard was likely t o have an affinity for Pratt, given that both h ad been employees of the New Orleans Parish School Board. Like Blanchard, Pratt had been a t eacher. T he Government also claime d that Blanchard made an “umhump” n oise when t he deputy chief of the Criminal Division introduced himself, which the G overnment interpreted as n egative. The Government asserted that juror Allen appeared to have a negative attitude concerning j ury service based

on body language and h ad some child-care i ssues that the Government felt

e x acerbated his attitude. T he Government t hen noted that j u r o r W i l l i a m s o n w a s involved in a dispute with the IRS and had previously employed an attorney who t h e p rosecutor knew had some “interaction with t he federal government” t h a t the prosecutor could n ot di v u l g e b ut s uggested was negative. Finally, the Government claimed that juror Cosse made statements suggesting that he was dissatisfied with the way the criminal justice system had tre a t e d h i s b rother who

was sentenced to l ife in prison for a shooting t h at h is brother claimed was in self-defense. Because the district court’s deci s ion rests primarily an evaluation of the prosecutor’s credibility, 4 1 we will n o t d i s turb t he district courts ruling “in the

41 U ni ted Sta tes v
. Turner , 674 F. 3d 420, 436 ( 5th Cir. ) ( “G iven the s ubjective nature of jury s election, the d is trict court’s d eterm ination is lik ely to be bas ed ‘largely on the court’s evaluation of the cred ibility of couns el’s exp lanation. ’” (quoting U ni ted Sta t es v
. Perki ns , 105 F. 3d 976, 978 (5th Cir. 1997) ) ) , cert. deni ed , 133 S. C t. 302 ( 2012)

. 13 Case: 11-31049 Document: 00512356970 Page: 13 Date Filed: 08/28/2013No. 11-31049

absence of e x c e p t i onal circumstances.” 4 2 “[T]he district court ha[s] the advantage[] of obse r v i n g t he voir d ire

. . . a nd being able to consider the demeanor of the prosecutor as he [makes] his explanation.” 4 3 C i r c u m s t ances that call the Government’s credibility into q uestion i nclude the f ailure to engage in meaningful questioning regarding the issue on which its a l l egedly nondiscrimina t o r y reason i s based a nd failure to strike otherwise similarlysituated jurors of a different race. 4 4 “[I]mplausible or fantastical” reasons are also evidence of pretext. 4 5 Pratt first points t o three nonblack jurors whom the Government did not strike and argues that they were similarly situated to Cosse and B l a n c h a r d

. 4 6 Like Cosse, j urors Baum and F ederico both had potentially negative v iews of law

e nforcement b ased on prior experiences with the c r iminal justice syste m
. Baum’s two stepsons had been convicted of passing bad c h ecks and a state drug offense, respective l y , and Federico had been arrested for petty theft in 1986. Juror B ourgeois had the same work background a s B l a n chard. We are not persuaded by these comparisons. Although Baum’s two stepsons had been convicted of crimes and Federico had been arrested, neither juror expressed any dissatisfaction with t he police or

4 2 Snyder v
. Loui si a na , 552 U

. S. 472, 477 ( 2008) ( quoting H erna ndez , 500 U

. S. at 366)

.

4 3 Turner , 674 F. 3d at 436.

4 4 Reed v
. Qua rterm a n , 555 F. 3d 364, 376 ( 5th Cir. 2009) (“The State’s f ailure to que s t i o n t h e j u r or on that top ic is s om e evid ence that the as s erted reas on w as a p retext f or d is crim ination. ” ( citing M i l l er- El v
. D retke , 545 U

. S. 231, 246 ( 2005) ) ); i d. ( “If the State as s erts that it s truck a black j uror with a p artic u l a r c haracteris tic, and it als o accep ted nonblack jurors w ith that s am e characteris tic, this is evid ence that t h e a s s e r t ed jus tif ication w as a p retext f

or d is c r i m i n a t i o n , even if the tw o j urors are d is s im ilar in other res p ects

. ” ( citing M i l l er- El , 545 U

. S. at 241) )

.

4 5 Id.

4 6 Pratt d oes not p rovid e any com p arative exam ples regard ing G raves , Allen, or William son and our review of the record revealed none. 14 Case: 11-31049 Document: 00512356970 Page: 14 Date Filed: 08/28/2013No. 11-31049

the criminal just i c e system and both stated that their respective experiences would not affect their ability to serve on the jury. In c o n t r a s t , Cosse made statements t h a t plausibly suggested animosity towards the criminal justice system. It is true that the Government did not seek to h ave the court ask any f o l l o w -up questions, but t he differences a re sufficient to explain t he Government’s choice t o s trike Cosse but not Baum and Federico. Pratt’s
compa r ison of Bourgeois to Blanchard is similarly unconvincing. Although Bourgeois did have a career in education, she was employed by the Archdiocese of New Orleans, n ot the New Orleans P arish S chool Board. Only Blanchard was employed b y the same o rganization as Pratt. The Government h ad a plausible

reason for distinguishing between th e t w o, and we find no justification for reversing the d istrict court’s c onclusion that t he Government’s explanation was credible. Pratt a l s o i mplicitly argues that the Government’s race-neutral reasons

are implausible because they are unsupported by the evidence. However, other than repeatedly expressing di s b e l i e f that there could be any nonbiased explanation for striking five of the six black jurors, Pratt does not o ffer specific arguments as to why any of the Government’s s tated reasons were i mplausible

or fantastical a nd merely argues a different interpretation o f t he record. Pratt’s argument boils d own to an assertion that the Government should not be believed because t he Government struck five of the six African-American jurors a nd that “[h]owever plausible or implausible t he explanations were here, t h e numbers d o not lie.” 4 7 Although it is t rue that the raw numbers are a factor to be considered,

4 7 P ratt als o rep eated ly points out that her law yer reques ted a te n - m i n u t e break to review h i s n o tes in ord er to rebut the G overnm ent’s race- neutral reas ons f or s trik ing the jurors

. A lthough s he im p lies that the court’s ref us al to grant the brief reces s cons tituted an error, s he cites no authority to s up p ort that im p lication and m ak es no argum ent as to w hy the lack of a break at the tim e w ould af f ect her argum ent on ap p eal. Furtherm ore, Pratt neglects to ack now led ge that the court granted a f ive- minute break im med iately af ter her law yer f

irs t ind icated the intention to rais e a B a tson challenge. 15 Case: 11-31049 Document: 00512356970 Page: 15 Date Filed: 08/28/2013No. 11-31049

Pratt cites no case in which this court has held that a district court committed clear error in crediting t h e p r o s e c u t o r ’ s r a c e-neutral reasons based s olely on such evidence. Because Pratt o ffers n o s u p p o r t f or her contention that the Government’s reasons are “ implausible or fantastical,” this argument fails as well. IV We next address Pratt’s argument t h at t he fourth superseding indictment charging her was constitutionally deficient because it “omitted all references to specific acts of racketeering a ctivity,” leaving only “generic refere n c e s t o the mail fraud and money laundering statutes.” Pratt complains that it i s impossible to determine the pattern of racketeering activity t hat she was charged with conspiring to commit, and therefore she was u nable t o mount an effecti v e defense and is not protected from double jeopardy. We review the sufficiency of an indictment de novo. 4 8 To pass constitutional muster, an indictment must “allege[] every element of the crime charged and in such a w a y as to enable the accused to prepare h is defense and t o a l low the accused to i nvoke the double jeopardy clause in any s ubsequ e n t proceeding.” 4 9 A lthough “[i]t is generally sufficient t hat a n indictment set forth the offense in t he words of t he sta t u t e i t s e l f ,” the indictment must also “be accompanied with such a statement o f the facts and circumstances as will inform the accused of the specific offense.” 5 0

4 8 U ni ted Sta tes v
. Ra tcl i f

f , 488 F. 3d 639, 643 ( 5th Cir. 2007)

.

4 9 Id. ( quoting U

ni ted Sta tes v
. Bi ega now ski , 313 F

. 3d 264, 285 ( 5th Cir. 2002) ) ( internal quotation m ark s om itted )

.

5 0 H a m l i ng v
. U

ni ted Sta tes , 418 U

. S. 87, 117 ( 1974)

.

16 Case: 11-31049 Document: 00512356970 Page: 16 Date Filed: 08/28/2013No. 11-31049

Pratt was charged u nder 18 U.S.C. § 1962(d) with c o nspiring to violate a

s u b s tantive RICO provision, § 1962(c). 5 1 The e lements o f a conspiracy unde r § 1962(d) are simply “(1) t hat two or more p eople agreed t o commit a substantive RICO offe n s e a n d ( 2) that the defendant knew o f and agreed to t he overall

o b jective of t he RICO offense.” 5 2 The d efendant need not be one o f the pe o p l e who agreed to commit the s ubstantive offense. 5 3 Section 1962(c) makes it “unlawful for any p erson employed by or a s s o c i ated with any enterprise

. . . to conduct or participate, directly or indirectly, in the conduct of such e nterprise’s affairs through a pattern of racketeering activity.” 5 4 The 35-pag e f

ourth superseding indictment charging Pratt was constitutionally sufficient. It “alleges every element of the c rime charged” using language that tra c k s t h e r e l e v a n t s t a tutory provisions and i ncludes “a statement of t he facts and circumstances” that constitute conspiracy to conduct the affairs of the Enterprise, members of w hich e ngaged in a “ pattern of racketeering activity.” 5 5 It alleges the existence of an enterprise comprising Pratt, the

5 1 18 U

. S. C. § 1962( d) ( “It s hall be unlaw ful f or any p ers on to cons p ire to violate any of the p rovis ions of s ubs ection (a) , ( b) , or ( c) of [ § 1962] .”)

.

5 2 U ni ted Sta tes v
. Del

ga do , 401 F. 3d 290, 296 ( 5th C ir. 2005) ( em phas is ad d ed ) ( quoting U ni ted Sta tes v
. P

osa da

- Ri os , 158 F. 3d 832, 857 ( 5th Cir. 1998) ) ( internal quotation m ark s om itted )

.

5 3 Id. at 296.

5 4 18 U

. S. C. § 1962( c)

.
5 5 A “‘p at t ern of rack eteering activity’ requires at leas t tw o acts of rack eteering activity” that occur w ithin ten y ears of each other. 18 U

. S. C. § 1961( 5)

. An act of rack eteering activity is d ef

ined in p art as any act that is ind ictable u n d e r e n u m e rated p rovis ions of the crim inal cod e. I

d. § 1961( 1) ( B)

. In this cas e, the ind ictm ent alleges that t h e “ p a t t ern of rack eteering activity” cons is ted of m ultip le, s p ecif ic acts of mail f

raud , in violation of 18 U

. S. C

. § 1341, and of m oney laund ering, in violation of § 1956. In ord er to cons titute a p attern, the p red icating acts m us t als o be connected in a w ay that s how s a “threat of continuing activity. ” H

. J. Inc. v
. N

w
. Bel l Tel

. Co. , 492 U

. S. 229, 239 ( 1989)

. The activities alleged in this cas e m eet this s tand ard

. S ee id. 239- 41. 17 Case: 11-31049 Document: 00512356970 Page: 17 Date Filed: 08/28/2013No. 11-31049

Jeffersons, a nd related nonprofit organizations whose purpose “ w as t o exercise and preserve power over and within the government of the State of Louisiana, the City of New Orl e ans, O rleans Parish, and elsewhere, for the financial and political benefit of [the Enterprise].” It further alleges that P ratt (along with the Jeffersons and “others known

. . . and unknown”) f r a u d ulently f

unneled state and federal grant money to nonprofit entities they controlled; established,

m a i n t a i n e d , a n d c o n t r o l led bank accounts t o further the scheme; and m a i n t a i n e d false accounts and submitted falsified paperwork in connection w ith the scheme. Contrary to P ratt’s claim, the indictment need not contain formal charges of the underlying racketeering activities or articulate the evidence that will be

u s ed to prove the allegations. 5 6 The Constitution requires only e n o u g h specificity to allow the defendant to defend against t he allegatio n s, and the indictment meets that s tandard. The i ndictment identifies the people, n onprofit entities, government programs, funds, and bank accounts involved in specific acts of money laundering and mail fraud. It describes in detail t hirteen specific instances of misappropriation of funds or resources undertaken by the c riminal Enterprise, including factual details that, if proven, would constitute mail fraud and money laundering. F inally, the indictment contains numerous allegations of conduct by Pratt t h a t d e m o nstrate that she agreed to t he objective of the E n t erprise, including her relationship with the Jeffersons, e fforts t o steer money to the E nterprise, and receipt of benefits f rom t h e m i s a ppropriated funds. In

s u m , the indictment more than adequately alleges factual c ircumstance s

5 6 See U ni ted Sta tes v
. Sutherl a nd , 656 F .2d 1181, 1197 & n. 12 ( 5th Cir. U nit A 1981) ( hold ing that a RICO cons p iracy ind ictm ent w as s uf ficient although it did not id entif y s p ecif ic d ates , locations , o r a d d itional d etails bes id es the p articip ants and an outline of the alleged bribery s chem e)

. 18 Case: 11-31049 Document: 00512356970 Page: 18 Date Filed: 08/28/2013No. 11-31049

sufficient to prove that t wo or more people agreed to v iolate RICO and that Pratt knew of and agreed to the overall objective of the RICO offense. 5 7 For t he same reasons, the indictment is sufficient to protect P ratt from a second p r o s e c ution for the s a me c rime. The Double Jeopardy Clause of the C o nstitution “protects against a second prosecution for the s ame offense a f t e r acquittal, against a second prosecution f or the s ame offense after conviction, and against multiple punishments for the same offense.” 5 8 Pratt presumably fears

a second prosecution for precisely the same crime—conspiracy to violate RICO under § 1962(d)—based on the same underlying racketeering activities. 5 9 It is important to clarify that Pratt does not challenge the sufficiency of the evidence used to convict her. In other words, s he does not argue t hat there was insufficient e v i d e n c e of a pattern of racketeering activity. Instead she argues that it i s impossible t o d etermine on what conduct the j ury based i t s v erdict. In other words, P ratt argues that the indictment impermissibly alleged more than

one pat t e r n of racketeering activity. P r att misunderstands t he nature of the indictment’s role in protecting her against double jeopardy. As dis c u s sed above, the indictment l a ys out a detailed description of conduct that, if proved, demonstrates that ( 1) two or m o r e p e r s o ns agreed to engage i n a pattern of r acketeering activity and (2) Pratt agreed to further the objective of that p attern. Having been convicted, Pratt is pr o t e c t ed by the Constitution from a s e cond p rosecution for the same crime based o n the same

5 7 See D el

ga do , 401 F. 3d at 296.

5 8 U ni ted Sta tes v
. Phi l l i

ps , 664 F. 2d 971, 1005 ( 5th Cir. U nit B 1981)

.
5 9 To the extent Pratt’s argum ent contem p lates a f uture p ros ecution f

or a charge other than § 1962( d ), it is unlik ely s he w ould be p rotected by d ouble jeop ard y in any event. We have h eld that s ep arate p ros ecutions f or cons p iracy to violate R ICO and for subs tan t i v e R I C O violations bas ed on the s am e und erlying rack eteer i n g a c t i vities d o not violate the D ouble Jeop ard y Claus e. U

ni ted St ates v
. M

a rti no , 648 F. 2d 367, 383 ( 5th Cir. 1981)

. N or is
s ucces sive p ros ecution in d if f erent p roceed ings f

or s ep arate crim es bas ed on the s am e cond uct p rohibited as a general m atter. U ni ted Sta tes v. D i xon , 509 U

. S. 688, 705 ( 1995)

.

19 Case: 11-31049 Document: 00512356970 Page: 19 Date Filed: 08/28/2013No. 11-31049

factual allegations. That the jury could have found the existence of a pattern of racketeering a ctivity based o n some or all of the indictment’s factual allegations is of n o m oment. An indictment is not constitutionally deficient simply because it includes more f

actual allegations than are required to prove every element of t h e c rime charged. 6 0 There i s no merit in Pratt’s assertion that s he wou l d b e unable to raise a Double Jeopardy argument were she ever prosecuted a second time for c onspiracy t o violate RICO predicated on that same c onduct alleged in the indictment. V Pratt challenges her sentence. We first note that this case comes to us in

an unusual procedural posture. Two types o f racketeering a ctivity in violation of 28 U.S.C. § 1962 were a l l e g e d

— m a il f raud and money laundering. The district court calculated the sentencing guidelines range of imprisonment based

on m oney laundering. As we will discuss below, i t appears that the sentencing guidelines range should h ave been based on mail fraud. Pratt has not, h owever, argued in her b rief that the district c ourt erred in using a money laund e r i n g offense to calculate the applicable Guidelines r ange. S he has a ccordingly waived 6 1 any c ontention that the district court erred in using a money laundering offense rather than a mail fraud offense i n calculating the advisory sentencing guidelines r ange. Nevertheless, in order to determine if there was

6 0 See U ni ted Sta tes v
. M

a uska r , 557 F. 3d 219, 225 (5th Cir. 2009) ( “The allegation in
a single count of a cons p iracy to com m it s everal crim es is not d up licitous , f or [ t] he cons p iracy i s the crim e, and that is one, how ever divers e its objects

. ” ( alteration in original) ( quoti n g U ni ted S ta tes v
. Coop er , 966 F. 2d 936, 939 ( 5th Cir. 1992) ) ( internal quotation m ark s om itted ) ) ; see al soU

ni ted S t a tes v
. Hedgep eth , 434 F. 3d 609, 612 ( 3d Cir. 2006) (“As long as the crim e and the elem ents of the of f ens e that s us tain the conviction are f ully and clearly s et out in the ind ictm ent, the right to a grand jury is not norm al l y v i o lated by the f act that the ind ictm ent alleges m ore crim es or o t h e r me a ns of com m itting the s am e crim e. ” ( quoting U ni ted Sta tes v
. M

i l l er , 471 U

. S. 130, 136 ( 1985) ) )

.
6 1 See F E D

. R. A P P

. P. 28( a) (9) ( A)

. 20 Case: 11-31049 Document: 00512356970 Page: 20 Date Filed: 08/28/2013No. 11-31049

plain error, we will consider the h i g h e st range that the Government contends was the correctly calculated range, as we explain further below. S e n t e n c ing for a conviction under 28 U.S.C. § 1 962 is addressed b y Guidelines section 2E1.1. 6 2 Because a RICO offense necessarily in v o l v e s c o n duct by someone, although not nec e s s arily the defendant, that would i t s elf be a separate o ffense (i.e. t he “underlying racketeering a ctivity ” ) , section 2E1.1 mandates that the d istrict court select a base offense level that is the greater of 19 or the highest calculated o ffense level applicable t o t h e o ffense(s) corresponding to the und erlying racketeering activity. 6 3 I f the underlying racketeering activity comprises more than one o ffense, each shou l d be treated

as a separate c ount of conv i c t ion for the purposes of calculating the offense level. 6 4 “The racketeering act that yields t he greatest offense level is [then] used to determine the guideline range.” 6 5 In other words, section 2E1.1 requires the district court to calculate i ndependently the total offense level of each separate underlying offense and then s elect whichever is greatest (or 19, if that number is greater). 6 6 U n l ike most o t her sections in Chapter Two, section 2E1.1 o f t h e G u i d e l i n e s does not provide for adjust m e n t s based on s pecial o ffense c haracteristics, presumably because t he district court will have alr e a d y c a lculated the special

6 2 U

. S. S E N T E N C I N G G U I DE L I N E S M A N U A L § 2E1. 1.

6 3 I d

.
6 4 Id. § 2E1. 1 cm t. n. 1.

6 5 U ni ted Sta tes v
. Posa da

- Ri os , 158 F. 3d 832, 880 ( 5th Cir. 1998) ; see U

. S. S E N T E N C I N G G U I DE L I N E S M A N U A L § 2E1. 1 cm t. n. 1.

6 6 See Posa da -Ri os , 158 F. 3d at 880- 81 ( hold ing that the d is trict court’s ap p lication of the total of

f ens e level of the und erlying rack etee r i n g activity, murd er, w as prop er und er s ection 2E1. 1) ; see a l so U ni ted Sta tes v
. M

ouz one , 687 F. 3d 207, 220 ( 4th Cir. 2012) ( af f irm ing the d is trict court’s calculation of the und erlying rack eteering activity’s total of f ens e level f

or the p urp os es of s ection 2E1. 1)

. 21 Case: 11-31049 Document: 00512356970 Page: 21 Date Filed: 08/28/2013No. 11-31049

offense characteristics applicable to the offense constituting the underlying racketeering a ctivity. 6 7 C onvictions for mail fraud a nd money laundering—the two underlying racketeering activities alleged in t his case—are sentenced under sections 2B1.1 and 2S1.1, respectively. Although the P resentencing Report (PSR) calculated an a dvisory sentencing range of 70 to 87 months of imprisonment based on mail fraud and

en h a n c e m e nts that a re a pplicable in mail fraud c ases, a nd recommended a sentence of 7 0 months, the district court concluded that money laundering, not mail fraud, was the proper underlying racketeering activity for the purposes of calculating t he Guidelines range under section 2E1.1. The court observed that
money laundering has a base offense level of 8 and mail f raud has a base offense level of 7 and held that it was obligated to select t he higher number. The court then applied t he enhancements t hat t he PSR h ad calculated for the mail fraud offense, which resulted in a total offense level of 28 and a sentencing range of 78 to 97 m o n ths. The court then sentenced Pratt to 87 months, which it d escribed as “a mid-level sentence, perhaps to some extent to the high level.” In her appeal, Pratt c ontends t hat the d is t rict court erred by applying a two-level enhancement pursuant t o Guidelines section 2 B1.1(b)(8)(A) 6 8 and that t h e c ourt miscalculated the amount of “laundered funds” in determinin g t h e b a s e offense l evel for money laundering p u rsuant to section 2S1.1(a)(2). The guideline a pplicable to m oney launder i n g , s e c tion 2S1.1, directs t he court to

6 7 C om pa re U

. S. S E N T E N C I N G G U I DE L I N E S M A N UAL § 2 E1. 1 w i th i d. § 2B1. 1( b) ( articulating the s pecial of f ens e characteris tics ap p licable to crim es of thef t) , a nd i d. § 2S1. 1( b) ( articulating the s p ecial of f ens e characteris tics ap p licable to crim es of m oney laund ering)

.
6 8 U

. S. S E N T E N C I N G G U I DE L I N E S M A N U A L § 2B1. 1( b) ( 8) , w hich p rovid es : ( 8) If ( A) the d ef

end ant was convicted of a Fed eral health care of f ens e involving
a G overnm ent health care p rogram ; and ( B) the los s und er s ubs ection (b) (1) to the G overnm ent health care p rogram was ( i) m ore than $1, 000, 000, increas e by 2 levels ; ( ii) m ore than $7 , 000, 000, increas e by 3 levels ; or (iii) m ore than $20, 000, 000, increas e by 4 levels

. 22 Case: 11-31049 Document: 00512356970 Page: 22 Date Filed: 08/28/2013No. 11-31049

calculate the b ase offense level as “8 plus t h e number of offense levels from the table in section 2B1.1 (Theft, Property Destruction, and F r a u d ) corresponding to the value of the laundered funds .” 6 9 “‘Laundered funds’ means the p roperty, f u n d s, or monetary i nstrument involved in t he t r a n s a c t i o n , f i n a n c i a l t r a n s a c t i o n , monetary t ransaction, t r ansportation, transfer, o r t ransmission in v iolation of 18 U.S.C. [§] 1956 or 1 957.” 7 0 However, the district court did not d etermine the value o f the laundered f unds by calculating the amount “involved in the t r ansaction(s)” that constituted money l aundering. Instead, the district co u r t calculated the amount of “loss” based on the value of a ll o f the goods and services misappropriated, and used that amo u nt to determine the enhancement by reference to the table in section 2B1.1

. Although that would be the proper method for applying the ta b l e t o a crime of theft under section 2B1.1 (such as mail fraud), it does not accord w i t h the instructions in section 2S1.1, which require the district court t o determine the amount of funds actually laundered. The cou r t also erred i n a pplying the two-level e nhancement under section 2B1.1(b)(8)(A). This enhancement i s found under special offense characteristics in section 2B1.1 and is not applicable to a crime t hat falls under section 2S1.1. At the sentencing h earing in t he district court, Pratt did not object to the

s ection 2B1.1(b)(8)(A) enhancement or the implicit determination tha t t h e amount of “laundered funds” equaled t h e amount of loss. The G overnment contends, and we agree, t hat o ur review of these issues is f or plain e rror. Under that standard of review, we will reverse a sentence only “(1) if there was error, (2) if it was plain, (3) if t he error affects substantial righ t s , a n d ( 4 ) i f allowing that error to stand seriously affects the fairness, integrity, or public reputation

6 9 U

. S. S E N T E N C I N G G U I DE L I N E S M A N U A L § 2S1. 1( a) ( 2) (em p has is ad d ed )

.
7 0 Id. § 2S1. 1 cm t. n. 1 ( em p has is ad ded )

. 23 Case: 11-31049 Document: 00512356970 Page: 23 Date Filed: 08/28/2013No. 11-31049

of judicial proceedings.” 7 1 A misapplication of the u nambiguous instructions of the Guidelines is e r r o r t h a t was plain. 7 2 Therefore, r elief depends on whether the error af

f e c ted Pratt’s substantial r i ghts and seriously affects the fairness, integrity, or public reputation of judicial proceedings. The Government asserts that if the d i strict court had correctly calculated the a dvisory Guidelines range based o n m ail fraud , r a t h e r than money laundering, the advisory Guidelines r ange w o uld have been 70 to 87 months of imprisonment. Since the 87-months’ sentence would still b e within that range, the Government argues that Pratt has not demonstrated plain error. An error in the G uidelines calculation affects a def e n d a n t ’ s s u b stantial r ights only if there is “a reasonable probability that, but for the district court’s misapplication of the Guidelines, he would h av e r e c eived a l esser s entence.” 7 3 A reasonable probability of a lesser sentence is presumed w hen “the incorrect range i s significantly higher than the true Guidelines range, and

. . . t he d efendant is

sen t e n c e d within the incorrect range.” 7 4 However, “when the correct and incorrect ranges o v e rlap and the defendant is s entenced w ithin t he overlap, ‘we do n ot assume, in t he absence of additional evidence, that the sentence affects a defendant’s substantial rights.’” 7 5 There is “additional evidence” that P r a t t ’ s s u b s t a n t i a l r i g h t s w e r e a f f ected. The transcript of the sentencing hearing r eflects that the d istrict c o urt chose a sentence of 8 7 months o f imprisonment because it was within what the district

7 1 U ni ted Sta tes v
. A l v a ra do , 691 F. 3d 592, 598 ( 5th Cir. 2012)

.
7 2 See U ni ted Sta tes v. O l a no , 507 U

. S. 725, 732- 33 ( 1993) ( “D eviation f rom a legal rule is ‘error. ’”) ; id. at 734 ( “‘Plain’ is s ynonym ous w ith ‘clear’ or
. . . ‘obvious

. ’”)

.

7 3 U ni ted Sta tes v
. M

udekunye , 646 F. 3d 281, 289 ( 5th Cir. 2011) ( per curiam ) ( citing U ni ted Sta tes v. Bl ocker , 612 F. 3d 413, 416- 17 ( 5th Cir. 2010) )

.
7 4 Id.

7 5 Id. at 290 ( em p has is om itted ) ( quoting Bl ocker , 612 F. 3d at 416)

. 24 Case: 11-31049 Document: 00512356970 Page: 24 Date Filed: 08/28/2013No. 11-31049

thought was the c o r r ectly calculated advisory guidelines range. The district court explained to the defendant that he felt that it was appropriate to apply the guidelines and n ot a variance or a non-Guidelines sentence. The district court also stated on the record that it was choosing a s entence within t he m iddle of the Guidelines range as the appropriate s entence, i n d i c a t i ng that the Guidelines
range calculated by t he district court was a primary factor in the selection of the 87-months’ sentence a s within a range of 78-97 months. By contrast, the 87- months’ sentence i s the h ighest sentence u nder a range of 70 t o 8 7 m onths’ of imprisonment, which is the highest range that the Government says applies. A

m i d d l e - o f-the-Guidelines sentence u nder a 70 to 87 months’ r ange would be approximately 78 to 79 months, which i s 8 to 9 months s horter than the prison term selected by the district c ourt. Moreover, we cannot say that a range of 70 to 87 m onths is t he correctly c a l c u l ated range based on the record before us. There may be issues r aised when mail fraud, rather than money laundering, is used as t he basis for calculati ng t he Guidelines range that might result in a lower range than 70 to 87 months. As discussed a bove, section 2E1.1 instructs the sentencing court to select

a base offense l evel from the gre a t e r o f 19 or the h ighest offense level of the underlying racketeering offenses. The PSR started with this base o ffense level and then applied a 16-level enhancemen t under section 2B1.1(a) based on a calculated l o s s of over $ 1 million, a 2-level enhancement under section 2 B 1 .1(b)(8)(A) because Pratt “misrepresented that she was acting on behalf o f

a charitable, religious, or p olitical organization o r government agency,” and a 2- leve l enhancement b ecause Pratt “abused a p osition of p ublic or private trust” pursuant to § 3B1.3. The resulting a tot a l o f f e n s e level of 27 resulted in a sentencing range of 70 to 87 months, and the PSR recommended a sentence of 70 months. W e are not i n a position to retrace a l l o f the s t eps required to

25 Case: 11-31049 Document: 00512356970 Page: 25 Date Filed: 08/28/2013No. 11-31049

determine if the PSR correctly calculated t h e applicable s entencing r a n g e
.

* * * Pratt’s conviction is AFFIRMED. The sentence is VACATED and REMANDED for further proceedings.

26 Case: 11-31049 Document: 00512356970 Page: 26 Date Filed: 08/28/2013