### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 11-31127

UNITED STATES OF AMERICA, Plaintiff-Appellee
v. VIDAL WILSON, Defendant-Appellant

Appeal from the United States District Court for the Western District of Louisiana USDC No. 5-11-CR-38-1

Before DeMOSS, SOUTHWICK, and HIGGINSON, Circuit Judges. PER CURIAM: * Vidal Wilson pled guilty to cons p i r acy to transport stolen vehicles in interstate commerce and to alter and remove vehicle identification numbers in violation of 18 U.S.C. §§ 371, 511, 23 12. On appeal, Wilson argues the district court’s factual findings that supported three sentence enhancements were clearly erroneous. We disagree and AFFIRM. The fac t ual basis for the plea established that Wilson and others stole vehicles in both Lo u i s iana and Texas. They took several of the vehicles to coU n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D Novembe r 15, 20 12 Lyle W . Cayce Clerk

Pursua nt to 5 T H C IR

. R. 47.5 , the cour t has d ete rm inedt hat this op inion s houldnot * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t for th in 5 T H C IR

. R. 47.5 .4. Case: 11-31127 Document: 00512055175 Page: 1 Date Filed: 11/15/2012No. 11-31127

defendant Bobby Tousant, who would a l ter the vehicle identification numbers

so that the vehicles could be sold. Co-defendants Tousant and Malcolm Wilson, who was Vidal Wilson’s nephew, also pled guilty to the conspiracy charge. Th e P r e s e n t e n c e I nv e s ti g a tion Report (“PSR”) i d e n tif i e d o th e r p a rti c i p a n t s and at least 11 stolen vehicles that could be attributed to Vidal Wilson between 2007 and 2009. Wilson objected to the PSR findings that he (1) was involved in an organized scheme, (2) was an or ganizer or leader of a criminal activity that involved five or more participants, and (3) used a minor to commit the offense. At the sentencing hearing, a Louisiana state tro o per who investigated Wilson’s activity testified that Melvin Bro o k s p artly facilitated the vehicle identification- n u m b e r alterations by obtaining what the witness called a “salvage title” and “salvage VIN” that belonged to another vehicle. The trooper further testified that Wilson’s other nephew Christopher Boon, who was under
age 18 at the time, adm i t t e d to stealing a vehicle with Wilson. The trooper stated that, on at least one prior occasion, Wilson located a vehicle in Texas to steal, drove back to Louisiana to pick up Malcolm and Boon, and then dro ve them back to Texas to steal the vehicle. Finally, the trooper testified that Wilson and his nephews lived together, people temporarily brought stolen vehicles or parts to Wilson’s yard, and Wilson was seen as the patriarch of the family who taught his nephews how to steal a vehicle and break it down. Dissension over Wilson’s refusal to pay his nephew the proceeds from a theft caused his nephews to break away fr o m W i lson. Wilson, though, claimed he stole vehicles only occasionally for extra income,

never taught his nephews how to steal, and had no authority over other people. Wilson admitted that Boon knew how to steal a vehicle.

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The district court acknowl e d g e d this organization was “loose” but found it had “sufficient minimal structure” such that a faction could break away from Wilson. The organization’s scheme amounted to other p e o p l e k nowing how to steal vehicles, and when they did steal vehicles, Wilson knew what to do. The court further found Wilson was the “centr a l f i gure” who provided advice and consultation. Lastly, the court found there was “sufficient evide n c e to place [Boon] beyond merely atten di n g” the theft in Texas, determining Wilson brought Boon along to help steal the vehicle if necessary. The district court adopted the factual findings in the PSR. Wilson’s base offense level was increased by two levels beca u s e t h e offense involved an organized scheme, four levels because Wilson was an organizer or leader of a criminal activity that involved five or more participants, and two levels because Wilson used a minor to commit the offen s e
. The court sentenced Wilson to 60 months in prison and a three-year term of supervised release. Wilson appeals. DISCUSSION T h e G overnment bears the burden of proving enhancement factors b y a preponderance of the evidence. United States v. Trujillo , 502 F.3d 353, 357 (5th Cir. 2007). The district court must have an “acceptable evidentiary basis” for its f i n d i n g s o f fact. United States v. Ayala , 47 F.3d 688, 690 (5th Cir. 1995). “[A] presentencing report generally bears sufficient indicia of re l i ab i l i t y . . . .” Trujillo , 502 F.3d at 357. A d e f e n d a n t may object to the report’s findings, but “[t]he defendant bears the burden of s h o wing that the information in the PSR relied on by the district court is materially untrue.” Id. “We review the district court’s interpretation or applica t i o n of the Sentencing Guidelines de novo and its factual findings for clear error. A factual

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finding is not clearly erroneous if it is plausible in light of the record as a whole.” Id. (citation omitted). A. Organized Scheme T h e d istrict co u rt fo u n d W ilso n ’s o ffe n se in v o lv e d a n o rg a n ize d sch e m e to ste a l o r re ce iv e sto le n v e h icle s o r p a rts a n d in cre a se d h is se n te n ce b y tw o le v e ls. T h e re le v a n t G u id e lin e sta te s: “If th e o ffe n se in v o lv e d a n o rg a n ize d sch e m e to ste a l o r to re ce iv e sto le n . . . v e h icle s o r v e h icle p a rts

. . . , in cre a se b y 2 le v e ls.” U .S .S .G

. § 2 B 1 .1 (b )(1 2 )(A) (2 0 1 0 ). T h e o rg a n ize d sch e m e m u st b e a “ca se o f a n 1

o n g o in g , so p h istica te do p e ra tio n( e.g
. , a na u to th e ft rin go r ‘ch o p sh o p ’).” § 2 B 1 .1 cm t. n .1 0

. Wh e n th e G u id e l i n e s ’ la n g u a g e is u n a m b ig u o u s, its p la in m e a n in g

co n tro ls. U

n ited S ta tes v
. D iaz-G o m ez , 6 8 0 F

. 3 d 4 7 7 , 4 8 0 (5 th C ir. 2 0 1 2 ). Its

co m m e n ta ry , w h e n co n siste n t, re ce iv e s co n tro llin g w e i g h t

. U n ited S ta tes v
. V ela sco , 4 6 5 F .3 d 6 3 3 , 6 3 7 (5 th C ir. 2 0 0 6 ). W ilso n a rg u e s h is a ctiv itie s in v o lv e d

n o p la n n in g , stru ctu re , p ro fit-sh a rin g , h ie ra rch y , o r m e e tin g s. T h e G u id e lin e s d o n o t d e m a n d su ch e le m e n ts b e fo re th e re is a n “o rg a n ize d sch e m e .” T h e re

m u st b e so m e so p h istica tio n , b u t crim in a l e n te rp rise s n e e d n o t a d o p t b e st
p ra ctice s o f le g itim a te b u sin e sse s in o rd e r to m e e t th a t s ta n d a rd

. In d e e d , crim in a l so p h istica tio nm ig h t e n ta il ace rta inin fo rm a lityto a v o idd e te ctio n . The charged conspiracy here progressed over 17 months and involved reidentifying stolen vehicles with salvaged identification numbers and titles. Testimony at t h e sentencing hearing suggested Wilson sold stolen vehicles to Tousant on multiple occasions, used others to help Wilson steal and transport

The org a n i z e d sc hem e enhanc em ent is cur rent ly loca ted at U. S. S. G. § 2B1.1 (b) (13) 1 (201 2).
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the vehicles across state lines, received a larger share of the profits than at least

one co-conspirator, and influenced his family’s involvement. It would be fair to characterize the conspiracy as loosely organized, but it is organized nonetheless. We cannot say the district erred in its finding. B. Organizer or Leader of at Least Five Participants If a “defendant was an organizer or leader of a criminal activity that involves five or more participants or was otherwise extensive,” there is an “increase by 4 levels” to the base offense. U.S.S.G. § 3B1.1(a) ( 2 0 10). The 2 district court applied this provision to Wilson’s conduct. As an initial point, the district court did not clearly err in finding this activity involved at least five participants. The Guidelines’ co m m e n ta ry d e fin e s

a “p a rticip a n t” a s “a p e rso n w h o is crim in a lly re sp o n sib le fo r th e co m m issio n o f th e o ffe n se , b u t n e e d n o t h a v e b e e n co n v icte d .” § 3 B 1 .1 cm t. n .1

. T h e G u id e lin e s e n co m p a ss p a rticip a n ts in th e “co n to u rs o f th e u n d e rly in g sch e m e itse lf.” U

n ited S ta tes v
. W

ild er , 1 5 F .3 d 1 2 9 2 , 1 2 9 9 (5 th C ir. 1 9 9 4 ). A d e fe n d a n t

co u n ts a s o n e p a rticip a n t. Id

. T o u sa n t a n d M a lco lm co u n t a s tw o m o re . It is
p la u sib le fo r th e d istrict co u rt a lso to h a v e fo u n d B ro o k s, w h o p ro v id e d sa lv a g e d id e n tifica tio n n u m b e rs a n d title s, a n d B o o n , w h o a d m itte d to ste a lin g a v e h icle

w ithW ilso n , w e re tw o m o re p a rticip a n ts. As to Wilson’s classification as an organizer or leader, an application note to the Guidelines provides seven factors a court should co n s i d e r in distinguishing an organizer or leader from a manager or supervisor:

The Gu ide lines st ate in par t: “If the def enda nt wa s an organi zer or lead er of a 2 cri mi nal act ivity that involved five or mo re par tic ipan ts or wa s othe rw ise exten sive , incr eas e by 4 levels .” § 3 B1.1( a).

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[T]he exe r c i s e of decision making authority, the nature of participation in the commission o f the offense, the recruitment of accomplices, the claimed right to a larger share of the fruits of the crime, the degree of partici p a t i o n in planning or organizing the offense, the nature and scope of the illegal activity, and the degree of control and authority exercised over others. § 3B1.1 cmt. n.4. Testimony suggested Wilson assumed a leadership and influential role in his family. The district court found Wilson originated this theft ring and taught others how to steal vehicles. The court found Wilson participated in every phase of the scheme, including training, stealing, fencing, and buying. Further, Wil s o n located a ve h i c le in Texas, recruited accomplices to help him steal it, and effectively took a larger share of that vehicle’s proceeds. Wilson must have organized or led at least one other participant. United States v. Okoli , 20 F.3d 615, 616 (5th Cir. 1994). The district court found Wilson

was a leader over his nephews because of Wilson’s age, influence, shared skills in vehicular theft, and the nephews’ eventual break from Wilson. Testimony at the sentencing hearing supports Wilson’s status as an organizer because of his initiatives in the Texas theft. There was not clear error when the district court found that Wilson was the “most central figure” and that others came to him to sell s t o l e n parts and connect to other people. C. Use of a Minor T h e d istrict co u rt fo u n d W ilso n u se d o r a t t e m p t e d to u se h is m in o r

n e p h e w C h risto p h e r B o o n to ste a l a v e h icle a n d in cre a se d h is se n te n ce b y tw o le v e ls. T h e co u rt re lie d o n a G u id e lin e th a t sta te s: “If th e d e fe n d a n t u se d o r

a tte m p te d to u se a p e rso n le ss th a n e ig h te e n y e a rs o f a g e to co m m it th e o ffe n se
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o r a ssist ina v o id in gd e te ctio no f, o r a p p re h e n sio n fo r, th e o ffe n se , in cre a se b y 2 le v e ls.” U .S .S .G . § 3 B 1 .4 (2 0 1 0 ). W ilson argues that, at most, Boon was present during one of the t h e f t s . A minor’s mere presence during the commission of an offense is insufficient for the use-of-a-minor adjustment to apply. United States v. Molina , 469 F.3d 408, 415 (5th Cir. 2006). Here, the district court found there was “sufficient evidence to place [Boon] beyond merely attending” the Texas theft, finding Wilson’s
purpose in bringing Boon, “an accomplished car thief,” was to help s teal the

v e h icle if they ran into problems. The district court’s finding is no t c l e a r l y

erroneous. AFFIRMED.

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