United States Court of Appeals

for the Fifth Circuit ____________

No. 23-50067

Summary Calendar

____________

United States of America, 

Plaintiff—Appellee, 

versus

Michael Angelo Padron, 

Defendant—Appellant. 

______________________________

Appeal from the United States District Court 

for the Western District of Texas

USDC No. 5:21-CR-124-1 

______________________________

Before Higginbotham, Stewart, and Southwick, Circuit 

Judges.

Per Curiam:*

Michael Angelo Padron appeals his conviction and sentence for one 

count of conspiracy to commit wire fraud and six substantive counts of wire 

fraud. He argues that the evidence was insufficient to support his convictions 

and that the statutory maximum fine imposed by the district court was 

substantively unreasonable. Additionally, Padron moves to relieve his 

_____________________

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

United States Court of Appeals

Fifth Circuit

FILED

March 19, 2024

Lyle W. Cayce

Clerk

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attorney and seeks appointment of new counsel. As the district court granted 

this same relief, the motion is DENIED AS MOOT. 

“This court will uphold the jury’s verdict if a rational trier of fact 

could conclude from the evidence that the elements of the offense were 

established beyond a reasonable doubt.” United States v. Vargas-Ocampo, 747 

F.3d 299, 301 (5th Cir. 2014) (en banc). This court considers “the evidence 

in the light most favorable to the [G]overnment with all reasonable inferences 

and credibility choices made in support of the verdict.” United States v. Jones, 

133 F.3d 358, 362 (5th Cir. 1998) (internal quotation marks and citation 

omitted).

“To prove conspiracy to commit wire fraud, the government must 

prove that: (1) two or more persons made an agreement to commit wire fraud; 

(2) the defendant knew the unlawful purpose of the agreement; and (3) the 

defendant joined in the agreement willfully, i.e., with specific intent.” United 

States v. Kuhrt, 788 F.3d 403, 414 (5th Cir. 2015). Although the central 

feature of a conspiracy is the agreement, that agreement need not be written 

or spoken but may be inferred from concert of action. United States v. 

Sanders, 952 F.3d 263, 277 (5th Cir. 2020). 

The evidence amply supports a conclusion that Padron and others 

established Blackhawk Ventures, LLC (Blackhawk) and obtained certification 

of Blackhawk as a service-disabled, veteran-owned small business 

(SDVOSB), to participate in a government contracting program meant to 

benefit service-disabled veterans. Further, although two service-disabled 

veterans were at relevant times the nominal owners of Blackhawk, there was 

significant evidence that they were placed in those positions by Padron for the 

purpose of obtaining SDVOSB certification, and that Padron effectively made 

all relevant decisions, in contravention of program requirements. This 

included testimony of numerous witnesses regarding the relative roles of the 

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nominal owners and Padron in Blackhawk’s business, and evidence that 

Blackhawk was intertwined with and controlled through other companies 

owned by Padron. Although Padron relies on evidence to the contrary, it is 

the sole province of the jury to weigh conflicting evidence and assess witness 

credibility. United States v. Monroe, 178 F.3d 304, 307 (5th Cir. 1999). 

With respect to the wire fraud counts, the Government was required 

to prove that “(1) a scheme to defraud exists, (2) the defendant used wire 

communications in interstate or foreign commerce to further that scheme, 

and (3) the defendant had specific intent to defraud.” Sanders, 952 F.3d at 

277 (internal quotation marks and citation omitted). Padron does not 

challenge the first and third elements. Rather, he argues that the 

Government failed to prove that he used wire communications to further the 

scheme.

A defendant is directly liable for the use of interstate wires if he could 

have reasonably foreseen the use of wire communications in furtherance of 

the scheme to defraud. United States v. Richards, 204 F.3d 177, 207 (5th Cir. 

2007). The defendant need not have personally made the communication 

nor order that it be made; rather, the issue is whether the use of wire 

communications was foreseeable. Id. 

The wire fraud counts were premised on invoices submitted by 

Blackhawk with respect to a parking garage contract awarded to Blackhawk

by the Department of Veterans Affairs. As discussed above, the evidence 

supports a conclusion that Padron maintained control over Blackhawk’s 

activities since its formation. Further, Blackhawk’s standard billing practices 

involved submitting electronic invoices and receiving payments via electronic 

fund transfers. Although the evidence did not show that Padron himself 

submitted the invoices or ordered they be submitted, given all the evidence, 

the jury could have inferred it was reasonably foreseeable that wire 

communications would be used in furtherance of the scheme to defraud. See 

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Richards, 204 F.3d at 207. Accordingly, we need not reach the alternate theory 

of liability under Pinkerton v. United States, 328 U.S. 640, 647-48 (1946).

Finally, Padron challenges the reasonableness of the above-guidelines 

fine imposed by the district court. Padron’s procedural challenge to the 

calculation of the original guidelines range and, consequently the original fine 

range, did not preserve the particular substantive reasonableness challenge 

he raises here. See United States v. Napper, 978 F.3d 118, 124 (5th Cir. 2020); 

United States v. Neal, 578 F.3d 270, 272 (5th Cir. 2009). Consequently, our

review is for plain error. See Puckett v. United States, 556 U.S. 129, 135 (2009). 

Padron must identify (1) a forfeited error (2) that is clear and obvious, and 

(3) that affects his substantial rights. See Puckett, 556 U.S. at 135. If he 

satisfies the first three requirements, this court may, in its discretion, remedy 

the error if the error “seriously affect[s] the fairness, integrity or public 

reputation of judicial proceedings.” Id. (internal quotation marks and citation 

omitted). 

In reviewing a non-guidelines sentence for substantive reasonableness,

this court considers “the totality of the circumstances, including the extent 

of any variance from the Guidelines range.” United States v. Brantley, 537 

F.3d 347, 349 (5th Cir. 2008) (internal quotation marks and citation omitted). 

A non-guidelines sentence is unreasonable if it: “(1) does not account for a 

factor that should have received significant weight, (2) gives significant 

weight to an irrelevant or improper factor, or (3) represents a clear error of 

judgment in balancing the sentencing factors.” See United States v. Diehl, 775 

F.3d 714, 723 (5th Cir. 2015). 

Contrary to Padron’s arguments, the record reflects that the district 

court considered the guidelines range as well as the § 3553(a) factors when 

imposing the fine. The district court specifically identified some of the 

§ 3553(a) factors underlying its decision, including the seriousness of the 

offense and the need for adequate deterrence. Although Padron contends the 

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court failed to give weight to other factors, it was not required to address every 

factor. See Diehl, 775 F.3d at 723. 

Given the significant deference that is due to a district court’s 

consideration of the § 3553(a) factors and the district court’s reasons for its 

sentencing decision, see Gall v. United States, 552 U.S. 38, 50-53 (2007), 

Padron has not demonstrated any clear or obvious error with respect to the 

district court’s determination of the fine. 

Accordingly, the judgment is AFFIRMED.

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