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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-10112

UNITED STATES OF AMERICA, 

Plaintiff-Appellee

v.

WILMIRE U. JONES, III, 

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 5:08-CR-00013-C-BG-2

Before JONES, Chief Judge, and BENAVIDES and PRADO, Circuit Judges.

EDITH H. JONES, Chief Judge:*

Appellant Wilmire U. Jones, III, pled guilty to fraud in connection with

access devices and aiding and abetting an operation that used identification and

credit information of others to open store charge accounts. See 18 U.S.C.

§§ 1029(a)(2) and 2. Jones contends that the district court erred in the

calculation of the loss amount for sentencing purposes. We disagree and affirm.

Jones was part of an organization operating in Houston, Texas that used

fraudulent drivers licenses and identifying information to open charge or credit

United States Court of Appeals

Fifth Circuit

F I L E D

April 7, 2010

Lyle W. Cayce

Clerk

Case: 09-10112 Document: 00511073671 Page: 1 Date Filed: 04/07/2010
No. 09-10112

 Jones admitted to being involved in four trips in addition to the Lubbock trip. 1

However, the PSR only holds Jones responsible for a total of four trips, including the Lubbock

trip. 

2

accounts at various stores. Jones and Michael David Fautt, another member of

the organization, traveled to different cities in a vehicle provided by the

organization. Jones and Fautt used false identities to open accounts at stores,

made small purchases at stores, and then purchased gift cards up to the credit

limit on the accounts. Fautt, who entered the stores to open the accounts, was

paid $3,000 per trip. Jones, who drove the vehicle and was aware of the

unlawful purpose of the trips, was paid $500 per trip.

In October and November of 2007, Jones and Fautt traveled twice to New

Orleans, Louisiana, twice to Oklahoma City, Oklahoma, and once to Lubbock,

Texas. In Lubbock, Jones and Fautt used the stolen identification and credit

information to charge over $23,000 at various stores.

After he was caught, Jones pled guilty pursuant to a written plea

agreement. The Presentence Report (“PSR”) assigned Jones a base offense level

of six. See U.S.S.G. §§ 2B1.1(a)-(b)(1)(E). The probation officer calculated the

intended loss amount by extrapolating the actual loss inflicted during the

Lubbock trip to three additional trips. The actual losses from the additional 1

trips are unknown. The calculation resulted in an intended loss amount of about

$92,000. Jones’s base offense level was increased by eight levels because the

amount of loss exceeded $70,000. At sentencing, as on appeal, Jones objected to

this loss calculation, arguing that no evidence supported a finding that the

Lubbock loss amount was representative of the loss amounts from other trips.

The district court overruled the objection and sentenced Jones to 41 months of

imprisonment.

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No. 09-10112

3

We review for clear error the trial court’s findings of fact concerning a

guidelines sentence. United States v. Klein, 543 F.3d 206, 213 (5th Cir. 2008).

A determination of the loss amount is a factual finding. United States v. John,

597 F.3d 263, 279 (5th Cir. 2010). Under this standard, “ ‘as long as the

determination is plausible in light of the record as a whole, clear error does not

exist.’ ” Id. (quoting United States v. Ismoila, 100 F.3d 380, 396 (5th Cir.1996)).

Further, in determining the amount of loss, “[t]he court need only make a

reasonable estimate.” U.S.S.G. § 2B1.1 cmt. n. 3(C). The district courts have a

“wide latitude” in this regard. John, 597 F.3d at 279. “The method used to

calculate the amount of loss, however, must bear some reasonable relation to the

actual or intended harm of the offense.” Id. (citation omitted).

Relevant to this case, the guidelines suggest several different factors

courts may consider when estimating loss, including the “approximate number

of victims multiplied by the average loss to each victim,” and the “scope and

duration of the offense and revenues generated by similar operations.”

§ 2B1.1 cmt. n. 3(C). The PSR’s extrapolation of the actual loss from the

Lubbock trip to each of the three other trips in which Jones participated was

based on these principles.

Jones argues that because there was no evidence as to how many false

identities were used on the other trips, or how many charges were made, the

amount of loss should be limited to the actual loss from the Lubbock trip. Jones

also argued that extrapolating the total amount of loss from one trip as the

average was unreasonable. On the facts of this case, the district court’s estimate

of the amount of loss was reasonable and the district court did not clearly err in

using the PSR’s estimate of loss.

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No. 09-10112

4

Jones admitted to completing these trips with Fautt. He also admitted

that he and Fautt charged up to the full limit of the accounts they opened. They

were found with identification documents and credit cards not in their names.

The regularity of their trips establishes a pattern. Each time, Jones and Fautt

used a car provided by the organization and were paid generously for their work,

suggesting that the organization reaped considerable reward from their

activities. Moreover, although Jones admitted to taking four trips in addition

to the Lubbock trip, the PSR only held him accountable for one loss, so it is likely

that the PSR’s estimate is conservative. Given these circumstances, it would be

unreasonable to limit the amount of loss to the actual loss from the Lubbock trip

alone. The district court’s loss calculation was not clearly erroneous.

For the foregoing reasons, the sentence is

AFFIRMED.

Case: 09-10112 Document: 00511073671 Page: 4 Date Filed: 04/07/2010