IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-31109

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

WILLIAM JOSEPH JOHNSON, JR.,

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Louisiana

USDC No. 1:11-CR-73-1

Before SMITH, DENNIS, and HAYNES, Circuit Judges.

PER CURIAM:*

William Joseph Johnson Jr. appeals the sentence imposed following his

guilty plea conviction for bank fraud, knowingly making, uttering, and

possessing counterfeit securities, and aggravated identity theft. Johnson argues

that the district court erred by determining that his conduct in French Lick,

Indiana, Spokane, Washington, and New Orleans, Louisiana, was relevant

conduct because that conduct was not part of a common scheme or plan as his

offense conduct, because that conduct was too remote in time from his offense

United States Court of Appeals

Fifth Circuit

F I L E D

August 15, 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. 11-31109

conduct, and because he could face double jeopardy if he is prosecuted for that

conduct in another jurisdiction. He maintains that the district court’s erroneous

relevant conduct determination caused his enhancement for amount of loss to

be too high. Johnson further argues that the district court erred by applying a

two-level enhancement for his relocating a fraudulent scheme to another

jurisdiction to evade law enforcement or regulatory officials. He asserts that he

did not relocate his offense conduct anywhere because he did not attempt to

defraud Dimension Development, the victim of his offense conduct, while in a

different jurisdiction. He states that he was arrested in Indiana for his fraud in

French Lick, and he contends that this shows he was not evading law

enforcement. 

We review the district court’s application or interpretation of the

Guidelines de novo and its factual findings for clear error. United States v.

Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). “Unless the factual

finding is implausible in light of the record as a whole, it is not clearly

erroneous.” United States v. Griffith, 522 F.3d 607, 611-12 (5th Cir. 2008). A

district court’s determination of what is relevant conduct is a factual finding

reviewed for clear error. United States v. Buck, 324 F.3d 786, 796 (5th Cir.

2003).

In his offense conduct, Johnson was hired as an assistant controller,

obtained prior invoices that had already been paid, altered the invoices, printed

checks made payable to the financial institution at which he was banking, and

deposited the checks into his personal accounts. In French Lick and Spokane,

Johnson also obtained employment as an accounting professional at a hotel, and

he counterfeited hotel checks for deposit in his personal accounts. In New

Orleans, Johnson obtained employment as an accounting professional at a hotel,

and he diverted hotel money into his personal accounts. Accordingly, Johnson’s

relevant conduct had a similar modus operandi as his offense conduct, making

it part of a common scheme or plan as his offense conduct. See U.S.S.G. § 1B1.3,

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comment. (n.9(a)). While Johnson’s relevant conduct had different victims and

may have had slightly different methods than his offense conduct, “the evidence

does not so differentiate them to render the district court’s ruling clearly

erroneous.” Buck, 324 F.3d at 797.

Given the similar modus operandi, Johnson’s relevant conduct was not too

temporally remote. See United States v. Hinojosa, 484 F.3d 337, 341-42 & n.1

(5th Cir. 2007). The enhancement of Johnson’s sentence because of the relevant

conduct does not raise double jeopardy concerns. See Witte v. United States, 515

U.S. 389, 401-02 (1995). The district court did not clearly err by finding that

Johnson’s conduct in French Lick, Spokane, and New Orleans was relevant

conduct and including the loss amounts from that conduct in its total loss

calculation. See Buck, 324 F.3d at 796-97. 

The facts set forth in the PSR showed that Johnson frequently moved from

jurisdiction to jurisdiction in the time period that he performed his offense

conduct and relevant conduct, that Johnson would leave the jurisdiction where

he was located when it appeared that his fraudulent scheme would be

discovered, that Johnson used false social security numbers to obtain

employment where he conducted his fraudulent scheme, and that Johnson

performed the same fraudulent scheme against different victims in different

jurisdictions. As Johnson did not present evidence contradicting these facts, the

district court was free to rely on these facts without further inquiry. See United

States v. Huerta, 182 F.3d 361, 364-65 (5th Cir. 1999). From these facts, the

district court could conclude that Johnson “relocated, or participated in

relocating, a fraudulent scheme to another jurisdiction to evade law enforcement

or regulatory officials.” U.S.S.G. § 2B1.1(b)(9)(A) (2009). Johnson has not shown

that the district court clearly erred by applying the enhancement. See id.

AFFIRMED.

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