* 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that this opinion should not be published and is not precedent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.

United States Court of Appeals

Fifth Circuit

FILED

April 15, 2004

Charles R. Fulbruge III

Clerk

REVISED MAY 3, 2004

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 03-40594

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ALLEN PETTY. JR., also known as Al Petty,

Defendant-Appellant.

--------------------

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 6:02-CR-45-1

--------------------

Before SMITH, DeMOSS, and STEWART, Circuit Judges.

PER CURIAM:*

Allen Petty, Jr. (Petty) appeals the 292-month sentence

imposed after a jury convicted him of 44 counts of mail and wire

fraud (fraud counts) and 54 counts of money-laundering and other

illegal financial transactions (money-laundering counts) arising

from a “Ponzi scheme.” Petty contends that the district court

wrongly determined that (1) the losses caused by the crime exceeded

$7 million; (2) there were more than 50 victims of the scheme;
2

(3) Petty was relocating his operation to Canada to evade law

enforcement or regulators; (4) Petty was an organizer or leader of

a criminal activity with five participants or that was otherwise

extensive; and (5) Petty abused a position of trust to further the

crime.

Under the United States Sentencing Guidelines’ provisions

pertaining to the grouping of counts, the Probation Officer

preparing the Presentence Report (PSR) calculated two separate

offense levels, one for the fraud counts and one for the moneylaundering counts. The money-laundering offense level was based in

part on the fraud offense level. Petty’s ultimate sentence was

based on the offense level for the money-laundering counts, which

was higher than the offense level for the fraud counts. See

U.S.S.G. §§ 2S1.1, comment. (n.6) (directing application of

§ 3D1.2(c) in money-laundering cases), § 3D1.2(c) (directing

grouping of fraud and money-laundering accounts), § 3D1.3(a)

(directing use of highest offense level where offenses are grouped

pursuant to § 3D1.2(c)).

The sentencing court did not exceed its “great latitude” in

making a “reasonable estimate” that the amount of loss exceeded $7

million. See U.S.S.G. § 2B1.1(b)(1)(K) & comment. (n.2(C)); United

States v. Ravitch, 128 F.3d 865, 870 (5th Cir. 1997) (“great

latitude”). The calculation was in accord with United States v.

Deavours, 219 F.3d 400, 402 (5th Cir. 2000), and U.S.S.G. § 2B1.1,

comment. (n.2(F)(iv)). The court committed no error.
3

The finding of the number of victims is reviewed only for

plain error because Petty failed to apprise the district court

specifically of the ground for his objection. See United States v.

Maldonado, 42 F.3d 906, 910-12 (5th Cir. 1995); U.S.S.G.

§ 2B1.1(b)(2)(A). The PSR found, and the record shows, that there

were more than 2000 victims. Petty stipulated that more than 50

investors had not received repayment, and he provides no reasonable

basis for excluding any of them from the number of victims. Petty

fails to show that the determination of the number of victims was

erroneous in any way.

Petty’s offense level was increased because he was

participating in a relocation of his scheme to Canada in order to

evade law enforcement. See U.S.S.G. § 2B1.1(b)(8). Petty admitted

that he was relocating his operation, and his unsworn assertions of

a legitimate motive for the relocation failed to rebut the PSR’s

findings that indicated Petty was hoping to evade law enforcement.

Absent rebuttal evidence, the district court was entitled to rely

on the PSR’s findings without further inquiry. See United States

v. Huerta, 182 F.3d 361, 364-66 (5th Cir. 1999). The district

court did not err.

Petty makes no argument on appeal relevant to the increase of

the money-laundering offense level based upon Petty’s role as “an

organizer or leader of a criminal activity that involved five or

more participants or was otherwise extensive.” U.S.S.G.

§ 3B1.1(a). He waives appeal of this issue by failing to address
4

it. See United States v. Reyes, 300 F.3d 555, 558 n.2 (5th Cir.

2002) (failure to provide legal or factual analysis of issue

results in its waiver). The arguments Petty does make about the

role-adjustment pertain only to the fraud counts. Lowering the

fraud-count offense level based on the role adjustment would not

reduce Petty’s sentence because this adjustment was not used to

calculate the money-laundering offense level or, therefore, the

total offense level. Accordingly, any error would be harmless

under FED. R. CRIM. P. 52(a). In any event, Petty failed to show

any error in the court’s finding that he was the leader or

organizer of a criminal activity that was extensive. See United

States v. Fullwood, 342 F.3d 409, 414-15 (5th Cir. 2003).

Petty’s claim concerning the adjustment for abuse of a

position of trust pertains only to the fraud offense level and

would not affect his sentence. Nonetheless, we hold that the

district court committed no error, clear, plain, or otherwise by

concluding that Petty used a “position of trust” to further his

crime. See U.S.S.G.§ 3B1.3; United States v. Buck, 324 F.3d 786,

793 (5th Cir. 2003); United States v. Dahlstrom, 180 F.3d 677, 685

(5th Cir. 1999).

The judgment of the district court is AFFIRMED.

AFFIRMED.