IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-20126

Summary Calendar 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee 

v. 

ANTHONY MALFITANO, 

Defendant-Appellant 

Appeal from the United States District Court 

for the Southern District of Texas 

USDC No. 4:10-CR-393-2 

Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges. 

PER CURIAM:*

Anthony Malfitano appeals the within-guidelines-range sentences 

imposed following his jury convictions for conspiracy to commit wire fraud and 

aiding and abetting wire fraud. Malfitano argues that the district court erred 

by applying (1) a four-level enhancement pursuant to U.S.S.G. § 3B1.1(a) for 

his role as an organizer or leader and (2) a two-level enhancement pursuant to 

U.S.S.G. § 2B1.1(b)(10(C) based on sophisticated means. 

 

* 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

Fif h Circuit

FILED

June 5, 2017

Lyle W. Cayce

Clerk

 Case: 16-20126 Document: 00514019233 Page: 1 Date Filed: 06/05/2017
No. 16-20126

2 

We review the district court’s application of the Sentencing Guidelines 

de novo. United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). 

The district court’s determination that a defendant is an organizer or leader 

under § 3B1.1(a) is a factual determination that we review for clear error. 

United States v. Cabrera, 288 F.3d 163, 173 (5th Cir. 2002). A factual finding 

is not clearly erroneous if it is plausible in light of the record as a whole. United 

States v. Gonzales, 436 F.3d 560, 584 (5th Cir. 2006). A close examination of 

the record in this case, including the transcript of the trial, shows that there 

was sufficient evidence to support the district court’s leadership enhancement. 

Further, even if, as Malfitano suggests, his co-conspirator Laura Glass was a 

leader within the mortgage fraud conspiracy, the Guidelines commentary 

provides that “[t]here can, of course, be more than one person who qualifies as 

a leader or organizer of a criminal association or conspiracy.” § 3B1.1, 

comment. (n.4). Accordingly, the district court’s finding that Malfitano was a 

leader or organizer for purposes of § 3B1.1(a) was not clearly erroneous. See 

United States v. Curtis, 635 F.3d 704, 720 (5th Cir. 2011); United States v. 

Cooks, 589 F.3d 173, 185 (5th Cir. 2009).

We also review for clear error the district court’s factual determination 

that the defendant used sophisticated means. United States v. Conner, 537 

F.3d 480, 492 (5th Cir. 2008). The record reflects that although Malfitano 

provided his true identity, he attempted to avoid detection and to conceal the 

fraudulent nature of the transactions at issue, and he attempted to legitimize 

the proceeds distributed to him through his company United Builders. In view 

of the foregoing, the district court did not clearly err in finding that Malfitano 

intentionally employed “especially complex or especially intricate offense 

conduct pertaining to the execution or concealment of an offense.” § 2B1.1, 

comment. (9(B)); see Conner, 537 F.3d at 492.

Accordingly, the judgment of the district court is AFFIRMED. 

 Case: 16-20126 Document: 00514019233 Page: 2 Date Filed: 06/05/2017