IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-20031

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

CHRISTOPHER DONRICK DALEY,

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:15-CR-512-1

Before JOLLY, OWEN, and HAYNES, Circuit Judges.

PER CURIAM:*

A jury convicted Christopher Donrick Daley of three counts of wire fraud, 

in violation of 18 U.S.C. § 1343, and one count of mail fraud, in violation of 18 

U.S.C. § 1341. On appeal, Daley argues that the district court erred by (1) 

constructively amending the indictment; (2) imposing a 14-level enhancement 

pursuant to U.S.S.G. § 2B1.1(b)(1)(H) based on the actual losses; (3) ordering 

restitution in the amount of $614,950; (4) imposing a two-level enhancement 

 

* 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

July 3, 2018

Lyle W. Cayce

Clerk

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pursuant to § 2B1.1(b)(2)(A)(i) based on the number of victims; and (5) 

imposing a procedurally and substantively unreasonable sentence. Daley

concedes that plain error review applies because he did not raise these issues

in the district court. See Puckett v. United States, 556 U.S. 129, 135 (2009). 

Plain error review, in turn, encompasses four prongs: that there was an error, 

the error was clear or obvious, and the error affected substantial rights. If 

those requirements are met, then the court of appeals should exercise its

discretion to correct the error if it “seriously affects the fairness, integrity or 

public reputation of judicial proceedings.” Id.; see also Rosales-Mireles v. 

United States, 138 S. Ct. 1897, 1905 (2018) (discussing plain error review and 

focusing on the discretionary fourth prong).

First, Daley argues that the district court erroneously constructively 

amended the indictment by instructing the jury that wire fraud could be 

committed via interstate telephone calls, but the indictment only charged wire 

fraud via emails and a wire transfer. Even assuming that the district court 

committed an error that was clear or obvious, it is questionable, under the 

particular facts of this case, whether Daley’s substantial rights were actually 

affected. We note that (1) the offense mistakenly instructed to the jury could 

have been charged in the indictment, (2) the jury rejected Daley’s theory of the 

case, (3) there was “overwhelming evidence of guilt of both the charged offense 

and the instructed offense,” and (4) a vacatur of the conviction and reversal

“would encourage the kind of sandbagging that the plain error rule is, in part, 

designed to prevent.” Puckett, 556 U.S. at 135; United States v. Reyes, 102 F.3d 

1361, 1366 (5th Cir. 1996). 

But assuming arguendo that all alleged constructive amendments, 

regardless of any other facts, affect substantial rights, we address the fourth 

prong here and conclude that we should not exercise our discretion to correct 

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any such error here for the reasons stated above. The Supreme Court recently 

clarified the boundaries of this discretion in cases involving errors in 

calculating the sentencing guidelines for a particular case. Rosales-Mireles, 

138 S. Ct. at 1906-07. In so doing, it repeatedly noted that the case did not 

involve the complexities and strategic issues of a case that was tried on the 

merits. Id. at 1908-09. As set forth above, we conclude that any error here 

did not “seriously affect” matters such as the fairness or integrity of judicial 

proceedings. Rosales-Mireles does not support a contrary conclusion here.

In his second, third, and fourth stated issues, Daley contends that the 

district court’s calculation of the actual loss caused by his fraud was erroneous, 

leading to its mistaken imposition of the 14-level and two-level enhancements 

and its order of restitution. The factual determinations underlying the district 

court’s loss amount and restitution award are reviewed in the same manner as

other findings of fact, see United States v. Read, 710 F.3d 219, 231 (5th Cir. 

2012). Here, the determination of both the amount of actual loss and the 

number of victims was based on the evidence introduced by the Government at 

trial. We conclude that the evidence supports the district court’s 

determination. 

Further, the court only ordered an award of $798,454, representing the 

total amount of investments minus the payments made to the victims. The 

$614,950 restitution order was intended to compensate the identified victims 

with addresses, and the court ordered forfeiture of the difference between the 

actual loss and the restitution order. Therefore, the overall amount ordered in 

restitution and forfeiture represents the actual loss, and Daley has not shown 

any error that affects his substantial rights. See United States v. Miller, 406 

F.3d 323, 331-32 (5th Cir. 2005). 

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Finally, Daley contends that his sentence was both procedurally and 

substantively unreasonable. While the district court did not specifically list 

the applicable 18 U.S.C. § 3553(a) sentencing factors, its reasons were factspecific and consistent with the factors, including the nature and 

circumstances of the offense, the seriousness of the offense, the need to protect 

the public, and deterrence. See United States v. Smith, 440 F.3d 704, 707 (5th 

Cir. 2006). Moreover, Daley’s sentence was not procedurally unreasonable 

because the record shows that the court weighed the evidence and mitigating 

factors offered by Daley and his counsel. See United States v. Alvarado, 691 

F.3d 592, 596 (5th Cir. 2012). Further, Daley’s counsel did not expressly object 

to a Rule 32 error in district court and, although given several opportunities to 

do so, did not indicate to the district court that he had additional arguments to 

make. The record reflects the district court gave counsel an opportunity to 

present his arguments on several occasions during the sentencing hearing.

Daley also argues that the upward variance was substantively 

unreasonable because it was greater than necessary to achieve the § 3553(a) 

sentencing factors. In reviewing an above-guidelines sentence for substantive 

reasonableness, we consider the totality of the circumstances, including the 

extent of any variance from the guidelines range, to determine whether the 

§ 3553(a) factors support the sentence. United States v. Gerezano-Rosales, 692 

F.3d 393, 400 (5th Cir. 2012). An above-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.” United States 

v. Smith, 440 F.3d 704, 708 (5th Cir. 2006). This court defers to the district 

court’s determination that the § 3553(a) factors, on the whole, merit an upward 

variance. United States v. Brantley, 537 F.3d 347, 349 (5th Cir. 2008).

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In this case, the district court relied on appropriate § 3553(a) factors in 

determining that an upward variance was warranted, as its reasons addressed 

the nature and circumstances of Daley’s offense, the need to protect the public 

from further crimes by Daley, and the need to deter him from future criminal 

activity. Nothing suggests that the district court failed to consider a factor that 

should have received significant weight, gave significant weight to an improper 

factor, or made a clear error of judgment in balancing the sentencing factors. 

See Smith, 440 F.3d at 708. We therefore defer to the district court’s 

determination that the § 3553(a) factors, on the whole, warrant the variance, 

see Brantley, 537 F.3d at 349, and justify the extent of the upward variance 

imposed, see United States v. Broussard, 669 F.3d 537, 551 (5th Cir. 2012). 

Accordingly, Daley’s sentence is AFFIRMED.

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