IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-50946

UNITED STATES OF AMERICA,

Plaintiff – Appellee

v.

JAMES TROY BROOKS,

Defendant – Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 1:11-CR-340-1

Before HIGGINBOTHAM, ELROD, and HAYNES, Circuit Judges.

PER CURIAM:*

James Troy Brooks (“Brooks”) appeals his sentence, alleging the district

court committed procedural error in calculating his Guidelines range by applying

a sentencing enhancement based on an amount of loss in excess of $70,000. He

contends that the Government failed to prove by a preponderance of the evidence

that several contested counterfeit checks are attributable to him as relevant

conduct. We AFFIRM.

United States Court of Appeals

Fifth Circuit

F I L E D

December 7, 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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I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Brooks pleaded guilty, without a written agreement, to one count of

conspiring to make, utter, and possess counterfeit checks and three counts of

aiding and abetting the making, uttering, and possessing of counterfeit checks

that were passed in March 2011. A search of Brooks’s residence following his

indictment and arrest revealed a personal computer containing images of bank

logos, copies of authorization signatures, and a commercially-available software

program used for producing commercial and payroll checks. The agents also

discovered check stock paper and eight counterfeit checks totaling $6,186.52.

When pleading guilty, Brooks admitted only the facts alleged in connection

with the three counts of aiding and abetting. These facts included a March 2011

visit to a day labor center in Austin, Texas, during which he enlisted three daylaborers to assist him in passing counterfeit checks. Brooks told the individuals

he needed their help to “move items,” but then drove the workers to his residence

and used their government identifications to create counterfeit checks payable

to them and written on the account of YCI South, LLC. After creating the

counterfeit checks, Brooks drove these accomplice-payees to a Wal-Mart store

where they successfully passed the checks. The Secret Service investigation

revealed that Brooks used a similar modus operandi to pass ninety-seven

counterfeit checks using fifty-eight separate payees between July 6, 2009, and

May 11, 2011. The amount of these checks totaled $88,641.71. 

Accordingly, the presentence report (“PSR”) calculated the resulting

amount of loss as $94,828.23, which includes (1) ninety-seven counterfeit checks

that were passed and stated to be attributable to Brooks ($88,641.71) and (2)

eight counterfeit checks discovered in his home ($6,186.52). The PSR calculated

an offense level of seventeen, which included an eight-level enhancement to

Brooks’s base offense level of six because the amount of the actual loss exceeded

$70,000. See U.S. SENTENCING GUIDELINES MANUAL (“U.S.S.G.”) § 2B1.1(a)(2),

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(b)(1)(E) (2010). In total, Brooks’s offense level, criminal history category of VI,

and certain adjustments resulted in an advisory Guidelines range of fifty-one to

sixty-three months of imprisonment. Brooks objected to the PSR’s amount-ofloss calculation, asserting that the Government did not establish his

responsibility for a loss greater than $70,000 by a preponderance of the evidence. 

The Government supplemented thePSR with a notebook containing a copy

of each of the checks attributed to Brooks and accompanying affidavits verifying

their counterfeit status. The Government provided this notebook to Brooks’s

attorney and introduced it at sentencing. Also during the sentencing hearing,

the Government presented the testimony of Secret Service Agent Tracy Steed

(“Agent Steed”). Based on his investigation, Agent Steed testified to the details

linking Brooks to the ninety-seven counterfeit checks listed in the Government’s

exhibit. Brooks put forth no evidence to rebut the Government’s proof, but

instead argued that he had admitted only those facts associated with the three

aiding and abetting charges. Because the conduct underlying these charges

occurred only around March 2011, Brooks asserted that the evidence was

insufficient to tie him to all ninety-seven checks, which involved conduct

occurring from July 2009 to May 2011.

The district court rejected Brooks’s objection to the amount-of-loss

adjustment concluding that there was “no doubt” that Brooks’s conduct during

the relevant period resulted in a loss in excess of $70,000. After sustaining

Brooks’s objection to the sophisticated means enhancement, the court

subsequently calculated an advisory Guidelines range of forty-one to fifty-one

months of imprisonment, upwardly varied, and sentenced Brooks to sixty

months on the conspiracy count and eighty-four months on each of the three

aiding and abetting counts, to run concurrently. Brooks objected to the sentence

as unreasonable, but his objection was overruled.

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On appeal, Brooks effectively concedes checks totaling $34,531.35, which

would support a six-level enhancement pursuant to U.S.S.G. § 2B1.1(b)(1)(D). 

Thus, we examine only the contested checks. 

II. STANDARD OF REVIEW

While we review a district court’s method of calculating the amount of loss

de novo, we review the underlying factual findings related to the amount of loss

for clear error. See, e.g., United States v. Harris, 597 F.3d 242, 250-51 & n.9 (5th

Cir. 2010); United States v. Ekanem, 555 F.3d 172, 175 (5th Cir. 2009). The

district court exercises “wide latitude to determine the amount of loss and should

make a reasonable estimate based on available information.” United States v.

Jones, 475 F.3d 701, 705 (5th Cir. 2007) (citing United States v. Cothran, 302

F.3d 279, 287 (5th Cir. 2002)). Accordingly, no clear error exists so long as the

district court’s finding “is plausible in light of the record as a whole.” Ekanem,

555 F.3d at 175 (internal quotation marks and citation omitted).

III. DISCUSSION

The Government must establish by a preponderance of the evidence that

the amount-of-loss sentencing enhancement applies. See United States v.

Rodriguez, 523 F.3d 519, 524 (5th Cir. 2008). Brooks argues the Government

failed to meet this burden, and consequently that the district court committed

a reversible procedural error by upwardly adjusting his base offense level by

eight levels based on an amount of loss in excess of $70,000.1

Specific offense characteristics—such as whether the amount of loss

exceeds $70,000—are based on the relevant conduct of the defendant. U.S.S.G.

“Bald, conclusionary statements do not acquire the patina of reliability by mere 1

inclusion in the PSR.” United States v. Elwood, 999 F.2d 814, 817-18 (5th Cir. 1993). 

However, here the Government supplemented the PSR’s conclusions with additional evidence,

including an affidavit from Agent Steed, Agent Steed’s testimony during sentencing, and a

detailed exhibit containing copies of all ninety-seven checks with supporting affidavits. Thus,

we need not address the argument that the enhancement is supported by the PSR alone.

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§ 1B1.3(a). Relevant conduct includes all acts that the defendant committed or

aided and abetted in the commission of the offense, U.S.S.G. § 1B1.3(a)(1)(A), as

well as the “reasonably foreseeable acts and omissions of others” that occurred

“in furtherance of [a] jointly undertaken criminal activity.” U.S.S.G.

§ 1B1.3(a)(1)(B). Because Brooks’s offenses involved § 2B1.1 and are grouped

pursuant to § 3D1.2(d), relevant conduct also includes “all acts and omissions

described in [§ 1B1.3(a)(1)(A)-(B), discussed] above[,] that were part of the same

course of conduct or common scheme or plan as the offense of conviction.” 

U.S.S.G. § 1B1.3(a)(2). Actions fall within the “same course of conduct” when

“they are sufficiently connected or related to each other as to warrant the

conclusion that they are part of a single episode, spree, or ongoing series of

offenses.” U.S.S.G. § 1B1.3 cmt. n.9(B). Determining whether offenses are

sufficiently related involves considering “the degree of similarity of the offenses,

the regularity (repetitions) of the offenses, and the time interval between the

offenses.” Id.

When evaluating the actual loss associated with the relevant conduct, the

district “court need only make a reasonable estimate of the loss” and its finding

is “entitled to appropriate deference” because the “sentencing judge is in a

unique position to assess the evidence and estimate the loss based upon that

evidence.” U.S.S.G. § 2B1.1 cmt. n.3(C) (citing 18 U.S.C. § 3742(e) & (f)). 

Brooks challenges sixty-six of the ninety-seven passed counterfeit checks

attributed to him, arguing that the checks fall outside the scope of his criminal

agreement and were not reasonably foreseeable by him in connection with the

criminal activity he agreed to undertake. These checks consist of four categories:

(1) two checks written on the account of Satellite Healthcare; (2) nine checks

written on the account of Colonial Gardens of Austin, Virginia College, LLC,

Advanced Geosciences, Inc., and Acadian Ambulance Services; (3) twenty-one

checks written on the account of Sonic Drive-In; and (4) thirty-four checks

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written on the account of Relief Enterprises of Texas. In total, Brooks contests

the district court’s attribution of $60,297.08 of passed counterfeit checks to him. 

The evidence connected with each group of checks demonstrates that the district

court did not commit any clear error in attributing these checks to Brooks as

relevant conduct in its amount-of-loss calculation.

All of these checks were supported by testimony and the notebook exhibit

described above to which no contrary evidence was proffered:2

Satellite Healthcare—Agent Steed testified that in November 2010,

Brooks’s accomplice, Natasha Walker, was caught attempting to pass a forged

or counterfeit check written on the account of Satellite Healthcare at a grocery

store in Austin, Texas. During this transaction, the Secret Service apprehended

Brooks outside of the grocery store and discovered additional counterfeit

Satellite Healthcare checks in Brooks’s vehicle. Brooks admitted that he would

approach people on the street and ask them to pass checks on his behalf. 

Colonial Gardens, et al.—Agent Steed testified that during the course of

one week, Brooks’s accomplices cashed the checks in this group at the same Shell

Express Food Market in Austin. The similarity of approach, the timing, and the

relationship of the people to Brooks supported Agent Steed’s testimony

regarding this group of checks.

SonicDrive-In—Agent Steed explained during the sentencing hearing that

the counterfeit checks in this group are primarily linked to Brooks based on an

investigation by the Austin Police Department (“APD”) involving one of Brooks’s

Brooks asks us to consider the Guidelines’ comment that indicates that it is 2

inappropriate to hold a defendant liable for all sales made by a drug dealer when the

defendant participates in the sale of drugs on a particular occasion without the intent to

engage in ongoing criminal activity. See U.S.S.G. § 1B1.3 cmt. n.2(c)(5). The Government,

however, does not base its claim that Brooks is liable for the ninety-seven checks on a common

source or manufacturer, as would be required for this comment to apply, but instead relies on

specific evidence—such as pointing to a common geographical region and similar modus

operandi—to tie him to each check.

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accomplice-payees, Alex Bunton. Agent Steed testified that Bunton told the

APD in July 2009 that Brooks had recruited him to pass a counterfeit check

written on the account of Ignite. Brooks pleaded guilty to conspiracy involving

this check and does not object to its inclusion in the amount-of-loss calculation. 

Agent Steed testified that Bunton cooperated with the APD to obtain another

counterfeit check from Brooks that was written on Sonic Drive-In’s payroll

account. This transaction plausibly ties him to the group of twenty-one Sonic

Drive-In checks included in the amount-of-loss calculation because these checks

were passed in Austin on July 18, 2009—the same month that Bunton received

the counterfeit Sonic Drive-In check from Brooks and these checks were each

written for approximately $900 payable to individuals who were not Sonic

employees. 

Relief Enterprises—As Agent Steed explained during his testimony, these

checks were numbered relatively sequentially, cashed around the same time in

July 2009, and written for approximately $900 each. The Government ties

Brooks to these checks based on their similarity to the Sonic Drive-In checks. 

Specifically, all the checks from these two groups were payable for

approximately $900 and were cashed in July 2009 in the Austin area, and eleven

of the payees from the Sonic Drive-In checks were the same payees listed on the

Relief Enterprises checks.

In the absence of any countervailing evidence, we conclude that the district

court did not commit clear error in attributing the foregoing checks to Brooks

and applying the eight-level enhancement. Accordingly, we AFFIRM Brooks’s

sentence.

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