### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

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 h is sentence, alleging the district court committed p ro c e dur al e rro r in c alc ul atin g 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 co n t e sted counterfeit checks are attributable to him as relevant conduct. We AFFIRM. U n i te d S ta te s C o u rt o f A p p ea l s F i ft h C i rc u i t 

### F I L E D Decem ber 7 , 20 12 Lyle W . Cayce Clerk

Pursua nt to 5 T H C IR

. R. 47.5 , the cour t has d ete rm inedt hat this op inion s houldnot * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t for th in 5 T H C IR

. R. 47.5 .4. Case: 11-50946 Document: 00512077067 Page: 1 Date Filed: 12/07/2012No. 11-50946

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY Brooks pleaded guilty, without a written agre e m e n t , 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 M arch 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 p r o d u c i ng commercial and payroll checks. The agents also discovered check stock paper and eight counterfeit checks totaling $6,186.52. When pleading guilty, Brooks admitt e d o nly th e f ac t s all e ged 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 t o t hem and written on the account of YCI South, LLC. After creati n g t h e counterfeit ch e c k s , Brooks drove these accomplice-payees to a Wal-Mart store where they successfully passed the checks. The Secret S e rvi c e investigation revealed that Brooks used a similar modus operandi t o p a s s ninety-seven counterfeit checks using fifty-eight separate payees between July 6, 2009, and May 11, 2011. The amount of these checks totaled $88,6 41.71. Accordingly, the p r e s entence report (“PSR”) calculated the resulting amount of loss as $94,828.23, which includes (1) ninety-seven counterfeit checks t h a t w ere 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. S E N T E N C I N G G U I D E L I N E S MA N UA L (“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. Broo k s objected to the PSR’s amount-ofloss calculation, asserting that the Govern m e n t did not establish his responsibility for a loss greater than $70,000 by a preponderance of the evidence. The Government s u p p l e m e nt e d th e P S R with a notebook containing a copy of each of the checks attributed to Brooks and accompanying affidavits verifying their counterfeit st a t u s . The Government provided this notebook to Brooks’s attorney and introduced it at sentencing. Also during the sentencing hearing, the Government presented the test i m o ny 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 t h e G overnment’s proof, but instead argued that he had admitted only those facts associated with the three aiding and abetting charges. Because t h e conduct underlying these charges occurred only around March 2 0 1 1 , Brooks asserted that the evidence was insufficient to tie him to all ninety-seven checks, whic h i nv olved conduct occurring from July 2009 to May 2011. The district court rejected Brooks’s objection to t h e amount-of-loss adjustment concluding that there was “no doubt” that Brooks’s conduct during the relevant period resulted in a loss in excess o f $ 7 0 , 000. After sustaining Brooks’s objection to the sophisticated means enhancement, the court subsequently calculated an advisory Guideline s range of forty-one to fifty-one months of imprisonment, upwardly var ied, and sentenced Brooks to sixty months on the conspiracy count and eighty-four mon t h s o n 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

w o u l d s upport 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 Stat e s v . Ek a nem , 555 F.3d 172, 175 (5th Cir. 2009). The distric t c o urt exercises “wide latitude to determine the amount of loss and should make a r easonable estimate based on available information.” United States v. Jones , 475 F.3d 701, 705 (5th Cir. 2007) (citing United States v. Co t h ra n , 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 enhancem e nt applies. See United States v. Rodriguez , 523 F.3d 519, 524 (5th Cir. 2008). Bro o k s a rgues the Government failed to meet this burden, and consequently that the distric t court committed

a revers ible 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 , conc lus ionar y st atem ents do not acqui re the pat ina of reli abili t y by me re 1 inclu sio n in the PSR.” Uni ted States v. Elw ood , 999 F.2d 814, 8 1 7

- 1 8 ( 5 t h Cir. 1993)

. Ho we ver, here the Go vernm ent sup ple me nted the PSR’s conc lus ions wi th add itio nal evide nce, inclu ding an aff

idavit fr om Agent Ste ed, Agent Ste ed’ s tes tim ony dur ing s ente ncing, and a det ailed exhibit cont aining cop ies of all ninet y-s even chec ks wi th sup por ting aff idavit s. Thus, we ne ed not add res s the argum ent thatt he enhanc em ent is sup por tedby the PSR a lone. 4 Case: 11-50946 Document: 00512077067 Page: 4 Date Filed: 12/07/2012No. 11-50946

§ 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). Be c a u s e Brooks’s offenses involved § 2B1.1 and are grouped pursuant to § 3D1.2(d), relevan t c o n d u c t 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 of f e n s e o f conviction.” U.S.S.G. § 1B1.3(a)(2). Actions fall within the “same course of c o n d u c t” when “they are sufficiently connected or related to each other as to war r a n t the conclusion that they are part of a single episode, spree, or on going series of offe n s e s . ” 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 t h e t i m e 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 “sente n c i n g j udge is in a unique position to ass e s s t h e e vidence and estimate the loss based upon that evidence.” U.S.S.G. § 2B1.1 cmt. n.3(C) (citing 18 U.S.C. § 374 2(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 ch e c k s c onsist of four categories: (1) two checks written on the account of Sa t e l l i t e H ealthcare; (2) nine checks written o n the account of Colonial Gardens of Austin, Virginia College, LLC, Advanced Geosciences, Inc., and Acadian Ambulance Services; (3) twen t y - o n e checks written on the accou nt 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 c hecks 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 Health c a re

— Agent Steed testified that in November 2010, Brooks’s accomplice, Natasha W alker, 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 dur ing 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

r e lationship of the people to Brooks supported Agent Steed’s testimo n y regarding this group of checks. So n i c Dr i ve-In—Agent Steed explained durin g th e s e nt e nc in g h e arin g th at 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

Brook s ask s us to cons ide r the Gu ide lines ’ com me nt that indi ca t e s t h a t it is 2 i n app rop riat e to hold a def enda nt liable for all sal es mad e by a dr ug dea ler wh en t h e def enda nt par tic ipat es in th e s ale of dr ugs on a par tic ular occ asi on wi thou t the inte nt to engage in ongoing cri mi nal act ivity. See U. S. S. G. § 1B1.3 cm t. n.2( c) (5)

. T h e G o v ernm ent, how ever, doe s not bas e its clai m that Brook s is liable for the ninet y-s even chec ks on a com mo n so urc e or man ufac tur er, as wo uld be requ ired for this com me nt to app ly, but ins tead reli es on sp ecif ic evide nce— suc h as poi nting t o a c om mo n geograp hical regio n and sim ilar mo dus ope rand i—t o t ie himt o e ach chec k. 6 Case: 11-50946 Document: 00512077067 Page: 6 Date Filed: 12/07/2012No. 11-50946

accomplice-payees, Alex Bunton. Agent Steed testified that Bunton told the APD in July 2009 that Brooks had recrui ted 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. A g e n t Steed testified that Bunton cooperated with the APD to obtain another

c o u nterfeit check from Brooks that was written on Sonic Drive-In’s payrol l account. This transaction plausibly ties him to the group of twenty- o ne 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 w ere 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 2 0 0 9 , and written for approximately $900 each. The Government ties Brooks to these checks based on their similarity to the Sonic Drive-In checks. S p e c i f ically, 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 counterv ailin g evi d e nc e , w e c onclude that the district court did n o t c o m m it 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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