* District Judge of the Eastern District of Louisiana, sitting by designation.

REVISED

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-11151

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

VERNON COOKS, JR.,

Defendant-Appellant

Appeal from the United States District Court 

for the Northern District of Texas

Before HIGGINBOTHAM and STEWART, Circuit Judges, and ENGELHARDT,

District Judge.*

CARL E. STEWART, Circuit Judge:

Vernon Cooks, Jr. (“Cooks”) appeals his conviction and sentence for seven

counts of wire fraud, one count of bank fraud, and six counts of money

laundering. Finding no reversible error in his conviction and sentence, we

affirm.

I.

United States Court of Appeals

Fifth Circuit

F I L E D

November 23, 2009

Charles R. Fulbruge III

Clerk
No. 07-11151

2

Cooks was convicted of being the mastermind behind an ingenious but

misguided scheme to cheat mortgage lenders by fraudulently obtaining house

mortgage loans. In most of the accused transactions the documentary evidence

and trial testimony show that Cooks followed the same basic pattern. For each

transaction, Cooks first recruited an inexperienced real estate investor to serve

as the nominal owner of the house, a so-called “straw purchaser.” When Cooks

found a house for sale, he then contracted with its owner to buy it. At the same

time, Cooks entered into a contractto sellthe same house to the straw purchaser

for a much higher price. Cooks worked with one of two mortgage brokers, Abdul

Karriem (“Karriem”) and Deirdre Anderson (“Anderson”), to handle the

mortgage loan process for each straw purchaser. 

To obtain each loan for the higher price, Cooks and one of the mortgage

brokers created a loan application for the straw purchasers that would persuade

the lender of two things: one, that the house was worth substantially more than

its real value; and two, that the straw purchaser qualified for the loan. To that

end, Cooks and his broker cohorts forged and faked key documents for each

application, or directed the straw purchasers to make false representations

themselves. For each transaction, these documents included an appraisal

(forged with the name and license number of a real licensed appraiser), a loan

application that vastly overstated the straw purchaser’s income and assets, and

fake financial documents (tax returns, W-2’s, rent verification forms, etc.). After

the sales closed, the difference in sales price was left in a bank account

controlled by Cooks. Cooks initially sent each straw purchaser checks to pay the

mortgage, as promised. After a short period of time–generally less than six

months –the payments from Cooks stopped, and the straw purchasers were then

forced into foreclosure.

Cooks varied his methods in two transactions. In one case, there was no

bona fide seller at all because Cooks already owned the house at the time of sale.
No. 07-11151

3

In most other respects, however, this transaction followed Cooks’s pattern: a

straw purchaser bought the home, with a loan fraudulently obtained by Cooks

and his mortgage brokers. In another variation, Cooks contracted with a

construction company to buy a house for $79,900. He then submitted a duplicate

contract with a sales price of $125,000 to the mortgage lender. In support of the

copycat contract, Cooks submitted a duplicate warranty deed and a HUD

settlement statement listing the $125,000 price. Cooks pocketed the $45,100

difference, with the mortgage company receiving $4,300, more than half of which

went to the mortgage broker Anderson. 

Cooks was indicted on wire fraud, bank fraud, and money laundering

charges. Karriem and Anderson were also indicted. Karriem pleaded guilty and

testified for the Government. Following an initial mistrial, the district court

held a three-week trial in 2007. Witnesses included the bona fide sellers, straw

purchasers, representatives of the mortgage companies involved, and Karriem.

Expert witnesses in appraisal and mortgage fraud also testified. The

Government submitted the fraudulent appraisals, tax returns, rental

verifications, loan applications, title documents, sales contracts, closing

documents, and the checks and bank account records used to carry out the

transactions. Cooks testified in his own defense.

The jury acquitted Anderson, but convicted Cooks on all charges. The

district court sentenced Cooks to 135 months’ imprisonment, nearly one and one

half million dollars in restitution, and a five-year term of supervised release.

II.

On appeal, Cooks raises six points of error which we address in turn.

A.

Cooks first contends that the district court erred by admitting the expert

testimony of a Government witness. Cooks argues that the expert, Agent Steve

Overby (“Overby”) oftheFederal Deposit Insurance Company, was not qualified
No. 07-11151

4

to give expert testimony on the subject of mortgage fraud because he lacked

sufficient experience.

This court reviews a trial court’s decision to admit experttestimony under

an abuse of discretion standard, subjectto harmless error analysis. Kumho Tire

Co.,Ltd. v. Carmichael, 526 U.S. 137, 152 (1999); General Elec. Co. v. Joiner, 522

U.S. 136, 141–43 (1997). Accordingly, we have recognized that district courts

are given “wide latitude in determining the admissibility of expert testimony,

and the discretion of the trial judge . . . will not be disturbed on appeal unless

manifestly erroneous.” Watkins v. Telsmith, Inc., 121 F.3d 984, 988 (5th Cir.

1997) (quoting Eiland v. Westinghouse Elec. Corp., 58 F.3d 176, 180 (5th Cir.

1995) (internal quotations omitted)). 

In deciding whether the district court abused its discretion in qualifying

Overby as an expert witness, we are guided by the Supreme Court’s decision in

Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993), and Federal Rule of

Evidence 702. 

In Daubert, the Supreme Court instructed district courts to function as

gatekeepers and permit only reliable and relevant expert testimony to be

presented to the jury. See Daubert, 509 U.S. at 590–93. Before a district court

may allow a witness to testify as an expert, it must be assured that the proffered

witness is qualified to testify by virtue of his “knowledge, skill, experience,

training, or education.” FED. R. EVID. 702. A district court should refuse to allow

an expert witness to testify if it finds that the witness is not qualified to testify

in a particular field or on a given subject. See Wilson v. Woods, 163 F.3d 935,

937 (5th Cir. 1999).

If the witness is only testifying as a lay witness, the witness’s testimony

in the form of opinions or inferences is limited to those opinions or inferences

which are (a) rationally based on the perception of the witness, (b) helpful to a

clear understanding of the witness’ testimony or the determination of a fact in
No. 07-11151

5

issue, and (c) not based on scientific, technical, or other specialized knowledge

within the scope of Rule 702. FED. R. EVID. 701. “[T]he distinction between lay

and expert witness testimony is that lay testimony results from a process of

reasoning familiar in everyday life, while experttestimony results from a process

of reasoning which can be mastered only by specialists in the field.” United

States v. Yanez Sosa, 513 F.3d 194, 200 (5th Cir. 2008) (internal quotations

omitted). As explained by the Second Circuit, “a lay opinion must be the product

of reasoning processes familiar to the average person in everyday life.” United

States v. Garcia, 413 F.3d 201, 215 (2d Cir. 2005). Moreover, any part of a

witness’s opinion that rests on scientific, technical, or specialized knowledge

must be determined by reference to Rule 702, not Rule 701. FED. R. EVID. 701

advisory committee’s note. 

The Government argues that Overby’s limited experience as a white collar

fraud investigator and general certification as a fraud examiner qualifies him as

an expert in any area of fraud. We are unconvinced by this argument. Prior to

the instant case, Overby had sparse experience working on mortgage fraud cases

and in fact had never been qualified as an expert in any case involving mortgage

fraud. Unsurprisingly, he had no specialized training or classes in mortgage

fraud and was seemingly unaware of basic statutes and literature which govern

the field. Additionally, Overby had never taken any classes in appraising

properties. Overby’s lack of formal training and practical experience in

mortgage fraud leads us to the conclusion that the district court abused its

discretion when it qualified him as an expert. 

While Overby should not have been qualified as an expert, our inquiry

does not end there. An examination of Overby’s disputed testimony reveals that

much of it was merely descriptive and summarized the factual information and

documents gathered throughoutthe investigation of Cooks and thus constituted

permissible lay testimony. But, some of Overby’s testimony, specifically his
No. 07-11151

6

opinion regarding the legality of Cooks’s scheme, should not have been admitted

by the district court because Overby’s opinion required specialized “knowledge,

skill, experience, training, or education” in mortgage fraud which he lacked.

However, the error was harmless because there was other extensive evidence

thatthe transactions were fraudulent and that Cooks was the major beneficiary.

See United States v. Mendoza-Mendina, 346 F.3d 121, 127 (5th Cir. 2003) (under

the harmless error doctrine, even if the district court abuses its discretion in

admitting or excluding evidence, we will affirm “[u]nless there is a reasonable

possibility thatthe improperly admitted evidence contributed to the conviction”);

see also FED. R. CRIM. P. 52(a) (“Any error, defect, irregularity, or variance that

does not affect substantial rights must be disregarded.”). 

B.

The jury convicted Cooks on seven counts of money laundering, under 18

U.S.C. § 1957(a), a provision that prohibits knowingly engaging “in a monetary

transaction in ‘criminally derived property’ of a value greater than $10,000 and

. . . derived from specific unlawful activity.” 18 U.S.C. § 1957(a). The statute

defines “criminally derived property” as “any property constituting, or derived

from, proceeds obtained from a criminal offense.” 18 U.S.C. § 1957(f)(2). The

jury instructions tracked this language, and additionally required that “the

funds in question must already be proceeds obtained from a criminal offense

when they were transferred by [Cooks].” 

Cooks argues that the district court erred by failing to instruct the jury

thatthe word “proceeds” means “profits,” not gross receipts, as established in the

Supreme Court’s intervening decision in United States v. Santos, __ U.S. __, 128

S. Ct. 2020, 170 L. Ed. 2d 912 (2008). As Cooks failed to object on this basis at

trial, review here is for plain error. United States v. Fernandez, 559 F.3d 303,

316 (5th Cir. 2009) (“We may review a claim raised for the first time on appeal,
No. 07-11151

7

even when based on an intervening Supreme Court decision, only for plain

error.”).

A four-justice plurality inSantos concluded that the term “proceeds” in the

federal money laundering statutes means “profits” rather than “receipts.”

Santos, 128 S. Ct. at 2020. The defendants in Santos ran an illegal gambling

business and paid employees’ salaries from the business’s gross receipts. Id. at

2023. The plurality reasoned that, without a “profits” definition of “proceeds,”

the defendant could be guilty of the additional offense of money laundering even

though the transaction was a normal part of the underlying offense (e.g., illegal

gambling). To hold otherwise would effectively merge the two offenses,

resulting in a second conviction for the same crime. Id. at 2026–27. Defining

“proceeds” as “profits,” however, eliminates this problem. Id. at 2027. 

Four justices dissented from this view. Id. at 2035–45 (Alito, J.,

dissenting). Justice Stevens concurred in the judgment, indicating that

“proceeds” may have one meaning when referring to some specified unlawful

activities and a different meaning when referring to others. Because Justice

Stevens provided the decisive fifth vote for the plurality, and the ground of

agreement between his opinion and the plurality’s is uncertain, the precedential

value of Santos in this case is unclear. 

Notwithstanding the applicability vel non of Santos, the law of this circuit

is settled. In United States v. Brown, 553 F.3d 768, 784–85 (5th Cir. 2008), this

court held that in cases where the evidence indicates thatthe specified unlawful

activity was profitable and the charged transactions incurred some modicum of

profit, a failure to include a “profits” definition of proceeds in the jury

instructions does not meet the plain error standard. Brown involved a group of

pharmacists who sold hydrocodone under the guise of false prescriptions. Id.

They were prosecuted for money laundering because they used the gains from

these transactions to buy more drugs to further the scheme. Id. This courtfound
No. 07-11151

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no clear and obvious error: “[N]ot even after Santos is the law ‘clear’ on what the

prosecution must prove as ‘proceeds’ in this case; or, if profits must be proved,

how this must be done under these circumstances.” Id. Moreover, because the

conspirators were “buying hydrocodone for considerably less than they were

selling it for,” it was clear that the unlawful activity was profitable and that the

defendants’transactions involved profits from illicit sales. Id. at 784. Even if the

law was clear, the evidence in Brown “demonstrated the requisite profits,” such

that there was “no likelihood of a grave miscarriage of justice.” Id. (internal

citations omitted). In such a case, this court held that omitting a “profits”

definition from the jury instructions was “nowhere near” the plain error

standard. Id. at 785.

Cooks’s argument thus fails under the settled law of this circuit because

he cannot show error that is clear and obvious. Even if we were to assume that

the error was clear and obvious, Cooks’s substantial rights were not affected.

This case is indistinguishable from Brown in that the evidence here plainly

demonstrates a profitable fraudulent scheme, and thus there is “no likelihood of

a grave miscarriage of injustice” sufficient for reversible plain error. For each

transaction, the evidence shows that Cooks received a check that represented

the difference between the mortgage loan amount (based on an inflated value of

the house) and the costs of closing the deal (the sale price of the home plus a

commission to the mortgage broker). Because Cooks always sold the home to the

straw purchaser for more than he bought it, the difference in selling price was

pure profit, though Cooks did use an insignificant fraction of the money to make

the straw purchasers’ mortgage payments for a short period of time.

Accordingly, the district court did not err when it failed to instruct the jury that

the word “proceeds” means “profits,” not gross receipts.

C.
No. 07-11151

9

The district court permitted the admission of evidence that Cooks

engineered five fraudulent real estate deals that were substantially similar to

those charged in the indictment. In admitting the evidence, the district court

applied the two-pronged test setforth in UnitedStates v. Beechum, 582F.2d 898,

911 (5th Cir. 1978) (en banc). The court held that the testimony was admissible

as probative of Cooks’s “intent, knowledge, motive, and plan” and determined

that a limiting instruction would dispel any unfair prejudice. 

We review a district court’s admission of extrinsic acts evidence under

Federal Rule of Evidence (“Rule”) 404(b) for abuse of discretion, subject to a

harmless error analysis. See, e.g., United States v. Morgan, 505 F.3d 332, 339

(5th Cir. 2007); see also FED. R. EVID. 103.

In evaluating the admission of extrinsic acts evidence under Rule 404(b),

this court employs a two-step inquiry. First, the court must determine whether

the extrinsic evidence is relevant to an issue other than the defendant’s

character, such as “motive, opportunity, intent, preparation, plan, knowledge,

identity, or absence of mistake or accident.” Beechum, 582 F.2d at 911. Second,

the probative value must not be substantially outweighed by the potential for

undue prejudice. Id.

Four of the five uncharged transactions which were admitted into

evidence were materially indistinguishable from the charged schemes. The fifth

transaction involved a house implicated in an earlier fraudulent transaction.

The transaction left Cooks liable for the loan, however, so Cooks sold the house

to a straw purchaser for a highly inflated amount. We have held, and Cooks

acknowledges, that extrinsic evidence of using the same scheme repeatedly is

relevant to intent, knowledge, motive and plan in that it “demonstrate[s] how

[an] operation work[s].” United States v. Nguyen, 504 F.3d 561, 574 (5th Cir.

2007). But Cooks argues that the evidence of his participation in the five real

estate transactions should have been barred as irrelevant because there was
No. 07-11151

10

insufficient evidence to show that he tendered fraudulent documents in the

uncharged transactions. 

In the Rule 404(b) context, similar act evidence is relevant only if the jury

can reasonably conclude that the act occurred and that the defendant was the

actor. Huddleston v. United States, 485 U.S. 681, 689 (1988). “[T]]he

government need only provide some evidence that the defendant committed the

prior bad act.” United States v. Crawley, 533 F.3d 349, 354 (5th Cir. 2008)

(emphasis in original). 

Here, Cooks’s assertion that the Government had to prove that he

tendered the fraudulent documents to the lenders in the uncharged transactions

overstates the Government’s burden. The Government did not have to show that

Cooks personally submitted the documentation to the lender; it is sufficient to

show that Cooks was knowingly involved in those deals. This is a showing that

the Government clearly met. Cohort-turned-witness Karriem testified that

Cooks was the mastermind ofthe overall scheme and that Cooks himself created

many of the forged documents. Straw purchasers testified that Cooks or his

associates induced them to buy the homes, in some cases directing them to make

false representations to the lenders; in each case, he soon stopped making

payments, causing the loans to default. Accordingly, we find that the extrinsic

evidence was sufficiently established and relevant to the issue of Cooks’s intent,

knowledge, motive, and plan. 

Although relevant, extrinsic acts evidence must nonetheless be excluded

if its probative value is substantially outweighed by the danger of undue

prejudice. Beechum, 582 F.2d at 911. Cooks has not demonstrated how the

probative value of the evidence was substantially outweighed by the danger of

undue prejudice to such a degree that for the district court to have admitted the

evidence was an abuse of discretion. Certainly, the extrinsic evidence was

probative as to the role Cooks played in the scheme and the modus operandi of
No. 07-11151

1 The Government points out that this is inconsistent with the language of the

indictment, which charges Cooks, Karriem, and Anderson as both principals and

aiders and abetters. Either way, Cooks cannot support a valid claim here.

11

the scheme. Any undue prejudice to Cooks was greatly minimized by the court’s

detailed limiting instruction to the jury. The instruction identified the five

additionaltransactions and prohibited the jury from considering the evidence “in

deciding if defendant Cooks committed the acts charged in the indictment.” See,

e.g., United States v. Williams, 900 F.2d 823, 827 (5th Cir. 1990). (“As long as

it is clear to the jury that the extrinsic evidence of the [other act] is presented

only to show modus operandi to prove knowledge and intent, there is little

danger that presentation of the extrinsic evidence will cause unfair prejudice .

. . .”). Furthermore, even assuming that the district court erred when it

admitted evidence of his involvement in the five fraudulent real estate

transactions, Cooks has not demonstrated thatit affected his substantial rights.

We cannot conclude that the district court abused its discretion.

D.

Cooks asserts that since he and his co-defendant Anderson were tried

together and charged with aiding and abetting under 18 U.S.C. § 2, then

Anderson’s acquittal requires Cooks’s as well. In essence, Cooks argues that he

and Anderson were charged only with aiding and abetting one another.1

This court reviews for plain error, but regardless ofthe standard of review,

Cooks’s argument is foreclosed by Supreme Court and Fifth Circuit precedent.

The Supreme Court stated in Standefer v. United States, 447 U.S. 10, 20 (1980),

that, “[w]ith the enactment of [18 U.S.C. § 2], all participants in conduct

violating a federal criminal statute are ‘principals.’ As such, they are punishable

for their criminal conduct; the fate of the other participants is irrelevant.” In

United States v. McClatchy, 249 F.3d 348, 356 (5th Cir. 2001), we applied

Standefer to arguments identicalto Cooks’s in holding that either defendant may
No. 07-11151

12

be punished as a principal under 18 U.S.C. § 2 no matter what happens to the

other defendant.

E.

Cooks also contends that he was deprived of due process by the

prosecutors’ alleged failure to consult with the Justice Department’s Asset

Forfeiture and Money Laundering Section, as he claims they were required to

do by Justice Department policy set forth in the United States Attorneys’

Manual (“USAM”). Cooks first raised this claim in a motion for judgment of

acquittal. The district court denied this motion without ruling on the merits

because it had been filed nearly six months after the deadline for such a motion.

If an issue is raised for the first time on an untimely motion before the district

court and the district court does not consider it, the issue is not preserved on

appeal. See First United Fin. Corp. v. Specialty Oil Co., Inc., 5 F.3d 944, 948 &

n.9 (5th Cir. 1993); United States v. Chavez, 682 F.2d 1086, 1088 (5th Cir. 1982)

(“It is well-established that the failure to timely and properly raise these

contentions before the district court, either through objection, motion for

mistrial, or other appropriate manner, precludes us from reviewing them unless

they constitute plain error . . . .”). This court thus reviews for plain error.

Several sister circuits have held thatthe Department of Justice guidelines

and policies do not create enforceable rights for criminal defendants. See, e.g.,

United States v. Fernandez, 231 F.3d 1240, 1246 (9th Cir. 2000) (“[I]t is clear

that the USAM does not create any substantive or procedural rights.”); United

States v. Blackley, 167 F.3d 543, 548-49 (D.C. Cir. 1999) (same); United States

v. Myers, 123 F.3d 350, 356 (6th Cir. 1997) (same); United States v. Piervinanzi,

23 F.3d 670, 682 (2d Cir. 1994) (same); United States v. Craveiro, 907 F.2d 260,

264 (1st Cir. 1990) (same). The USAM itself makes plain that it “provides only

internal Department of Justice guidance [and] is not intended to, does not, and

may not be relied upon[,] to create any rights.” Fernandez, 231 F.3d at 1246
No. 07-11151

13

(quoting USAM 1-1.100). As for the specific money laundering guidelines at

issue here, the Second Circuit has held that they do not provide any substantive

rights to a criminal defendant. Piervinanzi, 23 F.3d at 682.

In any event, Cooks’s claim that DOJ policy required consultation with the

Asset Forfeiture and Money Laundering Section because this is a case of

“receipts and deposits” has no merit. While it is true that the Manual requires

consultation in a “receipt and deposits” case, this applies only where there is no

concealmentinvolved. In this case, Cooks used his name and his alias to appear

as two different individuals, and wired the funds to a bank account in the name

of Cooks’s company, ASJ Remodeling. As a result, Cooks cannot show that the

prosecutors failed to follow DOJ policy.

For either reason, the district court’s refusal to grant an acquittal was not

plain error.

F.

Finally, Cooks makes four arguments related to the district court’s

application of the sentencing guidelines. This court reviews the district court’s

application of the guidelines de novo and factual findings for clear error. United

States v. Crawley, 533 F.3d 349, 355–56 (5th Cir. 2008).

1. Loss Amount

Cooks first asserts that the district court erred in calculating the loss

amount. “[A] court need only make a reasonable estimate of the loss. The

sentencing judge is in a unique position to assess the evidence and estimate the

loss based upon that evidence.” United States v. Holbrook, 499 F.3d 466, 468

(5th Cir. 2007) (quoting United States v. Austin, 479 F.3d 363, 367 (5th Cir.

2007) and U.S.S.G. § 2B1.1, cmt. n.3(C)) (internal quotation marks omitted). 

The district court found Cooks’s crimes resulted in a loss of $1,429,237.58,

an amount which corresponds to a 16-level upward adjustment for loss amounts

between $1,000,000 and $2,500,000. U.S.S.G. § 2B1.1(b)(J). Cooks argues that
No. 07-11151

2 Similarly, Cooks’s claim that the district court erred in applying an

enhancement for ten or more victims also relies on the argument that the uncharged

transactions were not relevant conduct, and thus fails for the same reason.

14

this amount is incorrect because it is based on irrelevant uncharged conduct.

His proposed loss calculation would have resulted in a 14-level adjustment,

reducing his total offense level by two. 

After hearing testimony concerning the uncharged transactions, the

district court judge found by a preponderance of the evidence that they were

relevant conduct and thatthe resulting losses were properly included in the loss

amount. Uncharged conduct is “relevant conduct” and thus may be used in

determining loss amount if it is part of the “same course of conduct” or “a

common scheme or plan” as the offense of conviction. U.S.S.G. § 1B1.3, cmt. n.9.

There is ample evidence that the uncharged transactions qualify as relevant

conduct: they were the same type of mortgage fraud as those charged in the

indictment and they include several common factors and people (straw

purchasers,fake appraisals that generally used the same stolen credentials, fake

rental verifications, and fake tax returns). In all cases, Cooks walked away with

the extra cash from the deal, with the lender taking the loss. Thus, Cooks

cannot demonstrate thatthe objected-to transactions are not properly considered

“relevant conduct,” and his “loss amount” claim must fail.2

2. Leader/Organizer Enhancement

Cooks asserts that the district court clearly erred in applying a four-level

enhancement for being a leader or organizer of criminal activity. U.S.S.G. §

3B1.1(a). This claim lacks merit. The straw purchasers testified that Cooks and

his associates found the houses and obtained the loans, with minimal assistance;

Karriem testified that Cooks played the leading role in the scheme and in

producing the forged documents; and financial records demonstrate that Cooks

received the overwhelming bulk of the profit generated.
No. 07-11151

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3. Identity Theft Enhancement

The guidelines provide for a two-level enhancementifthe offense involved

“the unauthorized . . . use of another’s means of identification unlawfully to

produce or obtain any other means of identification.” U.S.S.G. §

2B1.1(b)(10)(C)(I). A “means of identification” is defined as “any name or

number that may be used alone or in conjunction with any other information, to

identify a specific individual.” U.S.S.G. § 2B1.1, cmt. n.9(C)(ii)(I); United States

v. Radziszewski, 474 F.3d 480, 487–88 (7th Cir. 2007). Here, the district court

found that Cooks used, without authorization, the name and appraisal license

number of a certified appraiser to create fraudulent appraisals with which he

obtained mortgage loans. It then found that the loan numbers of the mortgages

Cooks obtained through the fake appraisals qualified as “means of identification”

within the meaning of the guidelines, and that Cooks thus qualified for the twolevel “identity theft” enhancement. 

Cooks contends that the district court erred in applying the enhancement

on the ground that the mortgage loan number is not a “means of identification.”

We are unconvinced by his argument. A mortgage loan number is similar to a

bank account number, which is specifically recognized in the guidelines as a

“means of identification” that can be used to identify a specific individual.

U.S.S.G. § 2B1.1, cmt. n.9(C)(ii)(I); Radziszewski, 474 F.3d at 487–88; 18 U.S.C.

§ 1028(d)(7). In fact, each mortgage loan number, like a bank account number,

is presumably unique, and thus traceable to the mortgagor. Accordingly, the

district court did not err in applying the enhancement.

4. Procedural and Substantive Reasonableness

Cooks argues that the district court failed to take the 18 U.S.C. § 3553(a)

sentencing factors into account. Even a cursory review of the record reveals this

to be untrue. The court explicitly considered the factors, heard testimony from

defense witnesses, and discussed their application to Cooks’s case atlength with
No. 07-11151

16

counsel. To the extent Cooks’s argument is one of procedural unreasonableness,

it fails.

As for substantive reasonableness, Cooks’s argument is similarly

unavailing. This court applies a rebuttable presumption of reasonableness to a

properly calculated, within-guidelines sentence such as Cooks’s. United States

v. Candia, 454 F.3d 468, 473 (5th Cir. 2006). When reviewing a sentence for

reasonableness,the court“will infer thatthe judge has considered allthe factors

for a fair sentence set forth in the Guidelines.” United States v. Mares, 402 F.3d

511, 519–20 (5th Cir. 2005). The presumption is rebutted only upon a showing

that the sentence does not account for a factor that should receive significant

weight, it gives significant weight to an irrelevant or improper factor, or it

represents a clear error of judgment in balancing sentencing factors. United

States v. Nikonova, 480 F.3d 371, 376 (5th Cir. 2007).

Cooks contends that his sentence creates an unfair disparity with the

much shorter sentence of co-defendant Karriem. Cooks and Karriem, however,

are not similarly situated, and are not appropriate points for comparison in a

reasonableness analysis. Karriem pled guilty to one count, while Cooks was

convicted of fourteen. Karriem received a downward departure for substantial

assistance, and Cooks had a much more significant role in the scheme, reflected

in the larger profits he received. 

Cooks’s reliance on the fact that other white collar defendants have

received shorter sentences despite far greater loss amounts is unavailing.

Cooks’s sentence was based not only on loss amount, but also on his eligibility

for a number of other aggravating factors, including his leadership role, the

number of victims, and identity theft. Cooks fails to show any unwarranted

disparity sufficient to overcome the presumption that his within-guidelines

sentence was unreasonable. 
No. 07-11151

17

III.

For the foregoing reasons, Cooks’s conviction and sentence are affirmed.