IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 19-10430

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

DEBORAH PETTY,

Defendant - Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:14-CR-498-1

Before JOLLY, JONES, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

Deborah Petty seeks vacatur of her conviction for seven counts of identity 

fraud under 18 U.S.C. § 1028 and one count of aggravated identity theft under 

18 U.S.C. § 1028A, contending that venue was improper. We conclude, 

however, that the government met its light burden to prove proper venue and 

AFFIRM the conviction. Alternatively, Petty seeks vacatur of the court’s 

restitution award of $44,438 and the forfeiture order of $15,562. Because the 

restitution was awarded for the wrong set of acts, and the forfeiture order

* 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

April 23, 2020

Lyle W. Cayce

Clerk

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appears inextricably tied to restitution, we VACATE the restitution award and 

forfeiture order and REMAND for reconsideration in light of this decision.

I.

Petty was convicted of seven counts of identity theft, which is committed 

where one

knowingly transfers, possesses, or uses, without lawful authority, 

a means of identification of another person with the intent to 

commit, or to aid or abet, or in connection with, any unlawful 

activity that constitutes a violation of Federal law, or that 

constitutes a felony under any applicable State or local law.

18 U.S.C. § 1028(a)(7) (2012).

Petty was also convicted of one count of aggravated identity theft, which 

is committed where

during and in relation to [knowingly and with intent to defraud 

possess[ing] fifteen or more . . . unauthorized access devices], [one]

knowingly transfers, possesses, or uses, without lawful authority, 

a means of identification of another person.

18 U.S.C. §§ 1028A(a)(1), 1029(a)(3) (2012).

Petty maintains that these convictions were improper because she was

prosecuted in the wrong venue. Federal Rule of Criminal Procedure 18 

establishes that a “prosecution shall be had in a district in which the offense 

was committed.” Petty denies that her offense took place in the Northern 

District of Texas. On this ground, she made an oral motion for judgment of 

acquittal, but after supplemental briefing the district court denied that motion. 

Petty contends that this denial was erroneous.

This court “review[s] a district court’s denial of a motion for judgment of 

acquittal de novo.” United States v. Campbell, 52 F.3d 521, 522 (5th Cir. 1995). 

“Where a defendant argues that the government failed to adduce evidence 

sufficient to support venue for a particular count, ‘we view the evidence in the 

light most favorable to the Government, drawing all reasonable inferences in 

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favor of the verdict.’” United States v. Solis, 299 F.3d 420, 444 (5th Cir. 2002) 

(quoting United States v. Loe, 248 F.3d 449, 465 (5th Cir. 2001)). The

government must prove venue only by a preponderance of the evidence and 

may rely entirely on circumstantial evidence. Loe, 248 F.3d at 465. Thus, this 

court “will affirm the verdict where a rational jury could conclude ‘that the 

government established venue by a preponderance of the evidence.’” United 

States v. Thomas, 690 F.3d 358, 368 (5th Cir. 2012) (quoting United States v. 

Garcia Mendoza, 587 F.3d 682, 686 (5th Cir. 2009)).

Petty does not contest that, in the Northern District of Texas, she 

“knowingly . . . possesse[d] . . . without lawful authority, [some] means of 

identification” of seven other persons. Indeed, she does not deny that she had 

a box full of other people’s medical records. Instead, she denies that she illicitly

possessed the documents in the Northern District “with intent to commit, or to 

aid or abet, or in connection with, any unlawful activity.” For this reason, she 

contends that she did not commit identity theft in the Northern District.

Yet a rational jury could well conclude otherwise by a preponderance of 

the evidence. Leave aside that Petty’s documents were plainly connected with 

previous unlawful activity, namely food-stamp fraud in Florida that was 

established by evidence presented to the jury. Beyond that, there is evidence 

of “intent to commit” unlawful activity in the Northern District. For example, 

Petty sought a job in Dallas at Epic Health Services, where she could gain 

access to patient information. Also, there was a notation in her notepad 

indicating that, in Texas, food-stamp applicants must be on Medicaid. 

Moreover, Petty tried to retrieve the box of stolen identities from her 

daughter’s house after law enforcement began to investigate her. A rational 

jury could infer by a preponderance of the evidence that Petty intended to keep 

committing fraud in Texas.

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Similarly, a rational jury could well conclude by a preponderance of the 

evidence that Petty committed aggravated identity theft in the Northern 

District of Texas. Petty does not deny that she possessed the requisite number 

of food-stamp access devices nor that she possessed means of identification 

without lawful authority during and in relation to her knowing possession of 

access devices. Instead, she insists that she had no intent to defraud while in 

the Northern District. The same evidence, however, that supports Petty’s

“intent to commit” fraud for purposes of § 1028(a)(7) also supports her “intent 

to defraud” for purposes of § 1029(a)(3) and § 1028A(a)(1). Thus, Petty’s 

challenges to venue fail.

II.

Petty also contests the restitution award of $44,438, maintaining that 

this amount represents losses suffered by the victim(s) of Petty’s fraud before 

the date range charged in the indictment. Because Petty did not object to the 

restitution award in the district court, this court reviews the district court’s 

restitution order for plain error. See United States v. Lozano, 791 F.3d 535, 

537 (5th Cir. 2015). In this case, though, the government concedes that the 

restitution award contains an “error or defect” that is “clear or obvious” 

and affected Petty’s “substantial rights.” Puckett v. United States, 556 U.S. 

129, 135, 129 S. Ct. 1423, 1429 (2009). Thus, Petty must show only that the 

error “‘seriously affect[s] the fairness, integrity or public reputation of judicial 

proceedings.’” Id. (quoting United States v. Olano, 507 U.S. 725, 736, 

113 S. Ct. 1770, 1779 (1993)).

Petty meets that standard by pointing to multiple cases in which this 

court has remedied plain error in similar circumstances. Cf. United States v. 

Lozano, 791 F.3d 535, 539 (5th Cir. 2015); United States v. Mason, 722 F.3d 

691, 695 (5th Cir. 2013); United States v. Inman, 411 F.3d 591, 595 (5th Cir. 

2005); United States v. Maturin, 488 F.3d 657, 663 (5th Cir. 2007). Of course, 

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the facts of each case must be considered, but against the background of those 

cases, erroneously ordering payment of more than $40,000 from a defendant 

who is not wealthy and whose criminal gains may be subject to a forfeiture 

order, lead us to conclude that this error seriously affects the fairness or public 

reputation of judicial proceedings and merits correction.

III.

Finally, Petty challenges the order of forfeiture against her because it 

was indexed to the erroneous restitution award. At sentencing, she raised the 

more extensive objection that the “unusual” combination of this restitution

award and forfeiture order constitute “double payment to the government.” 

Determining that the more extensive objection at sentencing preserved the 

more modest objection on appeal, “[w]e review the district court’s findings of 

fact under the clearly erroneous standard of review, and the question of 

whether those facts constitute legally proper forfeiture de novo.” United States 

v. Marmolejo, 89 F.3d 1185, 1197 (5th Cir. 1996). We note that the order of 

forfeiture was based on a finding that Petty could not forfeit more than 

$15,562, which finding was, in turn, based on the finding that Petty would have 

to pay $44,438 in restitution. This last finding is clearly erroneous, and 

therefore the order of forfeiture must be reconsidered. In vacating the 

forfeiture and restitution orders, we do not instruct or confine the district 

court’s exercise of discretion to assess those amounts on remand.

CONCLUSION

The judgment of conviction is AFFIRMED. The restitution award and 

the order of forfeiture are VACATED and REMANDED for resentencing in 

light of this decision.

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