IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-51577

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JANE REASOR, a/k/a SAN JUANITA RANGEL REASOR,

Defendant-Appellant.

Appeal from the United States District Court 

for the Western District of Texas

Before HIGGINBOTHAM, STEWART, and SOUTHWICK, Circuit Judges.

CARL E. STEWART, Circuit Judge:

Defendant-Appellant Jane Reasor pled guilty to 28 counts of using the

forged security of one organization to deceive another organization, in violation

of 18 U.S.C. § 513(a); three counts of mail fraud, in violation of 18 U.S.C. § 1341;

one count of bank fraud, in violation of 18 U.S.C. § 1344; and one count of

making a false statement on a credit application, in violation of 18 U.S.C. § 1014.

She was initially sentenced to concurrent terms of 42 months of imprisonment.

Reasor appealed and a panel of this court vacated her 28 forgery convictions and

remanded her case to the district court for resentencing. United States v.

Reasor, 418 F.3d 466 (5th Cir. 2005). Reasor was resentenced to concurrent

terms of 37 months. In the present appeal, she challenges her sentence on two

United States Court of Appeals

Fifth Circuit

F I L E D

August 14, 2008

Charles R. Fulbruge III

Clerk
No. 06-51577

2

grounds: first, she contends that the district court’s determination of the total

amount of loss was clearly erroneous because certain amounts were improperly

attributed to her; second, she argues thatthe district court erred by applying the

guideline enhancement for misrepresenting that she was acting on behalf of a

religious organization. For the following reasons, we AFFIRM.

I. Factual and Procedural History

Reasor was employed as the office manager of St. Dominic’s Catholic

Church in San Antonio from approximately 1993 until 2000. During that period,

she misused church funds for her personal gain, using checks from the church’s

general fund account and, Father Paul Cleary’s, the parish priest, stipend

account, on which she was a signatory. Reasor forged signatures and falsified

endorsements on checks. She also made out checks to herself, various

individuals and entities, which she then cashed. Many of the checks were

cashed at La Fiesta supermarket next door to the church. Reasor also misused

the church’s funds and Fr. Cleary’s name in other ways for her financial benefit.

After pleading guilty, Reasor motioned to withdraw her guilty pleas for the

28 forgery counts under 18 U.S.C. § 513(a), arguing that there was an

insufficient factual basis upon which to base her guilty plea. According to

Reasor, St. Dominic’s was not an “organization” for purposes of § 513(c)(4)

because it did not operate in interstate commerce and its activities did not affect

interstate commerce and because there was an insufficient factual basis to

support those convictions. The district court denied Reasor’s motion. This court

vacated the convictions, holding that there was no factual basis to support the

forgery charges and noting that the vacated convictions should affect the

calculation of all of Reasor’s concurrent sentences due to grouping rules. United

States v. Reasor, 418 F.3d 466, 478-79 (5th Cir. 2005). The court further

determined that the application of U.S.S.G. § 2F1.1(b)(5)(c)(I) of the 2000 version

ofthe Sentencing Guidelines violated the Ex PostFacto Clause and directed that
No. 06-51577

3

Reasor should be resentenced under the appropriate version of the guidelines.

Id. at 479. Finally, this court concluded that Reasor’s challenge to the loss

calculations relevant to her sentencing range were not ripe for review because

her case was being remanded for resentencing. Id. at 479 n.12.

For resentencing purposes, the presentence report (“PSR”) attributed

losses totaling more than $438,000 to Reasor, including $348,873.29 in losses to

St. Dominic's; $2,137.27 in losses to the John Deere Company; $8,803.77 in

losses to Bank One; $7,106.71 in losses to Norwest Bank; $25,000 in losses to the

Catholic Mutual Relief Society; $3,000 in losses to Archbishop Patrick Flores;

and $44,010.06 in losses to Wells Fargo Bank. The probation officer used the

1998 version of the former § 2F1.1 to calculate Reasor’s offense level. The

probation officer established Reasor’s base offense level as six, to which she

added nine levels for losses of more than $350,000 but less than $500,000, two

levels because the offense involved more than minimal planning and more than

one victim, and two levels because the offense involved the misrepresentation

that Reasor was acting on behalf of a religious organization. Reasor’s adjusted

offense level was 19. Her criminal history score was one, placing her in criminal

history category I. Her guideline sentencing range was 30-37 months of

imprisonment.

The district court reduced the amount of loss to $387,981.09. The district

court also overruled Reasor’s objection to the two-level adjustment for

misrepresenting herself as acting on behalf of a religious organization. The

district court imposed five concurrent sentences of 37 months of imprisonment.

Reasor filed a timely notice of appeal. 
No. 06-51577

4

II. Discussion

A.

In her first point of error, Reasor contends that the district court erred in

determining the amount of loss attributable to her. Reasor concedes that her

scheme involved cashing checks made payable to church funds and church

employees at La Fiesta supermarket. She further concedes that she took checks

payable to vendors, and church employees and cashed those at the same store

for cash. She contends that these checks were easy to pick out because they

were stamped with the grocery store’s endorsement. However, she contends that

the fraud loss attributable to her should be reduced by $122,217.27 to

$316,713.82 because the government did not establish that she was responsible

for certain other checks, namely those checks negotiated by church vendors and

those signed by the parish priest bearing a stamped, restrictive endorsement.

Moreover, she posits that there is no evidence linking her to checks from a

stipend account which Reasor held jointly with the parish priest; a bank charge;

and money owed to John Deere for a lawn mower. 

The calculation of amount of loss is a factual finding reviewed for clear

error. United States v. Humphrey, 104 F.3d 65, 71 (5th Cir. 1997). Amount of

loss need not be determined with precision. United States v. Edwards, 303 F.3d

606, 645 (5th Cir. 2002). Rather, “[i]n order to satisfy this clear error test all

that is necessary is that the finding be ‘plausible in light of the record as a

whole.’” Id. (quoting Humphrey, 104 F.3d at 71). “The presentence report is

considered reliable evidence for sentencing purposes.” United States v. Clark,

139 F.3d 485, 490 (5th Cir.1998). “If no relevant affidavits or other evidence is

submitted to rebut the information contained in the PSR, the court is free to

adopt its findings without further inquiry or explanation.” United States v.

Jefferson, 258 F.3d 405, 413 (5th Cir.2001).
No. 06-51577

1 Reasor introduced evidence regarding Fr. Cleary’s personal travel and activities and

bills arising as a result. However, Reasor did not show that the amounts paid for Fr. Cleary's

benefit were actually included in the loss amount or that, even ifthey were, that they rendered

the PSR's loss calculations materially inaccurate. See Angulo, 927 F.2d at 205. 

5

The district court’s finding that the disputed loss was attributable to

Reasor based on information contained in the PSR is not clearly erroneous.

Here, information in the PSR was based on interviews with Fr. Cleary,

employees of La Fiesta supermarket, bank employees, and the FBI’s

investigation of all of the relevant records and review of individual checks.

Additionally, the factual basis for Reasor’s plea indicated that she engaged in a

fraudulent scheme using St. Dominic’s general fund account and the stipend

account from 1993 to 2000, largely using checks that were written so as to

appear indistinguishable from legitimate checks. Although many of those checks

were cashed at La Fiesta supermarket, the way in which Reasor committed her

offenses makes a precise loss calculation difficult and she submitted no evidence

to show that the information in the PSR was materially untrue.1 See United

States v. Huerta, 182 F.3d 361, 364 (5th Cir. 1999) (holding that the defendant

bears the burden of demonstrating thatthe PSR is inaccurate). Accordingly, the

district court was free to adopt the PSR without further explanation. Jefferson,

258 F.3d at 413. 

With regard to the cost of the John Deere tractor included in the loss

calculation, Reasor contends that she was not responsible for that charge

because another employee took the tractor and never returned it. The record

reveals that the credit application contained Fr. Cleary’s forged signature, and

that Fr. Cleary denied receiving the tractor. The district court decided to count

the John Deere amount because it did not go to the benefit of the church. Again,

Reasor has failed to submit any evidence rebutting the PSR’s inclusion of this

amount. Further, this court has held that “unsworn assertions by the defendant
No. 06-51577

2 The relevant guideline commentary of the 1998 version of § 2F1.1(b)(4)(A) provided:

Subsection (b)(4)(A) provides an adjustment for a

misrepresentation that the defendant was acting on behalf of a

charitable, educational, religious, or political organization, or a

government agency. Examples of conduct to which this factor

applies would include a group of defendants who solicit

contributions to a non-existentfamine relief organizationby mail,

a defendant who diverts donations for a religiously affiliated

school by telephone solicitations to church members which the

6

are unreliable and not to be considered.” United States v. Gray, 105 F.3d 956,

969 (5th Cir. 1997). 

Finally, Reasor seeks to reduce her loss calculation by $4,010.60. The

prosecutor stated that the account was overdrawn by that amount and that the

church had to pay that amount to the bank to bring the stipend account back

into balance. Reasor responded that she had never seen a check indicating that

the church had balanced the account. The Wells Fargo bank statement in

question indicates a “charge-off credit w/o fee” in the amount of $4,010.06.

Reasor has proffered no evidence to show this amount was improperly included

her loss amount. 

Because Reasor offered no evidence to rebut the information contained in

the PSR regarding the various checks, the John Deere tractor, or the bank

charge, and we find that the district court’s loss calculation was “plausible in

light of the record as a whole,” we AFFIRM the district court’s findings with

respect to this issue. 

B.

Reasor next contends thatthe district court erred by adjusting her offense

level for misrepresenting herself as acting on behalf of a religious organization,

pursuant to former § 2F1.1(b)(4)(A), which provides for a two-level upward

adjustment “[i]f the offense involved . . . a misrepresentation that the defendant

was acting on behalf of a charitable, educational, religious, or political

organization, or a government agency.” 2 She raised the following objections: (1)
No. 06-51577

defendant falsely claims to be a fund-raiser for the school, or a

defendant who poses as a federal collection agent in order to

collect a delinquent student loan.

§ 2F1.1 cmt. n.5 (1998). The background note provided that § 2F1.1 was “designed to apply

to a wide variety of fraud cases” and that:

Use of false pretenses involving charitable causes and

government agencies enhances the sentences of defendants who

take advantage of victims’ trust in government or law

enforcement agencies or their generosity and charitable motives.

Taking advantage of a victim’s self-interest does not mitigate the

seriousness of fraudulent conduct. However, defendants who

exploit victims’ charitable impulses or trust in government create

particular social harm.

§ 2F1.1.

7

she argues that her conduct in cashing checks at La Fiesta and at her bank were

commercial in nature; (2) she contends that there is no evidence that she

misrepresented her authority when cashing checks or that she represented that

she was acting to obtain a benefit for the church; and (3) she argues that she did

not exploit any altruistic motivations when she cashed checks on the church’s

account. 

Reasor argues that this court should adopt the holding in United States v.

Frazier, 53 F.3d 1105,1112 (10th Cir. 1995). In that case,the defendant was the

chairman of the board of a non-profit corporation who misapplied grant money

to which his corporation was entitled. He, however, did not obtain the grant

money by exploiting any of the victims’ charitable impulses. The Tenth Circuit

determined that under the plain language of § 2F1.1(b)(3)(A), a defendant would

be subject to an enhanced sentence where he had “incorrectly, improperly or

falsely [represented] that he is either acting as a representative of or in the

interest or aid of a charitable, educational, religious or political organization or

a government agency.” Id. However, the court found this literal interpretation
No. 06-51577

8

to be contrary to the plain purpose of the statute. Id. Relying on the

hypotheticals contained in the commentary to the guideline, the court held that

“the conduct intended to fall within the scope of the guideline is exploitative

conduct which induces victims to act upon their charitable or trusting impulses

due to the defendant’s misrepresentation that he has authority to act on behalf

of a charitable, educational, religious or political organization or a government

agency.” Id. at 1113. 

While this court has yet to determine the scope of § 2F1.1(b)(4)(A), a

majority of the courts to address this issue have rejected the narrow

interpretation of the guideline such as the one adopted by the Frazier court. See

United States v. Wiant, 314 F.3d 826, 829 (6th Cir. 2003); United States v.

Aramony, 166 F.3d 655, 664 (4th Cir. 1999); United States v. Bennett, 161 F.3d

171, 191-92 (3d Cir. 1998); United States v. Ferrera, 107 F.3d 537, 543 (7th

Cir.1997). In Wiant, for example, the defendant, an administrative officer ofthe

American Cancer Society of Ohio (“ACS”), among other things, instructed a bank

to transfer $7 million dollars of ACS funds to an account in Austria. 314 F.3d

at 828. Although he indicated that funds were for the purpose of funding

research grants, the funds were in fact for his personal use. Id. The Sixth

Circuit held that “[t]he plain language of the rule clearly encompasses [the

defendant’s] offense, and it contains no textual support for limiting the rule to

solicitation by misrepresentation.” Id. at 829. The court explained that “[t]he

examples listed in the application notes are obviously illustrative not exhaustive,

and thus provide no mandate for limiting the scope of the enhancement’s actual

language.” Id.; see also Berger, 224 F.3d at 120; Bennett, 161 F.3d at 191;

Ferrera, 107 F.3d at 541. Additionally, the requirement that a defendant’s

conduct must exploit the victims’ altruistic impulses was squarely rejected by

the Second and Seventh Circuits. See United States v. Berger, 224 F.3d 107,

120-21 (2d Cir. 2000); United States v. Ferrera, 107 F.3d 537, 543 (7th Cir. 1997).
No. 06-51577

9

The majority position is further buttressed by the § 2B1.1(b)(8)(A), the

successor to § 2F1.1(b)(4)(A). The application note to the current guideline

provides:

Subsection (b)(8)(A) applies in any case in which the

defendant represented thatthe defendant was acting to

obtain a benefit on behalf of a charitable, religious, or

political organization, or a government agency

(regardless of whether the defendant actually was

associated with the organization or government agency)

when, in fact, the defendant intended to divert all or

part of that benefit (e.g., for the defendant’s personal

gain). Subsection (b)(8)(A) applies, for example, to the

following:

(i) A defendant who solicited contributions for a nonexistent famine relief organization.

(ii) A defendant who solicited donations from church

members by falsely claiming to be a fundraiser

for a religiously affiliated school.

(iii) A defendant, chief of a local fire department, who

conducted a public fundraiser representing that

the purpose of th[e] fundraiser was to procure

sufficient funds for a new fire engine when, in

fact, the defendant intended to divert some of the

funds for the defendant's personal benefit.

§ 2B1.1 cmt. n.7. The Sentencing Commission explained that it sought to resolve

the circuit split regarding whether a defendant must claim authority that does

not exist in order for the two-level adjustment to apply. 

In United States v. Lambert, 498 F.3d 963 (9th Cir. 2007), the Ninth

Circuit discussed the current guidelines, noting that the application note

contained two changes meant to clarify the scope of the guideline. First, the

current guideline commentary makes clear thatthe hypotheticals are not meant

to be an exhaustive list as it changed the language contained in previous
No. 06-51577

3 This court applies retroactively guideline amendments that clarify the meaning of a

provision instead of substantively amending it. United States v. Maseratti, 1 F.3d 330, 340

(5th Cir. 1993). However, because we adopt the majority view regarding interpretation of

2F1.1(b)(4)(A) and we find the new guideline to be consistent with it, our resolution ofthis case

would not differ notwithstanding § 2B1.1(b)(8)(A)’s enactment. 

10

versions from “[e]xamples of conduct to which this factor applies would include

. . . ” to“[s]ubsection (b)(8)(A) applies, for example, to the following . . . .” Id. at

966-67. Second, the application note added a parenthetical stating that the

guideline applies “regardless of whether the defendant actually was associated

with the organization or government agency.” As explained by the Lambert

court, “[t]his change indicates that Congress, in enacting the current iteration,

intended the enhancement to apply where the defendant misrepresents his

intentions, regardless of whether he also misrepresents his authority to act,

effectively abrogating the decision in Frazier.” Id. at 970 (emphasis omitted).

In light of this analysis, the Lambert court considered § 2B1.1(b)(8)(A) was

applicable to a defendant who had collected funds from an organization under

the false pretense that he had written a number of grant application on its

behalf. The court held that the guideline applied, rejecting the defendant’s

contention thatthe two-level enhancement under the guideline was inapplicable

because he did not appeal to victims’ charitable motives and did not

misrepresent his authority to act on behalf of the organization.

We find the majority approach as well as the analysis put forward in

Lambert persuasive. As such, we adopt this approach in the analysis of the

present case.3 Reasor does not dispute that she was employed as the bookkeeper

of St. Dominic’s Church or that she used La Fiesta and her bank to cash checks

drawn on the church’s accounts. Although she did not misrepresent her

authority to act on behalf of St. Dominic’s Church, she did misrepresent that she

was acting wholly on behalf of the church in her fraudulent conduct, which is all

that is required to be subject to the two-level enhancement under §
No. 06-51577

11

2F1.1(b)(4)(A). That she did not exploit the charitable impulses of the victims

or misrepresent her authority is of no moment. We hold, therefore, that the

district court did not err by adjusting her offense level for misrepresenting that

she was acting on behalf of the church. 

For the foregoing reasons, we AFFIRM.