IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-20516

UNITED STATES OF AMERICA,

Plaintiff–Appellee,

v.

GILBERT BARRY ISGAR; VINCENT WALLACE ALDRIDGE; TORI ELYSE

ALDRIDGE,

Defendants–Appellants.

Appeals from the United States District Court

for the Southern District of Texas

Before OWEN and HAYNES, Circuit Judges, and LEMELLE,* District Judge.

PRISCILLA R. OWEN, Circuit Judge:

This case arises from a mortgage fraud scheme. At the conclusion of a jury

trial, Vincent Wallace Aldridge and Tori Elyse Aldridge (the Aldridges), and

Gilbert Barry Isgar (collectively, Defendants) were convicted of conspiracy to

commit mail and wire fraud, in violation of 18 U.S.C. §§ 1341, 1343, and 1349,

aiding and abetting wire fraud, in violation of 18 U.S.C. §§ 2 and 1343,

conspiracy to engage in money laundering, in violation of 18 U.S.C. § 1956(h),

and aiding and abetting money laundering under 18 U.S.C. §§ 2 and 1957. The

Defendants appeal their convictions. We affirm.

United States Court of Appeals

Fifth Circuit

F I L E D

January 13, 2014

Lyle W. Cayce

Clerk

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

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I

The Defendants’ convictions arose out of the sale of nine newly constructed

town homes in the Memorial Park area of Houston, Texas. The properties at

issue were in a development called “Maxie Village” and were built by Waterford

Custom Homes. Isgar owned 50% of Waterford.

The closings were conducted by the First Southwestern Title Company

(FSW), which was operated by the Aldridges and for whom Vincent Aldridge was

also a fee attorney doing business as Aldridge & Associates. The Aldridges were

both authorized signers on Aldridge & Associates’ Interest Only Lawyers Trust

Account (IOLTA). 

The Aldridges recruited three “straw purchasers” to buy eight of the

townhomes. Vincent Aldridge purchased the ninth. The straw purchasers were

individuals who wanted to invest in real estate and were told that they would

receive $10,000 for each property they purchased; that they would not have to

pay the mortgages because tenants would be found to lease the properties; and

that after approximately one year, the residences would be resold and the straw

purchasers might receive additional money at that time. These straw

purchasers provided the Aldridges with their respective names, social security

numbers, and income information. The Aldridges then used the accurate names

and social security numbers, combined with falsified information about income,

assets, and intent to use the property as a primary residence, to submit

fraudulent loan applications to lenders. The false representations that each

purchaser would be residing in the home purchased permitted the Aldridges to

obtain 100% financing. 

Isgar inflated the sale price ofthe properties through falsified construction

invoices and amendments to the sales contracts. The lenders approved loans to

purchase the properties at these inflated practices. When the lenders wired the

loan amounts to FSW, disbursements were made to Isgar as payment for the

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properties. However, other disbursements were made to Aldridge & Associates’

IOLTA as well as to Superb Construction that were not disclosed on the

settlement statement to the lenders, as required by the Department of Housing

and Urban Development (HUD).

The UnitedStatesmail,including interstate commercial carriers, and wire

communications were used to execute this scheme. Loan documents traveled

across state lines by facsimile, mail and email. Loan proceeds were wire

transferred from the lenders’ banks to FSW. 

Also involved in the scheme were Alvin Eiland, a mortgage broker, and his

employee, Gary Robinson. Robinson assisted Vincent Aldridge in forming

Superb Construction, which laundered proceeds from these transactions. Both

Eiland and Robinson have pled guilty to conspiracy to commit wire fraud and

money laundering and are not parties to this appeal. 

A federal grand jury returned a 19-count indictment charging the

Aldridges with conspiracy to commit mail and wire fraud, in violation of 18

U.S.C. §§ 1341, 1343, 1349 (Count 1), aiding and abetting wire fraud, in violation

of 18 U.S.C. §§ 2, 1343 (Counts 2-12), conspiracy to engage in money laundering,

in violation of 18 U.S.C. § 1956(h) (Count 13), and aiding and abetting money

laundering, in violation of 18 U.S.C. §§ 2, 1957 (Counts 14-19). Isgar was named

only in Counts 1-13. A jury returned a guilty verdict as to all three defendants

on all counts. 

The Defendants appeal their convictions on multiple grounds. Each

asserts that the evidence is insufficient to support a conviction. The Aldridges

challenge subject matter jurisdiction and venue. They further contend that they

are entitled to a new trial because certain FSW documents should not have been

admitted, there was prosecutorial misconduct, and that the cumulative errors

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denied them a fair trial.1 Tori Aldridge contends that her indictment was

constructively amended, and that the district court erred in the denying her

motion for new trial and request for an evidentiary hearing. She also claims

ineffective assistance of counsel. Vincent Aldridge appeals his sentence and the

amount of restitution owed. 

II

Each of the Defendants has challenged the sufficiency of the evidence. 

“Our review of the sufficiency of the evidence is highly deferential to the

verdict.”2 “The relevant question is whether, after viewing the evidence in the

light most favorable to the prosecution, any rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt.”3“[A]ll

reasonable inferences and credibility choices [are] made in support of a

conviction.”4“Our review is thus limited to whether the jury’s verdict was

reasonable, not whether we believe it to be correct.”5

“Finally, ‘[i]t is not

necessary that the evidence exclude every reasonable hypothesis of innocence or

be wholly inconsistent with every conclusion except that of guilt,’ and any

conflict in the evidence must be resolved in favor of the jury’s verdict.”6

1 On December 3, 2012, Vincent filed a motion in this court seeking to adopt Tori’s brief.

On December 18, 2012, Tori filed a letter seeking to adopt Vincent’s brief. Under Federal Rule

of Appellate Procedure 28(I), a defendant may adopt another’s arguments “only” ifthose claims

are not fact specific. United States v. Cantu-Ramirez, 669 F.3d 619, 632 n.4 (5th Cir. 2012),

cert. denied, 133 S. Ct. 247 (2012). Accordingly, we treat all arguments raised by Tori and

Vincent that do not concern the particular facts of their cases as joint arguments.

2 United States v. Moreno-Gonzalez, 662 F.3d 369, 372 (5th Cir. 2011) (internal

quotation marks omitted).

3

Id. (alteration omitted).

4 United States v. Asibor, 109 F.3d 1023, 1030 (5th Cir. 1997).

5 United States v. Williams, 264 F.3d 561, 576 (5th Cir. 2001).

6 Moreno-Gonzalez, 662 F.3d at 372 (alteration in original) (citation omitted) (quoting

United States v. Lage, 183 F.3d 374, 382 (5th Cir. 1999)).

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A

Tori Aldridge argues that there was insufficient evidence that a prior

conspiracy between her and Eiland or her and Robinson existed and asserts that

no reasonable jury could find that a conspiracy existed after March 26, 2005. 

She contends that in every transaction with Eiland or Robinson, she received

only the closing fees disclosed on the HUD form. She points to evidence that she

suggests exonerates her. A review of the record, however, reveals ample

evidence from which the jury could have reasonably concluded that Tori Aldridge

acted with the intent to further the fraudulent scheme. 

At trial, Robinson testified that Tori Aldridge prepared the falsified

paperwork concerning a straw purchaser’s income and intent to use the property

as a primary residence. He explained that he received and returned the

paperwork to her. One of the straw purchasers, Shawn Stevens, testified that

in the documents he signed in purchasing two of the Maxie Village town homes

less than one month apart, Tori Aldridge attested that each would be used as his

primary residence when in fact, neither would be or actually was used as a

residence by him. Tori Aldridge notarized documents that stated Stevens had

face-to-face meetings with her when that was false, and she attested that

signatures and initials on loan documentation were those of Stevens, though

Stevens testified that those signatures and initials were forgeries. One witness

stated that Tori Aldridge had expressly directed her to draft a statement lying

about her income. Tori Aldridge’s signature was on this falsified paperwork. A

witness from one of the lenders also verified that Tori Aldridge had signed the

closing paperwork, attesting to the accuracy of the information provided therein. 

There was sufficient evidence from which a jury could conclude that Tori

Aldridge was an active participant in the fraudulent scheme.

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B

Isgar argues thatthe Government failed to present sufficient evidence that

he was a knowing participant in the fraud. He cites United States v. Curtis7

for

the proposition that the Government was required to present proof that the

actual sale prices of the properties were inflated in the form of either an

appraisal report or appraiser testimony and contends that in the absence of such

proof, this court must reverse. Isgar also contends that his own damaging

statement that the values of these properties were slightly inflated is insufficient

to meet the Government’s burden.

Isgar is mistaken that Curtis requires proof of an appraisal to support a

conviction for conspiracy to commit mail and wire fraud.8In fact, in Curtis, we

emphasized that “circumstantial evidence may establish the existence of a

conspiracy, as well as an individual’s voluntary participation in it.”9 We also

noted that a “defendant’s knowing and voluntary participation in the conspiracy

can even be established solely on the basis of the testimony of a coconspirator . . .

so long as that testimony is not incredible as a matter of law.”10

Here, there was circumstantial evidence supporting Isgar’s knowing

participation in the fraud. Robinson testified that Isgar’s role in the scheme

required that Isgar “be okay with inflating the price.” FBI Agent Robert

McCallum also testified that Isgar handled the day-to-day business affairs of

7

635 F.3d 704 (5th Cir. 2011).

8 Curtis, 635 F.3d at 718 (“The Government was not specifically obligated to prove that

the values stated in the appraisal reports were falsified or inflated. Rather, it had to prove

that Curtis made some kind of a false or fraudulent material misrepresentation in service of

a scheme to defraud.”). An overt act was required in Curtis because the Government charged

the defendant with conspiracy under 18 U.S.C. § 371. Our discussion, then, was focused on

the overt act, not on the appraisal itself.

9

Id. at 719 (alteration omitted).

10

Id. (alteration in original) (internal quotation marks omitted).

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Waterford and that Isgar had signed the disbursements to the Aldridge’s IOLTA

and to Superb Construction. Isgar’s own statements support the inference that

he was a knowing participant. Isgar explained to Agent McCallum that “the

sales prices of the properties had been raised” and supported in the

documentation with construction repair invoices or amendments added to the

sales contracts giving the purchaser a $60,000 allowance to pay the contractor

of the purchaser’s choice to make repairs. There was evidence that $60,000 in

construction repairs or upgrades to the Maxie Village newly constructed town

homes was unnecessary.

Isgar admitted to FBI agents that with regard to the town home Isgar sold

to Vincent Aldridge, Isgar made a disbursement to Aldridge the day after the

sale closed, and Isgar said that he knew that he should not have done so. Isgar

also participated in disbursements to Superb Construction Company, the entity

formed by Vincent Aldridge but opened under Robinson’s name. No legitimate

purpose for the disbursements to Superb Construction Company was evident.

Isgar was also a licensed real estate agent. Though he knew that the

value of the units was inflated, he always received his full asking price and no

negotiation with buyers was necessary. His company, Waterford, made

approximately $30,000 to $60,000 in profit on each sale.

Isgar’s contention that this statement was insufficient to demonstrate his

knowing participation goes to the weight of the evidence, and “[t]he jury retains

the sole authority to weigh any conflicting evidence.”11 The jury here could have

reasonably concluded from Isgar’s acknowledgment of the inflated prices as well

as from the other circumstantial evidence that Isgar knowingly participated in

the scheme.

11 United States v. Grant, 683 F.3d 639, 642 (5th Cir. 2012) (internal quotation marks

omitted)).

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C

Vincent Aldridge challenges the sufficiency of the evidence underlying his

convictions for conspiracy to commit money laundering under 18 U.S.C.

§§ 1956(h) and 1957. The jury was instructed that the transfers of money from

FSW to the Aldridges’s IOLTA account had to involve “proceeds” of an unlawful

activity, and the district court instructed the jury that “proceeds” was limited

to the “profits,” not “gross receipts,” of unlawful activity. Aldridge argues that

the money deposited in the IOLTA account was used to pay two of the straw

purchasers and to make mortgage payments on the town homes and that

accordingly, the funds were used to further the conspiracy and were not profits

retained by him.

Vincent Aldridge relies on United States v. Santos.

12

In Santos, a plurality

of the Supreme Court held that the term “proceeds” under § 1956 meant “profits”

rather than “gross receipts,” at least in part to prevent merger issues.13“The

concept of merger is implicated when a defendant is convicted under two

criminal statutes for what is actually a single crime; that is, convicted under the

money laundering statute for essentially the same conduct that constitutes the

conduct of the ‘unlawful activity’ upon which the money laundering count is

premised.”14 Thus, Vincent argues, just as Santos held that the funds from

which the costs of the illegal scheme itself must be paid are not “profits,” the

evidence in the instant case of funds transferred from FSW into his IOLTA

likewise do not represent “profits” because this money was used to pay the

expenses incurred in executing the wire fraud scheme.

12

553 U.S. 507 (2008).

13 Santos, 553 U.S. at 515.

14 United States v. Kennedy, 707 F.3d 558, 563 (5th Cir. 2013).

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We rejected this argument in United States v. Kennedy.

15 There, we

addressed a similar mortgage fraud scheme and held that the subsequent

disbursements of mortgage loan funds from the title company to the defendants’

various shell companies constituted different conduct underlying a different

crime.16 We reasoned that wire fraud was completed when the lender

transmitted funds and that subsequent expenditures to make down payments

on newly acquired mortgages and to make bonus payments to borrowers to

encourage them to invest again were the use of profits to assist the defendants

in committing new crimes of wire fraud.17 We concluded that payments of this

nature “could not be anything but [the use of] profits.”18 

In the present case, the Government presented evidence that Isgar

inflated the sales prices of the properties through fraudulent construction

invoices and amendments to the sales contracts such that the subsequent

disbursement of the amounts in excess of the actual price constituted only

profits. Second, the Government also demonstrated that the $10,000 payments

to straw purchasers were given at least in part to encourage them to invest

again, and that the disbursements to both the Aldridges’s IOLTA and Superb

Construction were unsupported by consideration but were instead direct

payments of profits from the fraudulent scheme. Accordingly, just as in

Kennedy, there was sufficient evidence from which a jury could have reasonably

found that the transferred funds were profits, and thereby formed the basis for

Vincent Aldridge’s money laundering convictions.

15

707 F.3d 558 (5th Cir. 2013).

16 See Kennedy, 707 F.3d at 560-62, 566-67.

17

Id. at 566-67.

18

Id. at 567.

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III

A

Tori Aldridge contends that the district court lacked subject matter

jurisdiction over the wire fraud counts. She argues that, because state law

required the wire transmissions at issue in this case, the transmissions could not

have been unlawful. She asserts, “federal jurisdiction is improper as a matter

of law.” We disagree. 

Our review of subject matter jurisdiction is de novo.19“Subject matter

jurisdiction . . . is straightforward in the criminal context.”20 Under 18 U.S.C.

§ 3231, “[t]he district courts of the United States have original jurisdiction . . .

of all offenses against the laws of the United States.”21 To invoke this

jurisdictional grant, “an indictment need only charge a defendant with an

offense against the United States in language similar to that used by the

relevant statute.”

22 Defects in the indictment, moreover, such as insufficient

factual allegations, do not deprive the court of jurisdiction.23 As the Supreme

Court has clarified, “a district court has jurisdiction of all crimes cognizable

under the authority of the United States and the objection that the indictment

does not charge a crime against the United States goes only to the merits of the

case.”24 The counts in the indictment against Tori Aldridge closely track the

19 United States v. Hazlewood, 526 F.3d 862, 864 (5th Cir. 2008).

20 United States v. Scruggs, 714 F.3d 258, 262 (5th Cir. 2013).

21

18 U.S.C. § 3231.

22 Scruggs, 714 F.3d at 262 (internal quotation marks and citations omitted).

23See id. at 263 (“Even though a [subsequent Supreme Court case] might have rendered

the instant information factually insufficient, it did not divest the district court of subject

matter jurisdiction over the case.” (emphasis in original, internal quotation marks omitted));

United States v. Scruggs, 691 F.3d 660, 668-69 (5th Cir. 2012) (reaching a similar conclusion).

24 United States v. Cotton, 535 U.S. 625, 630-31 (2002).

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language of the corresponding statutes. The district court possessed subject

matter jurisdiction.25

Tori Aldridge also contends that venue was improper in the Southern

District of Texas for the wire fraud charges. However, she has waived any

objection to venue. Although a defendant may challenge venue in a motion for

judgment for acquittal pursuant to Federal Rule of Criminal Procedure 29,26the

Aldridges’ motion failed to raise any venue issue. Therefore, this issue was not

properly preserved for appellate review.27

B

Each of the Aldridges asserts that the district court abused its discretion

in admitting FSW documents concerning the real estate transactions at issue.28

The Aldridges maintain that these documents were not admissible under the

business records exception, which permits “the admission of ‘records of regularly

conducted activity’” so long as certain conditions are met,29because the witness

offering the records had never been employed at FSW and could not testify as to

its business practices. 

The witness presenting the foundation for the admission of a record need

25 See Scruggs, 691 F.3d at 668 (holding that there was no jurisdictional defect when

the language of the charging document “track[ed] the statutory language” even though “the

facts proffered at the plea hearing [were] insufficient to establish that” the defendant

committed the crime).

26 United States v. Carreon-Palacio, 267 F.3d 381, 392-93 (5th Cir. 2001).

27 Carreon-Palacio, 267 F.3d at 392-93 (“In situations where adequate allegations are

made but the impropriety of venue only becomes apparent at the close of the government’s

case, a defendant may address the error by objecting at that time, and thus preserve the issue

for appellate review.”).

28 See, e.g., United States v. Hale, 685 F.3d 522, 538 (5th Cir. 2012) (per curiam), cert.

denied, 133 S. Ct. 559 (2012) (“We review evidentiary rulings regarding the admission of

evidence only for an abuse of discretion.” (internal quotation marks omitted)).

29 United States v. Ned, 637 F.3d 562, 569 (5th Cir. 2011) (per curiam) (alteration in

original) (quoting FED. R. EVID. 803(6)).

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not be the “author of the record or be able to personally attest to its accuracy.”30

Instead, because this exception hinges on the “trustworthiness of the records,”

a court does not abuse its discretion by admitting documents from a custodian

that never worked for the employer that created the documents if that custodian

explains “how she came to possess them and how they were maintained.”31 Here,

the witness testified, based on an affidavit from a Commonwealth Land Title

Insurance employee, that when FSW ceased to exist, Commonwealth, with

which FSW had previously had a title insurance agreement, filed suit and

obtained entry. Commonwealth took possession of all of FSW’s guaranty files,

including those at issue in this appeal. Commonwealth maintained the files and

did not remove any documents. The Commonwealth employee’s affidavit stated

that FSW’s files appeared to contain the type of records usually found in

guaranty files that a title company maintains in the ordinary course of business. 

The trial witness’s employer, Fidelity National Title Group, acquired

Commonwealth and immediately placed FSW’s files in storage. Based on this

court’s precedent, the district court had sufficient evidence of trustworthiness to

admit FSW’s documents on this basis. In any event, the admission of the FSW

files was harmless error in light of the other evidence in the record of the fraud. 

We therefore do not reach Vincent Aldridge’s arguments regarding the district

court’s alternative conclusion that admission of the FSW documents was

permissible under the residual hearsay exception.

C

Tori Aldridge argues that the prosecutor engaged in misconduct that

requires reversal but recognizes that because there was no contemporaneous

30

Id. at 570.

31 E.g., United States v. Morrow, 177 F.3d 272, 295 (5th Cir. 1999) (per curiam).

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objection at trial, our review is for plain error.32 Aldridge must show an error,

that was plain, and that affected her substantial rights, i.e., “affected the

outcome of the district court proceedings.”

33 She asserts that the prosecutor

intentionally used a “dormant” guaranty file that pertained to matters outside

the statute of limitations. This resulted, Aldridge asserts, in (1) allowing the

indictment of an otherwise unindictable case, (2) creating a prior conspiracy in

order to manufacture her recruitment of the builder, (3) sponsoring perjury

known to the prosecution team, (4) creating false unity of purpose by its

introduction of false evidence and testimony that Tori Aldridge received money

when the evidence was to the contrary, and (5) a conviction based on false

information.

The documents at issue were used by the prosecution in connection with

evidence of the purchase of town homes by Shawn Stevens, one of the straw

purchasers. Tori Aldridge also contends that the prosecutor failed to correct

Stevens’s misstatement on direct examination as to the amount of money

disbursed to Tori Aldridge in connection with Stevens’s purchase of these

properties, and contends that the prosecutor “doubled down on the uncorrected,

false testimony.” When asked by the district court as to the accuracy of

Stevens’s statements about proceeds disbursements, the prosecutor said,“I think

it is [accurate], Your Honor. I will double check on that for you.” 

We hold there is no plain error. First, with regard to the documents at

issue, there was considerable evidence regarding a conspiracy in which Tori

Aldridge participated, including testimony from Stevens in which he confirmed

that he was a purchaser of properties in Maxie Village and the facts surrounding

his involvement. We are not persuaded that there is a reasonable probability

32 United States v. Gracia, 522 F.3d 597, 599-600 (5th Cir. 2008).

33 Puckett v. United States, 556 U.S. 129, 135 (2009).

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that the jury would have failed to convict Tori Aldridge had the government not

used the documents at issue.34 Second, Stevens’s misstatement regarding

disbursements of loan proceeds merely transposed the disbursement of proceeds

from two different properties, and the disbursement worksheet noting the

correct amounts was admitted into evidence. Even assuming that the first two

elements of plain error review are met, Tori Aldridge cannot meet her burden of

showing that the error affected the outcome of the trial. Lastly, the prosecutor’s

comment to the trial judge regarding the accuracy of Stevens’s testimony does

not constitute a false, material statement such that an error, let alone a plain

error, occurred.35

D

Tori Aldridge asserts that the district court erred by constructively

amending her indictment. Because she failed to contemporaneously object to the

alleged constructive amendment of her indictment, we review her objection for

plain error.36“The Fifth Amendment guarantees that a criminal defendant will

be tried only on charges alleged in a grand jury indictment.”37“A jury

instruction constructively amends an indictment if it permits the jury to convict

the defendant upon a factual basis that effectively modifies an essential element

of the crime charged.”38 

Specifically, Aldridge alleges that the district court impermissibly allowed

34 See Kyles v. Whitley, 514 U.S. 419, 433 (1995) (defining materiality in terms of a

“reasonable probability” of a different outcome).

35 See Tassin v. Cain, 517 F.3d 770, 777-78 (5th Cir. 2008) (measuring prosecutorial

misconduct according to “the extent to which the testimony misled the jury” (citing Napue v.

Illinois, 360 U.S. 264, 270 (1959))).

36 United States v. Bohuchot, 625 F.3d 892, 896-97 (5th Cir. 2010).

37 United States v. Dixon, 273 F.3d 636, 639 (5th Cir. 2001).

38

Id. (internal quotation marks omitted).

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evidence of her role as a broker and of her fiduciary duties to support an

alternative theory of honest services under § 1346 rather than the indicted

charges of conspiracy to commit mail and wire fraud under §§ 1341, 1343, and

1349. However, the district court specifically instructed the jury that any

violation of fiduciary duties or regulations was not to be considered a violation

of criminal law and charged the jury to consider such facts only “in determining

whether the defendants had the required intent to violate the criminal law as

charged in the indictment.”39 Accordingly, we find no error, plain or otherwise.

E

We reject Tori Aldridge’s assertion that the district court abused its

discretion by denying her motion for new trial and request for an evidentiary

hearing.40 Because her motion was not based on newly discovered evidence,

Aldridge had to file her motion within 14 days after the jury reached its

verdict.41 However, she filed her motion on October 28, 2011—over nine months

after the jury reached a verdict. Because Aldridge does not argue that her

failure to act stemmed from excusable neglect,42the district court did not abuse

its discretion in finding that her motion was untimely.43

F 

We do not consider the merits of Tori’s ineffective assistance of counsel

claim. “Sixth Amendment claims of ineffective assistance of counsel should not

39 See Weeks v. Angelone, 528 U.S. 225, 234 (2000) (“A jury is presumed to follow its

instructions.”).

40 See, e.g., United States v. Munoz, 150 F.3d 401, 413 (5th Cir. 1998) (“We review the

denial of a motion for new trial for abuse of discretion.”).

41 FED. R. CRIM. P. 33(b).

42 FED. R. CRIM. P. 45(b)(1)(B).

43 See, e.g., Dotson v. Clark Equip. Co., 805 F.2d 1225, 1229 (5th Cir. 1986) (“[T]he

district court did not abuse its discretion in refusing to consider [the appellant’s] untimely

supplement to the original new trial motion . . . .”).

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be litigated on direct appeal, unless they were previously presented to the trial

court.”44It is only in “rare cases in which the record allows a reviewing court to

fairly evaluate the merits of the claim” that we will consider such a claim.45

Such is not the case here. Although Tori Aldridge’s current counsel argued

below that trial counsel was ineffective, he did not seek a hearing on that basis. 

Accordingly, the record is undeveloped as to trial counsel’s “conduct and

motivations.”46 We therefore deny this claim without prejudice to collateral

review.47

G

Tori Aldridge argues that cumulative error denied her a fair trial. She

cites to all the alleged errors discussed above to support this theory, as well as

to her arguments concerning the sufficiency of the evidence. “The cumulative

error doctrine provides for reversal when an aggregation of non-reversible errors,

i.e., plain and harmless errors that do not individually warrant reversal,

cumulatively deny a defendant’s constitutional right to a fair trial.”48 This

doctrine is only to be used in “rare instances,” and “[r]eversal is justified ‘only

when errors so fatally infect the trial that they violated the trial’s fundamental

fairness.’”49 As discussed above, none of Tori Aldridge’s allegations amount to

error. Accordingly, there is no justification for reversal under the cumulative

44 United States v. Aguilar, 503 F.3d 431, 436 (5th Cir. 2007) (per curiam).

45

Id. (internal quotation marks omitted).

46 See id. (denying ineffective assistance of counsel claim without prejudice because the

district court had not held a hearing and the record did “not provide sufficient detail about

trial counsel’s conduct and motivations to allow this court to make a fair evaluation of the

merits of [the appellant’s] claim”).

47 See id. (disposition of ineffective assistance of counsel claim).

48 United States v. Cervantes, 706 F.3d 603, 619 (5th Cir. 2013) (citing United States

v. Delgado, 672 F.3d 320, 343-44 (5th Cir. 2012) (en banc)).

49

Id. (quoting Delgado, 672 F.3d at 344).

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error doctrine.50

IV

Vincent Aldridge raises two issues regarding his sentence. He first asserts

that 63 months of imprisonment, which was within the properly-calculated

Guidelines range of 63 to 78 months, was unreasonable. Because Aldridge failed

to object in the district court on this basis, we review for plain error.51“A

discretionary sentence imposed within a properly calculated guidelines range is

presumptively reasonable.”52

“A defendant’s disagreement with the propriety of

the sentence imposed does not suffice to rebut the presumption of

reasonableness that attaches to a within-guidelines sentence.”53 Because

Aldridge’s claim that the nature and circumstances of his offense warrant a

lower sentence under 18 U.S.C. § 3553(a) asserts nothing more than

disagreement with his sentence, he fails to show plain error.54

Aldridge argues that the district court abused its discretion in calculating

the amount of restitution owed pursuant to the Mandatory Victims Restitution

Act.55 A district court may generally “award restitution to victims of the offense,

but the restitution award can encompass only those losses that resulted directly

50

Id. (“Allegations of non-errors do not play a role in cumulative error analysis since

there is nothing to accumulate.”).

51 See, e.g., United States v. Ruiz, 621 F.3d 390, 398 (5th Cir. 2010) (per curiam).

52

Id. at 398; see also United States v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir.

2008).

53 Ruiz, 621 F.3d at 398.

54 See, e.g., United States v. Rodriguez, 523 F.3d 519, 526 (5th Cir. 2008) (refusing to

disturb presumption of reasonableness that attached to a within-guidelines sentence when

district court considered but rejected arguments for a non-guidelines sentence).

55 See United States v. Arledge, 553 F.3d 881, 897 (5th Cir. 2008). 

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No. 11-20516

from the offense for which the defendant was convicted.”56 Aldridge specifically

challenges the inclusion of $140,000 payable to Mortgage Investment Lending

Associates for the transaction involving 5529 Cornish because “there is nothing

that indicates that the transaction involved any criminal participation [by

Vincent].” However, Aldridge does not contest that the transaction was illegal

or that he participated in the transaction as an FSW employee. In United States

v. Arledge,

57

this court held in similar circumstances that when a transaction is

shown to be fraudulent and the defendant was involved as the attorney of record,

the district court does not abuse its discretion by awarding restitution based on

losses resulting from the fraud for which the defendant was convicted.58 We

therefore hold that the district court did not abuse its discretion in calculating

this restitution award. 

* * *

For the foregoing reasons, we AFFIRM the Defendants’ convictions and

Vincent Aldridge’s sentence in all respects.

56

Id. at 898.

57

553 F.3d 881 (5th Cir. 2008).

58 Arledge, 553 F.3d at 898.

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 Case: 11-20516 Document: 00512498628 Page: 18 Date Filed: 01/13/2014