* 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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-10116

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

TAWANA LYNN HOWARD

Defendant-Appellant

Appeal from the United States District Court for the 

Northern District of Texas, Abilene Division

USDC No. 1:06-cr-0017-C

Before HIGGINBOTHAM, DAVIS, and SMITH, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:*

Defendant-Appellant Tawana Lynn Howard (“Howard”) appeals from the

sentence imposed by the district court after her guilty plea to wire fraud.

Howard first challenges the district court’s calculation of victim losses, relevant

to both the applicable length of imprisonment and the amount of required

restitution. Howard also challenges the district court’s determination of her

criminal history category. For the reasons set forth below, we affirm. 

United States Court of Appeals

Fifth Circuit

F I L E D

January 14, 2008

Charles R. Fulbruge III

Clerk
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2

I.

Tawana Lynn Howard placed her unborn child up for adoption through

three agencies and received money from them and from their clients but after

the baby’s birth Howard refused to proceed with any adoption and keptthe baby.

She was charged by indictment with three counts of wire fraud, in violation of

18 U.S.C. § 1343, and five counts of mail fraud, in violation of 18 U.S.C. § 1341.

She pleaded guilty to one count of wire fraud. 

The Pre-Sentence Report (“PSR”) assigned Howard a base offense level of

seven pursuant to U.S.S.G. § 2B1.1. The PSR determined that the amount of

loss was $34,678.25 and six offense levels were added pursuant to

§ 2B1.1(b)(1)(D). Howard received a two-level reduction for accepting

responsibility for her crime, bringing the total offense level to 11.

In calculating Howard’s criminal history, the PSR assigned two points for

a forgery offense that occurred in April 1997 and two more points for a similar

forgery offense that occurred in May of the same year. Howard was given four

total additional criminal-history points for three other convictions. The resulting

eight-point total put Howard in criminal-history category IV. Her resulting

guidelines sentence range was 24 to 30 months.

At sentencing Howard raised two relevant objections. The first was that

the amount of victim losses cited in the PSR was too high. The second was that

the two forgery offenses considered in the criminal history calculation should

have been treated as related offenses which would have reduced her criminal

history category to III instead of IV. The district court overruled Howard’s

objections and adopted the PSR as amended. Howard was sentenced to

imprisonment for a term of 24 months, with that term to run consecutive to any

sentence imposed in state-court proceedings. She was also ordered to pay

restitution in the amount of $34,678.25, the amount of victim losses calculated

in the PSR. Howard timely appealed. 
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II.

Howard raises the same two issues on appealthat she raised in the district

court. We consider each issue below. 

A.

Howard argues first that the district court erred in assessing the victim

losses at $34,678.25 both for calculating her criminal history score and for

restitution. A district court’s factual findings at sentencing are reviewed for

clear error and its legal analysis is reviewed de novo. United States v. Olis, 429

F.3d 540, 545 (5th Cir. 2005) (citing Nixon v. Epps, 405 F.3d 318, 322 (5th Cir.

2005)). An amount of loss determination is reviewed for clear error. United

States v. Edwards, 303 F.3d 606, 645 (5th Cir. 2002); United States v. Morrow,

177 F.3d 272, 301 (5th Cir. 1999). The legality of the district court's order of

restitution is reviewed de novo. United States v. Hughey, 147 F.3d 423, 436 (5th

Cir.), cert. denied, 525 U.S. 1030 (1998). “Once we have determined that an

award of restitution is permitted by the appropriate law, we review the propriety

of a particular award for an abuse of discretion.” Id. (internal citation omitted).

This Court must first determine whether the method of calculating the

amount of loss was legally acceptable. Olis, 429 F.3d at 545 (citations omitted).

Assuming that its methodology is correct, the sentencing court enjoys wide

latitude in making its estimate of loss. United States v. Cothran, 302 F.3d 279,

287 (5th Cir. 2002). Absent credible rebuttal evidence, the sentencing court may

adopt the PSR as its own. United States v. Valles, 484 F.3d 745, 759 (5th Cir.

2007).

Loss is the greater of actual or intended loss. U.S.S.G. § 2B1.1, cmt. n.

3(A). Actual loss means the reasonably foreseeable pecuniary harm that

resulted from the offense. Id. at cmt. n. 3(A)(I). Reasonably foreseeable

pecuniary harm means pecuniary harm the defendant knew or should have

known was a potential result of the offense. Id. at cmt. n. 3(A)(iv). The
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defendant is responsible at sentencing for losses caused directly by the offense

conduct. Olis, 429 F.3d at 546 (citation omitted). Loss for sentencing purposes,

however, generally does not include the victim’s consequential or incidental

losses. United States v. Izydore, 167 F.3d 213, 223 (5th Cir. 1999).

Howard asserts first that the Government failed to present any witnesses

or documentation to establish the amount of loss. Therefore it failed to meet its

burden of proving the amount of loss. The district court, however, made a

reasonable estimate of the loss based on reliable evidence set forth in the PSR.

Because Howard did not show that the information contained in the PSR was

not materially untrue, inaccurate, or unreliable,the district court did not clearly

err in adopting the PSR at sentencing. 

Howard also argues that the losses of “Couple A,” the first family to whom

she promised her unborn child, should not be included in the victim loss

calculation because she always intended to give the baby to this family and was

prevented from doing so only because the father refused to terminate his

parental rights. Because she intended to place her child for adoption with

“Couple A,” her argument continues, no offense conduct committed by Howard

directly caused the losses “Couple A” experienced in attempting to adopt. This

argumentis unavailing, however, because Howard stated at sentencing that she

intended to place her child for adoption with “Couple B,” not “Couple A,” and

never intended to cause loss to “Couple B,” not “Couple A.” The district court

made no explicit credibility determinations on this point, but when it adopted

the PSR over Howard’s objections it implicitly rejected Howard’s testimony that

she did notintend to cause “Couple B” any loss. Cf. United States v. Richardson,

998 F.2d 1014 (5th Cir. 1993) (unpublished opinion). Howard’s present

argument, that it was “Couple A” and not “Couple B” that she never intended to

cause any loss, reinforces the district court’s decision to ignore her testimony in
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this respect. We decline to consider Howard’s inconsistent argument made to us

for the first time on appeal, which in any event is unpersuasive.

Howard argues finally that the attorneys’ and agency fees expended by

“Couple B” and “Couple C” should not be included in the victim loss calculation

or restitution because they are collateral expenses that are incidental or

consequential. It is true that generally the calculation of loss does not include

the victim’s consequential or incidental losses. Izydore, 167 F.3d at 223. A

defendant is responsible, however, for any reasonably foreseeable pecuniary

harm caused by the offending conduct. See U.S.S.G. § 2B1.1, cmt. n. 3(A)(I).

Howard points to a Seventh Circuit decision that held that attorneys’ fees

incurred in mitigating damages of a fraudulent scheme are consequential in

nature. See United States v. Seward, 272 F.3d 831, 839 (7th Cir. 2001). This

Court, however, has held that when attorneys’ fees are part of the fraudulent

conduct they are not consequential in nature. See United States v. Mikolajczyk,

137 F.3d 237, 245 (5th Cir. 1998). Here, the money expended by the families for

adoption agency fees, attorney’s fees, and travel costs were directly caused by

Howard’s actions and were reasonably foreseeable to her. As such, the district

court did not err in including these costs in determining Howard’s sentence.

Similarly, for restitution purposes, legal fees incurred by a victim of fraud

must ordinarily be excluded from the calculation of loss. United States v.

Onyiego, 286 F.3d 249, 256–57 (5th Cir. 2002). As stated above, the record

reflects that all the legal fees paid by the three families included in the

restitution calculation were an integral part of the adoption process. As such,

Howard should have foreseen that the victims would incur these costs to adopt

the child. As such, the district court did not err in including these fees as victim

losses for purposes of restitution.

B.
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Howard next argues that the district court erred in refusing to consider

her two prior forgery convictions as related. Generally, application of the

sentencing guidelines is a question of law subject to de novo review. United

States v. Villegas, 404 F.3d 355, 361–62 & n.7 (5th Cir. 2005). This Court

reviews the finding that prior convictions are not related de novo. United States

v. Robinson, 187 F.3d 516, 519 (5th Cir. 1999). The determination of whether

convictions were functionally consolidated for trial or sentencing is a question

of fact that is reviewed for clear error. See Buford v. United States, 532 U.S. 59,

66 (2001).

The Guidelines provide that, in assessing a defendant’s criminal history

points, “[p]rior sentences imposed in related cases are to be treated as one

sentence for purposes of §§ 4A1.1(a), (b), and (c).” U.S.S.G. § 4A1.2(a)(2). The

commentary to § 4A1.2(a)(2) defines “related cases” as follows:

Prior sentences are not considered related if they were for offenses

that were separated by an intervening arrest (i.e., the defendant is

arrested for the first offense prior to committing the second offense).

Otherwise, prior sentences are considered related if they resulted

from offenses that (A) occurred on the same occasion, (B) were part

of a single common scheme or plan or (C) were consolidated for trial

or sentencing.

Id., cmt. n.3. 

Howard first argues that the fact that there was no intervening arrest

between the two forgery charges compels the conclusion that the forgeries should

be considered related for purposes of criminal history calculation. The record

reflects that Howard negotiated the second check seven days after the first

check. The checks were drawn on different accounts, for different amounts, and

negotiated to two different payees. Howard’s argument is foreclosed by this

Court’s decision in Hayes, which holds that the lack of an intervening arrest

between prior convictions does not preclude a finding that the two convictions
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are not related. See United States v. Hayes, 342 F.3d 385, 388–89 (5th Cir.

2003).

Howard next argues that the two forgeries occurred on the same occasion

and were part of a single common scheme or plan. This Court has held that two

offenses may have occurred on the same occasion where they occurred

sequentially and close-in-time. See United States v. Moreno-Arrendondo, 255

F.3d 198, 207 (5th Cir. 2001). The two check forgeries, however, occurred seven

days apartfrom each other, and are thus not close-in-time such that they should

be considered related offenses. Additionally, the fact that prior offenses are

factually and temporally close is insufficient to establish a common scheme or

plan. See United States v. Garcia, 962 F.2d 479, 482 (5th Cir. 1992), abrogated

on a different ground by Buford, 532 U.S. at 63, 66; see also United States v.

Mota-Aguirre, 186 F.3d 596, 600 (5th Cir. 1999). To be sure, similar offenses are

not necessarily part of a common scheme or plan. See United States v. Ford, 996

F.2d 83, 86 (5th Cir. 1993). Here, the two forged checks were written seven days

apart, the victims were different, the checks were written for different amounts,

and although Howard received identical and concurrent punishments the cases

were never formally consolidated and retained distinct case numbers. The two

check forgeries were similar crimes but that they were not part of a common

scheme or plan such thatthey should be considered related offenses for purposes

of criminal history calculation.

Lastly, Howard argues that the two forgeries were “functionally” or

“informally” consolidated. Although it is true that identical concurrent

sentences were imposed for the two forgeries, this does not compel a finding of

functional consolidation. United States v. Huskey, 137 F.3d 283, 288 (5th Cir.

1998). Thus, the district court did not err in determining that Howard’s Texas

convictions for fraud were not consolidated.

III.
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For the foregoing reasons the sentence of Howard is affirmed.

AFFIRMED.