### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 12-60302

UNITED STATES OF AMERICA, Plaintiff-Appellee
v. TIMOTHY ALLEN, Defendant-Appellant

Appeals from the United States District Court for the Northern District of Mississippi USDC No. 2:10-CR-78-8

Before REAVLEY, JOLLY, and SMITH, Circuit Judges. PER CURIAM: * Appellant Timothy Allen and his co-defendants were convicted by a jury of conspiracy to c ommit w ire fraud. He appeals his sentence, challenging four enhancements to his offense level and the district court’s f ailure to apply a minor role reduction. For the reasons below, we AFFIRM. I. The relevant facts a r e as follows. I n the alleged scheme, certain codefendants (“caller s ”) would place p hone calls t h roughout the United States, U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D April 8, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R. 47. 5, the court has determ ined that this op inion s hould not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

. R. 47. 5. 4. Case: 12-60302 Document: 00512201592 Page: 1 Date Filed: 04/08/2013No. 12-60302

falsely notifying vi ctims that they had won a large cash prize but that the prize could not be forwar d ed until the victim paid taxes and o ther fees through a Western Union or MoneyGram wire transfer. The caller w ou l d instruct the victim to send the money to another co-defendant (a “run n e r” )

. The runner would retain a portion of the payment f or himself and transfer the remainder to the caller. The s cheme took money from 91 victims, most of whom were elderly. 1 Starting at the latest on November 21, 2008, Allen retrieved money for codefendant Jarvis J ones. Jones was Allen’s neighbor and w a s a r u n ner in the wire f raud scheme. Jones asked Allen to help out with wire transfers because Jones was having trouble with his identification card. Allen retrieved m oney for Jones 12 times thr o u gh J a nuary 10, 2009. Among these payments, Allen received money from vict i m O z emai Toups three times during a three-day period; from Judith Ho l d e n three times; a nd f rom Sylvia Peare twice on the

same day. Prior to November 21, 2008, Allen a lso gave Jones rides to W estern Union and MoneyGram so that Jones could send and receive m oney, and Jones would sometimes pay Allen for giving him a ride. Al l en a nd his co-defendants were named in a 13-count indictment. In count one, he and his co-de f e n d a n t s were charged with conspiracy to commit wire fraud between January 2008 and July 2009. Allen’s co-defendants pleaded guilty to that count. Allen proceeded to trial. During his first trial, Allen testified that he was not guilty of the conspiracy with which he was charged. He denied knowing each of his codefendants except Jones, whom h e said he met in 2007. In particular, he stated that h e never communicated with or s e nt m oney to co-defendants Patrick Beasley or George Coe, who were callers in the s cheme. He t estified t h at he did not know anything abo u t t h e scheme and that h e did not know the age of the

1 In p articular, FBI s p ecial agent Tif f any Stein tes tif

ied that at leas t 63 of the 91 victim s w ere over the age of 55, and that m os t of the victim s were in their 70s and 80s

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people who sent m o n e y t o Jones; that he never received less than $1,000; that he was always required to show identification when he retrieved money on Jones’s behalf; a nd that he did not know who was sending t he mo n e y t o Jones and th a t he n ever asked Jones about it. Further, he t estified that prior to N o v e m b e r 2 1, 2008, he never used W estern Union or M o neyGram t o receive money himself, and that after January 1 0, 2009, he had n o contact with Jones and never retrieved any a dditional money. Allen’s first t rial ended in a mistrial when the jury was unable to reach a verdict. Afte r t h e f

irst trial, law enforcement a gents continued to investigate Allen’s activities and discovered additional evidence regarding wire transfers on January 9 and 10, 2009. Two transfers were made from victim Toups t o Allen; Allen signed his name o n a t l east one of the transaction receipts when he received the money. Anothe r t w o transfers were made from someone named Tony Steward to co-defend a n t G e orge Coe; at least one of the t ransaction receipts reflects Allen’s signature. The agents a lso learned that Allen used Tony Steward’s phone n umber in several of his transactions. B ased on this and other

e v i dence, the agents concluded that Allen h ad used S teward’s name, addre s s , and phone number to send money to Coe, but because the amounts were less than $1,000, Allen had not been required to show identification. 2 During Allen’s second trial, his co-defendants P atrick B easley a nd George Coe testified. Beasley testified that he used Al l e n a n d Jones as runners. He further testified that he would sometimes “reload” vi ctims, meaning he would call a victim again, tell him or her that the wire transfer had failed, and instruct the victim to resend the m oney. According to Beasley, timing with runners was

2 Tony Stew ard later tes tif ied during Allen’s s econd trial that he had us ed M oneyG ram and Wes tern U nion to s end m o n e y t o his d aughter, but he never s ent any m oney to G eorge Coe, w hom he d id not k now . The f irs t tim e Stew ard s aw the tw o trans action rece i p ts of a “Tony Stew ard” s end ing money to Coe w as d uring trial p rep aration. 3 Case: 12-60302 Document: 00512201592 Page: 3 Date Filed: 04/08/2013No. 12-60302

very important gi v e n the s mall window t hat existed before the victim realized

no certified check w a s b eing delivered, and it w as essential for the runners to understand the scheme so they would know t o leave Western Union or MoneyGram immediately if the e mployees began to stall or s e nsed a problem. Beasley f

urther testified that on occasion he directly communicated w ith Allen. Coe testified that he also used Allen a s a r u n n e r, stating that a lthough he initially used Allen through Jones, he later dealt directly with Allen. Allen did not testify at his second trial. The jury found him guilty of the conspiracy charge. Following the guilty verdict, the probation officer prepared

a presentence investigation report ( PSR). The o fficer determined that Allen’s total offense level was 29, which reflected (1) a base offense level of 7 pursuant to U.S.S.G. § 2B1.1(a)(1); (2) a 1 4-level increase pursua n t to § 2B1.1(b)(1)(H) after c oncluding that Allen was responsible f or $448,084 in t o tal loss d uring the indictment’s conspiracy dates; (3) a 4-level increase pursuant t o § 2B1.1(b)(2)(B) because the o ffense involved 50 or more victims; (4) a 2-level increase pursuant to § 3A1.1(b)(1) because Allen knew or should have known that the victims were vulnerable; and (5) a 2-level i n c r e a se pursuant to § 3C1.1 because Allen obstructed ju s t i c e b y testifying falsely at his first trial. Allen’s advisory guidelines range of imprisonment was 87 to 108 months. Allen objected to a ll o f the e nhancements to his base offense level, and also objected to t h e p r o b a tion officer’s failure to apply a minor role reduction. The district court overruled Allen’s objections and s entenced him to 87 months imprisonment and four years of supervised release. I I. We revi ew the district court’s interpretation o r application of the Sentencing Guidelines de novo , and its factual findings for clear error. United States v. Cisneros-Gutierrez , 517 F.3d 751, 764 (5th Cir. 2008). There is no clear

error if the district court’s finding is plausible in light of the record as a whole.

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Id. The sentencing decisions objected to by Allen, namely t h e f o ur sentencing enhancements a nd the failure to apply a m i nor role reduction, are all factual issues subject to clear error review. 3We consider each issue in turn. A. Enhancement under § 2B1.1(b)( 1 ) (H) to include the t otal loss amount and under § 2 B1.1(b)(2)(B) based on the t otal number of victims Allen argues that h e s hould not be held a ccountable for the total amount of loss or the total a mount of victims, b ecause “his involvement in the conspiracy was limited and his knowledge of the overall scheme was lacking.” He asserts that at most h e should have been accountable for the l o s s i n c urred and the victims involved from November 21, 2008 through January 10, 2009. Under t h e S e ntencing Guideline applicable to f raud, i f the offense of conviction resulted i n a total loss of $ 4 00,000 or more, but less than $ 1,000,000, the defendant’s offense level is increased by 14 levels. § 2B1.1(b)(1)(H). If the offense of conviction involved 50 or more victims, but less than 250 victims, the defendant’s offen s e l evel is increased b y 4 levels. § 2B1.1(b)(2)(B). Allen does not dispute that the total loss resulting f rom the w ire fraud conspiracy exceeded $400,000, nor does he dispute that the conspiracy involved 50 or more victims. His argument, rather, i s that he should n ot be h eld responsible for the t otal loss and for t h e total number of victims because a defendant’s base o ffense level is to be d e t ermined by his “relevant condu c t” w i t hin the meaning of § 1B1.3, and Allen contends his “relevant con d u c t” was limited t o his acts during the time period specified. 4

3 U ni ted Sta tes v. J o n e s , 475 F. 3d 701, 705 ( 5th Cir. 2007) ( am ount of los s ) ; U ni ted Sta tes v . F

ord , 5 5 8 F

. 3 d 3 7 1, 377 ( 5th Cir. 2009) ( num ber of victim s ) ; Uni ted Sta tes v . V i l la nuev a , 408 F

. 3 d 1 93, 203 ( 5th Cir. 2005) (red uction for m inor role) ; Uni ted Sta tes v . Wi l cox , 631 F. 3d 740, 753–54 ( 5th Cir. 2 0 1 1 ) (v u lnerable victim ) ; Uni ted S ta tes v . Jua rez D ua rte , 513 F. 3d 204, 208 ( 5th C ir. 2008) ( obs truction of jus tice)

.

4 As is true f

or the other is s ues on this ap peal, a d eterm ination of relevant cond uct is
a f actual ques tion s ubject to clear error review

. U ni ted Sta tes v . Eka nem , 555 F. 3d 172, 175 ( 5th Cir. 2009)

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“It is well established that a defendant’s base offense level for the offense of conviction must b e determined on the basis of all ‘relevant conduct’ as defined in U.S.S.G. § 1 B1.3.” United States v. Vital , 68 F.3d 114, 117 (5th Cir. 1995). “A defendant’s relevant conduct includes ‘ a l l r e asonably foreseeable acts and omi s s i o n s of others in furtherance of jointly undertaken criminal activity.’” United States v. Hammond , 201 F.3d 346, 351 (5th Cir. 1 999) (quoting § 1B1.3(a)(1)(B)). “We have interpreted this provisi o n a s requiring a showing that the conduct sought to be attributed to the defendant is both (1) reasonably foreseeab l e a n d ( 2 ) within the scope of the defendant’s a greement.” United States v. Reinhart , 357 F.3d 521, 526 (5th Cir. 2004). The district court acknowledged t hat Allen’s involvement with t h e conspiracy was different f rom that of his other co-defendants, and that Allen “ did not enter into the conspiracy with [ an] overall general knowledge of how this fraudulent s c heme

. . . worked.” N e v e r t h e l e ss, the court found that the dates

on which Allen r elied failed to accurately reflect when h e entered and exited the conspiracy. The district court stated that it did not b e lieve Allen’s t estimony regarding the start and end of his i nvo lvement, emphasizing inter alia that Allen knew Jones a s e arly as 2007, long before the start of the conspiracy; that Allen had given Jones rides to W estern Union and MoneyGram prior to November 21, 2008; and that the court c ould not a ccept that Al l en s imply had no knowledge of the wrongdoing or criminal activity that the conspiracy involved. We conclude that the district court did not clearly e r r i n its relevant conduct finding. To b e g i n , we re-emphasize that a relevant conduct finding requires both a finding of reasonable foreseeability and a findin g t h a t t he defendant’s a greement was within the scope of the criminal scheme. Reinhart , 357 F.3d at 526. As for reasonable foreseeability, it i s plausible in light of the record as a whole that even i f Al l e n d i d n o t enter the scheme with an overall understanding of how the schem e w o r k ed, it was nevertheless reasonably

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foreseeable to him that the acts and omissions of other co-defendants as part of the scheme would lead to the resulting losses. Allen argues, however, that the entire l o ss attributable to t h e w ire fraud scheme w as n ot within the scope of h is agreement to p articipate in the scheme. He primarily relies on our decision in United States v . Evbuomwan , 992 F.2d 70 (5th Cir. 1993). His reliance is misplaced. In Evbuomwan , the defendant w a s c o n victed of credit card fraud for obtaining a credit card u n d e r a f a l s e name. I

d. at 72. Although t he total loss attributable to E vbuomwan’s fraud was $ 1,500, t h e district court calculated his sentence using a loss amount of $90,471. Of the $ 9 0 , 471, a large portion was attributable t o l o s s es arising from a separate check fraud scheme perpetrated against a bank by two other individuals. E vbuomwan had never b een charged with p articipating in that check fraud scheme or for obtaining credit cards paid off with the checks r eceived in that separate scheme. I d. We vacated the defendant’s sentence, h olding that the district court erred by not “ruling on whether Evbuomwan agreed to jointly undertake any criminal activity with [the two individuals responsible for the separate check fraud scheme], and if Evbuomwan did agree, whether the

. . . check fraud scheme was w ithin the scope of that agreement.” Id. at 74. The district court’s e r r o r i n E vbuomwan was that i t held the defendant responsible f

or a separate criminal scheme without conducting a finding that the defendant was involved in that scheme. Here, although Al l e n might not have b e e n i n v olved with every aspect o f the wire fraud scheme in which h e participated, i t was that very scheme that gave rise to his indictment, and the district c ourt’s findings d ealt entirely w ith c onduct arising out o f t he scheme. Contrary to Allen’s r eading, Evbuomwan does not stand for the proposition that where a defendant has participated i n a criminal scheme, h e i s responsible under § 1B1.3 only for his o wn actions; indeed, that would be n onsensical,

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because the point of § 1B1.3 is to hold a d e f e n d a n t r e sponsible f

or the conduct of “ others .” Rather, Evbuomwan demonstrates that the s cope prong of a relevant conduct inquiry looks to whether there w as a jointly undertaken c riminal activity, whether the defendant a greed to undertake t hat c riminal activity, and whether the c o n d u c t o f o thers was within the scope of the defendant’s agreement. See id. 5 The district court did n ot c learly err in a n s w e r i n g those questions in the affirmative. Accordingly, w e conclude that the dis t r i c t c o u rt did not clearly err in holding Allen responsible for the total amount of loss under § 2B1.1(b)(1)(H) and for the total number of victims under § 2B1.1(b)(2)(B). 6 B. Failure to reduce for minor role under § 3B1.2(b) Allen a rgues that the district court erred when it ref u s e d to r educe his offense level by two levels because, as a r unner, he had a m inor role in the offense. If a defendant is a minor p a rticipant i n an offense, hi s o f f e nse level should be decreased by two. § 3B1.2(b). A defendant is a “minor participant” in

a n offense if his role is m o r e than minimal but he is “less culpable than most other participants.” § 3B1.2 cmt. n .5. A d e f e n d a n t must show t hat he was “peripheral to the advanc e m e n t o f the criminal a ctivity.” United States v. Martinez-Larraga , 517 F.3d 258, 272 (5th Cir. 2008).

5 See a lso § 1B1. 3( a) ( 1) ( B) cm t. n. 2 ( “[ T] he court m us t f irs t d eterm ine the s cop e of the crim inal activity the parti c u l a r def end ant agreed to jointly und ertak e (i. e. , the s cop e of the
s p ecif ic cond uct and objectives em braced by the d ef end ant’s agreem ent)

. The cond uct of others that w as both in f

urtherance of, and reas onably f ores eeable in connection w ith, the crim inal activity jointly und ertak en by the d ef end ant is relevant cond uct und er th i s p rovis ion. The cond uct of others that w as not in f urtherance of the crim inal activity jointly und ertak en by the d ef end ant, or w as not reas onably fores eeable in connection with that crim inal activity, is not relevant cond uct und er this p rovis ion. ”)

.

6 We cam e to a s im ilar conclus ion las t year in a d ecis ion involving Allen’s co- d ef end ant, Scott Anthony Thom as . U ni ted Sta tes v. Thom a s , 476 F. Ap p ’ x 14, 15 ( 5th Cir. 2012) (u n p u b lis hed)

. In Thom a s , w e conclud ed that the d is trict court d id not clearly err in its relevant cond uct f

ind ing when it held Thom a s r e s p o n s ible f or the total los s am ount of $448, 084 res ulting f

rom the w ire f

raud s chem e.

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The district court found that runners like Allen were essential to the wire fraud scheme because they created a buffer between the caller and t h e victim by retrieving and resending the wired money. The court f ound that every role in the conspiracy w as “very, very important,” and thus that Allen was an average pa r t i c i p a nt rather than a minor participant. These findings were not clearly

erroneous. 7 Accordingly, w e conclude that the district court did n o t c l e a r l y err in refusing to apply a minor role reduction under § 3B1.2(b). C. Enhancement u nder § 3A1.1(b)(1) based on v uln e r a b ility of victims Allen arg u es that the district court erred when it increased his offense level pursuant t o § 3A1.1(b)(1). He contends that he “never conversed with any victim or received any f a c t ual or other information that would have suggested the age or vulnerability of the v ictims.” Pursuant to § 3A1.1(b)(1), a two-level increase applies “[i]f the defendant knew or should h ave known t hat a victim of the offense was a vulnerable victim.” A “vulnerable victim” is defined a s a person “who is unusually vulnerable due to a ge, p h ysical or mental condition, or who is otherwise particularly susceptible to the criminal c onduct.” § 3A1.1 cmt. n.2. The district court applied this s entencing enhancement b ecause, although it had “no direct proof that [Allen] knew t he victim[s] by name [or] b y age,” Allen

n ev e rtheless “should have known” about the age a nd vulnerability o f the vi c ti m s , especially because he retrieved money from s o me victims twice in the same day—i.e., he “reloaded.” We c onclude that the district court did not clearly err in its finding.

7 Again, w e cam e to a s im ilar conclus ion las t year in our d ecis ion involving Allen’s cod ef end ant Thom as . See Thom as , 476 Fed

. Ap p ’x at 15 (hold ing the d is trict court d id not clearly err in not aw ard ing Thom as a m inor- r o l e a dj us tm ent, w here “the d is trict court conclud ed that the role of runner w as not perip heral but w as an es s ential part of the schem e”)

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We note, a s did the district court, that there was no specific evidence in the record showing that Allen was aware that he was receiving m oney from elderly

v ictims. We have n ever addressed w hether a district court can fin d t h a t a defendant who does not have access to t he victims’ personal information should have known o f their vulnerability. Relatedly, we have never addressed whether “reloading” i s s u fficient t o s upport a finding that a defendant k new or should have known about his victims’ vulnerability. The Government cites c ase l aw from other c ircuits in which “courts have upheld applying the vulnerable victim e nhan c e m e n t t o telemarketing victims who have been selected b ecause they were successfully victimized in the past.” See, e.g. , United States v. Ciccone , 219 F.3d 1078, 1086–87 (9th Cir. 2000) (stating that victims of “reloading” were “vulnerable”); United States v. Day , 405 F.3d 1293, 1295–96 (11th Cir. 2005) (applying increase where t he victims were repeatedly targeted by the defendant’s telemarketing charitable donation frauds). Further, the Government cites t h e Seventh C ircuit’s resolution of this issue in an appeal by co-defendant George Coe. United States v. Coe , 220 F.3d 573, 582 (7th Cir. 2000) (holding that where Defendants George Coe and David B e a s l ey “reloaded” their vi ctims, the district court did not err in applying a vulnerable victim enhancement). However, a review of d eci s ions from other circuits appears to indicate that a “reloader” is defined a s a person who is the l e a d er of the fraudulent scheme or who directly contacts victims who ha v e

a l r e a d y put money into the scheme. See, e.g. , U nited States v. Rosier , 2 1 8 F

. App’x 182, 184 ( 3d Cir. 2007); United States v. Boyd , 2 F

. App’x 8 6, 88 (2d Cir. 2001); Coe , 220 F.3d at 582. We find it unnecessary to adopt a bright-line rule with respect to reloading and instead conclude that this issue may be resolved on the facts specific to this case. Even in the absence of knowing any victims’ ages, Allen collected money in connection w ith a fraudulent scheme from the same individuals o n multiple

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o c c a s i o n s . Although he was not a leader o f the s cheme a nd did not personal l y contact any of the v i c tims, h e was involved i n a large number of transactions, sometimes taking m oney from the s a me v i c t i m up to three times in a short period. It is plausible i n l i gh t o f the record as a whole that Allen should have known that the victims of this scheme were particularly susceptible to c riminal conduct. As the district court phrased it, this finding was justified “because of

. . . the mental state of someone t hat would send m oney twice i n the same day under a scheme like this,” and thus Allen “knew o r should h ave known

. . . that it was vulnerable victims that were sending these funds.” Ac c o r dingly, w e conclude that the district court did not c learly e r r i n applying a s e ntencing e nhancement u nder § 3A1.1(b)(1) based on the vulnerability of the victims. D. Enhancement under § 3C1.1 based on obstruction of justice Finally, Allen argues that t h e d i strict court erred when it increased his offense level pursuant to § 3C1.1, which provides f or a two-level increase in the defendant’s offense le v e l i f “the defendant willfully obstructed or impeded, or attempted to obstruct or i mpede, t he administration of justice with respect to the investigation, prosecution, o r sentencing of the instant offense of conviction” and this c onduct was related to “the defendant’s offense o f conviction and any relevant conduct.” Examples of such conduc t include “committing, suborning,

or attempting to suborn perjury.” § 3C1.1 cmt. n.4(B). Allen contends that the district court erred in finding that he obstructed justice when he testified falsely during his first trial because the w illfulness required by § 3C1.1 was not present in this case. T h e d i strict c ourt’s determination t h at a defendant obstructed justice under § 3C1.1 is a factual finding that we review for c l ear error. Juarez-Duarte , 513 F.3d at 2 08. Moreover, credibility determinations are p eculiarly within the

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district court’s province. United States v. Sotelo , 97 F.3d 782, 799 (5th Cir. 1996). The record supports the district court’s p erjury finding. Allen testified in his first trial that he did n ot know George Coe or Patrick Beasley, and that he

never sent money to anyone via Western Union or MoneyGram. However, both Coe and B easley testified that they received m oney f rom and dealt directly with Allen. Evidence was also presented regarding the timing of the “Tony Steward” transactions a nd that Allen was behind t h ose transactions. These di screpancies cannot be characterized as simply a product of Allen’s faulty memory. Moreover, before ruling on Allen’s objection, th e di s tri c t c o u rt reviewed the trial transcripts, including transcripts of Allen’s testimony, and it heard testimony from Agent Stein regarding the “T o ny S t e w ar d” transactions. Finally, although Allen argues that Coe’s testimony w as u nreliable, t he jury obviously believed Coe’s version of the events rather than Allen’s. Accordingly, w e conclude that the distric t c o u r t d id not clearly err in applying a sentencing enhancement under § 3C1.1 for obstruction of justice. III. For the reasons given, t h e district c o urt did not clearly err in o verruling
any o f Al l en’s objections t o his s entence. We therefore AFFIRM the district court’s judgment.

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