IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-60706

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

PEGGY THORNTON,

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Mississippi

USDC No. 4:11-CR-2-1

Before REAVLEY, JONES, and PRADO, Circuit Judges.

PER CURIAM:*

Peggy Thornton was found guilty by a jury of five counts of wire fraud, one

count of engaging in monetary transactions, and one count of identity

theft/fraud. She was sentenced within the guidelines range to concurrent terms

of 41 months of imprisonment, to be followed by a total of three years of

supervised release. Appealing her conviction on the five counts of wire fraud,

Thornton challenges the sufficiency of the evidence. Thornton asserts that,

because Lillie Barrett had a right to withdraw all of the funds from the jointly

United States Court of Appeals

Fifth Circuit

F I L E D

November 7, 2013

Lyle W. Cayce

Clerk

* 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.

 Case: 12-60706 Document: 00512433350 Page: 1 Date Filed: 11/07/2013
No. 12-60706

held account, there was no victim and that the jury erred in finding that she

intended to defraud Beatrice Boler. Additionally, she asserts that she intended

to pay the money back to Barrett, which shows that she had no intent to

defraud. In conclusory fashion, Thornton also argues that the evidence was

insufficient to support her conviction on the remaining counts of engaging in

monetary transactions and identity theft/fraud.

We will uphold the jury’s verdict if a rational trier of fact could conclude

that “the elements of the offense were established beyond a reasonable doubt,

viewing the evidence in the light most favorable to the verdict and drawing all

reasonable inferences from the evidence to support the verdict.” United States

v. Percel, 553 F.3d 903, 910 (5th Cir. 2008) (internal quotation marks and

citation omitted). The essential elements of wire fraud are “(1) a scheme to

defraud and (2) the use of, or causing the use of, wire communications in

furtherance of the scheme.” United States v. Gray, 96 F.3d 769, 773 (5th Cir.

1996); see 18 U.S.C. § 1343. The Government was also required to show that

Thornton had a specific intent to defraud. See United States v. Brown, 459 F.3d

509, 519 (5th Cir. 2006). 

Though she asserts that Barrett had the absolute right to withdraw money

from the account, it was explained at trial that Barrett had this authority only

when a letter of authorization was signed by both Boler and Barrett. Boler

unequivocally testified that she did not sign the documents providing such

authorization. There was testimony establishing that Thornton admitted to

forging Barrett’s signature to the documents in order to transfer the money. The

jury could reasonably infer that Thornton also forged Boler’s name. 

Additionally, there was evidence that Thornton called Miley and purported

to be Barrett. She arranged for the monetary transfers and used the money to

pay for credit card expenses, a car, and a swimming pool. Contrary to

Thornton’s argument, there was sufficient evidence to establish that she had the

requisite intent to defraud.

2

 Case: 12-60706 Document: 00512433350 Page: 2 Date Filed: 11/07/2013
No. 12-60706

Regarding her challenges to the convictions for engaging in monetary

transactions and identity theft/fraud, Thornton does not adequately brief the

issue as it relates to these counts. Thus, we do not address these counts of

conviction.

Thornton also contends that the district court erred by applying the

U.S.S.G. § 3A1.1(b)(1) enhancement based on the finding that Barrett was a

vulnerable victim. She argues that Barrett could not be a victim in light of the

jury’s finding on the verdict form that Thornton did not intend to defraud

Barrett. To the extent that she argues that the district court cannot consider

evidence on counts for which she was acquitted, the argument is foreclosed by

United States v. Watts, 519 U.S. 148, 157 (1997). See United States v. Farias,

469 F.3d 393, 399 (5th Cir. 2006).

Further, Thornton argues that the evidence did not support a finding that

Barrett was unusually vulnerable to being a victim of fraud. We review the

district court’s interpretation and application of the Sentencing Guidelines de

novo and its findings of fact for clear error. United States v. Cisneros-Gutierrez,

517 F.3d 751, 764 (5th Cir. 2008). For purposes of § 3A1.1(b)(1), a “vulnerable

victim” is defined as a person “who is unusually vulnerable due to age, physical

or mental condition, or who is otherwise particularly susceptible to the criminal

conduct.” § 3A1.1, comment. (n.2).

In the instant case, there was evidence to establish that Barrett was

unusually vulnerable to fraud. Both expert witnesses provided uncontradicted

testimony that Barrett suffered from dementia or Alzheimer’s. James Gilbert

testified that Barrett was significantly impaired in decision making and

judgment. Though Dr. Jeffrey McGilbra acknowledged that Barrett was able to

hold a conversation, he nevertheless believed that Barrett’s judgment was

questionable and that she would have difficulty dealing with finances. Thus, the

district court did not err in finding that Barrett was unusually vulnerable to

being a victim of fraud. See Cisneros-Gutierrez, 517 F.3d at 764. Moreover, the

3

 Case: 12-60706 Document: 00512433350 Page: 3 Date Filed: 11/07/2013
No. 12-60706

district court specifically stated that if the two-level enhancement had not

applied, the resulting guidelines range would be insufficient to satisfy the

sentencing factors of 18 U.S.C. § 3553(a) and that the sentence would be the

same. Therefore, even if there was error, it was harmless. See United States v.

Richardson, 676 F.3d 491, 511 (5th Cir. 2012).

Accordingly, the judgment of the district court is AFFIRMED.

4

 Case: 12-60706 Document: 00512433350 Page: 4 Date Filed: 11/07/2013