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

No. 12-60706 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee

v. PEGGY THORNTON, Defendant-Appellant

Appeal from the United States District Court f or the Southern District of Mississippi USDC No. 4:11-CR-2-1

Before REAVLEY, JONES, and PRADO, Circuit Judges. PER CURIAM: * Peggy Thornton was f

ound guilty by a jury of five counts of wire fraud, one count of engaging i n monetary transactions, and one count of identity theft/fraud. S h e was s entenced within t he guidelines range t o concurrent terms of 41 months of imprisonment, to be foll o w e d by a total of three years of supervised r elease. Appealing her conviction on t he 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 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 Nov em ber 7, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R

. 47. 5, the court has d eterm ined that this op inion should 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

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held a c c o u n t , t here was no victim and that the jury e rred in finding that she intended to d efraud Beatrice Boler. Additionally, she asserts t hat she intended to p ay the money back to Barrett, w hich shows that s he h a d n o intent to defraud. In con clusory fashion, Thornton also argues t hat the evidence was insufficie n t t o support her conviction on the r emaining counts of engaging in monetary transactions and identity theft/fraud. We will uphold the j ury’s verdict if a rational trier of fact could conclude that “the elements of the o ffense were established b e y o n d a reasonable doubt, viewing the evidence in the light most favorable to the verdict and drawing all reasonable inferences f rom the evidence to support the verdict.” United States

v. Percel , 553 F.3d 903, 910 (5th Cir. 2008) (internal quotation m a r k s and citation omitted). The essential elements of w ire fraud a r e “ ( 1 ) a scheme to defraud and ( 2) the use of, or causing the use of, wire c o m m u nications in furtherance of t h e scheme.” United S tates 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). Th o ugh she asserts that Barrett had the absolute right to withdraw m o n e y from the account, i t was explained at trial that B arrett had this authority only when a letter o f authorization was signed b y b o t h B o l e r and Barrett. Boler unequi v o c a l ly t estified that she did not sign the documents providing such authorization. T here was testimony establishing tha t T h ornton admitted to forging Barrett’s signature to the documents in order t o transfer the money. The jury could reasonably infer that Thornton also forged Boler’s name. Ad diti o n ally , there was evidence that Thornto n c all e d M il e y a n d p u rp o rt e d to be Barrett. She arranged for the monetary transfers and used the money to pay for credit card expenses, a car, an d a s w i m ming pool. Contrary to Thornton’s argument, there was sufficient evidence to establish that she had the requisite intent to defraud.

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Regar d i ng her challenges to the convictions for engaging in monetary transactions a nd i dentity theft/fraud, Thornt on does not adequately brief the issue as it relates t o these counts. Thus, we do not a ddress these c ounts 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 t h a t Barrett was a vulnerable victim. She argues that Barrett could not be a victim i n light of the jury’s f inding o n the v erdict form that T hornton did n ot i ntend to defraud Barrett. To the extent t h a t s he argues t hat the district court cannot consider evidence on counts f

or which she was acquitted, the a r g u m e nt i s foreclosed by United States v. W

atts , 5 19 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 Bar r e t t w a s unusually vulnerable to being a victim of fraud. We r eview the district court’s interpretation and application of the Sentencing Guidelines de

novo and its findings of fact for clear e rror. United States v. Cisneros-Gutierrez , 517 F.3d 751, 764 ( 5th Cir. 2008). For purposes of § 3A1.1(b)(1), a “vulnerable victim” is d efined a s a person “who is unusually vulnerable d u e t o age, physical

or mental condition, or who is otherwise particularly susceptible to the c riminal conduct.” § 3A1.1, comment. (n.2). I n t h e i nstant case, th ere was evidence to establish t hat Barrett w a s unusually vulnerable to fraud. Both expert witnesses p rovided uncontradicted testimony that Barrett su f f e r e d from d ementia or Alzheimer’s. J ames Gilbert testified that B arrett w as s ignificantly impaired in decision m aking a n d judgment. Though D r. Jeffrey McGilbra acknowledged that Barrett was able to hold a conversa t i o n , h e n evertheless believed that Barrett’s judgment was questionable and that she w ould have difficulty dealing with finances. Thus, the district court did not err in finding that Barrett was unusually vulne r a b l e to being a victim of fraud. See Cisneros-Gutierrez , 5 17 F.3d at 764. Moreover, the

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district court specif

i c a l l y stated that if the two-level enhancement had not applied, the r esulting guidelines range would be insufficient t o satisfy the sentencing factors o f 18 U.S.C. § 3553(a) a nd 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.

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