IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 97-30222
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHARLES ANTHONY,
Defendant-Appellant.
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Appeal from the United States District Court for the
Western District of Mississippi
USDC No. 96-50061-1
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November 25, 1997
Before JOLLY, BENAVIDES, and PARKER, Circuit Judges.
PER CURIAM:*
Charles Anthony appeals his sentence following his guilty plea
conviction for mail fraud and conspiracy to commit fraud for
rolling back odometers on vehicles sold at his used car lot.
Anthony argues that the district court erroneously 1) calculated
the loss resulting from his criminal activity, 2) counted employees
of Anthony’s used car lot as participants in the odometer-roll-
back scheme, 3) refused to depart downward from the sentencing
guidelines, and 4) ordered Anthony to make restitution for vehicles
with rolled-back odometers not listed in the indictment.
*
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this opinion should not be published and is not precedent except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.
We review the district court’s determination of the loss in an
odometer fraud case for clear error. United States v. Whitlow, 979
F.2d 1008, 1012 (5th Cir. 1992). The district court employed the
same valuation-of-the-loss method approved by the court in Whitlow.
The district court made a reasonable estimate of the loss, which is
plausible in the light of the record read as a whole. Whitlow, 979
F.2d at 1012.
The district court’s determination that there were five or
more participants in the underlying scheme of the offense is
plausible in the light of the record read as a whole. United
States v. Wilder, 15 F.3d 1292, 1299 (5th Cir. 1994). Also, the
district court could have found that Anthony’s criminal activity
was otherwise extensive. U.S.S.G. § 3B1.1 comment. n.3; see also
Wilder, 15 F.3d at 1299 n.17.
The district court did not believe that it could not depart
downwardly from the guidelines sentencing range, but rather
determined from the facts that a downward departure was not
warranted. We decline to review Anthony’s claim that the district
court should have departed downward from the guidelines range.
United States v. Soliman, 954 F.2d 1012, 1014 (5th Cir. 1992).
Anthony mistakenly argues that 18 U.S.C. § 3663(a)(2) became
effective in April 1996. The amendment allowing for an order of
restitution for victims not specifically named in the indictment
became effective in 1990. See 18 U.S.C. § 3663(a)(2) Statutory and
Historical Notes; see also United States v. Rutgard, 108 F.3d 1041,
-2-
1065 (9th Cir. 1997). All the sales associated with the odometer-
roll-back scheme, which was sufficiently detailed in the
indictment, for which Anthony was ordered to pay restitution
occurred after 1990. The district court did not err in ordering
restitution for the 247 fraudulent sales of vehicles attributed to
Anthony as relevant conduct. United States v. Pepper, 51 F.3d 469,
473 (5th Cir. 1995).
A F F I R M E D.
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