No. 99-20383
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-20383
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RALPH BEN-SCHOTER; WILLIAM T. SCOTT;
LINDA D. SCOTT,
Defendants-Appellants.
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Appeals from the United States District Court
for the Southern District of Texas
USDC No. H-95-CR-284-1
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April 3, 2000
Before DAVIS, EMILIO M. GARZA and DENNIS, Circuit Judges.
PER CURIAM:*
Ralph Ben-Schoter, William T. Scott, and Linda D. Scott
appeal the sentences imposed by the district court at their
resentencing. They argue that the district court erred in
calculating the amount of loss caused by their offenses. Ben-
Schoter and William Scott also argue that the district court
erred in refusing to reduce their offense levels by three points
pursuant to § 2X1.1(b)(1) of the United States Sentencing
Guidelines because some of the transactions were only partially
*
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that this opinion should not be published and is not precedent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.
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completed. They have not shown that the district court clearly
erred in determining that the amount of the intended loss was at
least $80,000,000, requiring an 18-level increase in their
offense levels under § 2F1.1(b)(1)(S) of the Guidelines. Because
the defendants completed all of the documents that they believed
were necessary to transfer the false treasury notes to the
victims for use as collateral, Ben-Schoter and William Scott have
not shown that the district court erred in refusing to reduce
their offense levels under § 2X1.1. See § 2X1.1(b)(1).
William and Linda Scott argue that the district court erred
in ordering them to pay $3,078,000 in restitution without
considering their financial ability to pay the restitution.
William Scott also argues that the district court violated the
Ex Post Facto Clause by ordering restitution under the Mandatory
Victims Restitution Act of 1996 without consideration of his
ability to pay. Although the Scotts objected to the amount of
restitution in the district court, they did not object to the
restitution on the ground that the district court did not
consider their ability to pay or on the ground that the order
violated the Ex Post Facto Clause. Therefore, review is limited
to plain error. United States v. Calverley, 37 F.3d 160, 162-64
(5th Cir. 1994) (en banc). Under Fed. R. Crim. P. 52(b), this
court may correct forfeited errors only when the appellant shows
the following factors: (1) there is an error, (2) that is clear
or obvious, and (3) that affects his substantial rights.
Calverley, 37 F.3d at 162-64 (citing United States v. Olano, 507
U.S. 725, 730-36 (1993)). If these factors are established, the
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decision to correct the forfeited error is within the sound
discretion of the court, and the court will not exercise that
discretion unless the error seriously affects the fairness,
integrity, or public reputation of judicial proceedings. Olano,
507 U.S. at 736. The record indicates that the district court
ordered the restitution after considering and adopting the
Presentence Report (PSR) which included information concerning
the Scotts’ employment history and financial ability to pay
restitution. The district court’s adoption of the PSR is
considered sufficient evidence that the district court considered
the Scotts’ financial resources in ordering restitution. See
United States v. Richards, ___ F.3d ___ (5th Cir. Feb. 9, 2000,
No. _____), 2000 WL 146318 at **32-33; United States v. Greer,
137 F.3d 247, 252 (5th Cir.), cert. denied, 524 U.S. 920 (1998).
Because William Scott has not shown that the district court
retroactively applied the Mandatory Victims Restitution Act, the
district court did not violate the Ex Post Facto Clause. See
Richards, 2000 WL 146318 at **32-33.
Linda Scott argues that the district court erred in
determining that she was not a minor participant pursuant to
§ 3B1.2(b) of the Guidelines. Because Linda Scott assisted in
the incorporation of the Delmarva-Nevada Trust, became the
CEO/President of the Trust, and signed all of the treasury
certificates and other documents necessary to carry out the
advance fee scheme, the district court did not err in determining
that she was not a minor participant under § 3B1.2(b). See
United States v. Posada-Rios, 158 F.3d 832, 880 (5th Cir. 1998).
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William Scott argues that the district court erred in
determining that he was a leader or organizer under § 3B1.1(a) of
the Guidelines. William Scott recruited Linda Scott, Patricia
Moran, and Joseph Vass to sign documents as officers of the
Delmarva-Nevada Trust, and the record indicates he exercised
decision-making authority in the Delmarva-Nevada Trust and the
advance fee scheme. William Scott did not present any evidence
at the resentencing hearing to rebut the facts in the PSR which
indicated that he was an organizer or leader. Therefore, the
district court did not clearly err in adopting the PSR and in
determining that William Scott was a leader or organizer under
§ 3B1.1(a). See United States v. Alford, 142 F.3d 825, 832 (5th
Cir.), cert. denied, 119 S. Ct. 514 (1998).
AFFIRMED.