UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
No. 99-11227
Summary Calendar
Civil Docket #3:99-CR-136-2-L
_______________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DELANO MARCEL ROBINSON,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
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September 15, 2000
Before DAVIS, JONES, and DeMOSS, Circuit Judges.
EDITH H. JONES, Circuit Judge:*
On appeal from a conviction for conspiracy to commit bank
fraud, appellant Robinson challenges the amount of loss calculation
that the court used to determine relevant conduct for sentencing
purposes. Finding neither legal error nor clear error in the
court’s determination of the facts, we affirm.
According to the Presentence Report, Robinson came in on
the ground floor of a large bank fraud conspiracy that operated in
the Dallas-Fort Worth area. Specifically, Robinson, who had
*
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opinion should not be published and is not precedent except under the limited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.
already participated in a fraud exceeding $10,000 that utilized
his own bank account, introduced the ringleader Simpkins to
codefendant Lee, who took charge of the Fort Worth branch of the
conspiracy. Paragraph 16 of the PSR states that “Simpkins
explained in depth to Robinson and Lee the Bank One scheme.
Simpkins advised Lee and Robinson if they could find persons who
had Bank One accounts, . . . Simpkins, Robinson and Lee could all
make some money.” Pursuant to this plan, Robinson recruited
numerous account holders in Fort Worth and assisted a number of
them in the fraud.
Robinson now objects that the PSR tied the amount of bank
losses relevant to his sentencing not only to those that he
personally induced, but also to some of the losses perpetrated by
other members. He points out that a relevant conduct finding under
U.S.S.G. § 1B1.3 involves not only reasonable forseeability of the
loss – a point he concedes on appeal – but also that the conduct be
“jointly undertaken” by him and the other codefendants. U.S.S.G.
§ 1B1.3(a)(1)(B).
Contrary to Robinson’s arguments, we find, first, that
the requirement of a joint undertaking was specifically recognized
by the probation office in the addendum to the PSR, at page 3.
Thus, in concluding that the PSR correctly calculated the amount of
loss, the court approved a finding based on the correct legal test.
Moreover, the court did not clearly err in implicitly finding that
Robinson jointly undertook the conspiracy with Simpkins and Lee and
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therefore became responsible for losses beyond the ambit of his
personal acts. The above-noted portions of the PSR examined and
explained Robinson’s thorough knowledge, understanding and
significant role in starting and maintaining the conspiracy. There
is a substantial factual underpinning in the PSR for the joint
undertaking prong of the relevant conduct determination.
Robinson’s reliance on United States v. Evbuomwan, 992
F.2d 70 (5th Cir. 1993), is misplaced. While that case affirmed
that under the Guidelines, courts must initially determine what
criminal conduct a defendant has jointly undertaken, there was no
hint in the record or PSR that the defendant was aware of the
separate fraud perpetrated by an associate of his. In this case,
by contrast, Robinson was one of the initiators of the scheme,
together with Simpkins and Lee, and the PSR indicates, and Robinson
conceded in the hearing, that he knew a great deal about its
intended scope, even if not about the precise illegal transactions.
For these reasons, the district court’s loss calculation
contains no reversible error, and the sentence awarded by the
district court is AFFIRMED.
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