IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-31334
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JEROME ARTHUR WHITTINGTON,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 99-CR-50092-2
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September 28, 2001
Before JONES, SMITH, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Jerome Arthur Whittington appeals his sentence following a
guilty plea to wire fraud, 18 U.S.C. § 1343. Whittington raises
the following six issues on appeal: (1) whether the district
court erred in its “total loss” determination; (2) whether the
district court erred in upwardly departing pursuant to U.S.S.G.
§§ 3D1.2(d) & 5G1.1; (3) whether the district court erred in
denying a three-point reduction pursuant to U.S.S.G. § 3E1.1;
(4) whether the district court erred when it sentenced
Whittington to a harsher sentence than his codefendant;
*
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that this opinion should not be published and is not precedent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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(5) whether the district court erred in ordering that restitution
be paid to victims other than the victim involved in the counts
to which he pleaded guilty; and (6) whether Apprendi precluded
sentence enhancement based on facts found by the district court
by only a preponderance of the evidence. For the following
reasons, we affirm.
Issues two, four, five, and six were not raised as
objections in the district court, and, therefore, they are
reviewed for plain error only. See United States v. Alford, 142
F.3d 825, 830 (5th Cir. 1998). Plain error requires Whittington
to show "(1) an error; (2) that is clear or plain; (3) that
affects [his] substantial rights; and (4) that seriously affects
the fairness, integrity or public reputation of judicial
proceedings." United States v. Vasquez, 216 F.3d 456, 459 (5th
Cir.), cert. denied, 531 U.S. 972 (2000).
In his second issue, Whittington complains that the district
court erroneously departed upward when it sentenced him to
consecutive prison terms because 18 U.S.C. § 1343 does not
mandate consecutive sentencing, because the counts to which he
pleaded guilty should have been construed as a single offense,
and because the district court’s decision to upwardly depart was
based on prior charges which had been dismissed pursuant to plea
agreements.
The district court had authority under 18 U.S.C. § 3584(a)
to upwardly depart by imposing consecutive sentences for multiple
terms of imprisonment, despite the apparent mandatory nature of
U.S.S.G. § 5G1.2. See 18 U.S.C. § 3584(a) (“Multiple terms of
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imprisonment imposed at the same time run concurrently unless the
court orders or the statute mandates that the terms are to run
consecutively.”); see also United States v. Martinez, 950 F.2d
222, 226 (5th Cir. 1991) (resolving the apparent conflict between
18 U.S.C. § 3584(a) and U.S.S.G. § 5G1.2).
The district court’s decision to upwardly depart pursuant to
U.S.S.G. § 4A1.3 was appropriate in light of its determination
that Whittington’s criminal history category did not adequately
reflect the seriousness of his past criminal conduct or the
likelihood that the he would commit other crimes. Section
4A1.3(e), moreover, allows the sentencing court to consider
“prior similar adult criminal conduct not resulting in a criminal
conviction.” The district court’s reliance on prior criminal
conduct not resulting in a conviction was therefore not improper.
Whittington’s argument that he did not receive a “bargain”
from his plea agreement as expected is also meritless because he
acknowledged in the plea agreement that “the maximum punishment
on each count [was] a fine of not more than $240,000 or a term of
imprisonment of not more than 5 years (pursuant to 18 U.S.C.
§ 1343), or both.” Whittington has not demonstrated that the
upward departure was plain error.
In his fourth issue, Whittington complains that his sentence
was much harsher than that of his codefendant, who he argues was
more culpable. “[A] mere disparity of sentences among
codefendants does not, alone, constitute abuse of discretion."
United States v. Lemons, 941 F.2d 309, 320 (5th Cir. 1991)
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(internal citations and quotation omitted). Whittington has
again failed to demonstrate plain error.
In his fifth issue, Whittington argues pursuant to Hughey v.
United States, 495 U.S. 411 (1990) that it was error for the
district court to order restitution to victims other than the
victim involved in the counts to which he pleaded guilty. Hughey
held that restitution can be awarded under the Victim and Witness
Protection Act (VWPA), 18 U.S.C. § 3663, only for the loss caused
by the specific conduct that is the basis of the offense of
conviction. 495 U.S. at 413.
To convict Whittington of wire fraud, the Government had to
prove a scheme to defraud, rather than specific incidents of
fraud limited to individual victims. See 18 U.S.C. § 1343;
United States v. Stouffer, 986 F.2d 916, 928 (5th Cir. 1993).
Because a fraudulent scheme is an element of Whittington’s wire-
fraud offense, his actions pursuant to that scheme are conduct
underlying the offense of conviction. See Stouffer, 986 F.2d at
928. His indictment, moreover, specifically described the
duration of Whittington’s scheme and the methods used. See id.
The district court’s inclusion of all losses caused by the scheme
therefore satisfied Hughey’s requirement that the district court
focus upon only the specific conduct underlying the offense of
conviction. See id.; see also United States v. Pepper, 51 F.3d
469, 473 (5th Cir. 1995) (restitution awarded pursuant to VWPA to
victims not named in the indictment was proper where fraudulent
scheme was an element of the underlying offense). Whittington
has failed to establish error, plain or otherwise.
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In his sixth issue, Whittington draws an Apprendi v. New
Jersey, 530 U.S. 466 (2000) analogy and argues that it was
inappropriate for the district court to enhance his sentence
based on facts that were found only by a preponderance of the
evidence. Apprendi, however, does not invalidate a sentencing
court’s factual findings for the purposes of determining the
applicable Sentencing Guidelines where those findings do not
increase the sentence beyond the statutory maximum. United
States v. Keith, 230 F.3d 784, 787 (5th Cir. 2000), cert. denied,
121 S. Ct. 1164 (2001). The district court did not exceed the
maximum sentence on any one of the three counts to which
Whittington pleaded guilty, and, therefore, Apprendi is a
non-issue. See, e.g., United States v. White, 240 F.3d 127, 135
(2d Cir. 2001) (Apprendi is not violated where the maximum
sentence is not exceeded on any individual count). Plain error
has not been established.
To the extent Whittington raised the issue whether he should
receive credit for time served, he failed to brief it, and it is
therefore waived. See Yohey v. Collins, 985 F.2d 222, 225 (5th
Cir. 1993).
Whittington’s first and third issues were raised as
objections in the district court. The district court's
interpretation or application of the Sentencing Guidelines is
therefore reviewed de novo and its factual findings for clear
error. United States. v. Huerta, 182 F.3d 361, 364 (5th Cir.
1999), cert. denied, 528 U.S. 1191 (2000).
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In his first issue, Whittington argues that the district
court erred in making its “total loss” determination because the
Government supported that determination with evidence
uncorroborated by the alleged victims and because the Government
erroneously assumed that all deposits made into the defendant’s
accounts were unearned and thus the result of fraud. We review a
district court's loss determination for clear error. United
States v. Oates, 122 F.3d 222, 225 (5th Cir. 1997). A district
court’s loss determination is not clearly erroneous as long as it
is plausible in light of the record as a whole. Id.
The Government submitted corroborating evidence of its loss-
determination figures via hard copies of banking records. The
district court credited Whittington for $12,000 in deposits for
which hard copies were unavailable. The district court
furthermore reduced the Government’s total-loss figure by roughly
$80,000 based on the determination that legal services were
performed for some individuals and that some restitution had
already been paid. Whittington has failed to establish that the
district court’s loss determination was clearly erroneous simply
because each victim was not contacted to corroborate the amount
by which each was defrauded.
In his third issue, Whittington argues that the district
court erred in refusing to grant him a three-point reduction
pursuant to U.S.S.G. § 3E1.1 for acceptance of responsibility.
Challenges to the denial of a § 3E1.1 acceptance-of-
responsibility reduction are reviewed even more deferentially
than a pure "clearly erroneous" standard, United States v.
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Gonzales, 19 F.3d 982, 983 (5th Cir. 1994), and the defendant has
the burden of proof, United States v. Tremelling, 43 F.3d 148,
152 (5th Cir. 1995).
We hold that the unrebutted testimony of Joan Parker was
sufficient for the district court to conclude that Whittington
was still engaging in fraudulent conduct even while incarcerated
for the instant offense, and, therefore, a denial of the three-
point reduction was not clearly erroneous.
We therefore AFFIRM the district court. Whittington’s
motions to file a corrected brief and reply brief are GRANTED.
All other motions filed on behalf of either party are DENIED.