IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-20171
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
NAYEL ELOURI,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-01-CR-248-1
February 26, 2003
Before GARWOOD, JOLLY and SMITH, Circuit Judges.
PER CURIAM:*
Nayel Elouri appeals his sentence following a guilty plea to
conspiring to traffic in counterfeit motion pictures and other
audiovisual works in violation of 18 U.S.C. § 371, 2318. Elouri
argues that the district court erred in finding that he occupied an
aggravating role in the offense warranting a three-level increase
*
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opinion should not be published and is not precedent except under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.
in his offense level pursuant to U.S.S.G. § 3B1.1(b). The district
court did not clearly err in determining that Elouri qualified for
an aggravating-role-in-the-offense adjustment. United States v.
Miranda, 248 F.3d 434, 446 (5th Cir. 2001), cert. denied, 534 U.S.
980, 1086 (2002). Nor did the court clearly err in refusing to
grant a reduction in Elouri’s offense level pursuant to U.S.S.G. §
3B1.2. See Burton v. United States, 237 F.3d 490, 503 (5th Cir.
2000).
Elouri argues that the district court erred in awarding
$136,050 in restitution to the Motion Picture Association of
America (MPA) pursuant to the Victim and Witness Protection Act, 18
U.S.C. §§ 3663, 3663A (the VWPA). Elouri argues that the MPA is
not a “victim” of his offense for purposes of 18 U.S.C. § 3663A
because the MPA is an industry trade association. This argument
was not adequately raised below. Elouri has not demonstrated plain
error with respect to this argument. See United States v. Greer,
137 F.3d 247, 252 (5th Cir. 1998); 18 U.S.C. § 3663A(a)(2).
Elouri argues that judicial estoppel should bar the Government
from maintaining the position that the MPA is a victim for
restitution purposes. Because Elouri has not demonstrated that the
Government’s position is clearly inconsistent with its position in
another case, the district court did not abuse its discretion in
refusing to invoke the doctrine of judicial estoppel. See IN re
Coastal Plains, Inc., 179 F.3d 197, 205-06 (5th Cir. 1999); Ergo
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Science, Inc. v. Martin, 73 F.3d 595, 598 (5th Cir. 1996).
Elouri argues that the district court erred in ordering as a
special condition of supervised release that he provide financial
information to the probation officer. Because the court imposed an
order of restitution, the special condition was proper and
consistent with the Sentencing Guidelines. See U.S.S.G. §
5D1.3(d)(3), p.s.; see United States v. Ismoila, 100 F.3d 380, 394
(5th Cir. 1996).
AFFIRMED.
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