United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT November 2, 2005
Charles R. Fulbruge III
Clerk
No. 04-11141
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHARLES E. REYNOLDS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
(3:03-CR-290-ALM-N)
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Before HIGGINBOTHAM, WIENER, and DENNIS, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Charles E. Reynolds appeals his
convictions of, and sentence imposed for, violating (1) 18 U.S.C.
§ 1001(a)(2), which prohibits “knowingly and willfully
. . . mak[ing] any materially false, fictitious or fraudulent
statement or representation” “in any matter within the jurisdiction
of the Executive, Legislative, or Judicial Branch of the Government
of the United States”; and (2) 18 U.S.C. § 2 for aiding and
abetting false statements to the federal government. More
specifically, Reynolds challenges the sufficiency of the
*
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this opinion should not be published and is not precedent except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.
government’s evidence for two elements of the § 1001 offense, viz.,
whether the false statements were made “in any matter within the
jurisdiction” of the United States Department of Housing and Urban
Development (“HUD”), and whether, if so, the false statements were
material. Reynolds also challenges the sufficiency of the evidence
to sustain the charge of aiding and abetting; and, finally, he
challenges his sentence, seeking a re-sentencing in light of United
States v. Booker.1
As the factual premise underlying the criminal charges against
Reynolds arose in the context of HUD’s “Direct Endorsement
Program,” under which HUD agrees in advance to insure loans
generated by specifically identified and pre-approved participating
lenders, Reynolds contends that even materially false statements
are not within the jurisdiction of HUD until HUD actually insures
a loan that has already been applied for, granted, and funded by
the lender. Thus, argues Reynolds, any materially false statements
that he might have made in connection with each loan at issue were
made before the loan ever became a “matter within the jurisdiction”
of HUD.
Albeit a nice legal argument skillfully presented by able
counsel for Reynolds, it misses the mark. In the end we are
1
Reynolds also challenged the sufficiency of the government’s
evidence that he knowingly presented his false statements to HUD.
As presentation is not an element of § 1001(a)(2), however —— the
statute requires only that the defendant knowingly and willfully
made a false statement in the matter within the jurisdiction of an
executive agency —— we do not address this irrelevant challenge.
2
satisfied that statements of the nature made by Reynolds, or aided
and abetted by him, during the application and grant process of
loans under the Direct Endorsement Program here at issue are made
in connection with matters within HUD’s jurisdiction, even if made
to the qualified and participating lenders during the pre-approval
and authorization process.2 Reynolds’s jurisdictional argument
therefore fails.
Our examination of the record further satisfies us beyond
cavil that the evidence adduced in support of the conclusion that
Reynolds’s statements concerning the income, assets, and
creditworthiness of the borrowers under the HUD-insured mortgages
here at issue was not only sufficient to support the conclusion
that they were matters within the jurisdiction of HUD, but also
that they were material both as to his direct violation of the
statute and to his aiding and abetting.3 We therefore affirm each
of Reynolds’s convictions.
We also decline to reverse and remand Reynolds’s case for re-
sentencing on the basis of Booker. The district court expressly
enunciated an alternative basis for imposing these sentences, which
2
See, e.g., United States v. Lutz, 154 F.3d 581, 587 (6th
Cir. 1998); cf. United States v. Ross, 77 F.3d 1525, 1544-45 (7th
Cir. 1996); United States v. Montemayor, 712 F.2d 104, 108-09 (5th
Cir. 1983).
3
See United States v. Swaim, 757 F.2d 1530, 1534 (5th Cir.
1985) (defining as material a statement that has “a natural
tendency to influence, or [is] capable of affecting or influencing,
a government function”).
3
were correctly calculated under the then-mandatory United States
Sentencing Guidelines (the “Guidelines”). The sentencer announced
that, as a precaution against the possibility that the Guidelines
might ultimately be held to be non-mandatory (as they eventually
were in Booker), the court would alternatively proceed to exercise
its discretion as though operating under non-mandatory Guidelines,
and it then imposed precisely the same sentence. Therefore, under
Booker and its progeny, including our post-Booker decisions, we
perceive no reason to vacate and remand for resentencing.
AFFIRMED.
4