United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT January 11, 2007
Charles R. Fulbruge III
Clerk
No. 06-50393
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PHILLIP JOSEPH SMITH,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:05-CR-198
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Before SMITH, WEINER, and OWEN, Circuit Judges.
PER CURIAM:*
Phillip Joseph Smith appeals his conviction and sentence on
three counts of mail fraud in violation of 18 U.S.C. § 1341.
Finding no error, we affirm.
Smith first contests the sufficiency of the evidence to
support the fraud conviction, arguing that he did nothing more than
attempt to recover fees owed to him for work performed on behalf of
his client, Dunois Beman, and that he had no intention to defraud
the Bemans. Viewing the evidence in the light most favorable to
the verdict, as we must, see United States v. Holmes, 406 F.3d 337,
*
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this opinion should not be published and is not precedent except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.
No. 06-50393
-2-
351 (5th Cir.), cert denied, 126 S. Ct. 375 (2005), we conclude
that the evidence was sufficient. Inter alia, Smith continued to
demand his full fee after he lost his license despite knowing that
he could no longer represent Beman and thereby fulfill his part of
the contract, and without informing Beman of his licensure status.
Although Smith contends that he spent many hours working on the
case, the evidence shows that he provided little to no benefit to
Beman. He received checks via mail from Beman’s mother after he
surrendered his license, and he sent a letter to the federal habeas
court clearly indicating that he represented Beman despite the loss
of his license. It was well within the jury’s province to reject
Smith’s testimony and explanations. Id. Given the evidence, we
cannot say that the jury’s conclusion that Smith committed mail
fraud was unreasonable. Id. at 351, 353.
Smith next argues that the district court erred by imposing a
two-level upward adjustment for abuse of position of trust under
U.S.S.G. § 3B1.3. We review the district court’s interpretation of
the Guidelines de novo and its factual findings for clear error.
See United States v. Creech, 408 F.3d 264, 270 & n.2 (5th Cir.),
cert denied, 126 S. Ct. 777 (2005). As Smith continued to
represent that he was an attorney and continued giving advice
during the time that he attempted to collect his fees, we cannot
say that the district court clearly erred in concluding that Smith
abused a position of trust.
No. 06-50393
-3-
Smith asserts that the district court erred in failing to
award him a reduction for acceptance of responsibility pursuant to
U.S.S.G. § 3E1.1. This contention is without merit. Throughout
the proceedings, and on appeal, Smith has steadfastly maintained
that he is not guilty of mail fraud, a position wholly inconsistent
with acceptance of responsibility. See United States v. Watson,
988 F.2d 544, 551 (5th Cir. 1993); § 3E1.1, comment. (n.2). The
district court committed no error.
Finally, Smith argues that the district court erred in the
amount of restitution ordered, asserting that there was no loss to
the Bemans. We review for plain error and find none. First, the
cursory nature of Smith’s brief on this point would be sufficient
to warrant rejecting his argument. See Cinel v. Connick, 15 F.3d
1338, 1345 (5th Cir. 1994). In addition, given that Smith received
$8,100, but provided no valuable services, the district court did
not err, plainly or otherwise, in determining that restitution of
$8,100 was appropriate.
For the foregoing reasons, the judgment of the district court
is AFFIRMED.