United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 8, 2007
Charles R. Fulbruge III
Clerk
No. 06-10600
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TRAVOSKI DEMON OSBY,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:05-CR-131-4
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Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Travoski Demon Osby pleaded guilty without the benefit of a
plea agreement to conspiracy to commit unauthorized use of an
access device, two counts of unauthorized use of an access
device, and wire fraud. See 18 U.S.C. §§ 371, 1029(a)(2) & 1343.
Osby argues that the district court erred in calculating the
total loss attributed to him, in assigning a leadership role
increase, and in double-counting guideline provisions for
stealing employer information and for abusing a position of
trust.
*
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this opinion should not be published and is not precedent except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. 06-10600
-2-
Osby has failed to brief his arguments that the district
court erred in denying his motion for a downward departure, that
the district court erred in assessing $500 to the total loss for
unused credit cards, and in assessing an increase pursuant to
U.S.S.G. § 3B1.3 in violation of the Ex Post Facto Clause.
Accordingly, these arguments are abandoned on appeal. See Yohey
v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).
Osby argues that the district court erred in assigning a
14-level increase in his base offense level by determining that
the total loss attributable to Osby was over $400,000. The
calculation of a loss amount involved in a theft offense is
considered a factual finding reviewed for clear error. United
States v. Ismoila, 100 F.3d 380, 396 (5th Cir. 1996). According
to this court’s precedent and the commentary to § 2B1.1, loss
valuations are not subject to rigid formulas. See § 2B1.1,
comment. (nn.2-3); see Ismoila, 100 F.3d at 396. Based upon the
testimony of Earl Camp, lead Federal Bureau of Investigation
(FBI) agent assigned to Osby’s case, and the exhibits introduced
at the sentencing hearing, the district court did not commit
clear error in calculating Osby’s total loss. See Ismoila, 100
F.3d at 396.
Osby argues that the district court erred in assigning a
two-level increase pursuant to § 3B1.1(a) for his leadership role
in the offense. The district court did not commit clear error in
assigning this increase based upon the testimony of Agent Camp
No. 06-10600
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regarding Osby’s role in the offense. See United States v.
Villanueva, 408 F.3d 193, 204 (5th Cir. 2005). Camp testified
that, based upon the investigation, Osby recruited at a minimum
of seven people to assist in his conspiracy relating to Citicorp.
Finally, Osby argues that the district court impermissibly
double-counted by assigning a two-level increase pursuant to
§ 2B1.1(b)(10)(C)(i) for stealing identification information and
also by assigning a two-level increase pursuant to § 3B1.3 for
abusing a position of trust. Because the issue of double
counting involves the district court’s application of the
guidelines, the issue is reviewed de novo. See United States v.
Jones, 145 F.3d 736, 737 (5th Cir. 1998). The district court did
not impermissibly double-count in assigning the increases because
the two guidelines addressed different offense characteristics.
See id. Accordingly, the judgment of the district court is
AFFIRMED.