United States v. Reasor

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
August 14, 2008

No. 06-51577 Charles R. Fulbruge III
Clerk

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
v.

JANE REASOR, a/k/a SAN JUANITA RANGEL REASOR,

Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Texas

Before HIGGINBOTHAM, STEWART, and SOUTHWICK, Circuit Judges.
CARL E. STEWART, Circuit Judge:
Defendant-Appellant Jane Reasor pled guilty to 28 counts of using the
forged security of one organization to deceive another organization, in violation
of 18 U.S.C. § 513(a); three counts of mail fraud, in violation of 18 U.S.C. § 1341;
one count of bank fraud, in violation of 18 U.S.C. § 1344; and one count of
making a false statement on a credit application, in violation of 18 U.S.C. § 1014.
She was initially sentenced to concurrent terms of 42 months of imprisonment.
Reasor appealed and a panel of this court vacated her 28 forgery convictions and
remanded her case to the district court for resentencing. United States v.
Reasor, 418 F.3d 466 (5th Cir. 2005). Reasor was resentenced to concurrent
terms of 37 months. In the present appeal, she challenges her sentence on two
 No. 06-51577

grounds: first, she contends that the district court’s determination of the total
amount of loss was clearly erroneous because certain amounts were improperly
attributed to her; second, she argues that the district court erred by applying the
guideline enhancement for misrepresenting that she was acting on behalf of a
religious organization. For the following reasons, we AFFIRM.
I. Factual and Procedural History
Reasor was employed as the office manager of St. Dominic’s Catholic
Church in San Antonio from approximately 1993 until 2000. During that period,
she misused church funds for her personal gain, using checks from the church’s
general fund account and, Father Paul Cleary’s, the parish priest, stipend
account, on which she was a signatory. Reasor forged signatures and falsified
endorsements on checks. She also made out checks to herself, various
individuals and entities, which she then cashed. Many of the checks were
cashed at La Fiesta supermarket next door to the church. Reasor also misused
the church’s funds and Fr. Cleary’s name in other ways for her financial benefit.
After pleading guilty, Reasor motioned to withdraw her guilty pleas for the
28 forgery counts under 18 U.S.C. § 513(a), arguing that there was an
insufficient factual basis upon which to base her guilty plea. According to
Reasor, St. Dominic’s was not an “organization” for purposes of § 513(c)(4)
because it did not operate in interstate commerce and its activities did not affect
interstate commerce and because there was an insufficient factual basis to
support those convictions. The district court denied Reasor’s motion. This court
vacated the convictions, holding that there was no factual basis to support the
forgery charges and noting that the vacated convictions should affect the
calculation of all of Reasor’s concurrent sentences due to grouping rules. United
States v. Reasor, 418 F.3d 466, 478-79 (5th Cir. 2005). The court further
determined that the application of U.S.S.G. § 2F1.1(b)(5)(c)(I) of the 2000 version
of the Sentencing Guidelines violated the Ex Post Facto Clause and directed that

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Reasor should be resentenced under the appropriate version of the guidelines.
Id. at 479. Finally, this court concluded that Reasor’s challenge to the loss
calculations relevant to her sentencing range were not ripe for review because
her case was being remanded for resentencing. Id. at 479 n.12.
For resentencing purposes, the presentence report (“PSR”) attributed
losses totaling more than $438,000 to Reasor, including $348,873.29 in losses to
St. Dominic's; $2,137.27 in losses to the John Deere Company; $8,803.77 in
losses to Bank One; $7,106.71 in losses to Norwest Bank; $25,000 in losses to the
Catholic Mutual Relief Society; $3,000 in losses to Archbishop Patrick Flores;
and $44,010.06 in losses to Wells Fargo Bank. The probation officer used the
1998 version of the former § 2F1.1 to calculate Reasor’s offense level. The
probation officer established Reasor’s base offense level as six, to which she
added nine levels for losses of more than $350,000 but less than $500,000, two
levels because the offense involved more than minimal planning and more than
one victim, and two levels because the offense involved the misrepresentation
that Reasor was acting on behalf of a religious organization. Reasor’s adjusted
offense level was 19. Her criminal history score was one, placing her in criminal
history category I. Her guideline sentencing range was 30-37 months of
imprisonment.
The district court reduced the amount of loss to $387,981.09. The district
court also overruled Reasor’s objection to the two-level adjustment for
misrepresenting herself as acting on behalf of a religious organization. The
district court imposed five concurrent sentences of 37 months of imprisonment.
Reasor filed a timely notice of appeal.

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II. Discussion
A.
In her first point of error, Reasor contends that the district court erred in
determining the amount of loss attributable to her. Reasor concedes that her
scheme involved cashing checks made payable to church funds and church
employees at La Fiesta supermarket. She further concedes that she took checks
payable to vendors, and church employees and cashed those at the same store
for cash. She contends that these checks were easy to pick out because they
were stamped with the grocery store’s endorsement. However, she contends that
the fraud loss attributable to her should be reduced by $122,217.27 to
$316,713.82 because the government did not establish that she was responsible
for certain other checks, namely those checks negotiated by church vendors and
those signed by the parish priest bearing a stamped, restrictive endorsement.
Moreover, she posits that there is no evidence linking her to checks from a
stipend account which Reasor held jointly with the parish priest; a bank charge;
and money owed to John Deere for a lawn mower.
The calculation of amount of loss is a factual finding reviewed for clear
error. United States v. Humphrey, 104 F.3d 65, 71 (5th Cir. 1997). Amount of
loss need not be determined with precision. United States v. Edwards, 303 F.3d
606, 645 (5th Cir. 2002). Rather, “[i]n order to satisfy this clear error test all
that is necessary is that the finding be ‘plausible in light of the record as a
whole.’” Id. (quoting Humphrey, 104 F.3d at 71). “The presentence report is
considered reliable evidence for sentencing purposes.” United States v. Clark,
139 F.3d 485, 490 (5th Cir.1998). “If no relevant affidavits or other evidence is
submitted to rebut the information contained in the PSR, the court is free to
adopt its findings without further inquiry or explanation.” United States v.
Jefferson, 258 F.3d 405, 413 (5th Cir.2001).

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The district court’s finding that the disputed loss was attributable to
Reasor based on information contained in the PSR is not clearly erroneous.
Here, information in the PSR was based on interviews with Fr. Cleary,
employees of La Fiesta supermarket, bank employees, and the FBI’s
investigation of all of the relevant records and review of individual checks.
Additionally, the factual basis for Reasor’s plea indicated that she engaged in a
fraudulent scheme using St. Dominic’s general fund account and the stipend
account from 1993 to 2000, largely using checks that were written so as to
appear indistinguishable from legitimate checks. Although many of those checks
were cashed at La Fiesta supermarket, the way in which Reasor committed her
offenses makes a precise loss calculation difficult and she submitted no evidence
to show that the information in the PSR was materially untrue.1 See United
States v. Huerta, 182 F.3d 361, 364 (5th Cir. 1999) (holding that the defendant
bears the burden of demonstrating that the PSR is inaccurate). Accordingly, the
district court was free to adopt the PSR without further explanation. Jefferson,
258 F.3d at 413.
With regard to the cost of the John Deere tractor included in the loss
calculation, Reasor contends that she was not responsible for that charge
because another employee took the tractor and never returned it. The record
reveals that the credit application contained Fr. Cleary’s forged signature, and
that Fr. Cleary denied receiving the tractor. The district court decided to count
the John Deere amount because it did not go to the benefit of the church. Again,
Reasor has failed to submit any evidence rebutting the PSR’s inclusion of this
amount. Further, this court has held that “unsworn assertions by the defendant

1
Reasor introduced evidence regarding Fr. Cleary’s personal travel and activities and
bills arising as a result. However, Reasor did not show that the amounts paid for Fr. Cleary's
benefit were actually included in the loss amount or that, even if they were, that they rendered
the PSR's loss calculations materially inaccurate. See Angulo, 927 F.2d at 205.

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are unreliable and not to be considered.” United States v. Gray, 105 F.3d 956,
969 (5th Cir. 1997).
Finally, Reasor seeks to reduce her loss calculation by $4,010.60. The
prosecutor stated that the account was overdrawn by that amount and that the
church had to pay that amount to the bank to bring the stipend account back
into balance. Reasor responded that she had never seen a check indicating that
the church had balanced the account. The Wells Fargo bank statement in
question indicates a “charge-off credit w/o fee” in the amount of $4,010.06.
Reasor has proffered no evidence to show this amount was improperly included
her loss amount.
Because Reasor offered no evidence to rebut the information contained in
the PSR regarding the various checks, the John Deere tractor, or the bank
charge, and we find that the district court’s loss calculation was “plausible in
light of the record as a whole,” we AFFIRM the district court’s findings with
respect to this issue.
B.
Reasor next contends that the district court erred by adjusting her offense
level for misrepresenting herself as acting on behalf of a religious organization,
pursuant to former § 2F1.1(b)(4)(A), which provides for a two-level upward
adjustment “[i]f the offense involved . . . a misrepresentation that the defendant
was acting on behalf of a charitable, educational, religious, or political
organization, or a government agency.” 2 She raised the following objections: (1)

2
The relevant guideline commentary of the 1998 version of § 2F1.1(b)(4)(A) provided:
Subsection (b)(4)(A) provides an adjustment for a
misrepresentation that the defendant was acting on behalf of a
charitable, educational, religious, or political organization, or a
government agency. Examples of conduct to which this factor
applies would include a group of defendants who solicit
contributions to a non-existent famine relief organization by mail,
a defendant who diverts donations for a religiously affiliated
school by telephone solicitations to church members which the

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she argues that her conduct in cashing checks at La Fiesta and at her bank were
commercial in nature; (2) she contends that there is no evidence that she
misrepresented her authority when cashing checks or that she represented that
she was acting to obtain a benefit for the church; and (3) she argues that she did
not exploit any altruistic motivations when she cashed checks on the church’s
account.
Reasor argues that this court should adopt the holding in United States v.
Frazier, 53 F.3d 1105,1112 (10th Cir. 1995). In that case, the defendant was the
chairman of the board of a non-profit corporation who misapplied grant money
to which his corporation was entitled. He, however, did not obtain the grant
money by exploiting any of the victims’ charitable impulses. The Tenth Circuit
determined that under the plain language of § 2F1.1(b)(3)(A), a defendant would
be subject to an enhanced sentence where he had “incorrectly, improperly or
falsely [represented] that he is either acting as a representative of or in the
interest or aid of a charitable, educational, religious or political organization or
a government agency.” Id. However, the court found this literal interpretation

defendant falsely claims to be a fund-raiser for the school, or a
defendant who poses as a federal collection agent in order to
collect a delinquent student loan.
§ 2F1.1 cmt. n.5 (1998). The background note provided that § 2F1.1 was “designed to apply
to a wide variety of fraud cases” and that:
Use of false pretenses involving charitable causes and
government agencies enhances the sentences of defendants who
take advantage of victims’ trust in government or law
enforcement agencies or their generosity and charitable motives.
Taking advantage of a victim’s self-interest does not mitigate the
seriousness of fraudulent conduct. However, defendants who
exploit victims’ charitable impulses or trust in government create
particular social harm.

§ 2F1.1.

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to be contrary to the plain purpose of the statute. Id. Relying on the
hypotheticals contained in the commentary to the guideline, the court held that
“the conduct intended to fall within the scope of the guideline is exploitative
conduct which induces victims to act upon their charitable or trusting impulses
due to the defendant’s misrepresentation that he has authority to act on behalf
of a charitable, educational, religious or political organization or a government
agency.” Id. at 1113.
While this court has yet to determine the scope of § 2F1.1(b)(4)(A), a
majority of the courts to address this issue have rejected the narrow
interpretation of the guideline such as the one adopted by the Frazier court. See
United States v. Wiant, 314 F.3d 826, 829 (6th Cir. 2003); United States v.
Aramony, 166 F.3d 655, 664 (4th Cir. 1999); United States v. Bennett, 161 F.3d
171, 191-92 (3d Cir. 1998); United States v. Ferrera, 107 F.3d 537, 543 (7th
Cir.1997). In Wiant, for example, the defendant, an administrative officer of the
American Cancer Society of Ohio (“ACS”), among other things, instructed a bank
to transfer $7 million dollars of ACS funds to an account in Austria. 314 F.3d
at 828. Although he indicated that funds were for the purpose of funding
research grants, the funds were in fact for his personal use. Id. The Sixth
Circuit held that “[t]he plain language of the rule clearly encompasses [the
defendant’s] offense, and it contains no textual support for limiting the rule to
solicitation by misrepresentation.” Id. at 829. The court explained that “[t]he
examples listed in the application notes are obviously illustrative not exhaustive,
and thus provide no mandate for limiting the scope of the enhancement’s actual
language.” Id.; see also Berger, 224 F.3d at 120; Bennett, 161 F.3d at 191;
Ferrera, 107 F.3d at 541. Additionally, the requirement that a defendant’s
conduct must exploit the victims’ altruistic impulses was squarely rejected by
the Second and Seventh Circuits. See United States v. Berger, 224 F.3d 107,
120-21 (2d Cir. 2000); United States v. Ferrera, 107 F.3d 537, 543 (7th Cir. 1997).

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The majority position is further buttressed by the § 2B1.1(b)(8)(A), the
successor to § 2F1.1(b)(4)(A). The application note to the current guideline
provides:
Subsection (b)(8)(A) applies in any case in which the
defendant represented that the defendant was acting to
obtain a benefit on behalf of a charitable, religious, or
political organization, or a government agency
(regardless of whether the defendant actually was
associated with the organization or government agency)
when, in fact, the defendant intended to divert all or
part of that benefit (e.g., for the defendant’s personal
gain). Subsection (b)(8)(A) applies, for example, to the
following:

(i) A defendant who solicited contributions for a non-
existent famine relief organization.

(ii) A defendant who solicited donations from church
members by falsely claiming to be a fundraiser
for a religiously affiliated school.

(iii) A defendant, chief of a local fire department, who
conducted a public fundraiser representing that
the purpose of th[e] fundraiser was to procure
sufficient funds for a new fire engine when, in
fact, the defendant intended to divert some of the
funds for the defendant's personal benefit.

§ 2B1.1 cmt. n.7. The Sentencing Commission explained that it sought to resolve
the circuit split regarding whether a defendant must claim authority that does
not exist in order for the two-level adjustment to apply.
In United States v. Lambert, 498 F.3d 963 (9th Cir. 2007), the Ninth
Circuit discussed the current guidelines, noting that the application note
contained two changes meant to clarify the scope of the guideline. First, the
current guideline commentary makes clear that the hypotheticals are not meant
to be an exhaustive list as it changed the language contained in previous

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versions from “[e]xamples of conduct to which this factor applies would include
. . . ” to“[s]ubsection (b)(8)(A) applies, for example, to the following . . . .” Id. at
966-67. Second, the application note added a parenthetical stating that the
guideline applies “regardless of whether the defendant actually was associated
with the organization or government agency.” As explained by the Lambert
court, “[t]his change indicates that Congress, in enacting the current iteration,
intended the enhancement to apply where the defendant misrepresents his
intentions, regardless of whether he also misrepresents his authority to act,
effectively abrogating the decision in Frazier.” Id. at 970 (emphasis omitted).
In light of this analysis, the Lambert court considered § 2B1.1(b)(8)(A) was
applicable to a defendant who had collected funds from an organization under
the false pretense that he had written a number of grant application on its
behalf. The court held that the guideline applied, rejecting the defendant’s
contention that the two-level enhancement under the guideline was inapplicable
because he did not appeal to victims’ charitable motives and did not
misrepresent his authority to act on behalf of the organization.
We find the majority approach as well as the analysis put forward in
Lambert persuasive. As such, we adopt this approach in the analysis of the
present case.3 Reasor does not dispute that she was employed as the bookkeeper
of St. Dominic’s Church or that she used La Fiesta and her bank to cash checks
drawn on the church’s accounts. Although she did not misrepresent her
authority to act on behalf of St. Dominic’s Church, she did misrepresent that she
was acting wholly on behalf of the church in her fraudulent conduct, which is all
that is required to be subject to the two-level enhancement under §

3
This court applies retroactively guideline amendments that clarify the meaning of a
provision instead of substantively amending it. United States v. Maseratti, 1 F.3d 330, 340
(5th Cir. 1993). However, because we adopt the majority view regarding interpretation of
2F1.1(b)(4)(A) and we find the new guideline to be consistent with it, our resolution of this case
would not differ notwithstanding § 2B1.1(b)(8)(A)’s enactment.

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2F1.1(b)(4)(A). That she did not exploit the charitable impulses of the victims
or misrepresent her authority is of no moment. We hold, therefore, that the
district court did not err by adjusting her offense level for misrepresenting that
she was acting on behalf of the church.
For the foregoing reasons, we AFFIRM.

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