404 F. App'x 884
5th Cir.2010Background
- Smith pleaded guilty to one count bank fraud and one count aggravated identity theft under a plea agreement.
- She engaged in a scheme forging checks on a client’s account, payable to herself and signed by authorized signatories.
- In the signed factual basis, Smith admitted only three individuals had signing authority, and she forged signatures of two of them.
- The district court sentenced Smith to 33 months (bank fraud) and 24 months (identity theft), to be served consecutively, and ordered $211,262.99 restitution to three victims.
- Smith challenged the sufficiency of the factual basis under Flores-Figueroa; district court accepted the factual basis as adequate.
- Smith’s appeal challenged restitution findings and the two-level enhancement for using sophisticated means; she also argued the appeal waiver was not validly understandingly made.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was the factual basis adequate for identity theft under Flores-Figueroa? | Smith argues the basis failed to show knowledge that identities belonged to others. | Government contends the facts implied the identities belonged to actual signatories and explicit admission was unnecessary. | Factual basis sufficient; inference supported by admitted facts. |
| Did the PSR restitution findings show losses for two victims? | Smith argues two victims' losses were not established. | Government relies on PSR-reported losses and the district court’s adoption of those figures. | No plain error; PSR-supported restitution findings adopted. |
| Does the appeal waiver bar Smith's sentencing appeal and challenges to guidelines? | Smith contends waiver may be ineffective or unclear regarding appellate rights. | Government asserts waiver was valid and broad, preventing challenges to sentence or guidelines. | Waiver valid and enforceable; precluded challenges to sentencing. |
Key Cases Cited
- United States v. Flores-Figueroa, 129 S. Ct. 1886 (Supreme Court, 2009) (Flores-Figueroa standard on identity knowledge)
- United States v. Vonn, 535 U.S. 55 (Supreme Court, 2002) (plain-error review standard)
- United States v. Hildenbrand, 527 F.3d 466 (5th Cir. 2008) (inferential knowledge supports identity-theft facts)
- United States v. Howard, 220 F.3d 645 (5th Cir. 2000) (plain-error review for restitution calculations)
- United States v. Story, 439 F.3d 226 (5th Cir. 2006) (validity of appellate waivers)
- United States v. McKinney, 406 F.3d 744 (5th Cir. 2005) (enforceability of broad waiver terms)
- United States v. Bond, 414 F.3d 542 (5th Cir. 2005) (broad appellate waivers cover sentencing challenges)
- United States v. Smith, 528 F.3d 423 (5th Cir. 2008) (restitution and PSR considerations)