USA v. Morris Warner

Filing 511161082

USA v. Morris Warner

Doc. 511161082

Case: 09-30522

Document: 00511161082

Page: 1

Date Filed: 07/01/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-30522 S u m m a r y Calendar July 1, 2010 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t if f -A p p e lle e v. M O R R I S VIRDEAN WARNER, also known as Morris V. Warner, D e fe n d a n t -A p p e lla n t

A p p e a l from the United States District Court fo r the Eastern District of Louisiana U S D C No. 2:07-CR-10-1

B e fo r e KING, STEWART, and HAYNES, Circuit Judges. P E R CURIAM:* M o r r is Virdean Warner appeals from his conviction of access device fraud a n d bank fraud. Warner moves that appointed counsel be relieved and new c o u n s e l be appointed; that motion is denied. W a r n e r contends that the district court erred by ordering him to pay r e s t it u t io n to several banks that were not listed in the indictment and as to w h ic h no evidence was produced at trial. He argues that the Mandatory Victim R e s tit u tio n Act (MVRA) limits restitution to harm caused by the conduct
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
*

Dockets.Justia.com

Case: 09-30522

Document: 00511161082 Page: 2 No. 09-30522

Date Filed: 07/01/2010

u n d e r ly in g the offense of conviction. Because the bank fraud statute requires t h a t specific banks be targeted, Warner argues that only those banks could serve a s targets of his bank fraud scheme or artifice and that, therefore, only those b a n k s may be considered victims of the offense of conviction. " T h is court reviews the legality of a restitution order de novo and the a m o u n t of the restitution order for an abuse of discretion." United States v. A r le d g e , 553 F.3d 881, 897 (5th Cir. 2008), cert. denied, 129 S. Ct. 2028 (2009). "[A]n order of restitution must be limited to losses caused by the specific conduct u n d e r ly in g the offense of conviction." Id. at 899. However, "[w]here a fraudulent s c h e m e is an element of the conviction, the court may award restitution for `a c t io n s pursuant to that scheme.'" United States v. Cothran, 302 F.3d 279, 289 (5 t h Cir. 2002) (citation omitted). A scheme or artifice to defraud is an element o f bank fraud. See 18 U.S.C. § 1344. W a r n e r was charged with one scheme to defraud the three banks named in the redacted superseding indictment. The evidence presented at his

s e n te n c in g hearing indicated that he employed the same methods to deprive the s e v e n financial institutions not listed in the redacted superseding indictment t h a t he used against the three named institutions. He also committed his acts a g a in st the nonlisted institutions during the time frame listed in the indictment. The district court did not err by determining that the seven financial institutions w e r e victims for MVRA purposes, and the restitution portion of Warner's s e n te n c e is affirmed. See United States v. Inman, 411 F.3d 591, 595 (5th Cir. 2 0 0 5 ); Cothran, 302 F.3d at 289. We also conclude that Warner's motion to s u b s t it u t e counsel is neither timely nor well-taken. A F F I R M E D . MOTION TO SUBSTITUTE COUNSEL DENIED.

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