USA v. Gilbert Gotora

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UNPUBLISHED OPINION FILED. [09-40886 Affirmed] Judge: JLD , Judge: EBC , Judge: JWE. Mandate pull date is 10/01/2010 for Appellant Gilbert Gotora [09-40886]

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USA v. Gilbert Gotora Doc. 0 Case: 09-40886 Document: 00511230488 Page: 1 Date Filed: 09/10/2010 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED N o . 09-40886 S u m m a r y Calendar September 10, 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. G I L B E R T GOTORA, 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 Texas U S D C No. 4:08-CR-164-3 B e fo r e DENNIS, CLEMENT, and ELROD, Circuit Judges. P E R CURIAM:* G ilb e r t Gotora pleaded guilty, without a written plea agreement, to c o n s p ir a c y to defraud the United States and conspiracy to commit identity theft a n d bank fraud. 18 U.S.C. 286, 371. The district court sentenced Gotora to c o n c u r r e n t prison terms of 78 months on Count 1 and 60 months on Count 2 and o r d e r e d concurrent three-year terms of supervised release on both counts. The c o u r t further ordered restitution in the amount of $1,167,546, representing the a c t u a l loss to the Internal Revenue Service (IRS). Gotora argues on appeal that 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 09-40886 Document: 00511230488 Page: 2 No. 09-40886 Date Filed: 09/10/2010 t h e district court erred in calculating the loss amounts, resulting in an 18-level in c r e a s e in his offense level pursuant to U.S.S.G. 2B1.1(b)(1)(J); in determining t h e amount of restitution; and in denying an offense level reduction for a c c e p t a n c e of responsibility pursuant to U.S.S.G. 3E1.1. W e find that, for sentencing purposes, there is sufficient evidence for the d is t r ic t court to have concluded that the amount of actual loss was $1,167,546 a n d the intended loss was $3,818,533. United States v. Taylor, 582 F.3d 558, 564 (5 t h Cir. 2009), cert. denied, 130 S. Ct. 1116 (2010). This evidence includes the t e s t im o n y of two IRS special agents that was supported by documentary e v id e n c e , the testimony of Gotora's coconspirator, and Gotora's own admissions. We find that the district court committed no clear error in finding Gotora r e s p o n s ib le for the entire loss amounts. United States v. Lghodaro, 967 F.2d 1 0 2 8 , 1030 (5th Cir. 1992) (affirming where the court's findings regarding r e a s o n a b le foreseeability were not expressly made, but the meaning of the c o u r t's findings was clear). For similar reasons, the district court did not abuse it s discretion in ordering restitution in the full amount of the IRS's actual loss. United States v. Gutierrez-Avascal, 542 F.3d 495, 497-98 (5th Cir. 2008); United S ta te s v. Adams, 363 F.3d 363, 365-67 (5th Cir. 2004). Based on the evidence and the "extremely deferential standard of review" a c c o r d e d to decisions regarding offense level reductions pursuant to U.S.S.G. 3E1.1, Gotora has not shown that the district court committed reversible error in finding that he failed to admit the conduct comprising his offense and thus h a d not sufficiently accepted responsibility to deserve a downward adjustment. United States v. Angeles-Mendoza, 407 F.3d 742, 752-53 (5th Cir. 2005); see U n ite d States v. Vital, 68 F.3d 114, 120-21 (5th Cir. 1995). T h e judgment of the district court is AFFIRMED. 2

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