USA v. Damon Wei
UNPUBLISHED OPINION FILED. [11-10533 Affirmed ] Judge: JLD , Judge: EBC , Judge: PRO Mandate pull date is 04/10/2012 for Appellant Damon Curtis Weiss [11-10533]
Date Filed: 03/20/2012
IN THE UNITED STATES COURT OF APPEALS
United States Court of Appeals
FOR THE FIFTH CIRCUIT
March 20, 2012
Lyle W. Cayce
UNITED STATES OF AMERICA,
DAMON CURTIS WEISS,
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:10-CR-204-1
Before DENNIS, CLEMENT, and OWEN, Circuit Judges.
Damon Curtis Weiss appeals the 60-month sentence imposed following his
guilty-plea conviction for possession of stolen mail. The district court upwardly
departed to impose the statutory maximum sentence. Weiss contends that the
district court erred in calculating the intended loss under the advisory
guidelines. In particular, he asserts that the district court erred by using the
average value of the negotiated and prepared checks in assigning a value to the
blank checks that he possessed. Weiss contends that this inflated the intended
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
Date Filed: 03/20/2012
loss estimate and that the district court should have used the median value of
the prepared and negotiated checks, which would have provided a more
reasonable estimate of the intended loss and would have lowered his offense
level under the Sentencing Guidelines.
Although the Government asserts that plain error review applies, Weiss
argued before the district court that averaging the checks resulted in an
overestimation of the amount of the loss due to the large size of several checks.
This argument was sufficient to preserve the issue of the procedural
reasonableness of the sentence imposed.
The district court’s method of
calculating loss under the Guidelines is a question of law that is reviewed de
novo. United States v. Lige, 635 F.3d 668, 671 (5th Cir. 2011). When reviewing
a district court’s loss calculations, this court must determine “whether the
sentencing court applied an acceptable method of calculating the amount of loss,
which must bear a reasonable relation to the actual harm of the offense.” United
States v. Jones, 475 F.3d 701, 705 (5th Cir. 2007). “The district court receives
wide latitude to determine the amount of loss and should make a reasonable
estimate based on available information.” Id.; see U.S. SENTENCING GUIDELINES
MANUAL § 2B1.1 cmt. n.3(C) (2010). We have previously approved the use of
averages in estimating intended loss. See United States v. Chappell, 6 F.3d
1095, 1101 (5th Cir. 1993). Weiss has not shown that the district court erred in
the methodology used to calculate the intended loss. See id. Accordingly, the
judgment of the district court is AFFIRMED.
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