USA v. Fabian Fleifel

Filing

UNPUBLISHED OPINION FILED. [16-10173 Affirmed] Judge: PEH, Judge: ECP, Judge: CH. Mandate pull date is 06/16/2017 for Appellant Fabian C. Fleifel; denying as untimely motion to proceed pro se filed by Appellant Mr. Fabian C. Fleifel [8387044-2] [16-10173]

Case: 16-10173

Document: 00514009330

Page: 1

Date Filed: 05/26/2017

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

No. 16-10173
Summary Calendar

FILED
May 26, 2017
Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
FABIAN C. FLEIFEL,
Defendant-Appellant
Appeals from the United States District Court
for the Northern District of Texas
USDC No. 3:12-CR-318-3
Before HIGGINBOTHAM, PRADO, and HAYNES, Circuit Judges.
PER CURIAM: *

Fabien Fleifel was convicted by a jury of conspiracy to commit mail fraud,
wire fraud, and bank fraud and of multiple counts of mail fraud telemarketing,
wire fraud telemarketing, and aiding and abetting.

He was sentenced to

concurrent 168-month terms of imprisonment and to a two-year period of
supervised release, and he was ordered to pay $1,346,513.21 in restitution.

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
*

Case: 16-10173

Document: 00514009330

Page: 2

Date Filed: 05/26/2017

No. 16-10173
Fleifel has moved for leave to proceed pro se. The motion is denied as
untimely. See United States v. Wagner, 158 F.3d 901, 902-03 (5th Cir. 1998).
Fleifel

challenges

two

sentencing

enhancements:

a

two-level

enhancement under U.S.S.G. § 2B1.1(b)(10)(C), because the offense involved
sophisticated means, and a four-level enhancement under U.S.S.G. § 3B1.1(a),
because he was an organizer or leader of a criminal activity involving five or
more participants.
With respect to the sophisticated means enhancement, the record
reflects that Fleifel attempted to conceal the fraudulent nature of his
timeshare marketing operation and to avoid detection. See United States v.
Valdez, 726 F.3d 684, 695 (5th Cir. 2013).

Because the unrebutted facts

reported in the presentence report amply support the district court’s finding
that the offense involved sophisticated means, see § 2B1.1, comment. (n.9(B)),
the district court’s finding was not clearly erroneous. See United States v.
Alaniz, 726 F.3d 586, 618 (5th Cir. 2013); United States v. Conner, 537 F.3d
480, 492 (5th Cir. 2008).
Fleifel argues that insufficient evidence supports the district court’s
finding that his role in the offense was that of an organizer or leader
warranting a four-level enhancement.

Fleifel exercised decision making

authority, participated as an owner of the businesses, recruited accomplices,
claimed a larger share of the fruits of the crime, was instrumental in planning
and organizing the businesses, was involved in a large and growing criminal
enterprise, and exercised control and authority over other participants. See
§ 3B1.1, comment. (n.4). The district court did not clearly err in finding that
Fleifel was an organizer or leader of criminal activity that involved five or more
participants. See Alaniz, 726 F.3d at 618; United States v. Cabrera, 288 F.3d
163, 173 (5th Cir. 2002).

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Document: 00514009330

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Date Filed: 05/26/2017

No. 16-10173
Finally, Fleifel argues that the restitution order was based on
speculation and conjecture and, therefore, erroneously held him responsible for
losses that are not supported by evidence. He contends that the district court
failed to comply with 18 U.S.C. § 3664(a) & (e) and should have required the
Government to provide additional explanation of the victims’ loss amounts
through victim testimony or sworn statements. Because the record provides
an adequate basis to support the restitution order, Fleifel cannot show that the
district court erred, plainly or otherwise, in determining the restitution
amount. See United States v. Sharma, 703 F.3d 318, 322 & 324 n.21 (5th Cir.
2012). The judgment is AFFIRMED.

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