Case: 19-10894       Document: 00515508231         Page: 1     Date Filed: 07/29/2020




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                   United States Court of Appeals

                                     No. 19-10894
                                                                            Fifth Circuit

                                                                          FILED
                                   Summary Calendar                   July 29, 2020
                                                                     Lyle W. Cayce
UNITED STATES OF AMERICA,                                                 Clerk


                                                  Plaintiff - Appellee

v.

DAVID DEWAYNE WATSON,

                                                  Defendant - Appellant


                   Appeals from the United States District Court
                        for the Northern District of Texas
                              USDC No. 4:19-CR-81-1


Before BARKSDALE, GRAVES, and OLDHAM, Circuit Judges.
PER CURIAM: *
       David Dewayne Watson challenges the concurrent sentences of, inter
alia, 115-months’ imprisonment imposed following his pleading guilty to: one
count of wire fraud, in violation of 18 U.S.C. §§ 2 and 1343; and one count of
making a fraudulent transaction with an access device, in violation of 18 U.S.C.
§§ 2 and 1029(a)(5). He contends the presentence investigation report (PSR)
provided insufficient evidence to support the court’s application of a four-level


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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.
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                                  No. 19-10894

enhancement, pursuant to Sentencing Guideline § 3B1.1(a) (providing four-
level enhancement “[i]f the defendant was an organizer or leader of a criminal
activity that involved five or more participants or was otherwise extensive”),
because, inter alia: he was not a leader of the criminal activity; he never “used”
“five people . . . at any one time”; and the criminal activity was not “otherwise
extensive”.
      Although post-Booker the Guidelines are advisory only, the district court
must avoid significant procedural error, such as improperly calculating the
Guidelines sentencing range. Gall v. United States, 

, 46, 51 (2007).
If no such procedural error exists, a properly preserved objection to an ultimate
sentence is reviewed for substantive reasonableness under an abuse-of-
discretion standard.

United States v. Delgado-Martinez, 

, 751–53 (5th Cir. 2009). In that respect, for issues preserved in district
court, its application of the Guidelines is reviewed de novo; its factual findings,
only for clear error. E.g., United States v. Cisneros-Gutierrez, 

,
764 (5th Cir. 2008).
      Along that line, “[a] district court’s determination that a defendant is a
§ 3B1.1 leader or organizer is a factual finding . . . review[ed] for clear error”.
United States v. Ronning, 

, 711 (5th Cir. 1995) (citation omitted).
“Furthermore, in determining whether [a Guidelines] enhancement applies, a
district court is permitted to draw reasonable inferences from the facts, and
these inferences are fact-findings reviewed for clear error as well.” United
States v. Caldwell, 

, 290 (5th Cir. 2006) (citation omitted). Our
court upholds such factual findings on clear-error review so long as they are
“plausible in [the] light of the record read as a whole”. 

(citation omitted).




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                                 No. 19-10894

      Watson fails to show clear error for the following reasons. (Therefore,
the Government’s alternative harmless-error contention need not be
addressed.)
      Watson contends the PSR does not establish he exercised control over
others. The PSR states, however, that Watson directed another participant to
manufacture a counterfeit driver’s license and to create a website and email
addresses to impersonate a construction company.             Further, the PSR
establishes Watson directed others to purchase and obtain items using
counterfeit credit cards and stolen credit-card numbers. The court, therefore,
did not clearly err in finding Watson was the organizer or leader “of one or
more other participants” in the criminal activity for purposes of applying the
enhancement. U.S.S.G. § 3B1.1 cmt. n.2; see also United States v. Dickerson,

, 127 (5th Cir. 2018) (stating “[t]o trigger the enhancement, the
defendant need only have been the organizer, leader, manager, or supervisor
of one or more other participants”) (internal quotation marks and citation
omitted), cert. denied, 

(2019).
      Additionally, Watson’s contention the number of participants involved
with his criminal activity was insufficient to support the enhancement is
unavailing because, inter alia, the PSR did not rely on the “five or more
participants” provision of Guideline § 3B1.1(a). Instead, it determined the role
enhancement was warranted because Watson was the “organizer or leader” of
an “otherwise extensive” criminal activity. See U.S.S.G. § 3B1.1(a).
      In that regard, “a criminal activity is ‘otherwise extensive’ if it involved
five or more people who ‘contributed to the success of the scheme’”. United
States v. Ho, 

, 611 (5th Cir. 2002) (quoting United States v. Davis,

, 360 (5th Cir. 2000)).         Further, “[i]n assessing whether an
organization is ‘otherwise extensive,’ all persons involved during the course of



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                                 No. 19-10894

the entire offense are to be considered. Thus, a fraud that involved only three
participants but used the unknowing services of many outsiders could be
considered extensive”. U.S.S.G. § 3B1.1 cmt. n.3. Additionally, in determining
whether to apply the enhancement, a court should consider, inter alia: “the
exercise of decision making authority, . . . the recruitment of accomplices, the
claimed right to a larger share of the fruits of the crime, the degree of
participation in planning . . . the offense, the nature and scope of the illegal
activity, and the degree of control and authority exercised over others”.
U.S.S.G. § 3B1.1 cmt. n.4.
      In this instance, the record reflects Watson recruited eight individuals
to participate in the criminal activity. It also shows Watson made use of the
unknowing services of various third-party trucking companies. Finally, the
court properly considered factors identified by the above-quoted commentary
application note 4 to Guideline § 3B1.1.
      AFFIRMED.




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