United States v. Thomas

* 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this opinion should not be published and is not precedent except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.
United States Court of Appeals
Fifth Circuit
F I L E D
April 20, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 05-30229
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROBERT H. THOMAS, also known as Bob Thomas;
WILLIAM M. THORNHILL, also known as Bill Thornhill,
Defendants-Appellants.
--------------------
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 1:03-CR-10022-2
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Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Robert H. Thomas and William M. Thornhill were convicted of
conspiracy to commit wire fraud, wire fraud, and structuring
financial transactions to evade reporting requirements. Thomas was
convicted of only one count of wire fraud, whereas Thornhill was
convicted of two counts of wire fraud. The Guidelines sentencing
range was 63-78 months. However, the district court upwardly
departed from the Guidelines and imposed concurrent sentences of 60
months of imprisonment on the conspiracy count, 96 months of

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imprisonment of the wire fraud counts, and 96 months of
imprisonment on the structuring count. On appeal, Thornhill and
Thomas challenge the sufficiency of the evidence regarding their
intent to defraud, the reasonableness of the 96-month sentences
imposed above the guidelines range after United States v. Booker,
543 U.S. 220 (2005), and the legality of the 96-month sentences
imposed in connection with the structuring convictions. Thomas
also argues insufficient evidence on the structuring conviction
because the Government failed to prove federal jurisdiction.
The standard for evaluating the sufficiency of the evidence
is “whether, after viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.”
Jackson v. Virginia, 443 U.S. 307, 319 (1979). Intent to defraud
is established if the defendant acted knowingly and with the
specific intent to deceive, ordinarily for the purpose of causing
some financial loss to another or bringing about some financial
gain to himself. United States v. Saks, 964 F.2d 1514, 1518 (5th
Cir. 1992). Proof of such intent can arise by inference from all
of the facts and circumstances surrounding the transactions.
United States v. Ismoila, 100 F.3d 380, 387 (5th Cir. 1996).
The evidence is sufficient to allow a jury to infer that
Thomas and Thornhill intended to defraud individuals in order to
obtain money as part of investment schemes. Thomas and Thornhill
used a routine to recruit investors and obtain more money from

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these investors. The investors were promised large returns on
relatively small investments in a very short period of time. The
investors were informed that the money was simply waiting in
overseas accounts belonging to Thornhill and that the investments
were not risky. However, the returns were never provided to the
investors. The excuses as to why the money was not returned or
distributed were numerous and often irrational. Rather than return
the money to the individuals or discontinue the investments,
Thornhill and Thomas would continue to seek and obtain more money
from these individuals and even recruit new persons to invest.
This routine continued for three years.
Although Thornhill and Thomas claim that they did not profit
from the money given to them by investors, the record shows that
Thornhill wired only less than half the money taken. Additionally,
evidence was introduced showing that Thornhill and Thomas were
previously involved in similar financial schemes. The routine was
identical. The evidence supports a reasonable inference that they
intended to defraud persons out of money. See Saks, 964 F.2d at
1518; Ismoila, 100 F.3d at 387.
Thornhill and Thomas next argue that the 96-month sentences
imposed above the recommended guidelines range of 63-78 months are
unreasonable. After Booker, appellate courts ordinarily will
review sentences for reasonableness. Booker, 543 U.S. at 261;
United States v. Mares, 402 F.3d 511, 520 (5th Cir.), cert. denied,
126 S. Ct. 43 (2005). Under the discretionary sentencing system

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established by Booker, district courts retain the duty to consider
the Guidelines, along with the sentencing factors set forth in 18
U.S.C. § 3553(a). Mares, 402 F.3d at 518-19. If the sentencing
judge imposes a non-guidelines sentence, the judge must articulate
fact specific reasons consistent with the sentencing factors of 18
U.S.C. § 3553(a), to support his conclusion that the sentence is
appropriate for that defendant. Id. at 519; United States v. Smith
___ F.3d ___, 05-30313, 2006 WL 367011 at *2 (5th Cir. Feb. 17,
2006).
This court determines whether the sentencing factors in
§ 3553(a) support the sentence imposed. Smith, 2006 WL 367011 at
*3. A non-guideline sentence will not be supported by the
sentencing factors if it “(1) does not account for a factor that
should have received significant weight, (2) gives significant
weight to an irrelevant or improper factor, or (3) represents a
clear error of judgment in balancing the sentencing factors.” Id.
The district court evaluated the guideline range for Thomas
and Thornhill and articulated fact-specific reasons for deviating
from the range. The court engaged in a lengthy discussion of the
sentencing factors and ultimately concluded that the seriousness of
the offense and the defendants’ roles in the offense warranted a
deviation from the Guidelines. “Permissible reasons” were provided
for the district court’s variance from the guidelines range. Id.
at *5. Therefore, the sentences are not unreasonable.

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Thornhill and Thomas contend that the 96-month sentences
imposed in connection with their structuring convictions are in
excess of the statutory maximum and are therefore illegal. The
Government concedes that the sentences are illegal. A sentence
which exceeds the statutory maximum is an illegal sentence
constituting plain error and requiring remand. United States v.
Sias, 227 F.3d 244, 246 (5th Cir. 2000). Accordingly, the
sentences of Thomas and Thornhill on the structuring convictions
are vacated. The matter is remanded to the district court in order
to resentence Thornhill and Thomas on the structuring convictions.
Finally, Thomas challenges the sufficiency of the evidence on
the structuring conviction regarding the definition of a financial
institution. Thomas asserts that the Government failed to prove
federal jurisdiction because it did not show that Hibernia and
Hancock Banks were insured by the FDIC and therefore did not show
that they are domestic financial institutions.
The definition of a financial institution is found in 31
U.S.C. § 5312, which provides 26 different definitions, including
a FDIC insured bank. § 5312(a)(2)(A). Financial institutions also
are commercial banks, credit unions, insurance companies, travel
agencies, and other institutions not required to be insured by the
FDIC. The Government was not required to proved that Hibernia and
Hancock Banks are insured by the FDIC.
The Government presented evidence that a bank qualifies as a
financial institution. The testimony of Agent Adams explained that

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banks are included within the definition of financial institutions
and are subject to the reporting requirements of 31 U.S.C. §
5313(a). His testimony provides sufficient evidence for a rational
trier of fact to conclude that Hibernia and Hancock Banks are
financial institutions within the meaning of 31 U.S.C. § 5324.
Accordingly, Thornhill’s and Thomas’s convictions are
AFFIRMED. The sentences on the conspiracy convictions and the wire
fraud convictions are AFFIRMED. The sentences on the structuring
convictions are VACATED, and the case is REMANDED for RESENTENCING.

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