all relevant conduct is considered in applying the role adjustment
How later courts described this case
- all relevant conduct is considered in applying the role adjustment
Written by the judges who cited it.
The opinion
Case: 14-31335 Document: 00513316168 Page: 1 Date Filed: 12/21/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 14-31335 December 21, 2015
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
JENNIFER PANOS, also known as Nancy,
Defendant - Appellant
No. 14-31337
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
JAMES PANOS, also known as Jim Panos,
Defendant - Appellant
Appeals from the United States District Court
for the Western District of Louisiana
USDC No. 6:12-CR-344-3
USDC No. 6:12-CR-344-1
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Before BARKSDALE, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
Jennifer and James Panos pleaded guilty to a racketeering conspiracy,
in violation of 18 U.S.C. § 1962(d). They were charged with conspiring to
operate a criminal enterprise, Desperado’s Gentlemen’s Cabaret, which was
used for, inter alia, prostitution, and the distribution and use of controlled
substances. Defendants were sentenced below the Sentencing Guidelines
advisory sentencing range to 72 months’ imprisonment for James Panos and
48 for Jennifer Panos. Their sentences are challenged on several bases.
Defendants assert their rights against ex post facto laws were violated
by the enhancement of their sentences, pursuant to Guideline § 2D1.1(b)(11),
which provides a two-level enhancement to the base offense level “[i]f the
defendant bribed, or attempted to bribe, a law enforcement officer to facilitate
the commission of the offense”. They maintain the Government did not provide
evidence demonstrating bribery of a law enforcement officer after 1 November
2010, when the enhancement went into effect. Along that line, Jennifer Panos
contends: she never knowingly bribed a law enforcement officer; and there was
no evidence she was personally involved in any payments to law enforcement
officers after the effective date of the Guidelines amendment. James Panos
asserts there is no “legitimate evidence” he bribed, or attempted to bribe, a law
enforcement officer after the effective date. Each defendant objected to the
enhancement at sentencing on ex post facto grounds, and Jennifer Panos
further objected on additional factual grounds; accordingly, the objections were
adequately preserved for appeal.
* 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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Although post-Booker, the Sentencing Guidelines are advisory only, and
a properly preserved objection to an ultimate sentence is reviewed for
reasonableness under an abuse-of-discretion standard, the district court must
still properly calculate the Guideline-sentencing range for use in deciding on
the sentence to impose. Gall v. United States, 552 U.S. 38, 48–51 (2007). 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, 517 F.3d 751, 764 (5th Cir. 2008); United
States v. Villegas, 404 F.3d 355, 359 (5th Cir. 2005). “A factual finding is not
clearly erroneous if it is plausible in light of the record as a whole.” United
States v. Alaniz, 726 F.3d 586, 618 (5th Cir. 2013).
The bribery enhancement was adopted by the Sentencing Commission in
Guidelines Amendment 748, effective November 1, 2010. See U.S.S.G. App. C,
Vol. III, amend. 748. “A sentencing court must apply the version of the
sentencing guidelines effective at the time of the sentencing unless application
of that version would violate the [Ex Post Facto] Clause of the Constitution.”
United States v. Kimler, 167 F.3d 889, 893 (5th Cir. 1999). The Ex Post Facto
Clause “generally prohibits the retroactive application of the sentencing
guidelines if it results in a more onerous penalty”, id., in which case “the court
shall use the Guidelines Manual in effect on the date that the offense of
conviction was committed”. U.S.S.G. § 1B1.11(b)(1).
A court’s determination a conspiracy continued for Guidelines purposes
is a factual finding; therefore, review is for clear error. United States v.
Thomas, 12 F.3d 1350, 1371 (5th Cir. 1994). Because they were convicted of
conspiracy, defendants are responsible for all reasonably foreseeable acts and
omissions of others in furtherance of the jointly undertaken criminal activity
that occurred during the commission of the offense. See U.S.S.G.
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§ 1B1.3(a)(1)(B). The court noted bribes were paid to law enforcement officers
throughout the course of the conspiracy, which spanned from 1 January 2006
to 5 December 2012. Where, as here, a conspiracy has continued after the
effective date of a Guidelines enhancement, the Ex Post Facto Clause is not
violated by application of the enhancement in sentencing a conspirator, who
has not withdrawn from the conspiracy, and to whom it was foreseeable that
the conspiracy would continue past the effective date of the amendment. See
United States v. Olis, 429 F.3d 540, 545 (5th Cir. 2005); see also Thomas, 12
F.3d at 1370–71; United States v. Devine, 934 F.2d 1325, 1332 (5th Cir. 1991).
Defendants’ contention that Peugh v. United States, 133 S.Ct. 2072
(2013), altered existing law on this issue is unavailing. See United States v.
Nunez, 604 F. App’x 353, 354 (5th Cir.) (applying Peugh and Olis, holding no
Ex Post Facto Clause violation in sentencing defendant convicted of conspiracy
under Guidelines enhancements that became effective during the existence of
the conspiracy), cert. denied, 136 S.Ct. 338 (2015). Accordingly, the court did
not err in applying the Guidelines in effect on the date the conspiracy was
terminated; nor did it err in its finding bribes paid by James Panos during the
existence of the conspiracy were attributable to Jennifer Panos as relevant
conduct, as it was foreseeable to her that the bribes had been paid and were
ongoing. See Olis, 429 F.3d at 545; see also Alaniz, 726 F.3d at 618–19.
James Panos contends the Government violated its immunity agreement
with him by citing facts learned during his debriefings in its opposition to his
sentencing memorandum. He further maintains the court erred in relying on
those facts in denying his objection to the bribery enhancement. He did not
claim in district court, however, that the Government breached the immunity
agreement; at sentencing, his general statement regarding the facts contained
in the agreement was insufficient to “alert the . . . court to the nature of the
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alleged error and . . . provide an opportunity for correction”. United States v.
Neal, 578 F.3d 270, 272 (5th Cir. 2009). Accordingly, review is only for plain
error. United States v. Munoz, 408 F.3d 222, 226 (5th Cir. 2005). Under this
standard, he must show a forfeited plain (clear or obvious) error that affected
his substantial rights. E.g., Puckett v. United States, 556 U.S. 129, 135 (2009).
If he does so, our court has discretion to correct the reversible plain error, but
should do so only if it seriously affects the fairness, integrity, or public
reputation of the proceedings. Id.
Pursuant to Guideline § 1B1.8(a), “Where a defendant agrees to
cooperate with the [G]overnment by providing information concerning
unlawful activities of others, and as part of that cooperation . . . the
[G]overnment agrees that self-incriminating information will not be used
against the defendant, . . . such information shall not be used in determining
the applicable guideline range, except to the extent provided in the agreement”.
Even assuming, arguendo, the Government’s reference to facts learned during
his debriefing was clear-or-obvious error, James Panos cannot show his
substantial rights were affected. He is unable to demonstrate “a reasonable
probability that, but for the alleged error, he would have received a lesser
sentence”. United States v. Adesoye, 383 F. App’x 421, 424 (5th Cir. 2010)
(citing United States v. Mondragon-Santiago, 564 F.3d 357, 364–65 (5th Cir.
2009)). As noted supra, the record provides ample independent evidence he
bribed law enforcement officials during the conspiracy, which supports
imposition of the enhancement. See United States v. Yzaguirre, 406 F. App’x
919, 921 (5th Cir. 2011).
Additionally, he has not shown the court relied on the improper
information in imposing the bribery enhancement. His reliance on Santobello
v. New York, 404 U.S. 257 (1971) and United States v. Harper, 643 F.3d 135
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(5th Cir. 2011), in support of his contention he is not required to show the
Government’s breach of the immunity agreement affected the court’s
sentencing decision, is unavailing. In Harper, our court applied Santobello in
vacating the defendant’s sentence and remanding for resentencing because the
Government had breached an immunity agreement. 643 F.3d at 139–43. The
error in Harper, however, was preserved, and an unpreserved breach-of-
immunity-agreement issue was reviewed by the Court in Puckett under the
plain-error standard, which required the defendant to show prejudice. Id. at
139; Puckett, 556 U.S. at 140–41.
Jennifer Panos asserts the court erred by increasing her offense level by
two levels, pursuant to Guideline § 2D1.1(b)(12), for maintaining a drug-
related premises. A court’s determination regarding the application of
§ 2D.1.1(b)(12) is a factual finding, reviewed for clear error. E.g., United States
v. Haines, 803 F.3d 713, 744 (5th Cir. 2015). She further contends, for the first
time on appeal, that the enhancement does not apply because it went into effect
on 1 November 2010. She adopts the assertions discussed supra regarding an
ex post facto violation. The objection was not preserved; therefore, review is
only for plain error. See United States v. Whitelaw, 580 F.3d 256, 259–60 (5th
Cir. 2009).
Under § 2D1.1(b)(12), a two-level enhancement is imposed if a defendant
“maintained a premises for the purpose of manufacturing or distributing a
controlled substance”. Jennifer Panos claims the court erred in finding drug
distribution was one of the primary or principal uses for the premises because:
the evidence does not show drug trafficking facilitated other illicit activities at
the club; the record shows Desperado’s was a legitimate business; the extent of
drug distribution at the club, and her own involvement in the business, was
overstated in the presentence investigation reports (PSRs); and she did not
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personally participate in, or profit from, drug distribution, because drug
proceeds were not a primary source of her livelihood. These contentions are
without merit. The court’s finding Jennifer Panos maintained a premises for
the purpose of manufacturing or distributing a controlled substance is
plausible in light of the unrebutted findings in the PSRs showing the extensive
role of drugs in fueling and enhancing the Panos’ business; therefore, it is not
clearly erroneous. See Alaniz, 726 F.3d at 618–19; Haines, 803 F.3d at 744–
45.
With regard to Jennifer Panos’ ex post facto claim, as noted above, the
Guidelines in effect on the date the conspiracy was terminated (here, December
5, 2012), may be applied without violating the Ex Post Facto Clause;
accordingly, there is no plain error. See Olis, 429 F.3d at 545; see also
§ 1B1.3(a)(1)(A)–(B).
Finally, Jennifer Panos contends the court erred by increasing her
offense level by four, pursuant to Guideline § 3B1.1(a), because she did not act
as an organizer or leader of criminal activity involving five or more
participants, or that was “otherwise extensive”. This factual determination is
reviewed for clear error. E.g., United States v. Ismoila, 100 F.3d 380, 394 (5th
Cir. 1996).
More than one person involved in a conspiracy can qualify as a leader or
organizer for purposes of the enhancement, and a defendant’s role can be
inferred from available facts. United States v. Ventura, 353 F.3d 84, 90 (5th
Cir. 2003); United States v. Cabrera, 288 F.3d 163, 174–75 (5th Cir. 2002). The
racketeering conspiracy involved prostitution and drug distribution. Jennifer
Panos maintains she supervised prostitution activities but not drug
distribution. As the Government asserts, however, it was proper for the court
to consider all of the illegal activities of the conspiracy in applying the role
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adjustment. See Ismoila, 100 F.3d at 395 (all relevant conduct is considered in
applying the role adjustment); United States v. Ceballos-Amaya, 470 F. App’x
254, 262 (5th Cir. 2012) (same). The record amply supports the court’s finding
that Jennifer Panos: exercised decision-making authority over the
racketeering enterprise; recruited accomplices by hiring and firing the
employees who ultimately performed the acts of prostitution and/or sold
controlled substances; worked with her husband to manage the day-to-day
operation of the enterprise; and, along with him, took the greatest share of its
profits. See Ventura, 353 F.3d at 89–90.
AFFIRMED.
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