Case: 20-40157 Document: 00515822310 Page: 1 Date Filed: 04/14/2021
`
`United States Court of Appeals
`for the Fifth Circuit
`
`
`No. 20-40157
`
`
`
`United States Court of Appeals
`Fifth Circuit
`
`FILED
`April 14, 2021
`
`Lyle W. Cayce
`Clerk
`
`United States of America,
`
`
`
`
`versus
`
`
`Stewart Kile Williams,
`
`
`
`
`
`Plaintiff—Appellee,
`
`Defendant—Appellant.
`
`Appeal from the United States District Court
`for the Southern District of Texas
`USDC No. 1:18-CR-663-1
`
`
`
`Before Higginbotham, Costa, and Oldham, Circuit Judges.
`Andrew S. Oldham, Circuit Judge:
`
`The question presented is “Where’s the beef?” Wendy’s Kind of
`Commercial, Broadcasting, Mar. 26, 1984, at 57. Stewart Kile Williams
`pleaded guilty to four counts of wire fraud for purporting to broker cattle
`deals worth millions of dollars, pocketing the money, and then disappearing
`the herd. The district court ordered more than $2 million in restitution.
`Williams challenges that award on the ground that the Government failed to
`prove which cattle he sold and which he stole. We affirm.
`
`

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`Case: 20-40157 Document: 00515822310 Page: 2 Date Filed: 04/14/2021
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`No. 20-40157
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`I.
`
`A.
`
`For three years, Williams brokered cattle sales between Jones Alto
`Colorado Ranch and Wyatt Ranches of Texas. Wyatt Ranch bought the
`cattle. Jones Ranch sold them. And Jones Ranch paid Williams one third of
`its profits from the sales.
`
`The transactions began in late 2015. The first sale went off without a
`hitch. A few months later, in January of 2016, Williams made a second sale to
`Wyatt Ranch. This sale did not go as smoothly as the first order, but Wyatt
`Ranch received the cattle. So far, so good.
`
`In March of 2016, Williams made a third sale to Wyatt Ranch. Wyatt
`Ranch purchased black cows. But when the cows arrived, Wyatt Ranch was
`dissatisfied. Not only were they delivered late, they had “problems.” Some
`were the wrong color, some were barren and had no udders, and some were
`sick or had died. Wyatt Ranch said no dice; it returned the defective cattle.
`
`Bradford Wyatt, the administrator of Wyatt Ranch, complained to
`Williams and threatened to sue Jones Ranch based on the defective cattle.
`Williams made excuses and persuaded Wyatt Ranch not to sue by promising
`to provide additional cattle to make up for Wyatt Ranch’s losses. Williams
`eventually finalized the purchase, and he even threw in an extra $30,000
`worth of cattle. But Bradford Wyatt remained dissatisfied and decided Wyatt
`Ranch was “done with Williams.”
`
`Williams, however, wasn’t done with Wyatt Ranch. Though Bradford
`Wyatt stopped ordering cattle, Williams didn’t tell that to Jones Ranch.
`Instead, Williams pretended to be Bradford Wyatt. Williams got a new phone
`number and an email address (Bradford.a.Wyatt@outlook.com) and gave
`them to Jones Ranch. Then Williams used his fake identity to purchase more
`
`2
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`Case: 20-40157 Document: 00515822310 Page: 3 Date Filed: 04/14/2021
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`No. 20-40157
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`cattle from Jones Ranch. Williams forged Bradford Wyatt’s signature on
`purchase orders. And when Jones Ranch attempted to contact Wyatt Ranch
`personnel, Williams responded—pretending to be Bradford Wyatt.
`
`Under the pretense that “Bradford Wyatt” could not afford to prepay
`Jones Ranch for the cattle, Williams convinced Jones Ranch to front almost
`$2,000,000 to facilitate the sales. Jones Ranch paid some of that money to
`Williams directly; it paid some to various other ranches to purchase cattle for
`“Bradford Wyatt”; and it paid some to facilitate the storage, transportation,
`and feed of cattle that Williams fraudulently ordered. Jones Ranch’s losses
`included:
`
`• December 8, 2015: Jones Ranch transferred $105,000 to
`Williams;
`
`• February 2, 2016: Jones Ranch transferred $61,224 to Williams
`(including $25,244 for a feed mixer);
`
`• March 21, 2016: Jones Ranch transferred $285,000 to
`Williams;
`
`• April 18, 2016: Jones Ranch transferred $85,200 to Jordan
`Cattle Auction;
`
`• May 12, 2016: Jones Ranch transferred $601,150 to Williams;
`• July 25, 2016: Jones Ranch transferred $303,000 to Williams;
`• September 7, 2016: Jones Ranch transferred $369,175 to Jordan
`Cattle Auction;
`
`• March 24, 2017: Jones Ranch transferred $143,500 to Maddux
`Cattle Co.;
`
`• July 18, 2017: Jones Ranch issued a cashier’s check in the
`amount of $185,000 to Cross M. Cattle; and
`
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`Case: 20-40157 Document: 00515822310 Page: 4 Date Filed: 04/14/2021
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`No. 20-40157
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`• August 24, 2017: Jones Ranch issued a cashier’s check in the
`amount of $58,500 to Williams’s company, Casa Cattle.
`
`Although Jones Ranch made these transfers to Williams and other
`entities, “Bradford Wyatt” missed several payments. So Jones Ranch sought
`a promissory note and security agreement to protect itself. Williams signed
`the promissory note and security agreement—again doing so under the false
`pretense of being Bradford Wyatt.
`
`Eventually, Jones Ranch contacted Wyatt Ranch about its failure to
`pay. Bradford Wyatt was confused—he hadn’t authorized an order or
`received any cattle since March of 2016. Jones Ranch called the number
`Williams had provided. When Williams answered, he pretended to be
`Bradford Wyatt. But upon learning that the real Bradford Wyatt was on the
`line, Williams confessed.
`
`B.
`
`A grand jury charged Williams with four counts of wire fraud in
`violation of 18 U.S.C. § 1343 and one count of aggravated identity theft in
`violation of 18 U.S.C. § 1028A(a)(1). Williams pleaded guilty to the wire-
`fraud counts. Under his plea agreement, Williams waived his right to appeal.*
`In exchange, the Government dropped the aggravated-identity-theft charge.
`
`The principal dispute at sentencing was how to quantify the losses
`Williams imposed on his victims. To determine the custodial sentence, the
`district court turned to the U.S. Sentencing Guidelines. Under those
`Guidelines, the offense level for wire fraud is based on the greater of the
`actual or intended loss. See U.S.S.G. § 2B1.1 cmt. n.3(A). Using that definition
`
`
`
`* The parties agree that the appeal waiver in Williams’s plea agreement does not
`bar his challenge to the restitution order. They correctly interpret Fifth Circuit precedent
`on this point. See United States v. Leal, 933 F.3d 426, 430–31 (5th Cir. 2019).
`
`4
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`Case: 20-40157 Document: 00515822310 Page: 5 Date Filed: 04/14/2021
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`No. 20-40157
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`of the loss amount, the Pre-Sentence Report (“PSR”) recommended an
`offense level of 25:
`
`U.S.S.G.
`
`§ 2B1.1(a)(1)
`
`Description
`
`Offense
`Level
`Base offense level for wire fraud, § 1343 7
`
`§ 2B1.1(b)(1)(I)
`
`Intended loss amount of $2,574,500
`
`§ 2B1.1(b)(17)(A)
`
`Total
`
`Deprived financial institution of
`$2,196,749 in gross receipts
`
`
`+16
`
`+2
`
`25
`
`The district court accepted the PSR’s loss estimates. Using an offense level
`of 25 and Williams’s criminal-history category of II, the PSR recommended
`a Guidelines range of 63 to 78 months. After hearing passionate victim-
`impact testimony about the “devastating” effect of Williams’s fraud on
`Jones Ranch, the district court imposed a within-Guidelines sentence of 70
`months in prison.
`
`The district court then scheduled a separate hearing to determine its
`restitution award. The Mandatory Victim Restitution Act (“MVRA”)
`mandates restitution to victims of offenses under Title 18 that are
`“committed by fraud or deceit.” 18 U.S.C. § 3663A(c)(1)(A)(ii); see United
`States v. Shelton, 694 F. App’x 220, 223 (5th Cir. 2017) (per curiam). That
`obviously includes wire fraud. The MVRA also requires restitution for
`offenses “in which an identifiable victim or victims has suffered a . . .
`pecuniary loss.” 18 U.S.C. § 3663A(c)(1)(B). That obviously includes Jones
`Ranch. But unlike the Guidelines—under which intended losses can affect a
`custodial sentence—“[t]he MVRA limits restitution to the actual loss
`directly and proximately caused by the defendant’s offense of conviction.”
`United States v. Sharma, 703 F.3d 318, 323 (5th Cir. 2012) (emphasis added).
`
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`Case: 20-40157 Document: 00515822310 Page: 6 Date Filed: 04/14/2021
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`No. 20-40157
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`At its restitution hearing, the district court examined the disputed
`losses. For each line item, the district court credited a victim-impact
`statement averring that the expense constituted an actual loss. It then gave
`Williams an opportunity to rebut the Government’s evidence. Williams
`responded that he couldn’t show which payments resulted in a loss and
`which didn’t: “[I]n a sense my hands are somewhat tied in being able to rebut
`these things . . . it’s almost impossible to parse out what is legitimate and
`what allegedly is not.”
`
`The district court noted that the Government submitted evidence,
`victim-impact statements, and the PSR to justify each of its loss amounts—
`with two exceptions. First, Jones Ranch received the mixer it purchased from
`Williams. And second, the district court concluded that the $105,000
`payment made in December of 2015 fell outside of Williams’s fraudulent
`scheme. The district court excluded those two amounts from Jones Ranch’s
`losses, leaving a final tally of $2,066,525. The district court entered an
`MVRA restitution award for that amount. Williams timely appealed.
`
`II.
`
`We review the legality of an MVRA award de novo, and we review its
`amount for abuse of discretion. See United States v. Mathew, 916 F.3d 510, 515
`(5th Cir. 2019). “The finding regarding the amount of loss is a factual finding
`[reviewed] for clear error.” Id. at 516. And the district court’s finding isn’t
`clearly erroneous if it’s “plausible in light of the record as a whole.” Ibid.
`(quoting United States v. Harris, 597 F.3d 242, 250 (5th Cir. 2010)).
`
`We start as always with the text of the statute. As relevant here, the
`MVRA requires a restitution award to reflect “the value of the . . . loss.” 18
`U.S.C. § 3663A(b)(1)(B)(i)(I). We have interpreted that provision to mean
`actual loss, not intended loss. See, e.g., United States v. Beydoun, 469 F.3d 102,
`
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`Case: 20-40157 Document: 00515822310 Page: 7 Date Filed: 04/14/2021
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`No. 20-40157
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`107 (5th Cir. 2006) (“The MVRA does not permit restitution awards to
`exceed a victim’s loss. . . . The court may not award the victim a windfall.”).
`
`The MVRA further says “[t]he burden of demonstrating the amount
`of the loss sustained by a victim as a result of the offense shall be on the
`attorney for the Government.” 18 U.S.C. § 3664(e). The same provision also
`says, however, “[t]he burden of demonstrating such other matters as the
`court deems appropriate shall be upon the party designated by the court as
`justice requires.” Ibid. We have interpreted these two statutory sentences to
`establish a burden-shifting framework for loss-amount calculations. The
`Government first must carry its burden of demonstrating the actual loss to
`one or more victims by a preponderance of the evidence. Then the defendant
`can rebut the Government’s evidence. See, e.g., Sharma, 703 F.3d at 325
`(noting that we’ve “approved the transfer of at least a portion of the burden
`to a defendant to establish his entitlement to a restitution credit” in several
`cases); United States v. Loe, 248 F.3d 449, 470 (5th Cir. 2001) (affirming the
`rejection of a restitution credit where the defendant “was unable to provide
`reliable evidence supporting its [offset] claims”); United States v. Sheinbaum,
`136 F.3d 443, 449 (5th Cir. 1998) (stating the defendant bore “the burden of
`proving an offset” to restitution for any amounts it paid the victim in a civil
`settlement).
`
`Here the Government easily met its burden. It led the district court
`through each and every line item in its restitution request. For each one, the
`Government offered victim-impact testimony swearing that money was paid
`and nothing was received. The Government also offered the PSR’s findings,
`which the district court previously accepted. See Sharma, 703 F.3d at 323
`(noting a district court can rely on actual-loss amounts in the PSR if the
`amounts have “an adequate evidentiary basis and remain[] unrebutted by the
`defendants”). Based on the evidence, the district court found that Jones
`Ranch did not suffer an actual loss of two expenses: (1) the $105,000 payment
`
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`Case: 20-40157 Document: 00515822310 Page: 8 Date Filed: 04/14/2021
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`No. 20-40157
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`in December of 2015, and (2) the mixer received by Jones Ranch. The district
`court gave Williams credit for both and then ordered restitution for the
`balance. The district court did not err, much less clearly err or abuse its
`discretion.
`
`Our decision in United States v. Antonucci, 667 F. App’x 121 (5th Cir.
`2016) (per curiam), is not to the contrary. In that case, the district court did
`not analyze each of the victim’s expenses to ensure they were actual losses;
`the court instead presumed that all charges the defendant made using his
`employer’s credit card constituted “loss.” Id. at 123. On appeal, the
`Government conceded that was an erroneous methodology because it
`might’ve approximated the victim’s losses but certainly didn’t measure
`actual losses. Id. at 124.
`
`This case is very different. Here the Government concedes nothing.
`And here the district court approximated nothing. It went through the data
`itself, considered the testimony and evidence, and found that each line item
`individually constituted an actual loss by a preponderance of the evidence.
`
`The Government bore its burden of proving an actual loss of
`$2,066,525. Williams’s only response
`is that he cannot rebut the
`Government’s evidence because he did not keep records of where the legal
`beef sales ended and the fraudulent ones began. That won’t cut it.
`
`AFFIRMED.
`
`8
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`