United States v. Vil

* 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that this opinion should not be published and is not precedent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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-30064
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DELY PASCAL VIL,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 97-CR-30024-1
--------------------
August 23, 2000
Before KING, Chief Judge, and POLITZ and WIENER, Circuit Judges.
PER CURIAM:*
Dely Pascal Vil has appealed the district court’s judgment
sentencing him to pay $50,000 in restitution following his
guilty-plea conviction for wire fraud.
Vil’s wire fraud scheme involved the use of modified
automatic tone dialers which enabled him and others to make long
distance phone calls without paying a toll charge to South
Central Bell. Vil asserts that he should be responsible to make
restitution only for those phone calls made directly by him.

-- 1 of 2 --

No. 00-30064
-2-
The district court’s determination that $50,000 in unpaid
telephone charges was attributable to Vil is a factual finding
subject to the clear error standard. See United States v. Flucas,
99 F.3d 177, 178 (5th Cir. 1996). A factual finding is not
clearly erroneous as long as it is plausible in light of the
record read as a whole. United States v. Krenning, 93 F.3d 1257,
1269 (5th Cir. 1996).
As a basis for his plea agreement, Vil signed a factual
resume stating that he had sold the devices to some students and
that he had programmed devices purchased by others. The factual
resume also stated that based on “the number of calls made and
the devices attributable to [him] ...” the estimated loss to
South Central Bell was between $50,000 and $150,000. When Vil
sold and programmed the devices for other students, it was
foreseeable that those other students would use the devices to
make phone calls without paying for them. Therefore, Vil may
properly be sentenced to make restitution for phone calls made by
other students in this scheme. See U.S.S.G. § 1B1.3(a)(1)(B).
In light of the foregoing, the district court did not
clearly err in sentencing Vil to make restitution to South
Central Bell in the amount of $50,000. The judgment of the
district court is AFFIRMED.

-- 2 of 2 --