United States v. Mints

*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 R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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
December 21, 2005
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 04-11343
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WENDELL LYNN MINTS,
Defendant- Appellant.
Appeal from the United States District Court for
the Northern District of Texas
(USDC No. 7:02-CR-14-ALL)
_________________________________________________________
Before REAVLEY, DAVIS and PRADO, Circuit Judges.
PER CURIAM:*
Mints appeals (1) his jury conviction under a multi-count indictment for one count
of conspiracy on the grounds of insufficient evidence, and (2) the 41-month sentence
imposed by the district court on the grounds that the court unconstitutionally enhanced

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his sentence on the basis of facts neither pleaded to nor proved in violation of United
States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005). For the following reasons, we
affirm the conviction but remand for the limited purpose of consideration by the district
court of whether it will impose a different sentence under the now-advisory sentencing
guidelines and resentencing is necessary:
1. A conspiratorial agreement may be implicit, and the jury may infer its
existence from circumstantial evidence. United States v. Montgomery, 210
F.3d 446, 449 (5th Cir. 2000). In this case, there is strong circumstantial
evidence of an agreement between Mints and Rural Community Insurance
Services adjustor, Gracchus Feldman to file false crop loss claims. The two
men worked daily in close physical proximity and had a long-term working
relationship. See United States v. Brito, 136 F.3d 397, 409 (5th Cir. 1998)
(“[A] conspiracy can be inferred from a combination of close relationships
or knowing presence and other supporting circumstantial evidence.”).
Feldman acknowledged that he had never before received a schedule of
insurance from any farmer with the appraisals already filled out as the
appraisals in this case were. Given their lengthy experience in the
agriculture industry, the two men were equally aware that Feldman could
not properly inspect and count Mints’s crops, alleged to have failed in June
or July, in November, when Mints submitted the schedules to Feldman.
That Feldman calculated backward from the numbers provided by Mints to

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arrive at crop counts and that both men signed off on the reverse-engineered
and backdated production and appraiser sheets strongly suggests a tacit
agreement to bypass proper claim procedures. Further, Feldman testified
that it was implied that he and Mints agreed on the course of action to be
taken regarding Mints’s crop claims. Viewing the evidence in the light
most favorable to the verdict, we find that a rational trier of fact could have
found beyond a reasonable doubt that an implicit agreement existed
between Mints and Feldman. United States v. Jackson, 313 F.3d 231, 233-
34 (5th Cir. 2002).
2. Because, under a mandatory sentencing guideline regime, the district court
applied sentencing enhancements based on judicial fact finding regarding
loss amounts and Mint’s role in the scheme, Booker error occurred. See
United States v. Akpan, 407 F.3d 360, 375 (5th Cir. 2005). Because Mints
preserved the Booker error, we review under a harmless error standard. Id.
at 376. In its oral pronouncement of sentence, the district court expressly
stated that it might consider taking evidence of Mint’s good character into
consideration as a mitigating factor and impose a different sentence but for
the preclusion of such consideration by the mandatory guidelines.
However, in an addendum to the written judgment but not during oral
pronouncement, the court stated that if the guidelines were determined to be
unconstitutional, it would “take into consideration the factors addressed in

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the Sentencing Guidelines” and would impose the same sentence.
Sentencing in a criminal case is governed by Federal Rule of Criminal
Procedure 43. Under Rule 43(a)(3), a defendant must be present for
sentencing and we have strictly construed this requirement. See United
States v. Navarro, 169 F.3d 228, 239 (5th Cir. 1999) (holding under prior
version of the rule that sentencing via video conference violated FED. R.
CRIM. P. 43). Imposition of an alternative sentence outside of the
defendant’s presence does not comport with this requirement. Further,
where there is a conflict between the oral pronouncement and the written
judgment, the oral pronouncement controls. United States v. English, 400
F.3d 273, 276 (5th Cir. 2005). Because the court’s oral pronouncement
indicated that it would consider imposing a different sentence absent the
mandatory nature of the Guidelines and because the inconsistent alternative
sentence was not pronounced in Mints’s presence in open court, the
Government has not met its burden to establish beyond a reasonable doubt
that the court would have imposed the same sentence under an advisory
guidelines scheme.
3. Given our disposition of this case, we do not directly address Mint’s
complaints regarding the district court’s loss calculations or adjustment to
his sentence based on his role in the offense. See Akpan, 407 F.3d at 377
n.62 (leaving to the discretion of the district court whether to impose

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identical adjustments on remand). We clarify that, post-Booker, a
sentencing judge remains entitled to find by a preponderance of the
evidence all facts relevant to the determination of a Guideline sentencing
range and all facts relevant to the determination of a non-Guidelines
sentence. United States v. Mares, 402 F.3d 511, 519 (5th Cir. 2005). The
Booker error here lay in such judicial fact finding under a mandatory
guidelines scheme. Id.
We note that, because the record on appeal does not include the
exhibit showing the loss calculations ultimately adopted by the district
court, we are unable to make any observation as to the formulaic or
mathematical correctness of the court’s calculation. We assume that the
court, on remand, will clarify its calculations for the record. By way of
guidance, we do not find problematic the court’s inclusion of claims made
by Mints (but not paid) under the crop disaster program nor the paid 1999
claims on the specific crops for which Mints contends no evidence of non-
planting exists. The former clearly fall within the definition of intended
loss under the Guidelines. See U.S. SENTENCING GUIDELINES MANUAL §
2F1.1, cmt. (n.8)(b)(1)(A) (1998), as later clarified by § 2B1.1, cmt.
(n.3(A)(ii)) (2004). The latter were contractually forfeited by Mints in the
event of fraudulent claims on other 1999 crops and, to the extent such
fraudulent claims were proved, the wrongfully paid claims can fairly be

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considered part of the loss Mints intended in the overall scheme.
CONVICTION AFFIRMED; REMANDED FOR LIMITED RECONSIDERATION
CONSISTENT WITH THIS OPINION.

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