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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 00-10606
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
RUSSELL DANE REEVES,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Northern District of Texas
_________________________
June 20, 2001
Before SMITH, DUHи, and WIENER,
I.
Circuit Judges.
Reeves and his codefendants defrauded el-
derly persons by persuading them to turn over
JERRY E. SMITH, Circuit Judge:
money to be invested in what were really
sham companies. Reeves pleaded guilty of
Russell Reeves appeals his sentence, ar-
mail fraud targeting the elderly, a violation of
guing that the government breached the plea
18 U.S.C. її 2, 1341, and 2326, and securities
agreement and that the district court
fraud in violation of 15 U.S.C. її 77q(a)
improperly enhanced the sentence under
and 77x.
U.S.S.G. ї 3B1.3. Finding no reversible error,
we affirm.
Reeves and the government signed a
Factual Resume and a "Stipulation of
Applicable Guidelines," which included, inter
alia, a two level enhancement under ї 3B1.3

because the offense involved the abuse of a
we review only for plain error.2 United States
position of trust, an enhancement that Reeves
v. Branam, 231 F.3d 931, 933 (5th Cir. 2000).
reserved the right to challenge. The agreement
stated that "the government recommends that
the defendant be sentenced to a term of
Although "[t]he Government's breach of a
imprisonment of 72 months."
plea agreement can constitute plain error," id.
(quoting United States v. Wilder, 15 F.3d
The presentence report ("PSR") recom-
1292, 1301 (5th Cir. 1994)), "we will not ex-
mended all of the offense level enhancements
ercise our discretion to correct a forfeited
and reductions included in the stipulation and
error unless it seriously affects the fairness,
further recommended that Reeves's offense
integrity, or public reputation of judicial
level be increased by two levels pursuant to
proceedings," id. (citing United States v.
U.S.S.G. ї 2F1.1(b)(3) because the offense
Olano, 507 U.S. 725, 735-36 (1993)). In
was committed through mass marketing. In-
determining whether a plea agreement has
cluding the mass marketing enhancement, the
been breached, we inquire whether the
PSR calculated a sentencing guidelines range
government's conduct "is consistent with the
of 87-108 months' imprisonment.
defendant's reasonable understanding of the
agreement." Saling, 205 F.3d at 766 (quoting
At sentencing, the government objected to
United States v. Valencia, 985 F.2d 758, 761
the PSR's application of an enhancement for
(5th Cir. 1993)).
mass marketing.1 Reeves objected to the en-
hancements for mass marketing and abuse of
A.
trust. The court overruled the objections and
Reeves avers that the government breached
sentenced Reeves to 108 months'
the agreement by failing orally to recommend
imprisonment and three years' supervised
a 72-month sentence at the hearing. That con-
release for the securities fraud conviction and
tention has no merit.
60 months' imprisonment and three years'
supervised release for the mail fraud
The only statement that could be construed
conviction, to run concurrently.
even remotely as a promise on the part of the
government is the plea agreement's stipulation
II.
Reeves contends the government failed to
abide by its promise to recommend a 72-month
2 Reeves argues that he did in fact object at
sentence. Whether the government has
sentencing. That argument has no merit, however.
breached a plea agreement is a question of law
To avoid forfeiture, "[a] party must raise a claim
we review de novo. United States v. Saling,
of error with the district court in such a manner so
205 F.3d 764, 766 (5th Cir. 2000). Because
that the district court may correct itself and thus,
obviate the need for our review." United States v.
Reeves failed to object at sentencing, however,
Krout, 66 F.3d 1420, 1434 (5th Cir. 1995) (citing
United States v. Bullard, 13 F.3d 154, 156 (5th
Cir. 1994)). Reeves's counsel did not object, but
only informed the court that the government had
1 Without the mass marketing enhancement, the
recommended a sentence of 72 months. That
sentencing range would have included the
statement alone is insufficient to preserve the al-
recommended 72-month term.
leged error.
2

that "the government recommends that the de-
that, I just want the Court to consider
fendant be sentenced to a term of
that. I realize it's the Court's call here.
imprisonment of 72 months." On its face,
however, the statement promises nothing. In-
Reeves asserts that the statement functions as
stead, it anticipates that the plea agreement
a suggestion to sentence at the upper end of
would be incorporated into the PSR, which it
the guideline range, violating an implicit prom-
was, and thus that the recommendation would
ise in the plea agreement not to recommend
be self-executing, which it also was.
any sentence greater than 72 months.
To the extent the recommendation serves as
The government responds, however, that its
a promise to recommend, the promise was
statement must be viewed in context.
satisfied by the plea agreement's inclusion in
Reeves's counsel had just finished arguing that
the PSR.3 Under any standardSSand certainly
Reeves was not the leader of the scheme and
on plain error reviewSSwe cannot say that the
that the leaders had been given sentences
government breached the plea agreement in
lighter than those contemplated by the court.
this respect.
Given the misleading nature of defense
counsel's argument,4 the government contends
B.
that the statement merely fulfilled the
Reeves alleges the government breached
government's "duty to insure that the court
the agreement by making the following
has complete and accurate information
statement during the sentencing hearing:
concerning the defendant, thereby enabling the
court to impose an appropriate sentence."
Your honor, the only thing I would add
United States v. Block, 660 F.2d 1086, 1091
to his foundation, what he said with re-
(5th Cir. Unit B Nov. 1981). Because of this
spect to Mr. Reeves is true with respect
duty, "[e]fforts by the government to provide
to his involvement with Mr. Davenport.
relevant factual information or to correct mis-
The key thing in my mind and before the
statements are not tantamount to taking a
Court is the fact that he went out on his
position on the sentence and will not violate
own, formed his own company as a
the plea agreement." Id.; accord United States
mirror image of Mr. Davenport's
v. Goldfaden, 959 F.2d 1324, 1328 (5th Cir.
company, victimized elderly victims
1992).
directly, not as an employee but as the
main man. And then when this Court
Reeves's argument has some merit. Block
entered an order in the civil case, he
does not allow the government carte blanche
disobeyed that order, continued to
to argue for a higher sentence under the guise
victimize people. And with respect to
of correcting factual inaccuracies. See Saling,
205 F.3d at 766-67; Valencia, 985 F.2d at
759. Moreover, the government, when
3
correcting the factual misstatements, could
Cf. United States v. Cates, 952 F.2d 149, 153
have been more explicit in disclaiming any
(5th Cir. 1992) (interpreting the phrase "recom-
mend at sentencing" to mean an oral or written rec-
ommendation and finding the provision satisfied by
inclusion of the relevant recommendation in all the
4 Reeves indeed was the leader of at least one
documents that were before the sentencing court).
scheme.
3

recommendation.5
[ing] a position of private or public trust . . . in
a manner that significantly facilitated the com-
Nonetheless, we cannot say that the
mission . . . of the offense." We review the
government's statement falls so far outside its
application of the guideline to the facts for
entitlement under Block as to constitute plain
clear error, United States v. Smith, 203 F.3d
error. The statement made by Reeves's
884, 893 (5th Cir. 2000), and the district court
counsel created a palpable danger that the
need be convinced of the relevant facts only by
court would misperceive the relevant facts. In
a preponderance of the evidence, United
response, the government accurately restated
States v. Shugart, 117 F.3d 838, 848 (5th Cir.
the relevant facts, then merely asked the court
1997). Application of ї 3B1.3 is proper if
to consider those facts, while remarking that
"the defendant's job places the defendant in a
"it is the Court's call here." Considering the
superior position to commit a crime and the
absence of any argument by the government
defendant takes advantage of that superior po-
regarding the sentence or of any express
sition to facilitate a crime." United States v.
promise in the plea agreement that the
Dahlstrom, 180 F.3d 677, 685 (5th Cir. 1999)
government's statement plainly violated, the
(citing United States v. Brown, 7 F.3d 1155,
sentence is not plain error.6
1161 (5th Cir. 1993)), cert. denied, 529 U.S.
1036 (2000).
III.
Reeves argues that the court improperly en-
The district court adopted the PSR's
hanced his sentence under ї 3B1.3 for "abus-
findings that
[t]he defendant held a position of trust
with the elderly clients with whom he
5 See Saling, 205 F.3d at 767 n.10 (noting that
dealt, gaining that trust through false
even if there was a danger that the court possessed
and fraudulent pretenses. Numerous
inaccurate or incomplete information, "the
victims indicated that the defendant
prosecutor could have so informed the court and
gained their trust after selling them a re-
then expressly stated that the government would
not take a position on how [the information] should
vocable living trust account. After gain-
affect [the] sentence due to the written plea
ing the victims' trust and learning of
agreement.").
their assets, the defendant defrauded the
elderly victims by convincing them to
6 Cf. Saling, 205 F.3d at 767 (vacating a
invest large sums of money with the
sentence where the government promised not to op-
defendant. This "trust" significantly fa-
pose concurrent sentencing but then expressly did
cilitated the commission and
so); Valencia, 985 F.2d at 759-60 (vacating a
concealment of the offense.
sentence where the government promised not to
oppose a sentence reduction for acceptance of re-
There is sufficient evidence to support the fac-
sponsibility but then expressly did so); Goldfaden,
tual findings that the defendant held a position
959 F.2d at 1327 (finding plain error and vacating
of trust and that the position of trust signif-
a sentence where the government agreed not to
icantly facilitated the offense.
recommend any sentence but then "submitted four
memoranda to the probation department advocating
the use of different guideline sections to calculate
Reeves and his codefendants presented
his sentence").
4

themselves as, inter alia, financial planners, in
which role they advised clients to invest in a
company owned by a codefendant. They also
provided "estate planning services," including
the preparation of trust documents, an activity
for which the State Bar of Texas obtained an
injunction against Reeves's codefendant for
the unlawful practice of law. Reeves cannot
seriously argue that he did not occupy a
position of trust.7
Likewise, there is substantial evidence that
Reeves's position of trust significantly
facilitated the commission of his offenses.
Only after gaining his clients' trust by posing
as an estate planner did he advise them to
invest in his codefendant's company. Had he
not occupied the position of trust, the clients
presumably would not have followed his
investment advice. Moreover, there is
substantial evidence that Reeves's position as
estate planner gave him unique access to
clients' financial information, facilitating his
fraudulent schemes.8
The judgment of sentence is AFFIRMED.
7 See ї 3B1.3, cmt. 2 ("For example, the ad-
justment applies in the case of a defendant who . . .
perpetrates a financial fraud by leading an investor
to believe the defendant is a legitimate investment
broker . . . ."); accord United States v. Hirsch, 239
F.3d 221, 227 (2d Cir. 2001) (affirming abuse-of-
trust enhancement where defendant acted as an
investment advisor); United States v. Paneras, 222
F.3d 406, 413 (7th Cir. 2000) (affirming abuse-of-
trust enhancement where defendant posed as a
licensed securities dealer).
8 Cf. Smith, 203 F.3d at 893 (affirming an
abuse-of-trust enhancement where a bank teller
used her position to gain access to confidential in-
formation about bank procedures, facilitating a
bank robbery).
5