UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _______________________

No. 99-11227 Summary Calendar Civil Docket #3:99-CR-136-2-L _______________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DELANO MARCEL ROBINSON,

Defendant-Appellant. _________________________________________________________________

Appeal from the United States District Court for the Northern District of Texas _________________________________________________________________

September 15, 2000

Before DAVIS, JONES, and DeMOSS, Circuit Judges.

EDITH H. JONES, Circuit Judge:*

On appeal from a conviction for conspiracy to commit bank

fraud, appellant Robinson challenges the amount of loss calculation

that the court used to determine relevant conduct for sentencing

purposes. Finding neither legal error nor clear error in the

court’s determination of the facts, we affirm.

According to the Presentence Report, Robinson came in on

the ground floor of a large bank fraud conspiracy that operated in

the Dallas-Fort Worth area. Specifically, Robinson, who had

* 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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. already participated in a fraud exceeding $10,000 that utilized

his own bank account, introduced the ringleader Simpkins to

codefendant Lee, who took charge of the Fort Worth branch of the

conspiracy. Paragraph 16 of the PSR states that “Simpkins

explained in depth to Robinson and Lee the Bank One scheme.

Simpkins advised Lee and Robinson if they could find persons who

had Bank One accounts, . . . Simpkins, Robinson and Lee could all

make some money.” Pursuant to this plan, Robinson recruited

numerous account holders in Fort Worth and assisted a number of

them in the fraud.

Robinson now objects that the PSR tied the amount of bank

losses relevant to his sentencing not only to those that he

personally induced, but also to some of the losses perpetrated by

other members. He points out that a relevant conduct finding under

U.S.S.G. § 1B1.3 involves not only reasonable forseeability of the

loss – a point he concedes on appeal – but also that the conduct be

“jointly undertaken” by him and the other codefendants. U.S.S.G.

§ 1B1.3(a)(1)(B).

Contrary to Robinson’s arguments, we find, first, that

the requirement of a joint undertaking was specifically recognized

by the probation office in the addendum to the PSR, at page 3.

Thus, in concluding that the PSR correctly calculated the amount of

loss, the court approved a finding based on the correct legal test.

Moreover, the court did not clearly err in implicitly finding that

Robinson jointly undertook the conspiracy with Simpkins and Lee and

2 therefore became responsible for losses beyond the ambit of his

personal acts. The above-noted portions of the PSR examined and

explained Robinson’s thorough knowledge, understanding and

significant role in starting and maintaining the conspiracy. There

is a substantial factual underpinning in the PSR for the joint

undertaking prong of the relevant conduct determination.

Robinson’s reliance on United States v. Evbuomwan,

(5th Cir. 1993), is misplaced. While that case affirmed

that under the Guidelines, courts must initially determine what

criminal conduct a defendant has jointly undertaken, there was no

hint in the record or PSR that the defendant was aware of the

separate fraud perpetrated by an associate of his. In this case,

by contrast, Robinson was one of the initiators of the scheme,

together with Simpkins and Lee, and the PSR indicates, and Robinson

conceded in the hearing, that he knew a great deal about its

intended scope, even if not about the precise illegal transactions.

For these reasons, the district court’s loss calculation

contains no reversible error, and the sentence awarded by the

district court is AFFIRMED.

3