UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4117
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JAMES LESTER PENNIEGRAFT,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. James A. Beaty, Jr.,
District Judge. (CR-03-454)
Submitted: March 15, 2006 Decided: April 20, 2006
Before WILKINSON, NIEMEYER, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Bruce A. Lee, BRUCE A. LEE, P.A., Greensboro, North Carolina, for
Appellant. Anna Mills Wagoner, United States Attorney, L. Patrick
Auld, Assistant United States Attorney, Greensboro, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
James Lester Penniegraft pled guilty to conspiracy to
commit loan, mail, wire, and bank fraud, in violation of 18 U.S.C.
§ 371 (2000). He was sentenced to sixty months in prison. He now
appeals. We affirm.
Penniegraft claims that his sixty month sentence violates
the rule announced in United States v. Booker, 543 U.S. 220 (2005).
Because Penniegraft raised this Sixth Amendment claim below, our
review is de novo. See United States v. Mackins, 315 F.3d 399, 405
(4th Cir. 2003).
Penniegraft’s base offense level was six. See U.S.
Sentencing Guidelines Manual § 2B1.1(a)(2) (2004). At sentencing,
the parties stipulated that: the amount of loss was more than
$200,000 and not more than $400,000, for a twelve-level increase in
Penniegraft’s offense level, see USSG § 2B1.1(b)(1)(G); the offense
involved ten or more victims, for an increase of two levels, see
USSG § 2B1.1(b)(2)(A); and Penniegraft was an organizer or leader
of the conspiracy, for a four-level increase, see USSG § 3B1.1(a).
The court determined that Penniegraft had abused a position of
trust and increased the offense level by two levels, see USSG
§ 3B1.3. Penniegraft’s adjusted offense level therefore was 26.
He received a three-level adjustment for acceptance of
responsibility, see USSG § 3E1.1(b), for a total offense level of
23. Penniegraft’s criminal history category was III. His
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resulting guideline range was 57-71 months. Because of the
statutory maximum penalty of five years, see 18 U.S.C. § 371, the
range became 57-60 months.
Penniegraft claims that the enhancement for abuse of
position of trust violates the Sixth Amendment under Booker.
Without the enhancement, Penniegraft’s adjusted offense level would
have been 24, and his guideline range would have been 63-78 months
in prison. Because Penniegraft’s sixty-month sentence does not
exceed the maximum penalty authorized by the facts to which he
stipulated, there was no Sixth Amendment violation requiring
resentencing. See United States v. Evans, 416 F.3d 298, 300 (4th
Cir. 2005).
We accordingly affirm Penniegraft’s sentence. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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