UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
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No. 97-50300
(Summary Calendar)
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UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ANDRE LEVERT POLK, also known as Milton
Johnson, also known as Andre Polk,
Defendant - Appellant.
Appeal from the United States District Court
For the Western District of Texas
(M0-96-CR-135-2)
February 17, 1998
Before WIENER, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Andre Levert Polk appeals his sentence following conviction
for aiding and abetting and conspiracy to commit fraud and related
activity in connection with access devices (credit card fraud). He
contends the district court erroneously applied the sentencing
guidelines in determining his sentence and ordered an excessive
amount of restitution. We conclude that the court did not abuse
*
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that this opinion should not be published and is not precedent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.
its discretion in applying § 5K2.3 to depart upwardly from the
guidelines on the basis of psychological injury. See United States
v. Wells, 101 F.3d 370 (5th Cir. 1996). Furthermore, the district
court’s findings regarding the amount of loss attributed to Polk
for purposes of establishing his offense level under § 2F1.1 were
not clearly erroneous. See U.S.S.G. § 2F1.1, comment. (n.8);
United States v. Krenning, 93 F.3d 1257, 1269 (5th Cir. 1996).
With regard to his other claims of error in sentencing, Polk has
failed to show plain error in the district court’s sentencing
determinations, to which he did not object below. See United
States v. Calverley, 37 F.3d 160, 162-64 (5th Cir. 1994) (en banc).
Finally, Polk has failed to demonstrate abuse of discretion with
respect to the district court’s order of restitution. See United
States v. Ismoila, 100 F.3d 380, 398-99 (5th Cir. 1996); United
States v. Aubin, 87 F.3d 141, 150 (5th Cir. 1996), cert. denied,
___U.S.___, 117 S. Ct. 965, 136 L. Ed. 2d 850 (1997).
AFFIRMED.
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