IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-10722
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff-Appellee,
versus
BARBARA LYNN WILKS,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Texas
(00-CR-304)
February 4, 2002
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Appellant Barbara Lynn Wilks pled guilty to conspiring to
fraudulently obtain identification documents to obtain property
valued at more than $1,000 in violation of 18 U.S.C. §§ 371 &
1028(a)(7). She was sentenced to 46 months in prison, three years
of supervised release, and a $100 special assessment. Appellant
appeals her sentence, claiming that the information used by the
district court to calculate a total loss of $180,000 in order to
*
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this opinion should not be published and is not precedent except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.
justify a seven-level increase in her offense level pursuant to
U.S.S.G. § 2F1.1 was unreliable. She also claims that the
information used by the district court to support a two-point
upward adjustment pursuant to U.S.S.G. § 2F1.1 comment (n.12) was
unreliable and that the upward departure constitutes impermissible
“double counting.”
A district court’s loss determination is a factual finding.1
Appellant did not object at sentencing to the seven-level increase
in the offense level, and thus we review only for plain error.2
Questions of fact capable of resolution by the district court can
never constitute plain error.3 Appellant also argues that the
district court violated the Equal Protection Clause because her
sentence is longer than the sentences of codefendants who were more
culpable. This argument is without merit.4
Appellant also failed to object to the two-point upward
departure made pursuant to U.S.S.G. § 2F1.1 comment (n.12), and
once again we review only for plain error. To the extent that she
argues that the factual findings of the district court do not
support the two-point departure, those findings cannot constitute
plain error.5 Appellant also argues that the two-level upward
1
United States v. Wimbish, 980 F.2d 312, 313 (5th Cir. 1992).
2
United States v. Chung, 261 F.3d 536, 539 (5th Cir. 2001).
3
Id.
4
United States v. Lemons, 941 F.2d 309, 320 (5th Cir. 1991).
5
Chung, 261 F.3d at 539.
departure was the result of “double counting.” Double-counting is
not prohibited unless expressly forbidden by the guideline at
issue.6 There is no error here. AFFIRMED.
6
United States v. Calbat, 266 F.3d 358, 364 (5th Cir. 2001).