United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 10, 2005
Charles R. Fulbruge III
Clerk
No. 04-10803
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TOMMY E. T. INGRAM,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:04-CR-46-A-1
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Before JONES, BARKSDALE and PRADO, Circuit Judges.
PER CURIAM:*
Tommy E. T. Ingram appeals his sentence following his guilty
plea to one count of mail fraud and one count of subscribing to a
false tax return.
Ingram argues that the district court erred in finding that
the loss amount attributable to him for sentencing and
restitution purposes was approximately $12,500,000. Following
the Supreme Court’s decision in United States v. Booker, 125
S. Ct. 738 (2005), this court has held that the application and
*
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this opinion should not be published and is not precedent except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.
No. 04-10803
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interpretation of the guidelines continue be reviewed de novo.
See United States v. Villegas, __ F.3d __, No. 03-21220, 2005 WL
627963 at *2, (5th Cir. Mar. 17, 2005). When the parties have
agreed that factual findings are reviewed for clear error, we
also have “assume[d] without deciding that clear error is the
proper standard post-Booker.” United States v. Infante, __ F.3d
__, No. 02-50665, 2005 WL 639619 at *12 n.14, (5th Cir. Mar. 21,
2005). Prior to Booker, the parties in the instant case also
agreed that factual findings should be reviewed for clear error.
Therefore, we “assume without deciding” that the clear error
standard applies. See id.; see also United States v. Randall,
157 F.3d 328, 330 (5th Cir. 1998) (loss amount under U.S.S.G.
§ 2F1.1 reviewed for clear error). The propriety of a particular
award of restitution is reviewed for an abuse of discretion. See
U.S. v. Hughey, 147 F.3d 423, 436 (5th Cir. 1998).
The district court did not clearly err in attributing fraud
committed by Ingram’s co-defendant to him or abuse its discretion
in its restitution award. Ingram admits that he knew
approximately 60% of the submitted invoices were fraudulent.
Despite Ingram’s assertion that he could not determine whether
the other invoices were fraudulent because he was unqualified for
his job, given that the scale of the fraud was so great, the
district court’s finding that the full amount of the fraud was
reasonably foreseeable to him was not clearly erroneous.
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Ingram also argues that the district court clearly erred by
imposing a two-level enhancement for the use of “sophisticated
means.” U.S.S.G. § 2F1.1(b)(6)(C). Although the basic
principles of the scheme were simple, Ingram and Brooks used
sophisticated means to carry out their scheme, to shield it from
scrutiny, and to disguise the source of their gains. The
district court’s findings were not clearly erroneous.
Ingram also argues that the district court erred by denying
a reduction for acceptance of responsibility. Our standard of
review is highly deferential, and we will “affirm a sentencing
court’s decision not to award a reduction under U.S.S.G. § 3E1.1
unless it is ‘without foundation.’” United States v. Anderson,
174 F.3d 515, 525 (5th Cir. 1999). The district court’s decision
was not “without foundation.” Although Ingram entered a timely
guilty plea and provided extensive information to the Government,
the district court found that he had tried to minimize the amount
of money he received and his awareness of the scope of the
scheme.
Ingram also argues that his sentence must be vacated
pursuant to Blakely v. Washington, 124 S.Ct. 2531 (2004). He
concedes that this issue was not raised below and that plain
error review applies. Neither party has addressed the effect of
the Supreme Court’s recent decision in Booker, which held that
Blakely was applicable to the federal sentencing guidelines.
125 S. Ct. at 746. We conclude that, following Booker, Ingram
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has demonstrated “error” that was “plain” because the district
court made findings not admitted or proven to a jury that
resulted in an enhanced sentence. See United States v. Mares, __
F.3d __, No. 03-21035, 2005 WL 503715 at *8 (5th Cir. Mar. 4,
2005). However, because the district court sentenced Ingram to
the statutory maximum (and indicated it would have imposed an
even higher sentence but for the statutory maximum), we conclude
that Ingram can not demonstrate that the district court “would
have reached a significantly different result” under an advisory
scheme. Id. at *8-9.
AFFIRMED.