United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 21, 2006
Charles R. Fulbruge III
Clerk
No. 05-51163
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TERRY RAY PENNELL,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:02-CR-284-ALL
--------------------
Before STEWART, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
Terry Ray Pennell was convicted by a jury of wire fraud,
engaging in monetary transactions in property derived from
unlawful activity, and laundering monetary instruments.
Previously, we affirmed the district court’s loss calculation but
we vacated Pennell’s sentence and remanded for resentencing under
United States v. Booker, 543 U.S. 220 (2005). United States v.
Pennell, 409 F.3d 240, 245–46 (5th Cir. 2005). On remand, the
district court deviated downward in sentencing Pennell to
concurrent 36-month terms of imprisonment and to concurrent
*
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this opinion should not be published and is not precedent except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. 05-51163
-2-
three-year periods of supervised release. The district court
again ordered Pennell to pay $234,552.48 in restitution. Pennell
gave timely notice of his appeal.
Pennell contends that the amount of the loss should have
been determined by the jury rather than the district court.
Pennell was sentenced on remand pursuant to advisory guidelines.
There was no Sixth Amendment violation. See United States v.
Johnson, 445 F.3d 793, 797-98 (5th Cir. 2006). Pennell contends
also that the district court erred in determining that the actual
loss was $234,552.48. He contends that the district court should
not have included in that sum a $37,000 term loan. This issue
exceeds the scope of our remand order. See United States v.
Hamilton, 440 F.3d 693, 697–99 (5th Cir. 2006). The judgment is
AFFIRMED.