United States v. Polk

                   UNITED STATES COURT OF APPEALS
                            FIFTH CIRCUIT

                         _________________

                            No. 97-50300

                         (Summary Calendar)
                          _________________


          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that this opinion should not be published and is not precedent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.




                               -2-