                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 04-4835



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


SHONATE HEMBY-BROWN,

                                            Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   Louise W. Flanagan,
District Judge. (CR-04-26-FL)


Submitted:   October 21, 2005          Decided:     November 15, 2005


Before NIEMEYER and TRAXLER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed in part; vacated and remanded in part by unpublished per
curiam opinion.


Vaughan S. Winborne, Jr., Raleigh, North Carolina, for Appellant.
Frank D. Whitney, United States Attorney, Anne M. Hayes, Christine
Witcover Dean, Assistant United States Attorneys, Raleigh, North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

            Shonate Hemby-Brown appeals her conviction for conspiracy

to commit bank fraud in violation of 18 U.S.C. §§ 371, 1344 (2000),

and the 58-month sentence imposed. She contends on appeal that the

indictment was defective for failing to name a federally insured

financial institution as the entity that was defrauded and that her

sentence is unconstitutional in light of United States v. Booker,

125 S. Ct. 738 (2005).       For the reasons that follow, we affirm

Hemby-Brown’s conviction, but vacate the sentence and remand to

district court for resentencing.

            Hemby-Brown was employed by Wireless Retail, a cellular

phone store.     In the course of her employment, Hemby-Brown had

access to names, social security numbers, dates of birth, and bank

account numbers for various customers of Wireless Retail.           Hemby-

Brown began to provide Levert Clarke with the personal information

of Wireless Retail’s customers.        Clarke then used this information

to establish fraudulent cellular phone accounts and to activate

stolen cell phones either for his own use or to sell to others.

            Clarke also shared the information received from Hemby-

Brown with Deirdra Reid and Abraham Smith, who used the information

in other fraudulent schemes.           Specifically, the personal and

financial     information   provided     by   Hemby-Brown   was   used   to

fraudulently activate lines of cellular phone service, obtain




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credit cards, purchase several vehicles, rent an apartment, and

purchase and obtain financing for a house.

          A presentence report was prepared, noting that Hemby-

Brown’s base offense level was 6.       U.S. Sentencing Guidelines

Manual § 2B1.1 (2002).   With a loss amount over $400,000, 14 levels

were added.   USSG § 2B1.1(b)(1)(H).    Two additional levels were

added based on the number of victims of the offense and another two

for the unauthorized transfer and use of another individual’s

identification to produce another means of identification.     USSG

§ 2B1.1(b)(2)(A), (b)(9)(C)(i).

          At sentencing, Hemby-Brown objected, pursuant to Blakely

v. Washington, 542 U.S. 296 (2004), to any enhancement of her

sentence based on facts not found by a jury or admitted by her.

The court overruled the objections and found that her offense level

was properly computed to be 24.    With a criminal history category

of II, Hemby-Brown’s guideline range was 57 to 60 months.   USSG Ch.

5 Pt. A (Sentencing Table); see 18 U.S.C. § 371.

          The court imposed a 58-month sentence.      In accordance

with this court’s decision in United States v. Hammoud, 378 F.3d

426 (4th Cir.) (order), opinion issued by 381 F.3d 316, 353-54 (4th

Cir. 2004) (en banc), cert. granted and judgment vacated, 125 S.

Ct. 1051 (2005), the court also imposed an alternate sentence of 50

months pursuant to 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2005).




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            Hemby-Brown   first   challenges      the   sufficiency of the

indictment under Booker.    She asserts that FSB Funding — the only

financial institution identified in the indictment with respect to

the bank fraud charge — was not insured by the Federal Deposit

Insurance   Corporation   (“FDIC”).       Thus,   she   asserts    that   the

indictment would not support a bank fraud conviction, and she could

not have committed the federal crime of conspiracy to commit bank

fraud.   Hemby-Brown asserts that her conviction is invalid.

            Because she raises this issue for the first time on

appeal, we review for plain error.        See United States v. Cotton,

535 U.S. 625, 631 (2002) (providing standard). Hemby-Brown has not

shown plain error.   See United States v. Olano, 507 U.S. 725, 731-

32 (1993). Notably, post-judgment challenges to the sufficiency of

an indictment are reviewed liberally, indulging “every intendment

. . . in support of the sufficiency.”       United States v. Fogel, 901

F.2d 23, 25 (4th Cir. 1990) (quoting Finn v. United States, 256

F.2d 304, 306-07 (4th Cir. 1958)).        An indictment will be deemed

sufficient if it identifies the elements of the offense and informs

the defendant of the charges against him so that he can prepare his

defense and be protected against double jeopardy.                 See United

States v. Jackson, 327 F.3d 273, 290 (4th Cir. 2003).              Here, the

indictment adequately alleged the elements of a conspiracy under

§ 371.   See id.; United States v. Ellis, 121 F.3d 908, 922 (4th

Cir. 1997) (providing elements).


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            Moreover,   the    uncontroverted         evidence     at   trial   was

clearly sufficient to prove that Hemby-Brown conspired to defraud

financial    institutions     that   were    FDIC-insured.         For    example,

several vehicles were purchased by using information provided by

Hemby-Brown to obtain financing from Wachovia Bank, First Citizen’s

Bank, and Chase Manhattan Bank, all FDIC-insured.                       See United

States v. Janati, 374 F.3d 263, 270 (4th Cir. 2004) (holding that

government may prove facts outside the overt acts alleged in the

indictment).    We therefore affirm Hemby-Brown’s conviction.

            Hemby-Brown also argues on appeal that her sentence is

unconstitutional because it was enhanced based on the district

court’s factual findings as to the amount of loss, the number of

victims, and the use of the identification of others in the

production of other means of identification.               Because Hemby-Brown

preserved this issue by objecting at sentencing to the presentence

report based upon Blakely, we review this issue de novo.                    United

States v. Mackins, 315 F.3d 399, 405 (4th Cir. 2003) (stating

standard of review).          The challenged factual findings by the

district court judge resulted in the enhancement of Hemby-Brown’s

sentencing range under the guidelines as mandatory from 1 to 7

months at base offense level 6, to 57 to 60 months at adjusted

offense level 24.

            In Booker, the Supreme Court held that the federal

sentencing   guidelines’      mandatory      scheme    —   which   provided     for


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sentencing    enhancements   based    on   facts   found   by   the   court   —

violated the Sixth Amendment.        Id. at 746.   The Court remedied the

constitutional violation by making the guidelines advisory through

the removal of two statutory provisions that had rendered them

mandatory.    Id. at 746, 756-57.     In light of the ruling in Booker,

we find that the district court conducted impermissible fact

finding in determining Hemby-Brown’s sentence in violation of the

Sixth Amendment.1     Accordingly, we vacate Hemby-Brown’s sentence

and remand this case to the district court for resentencing.2             See

United States v. Hughes, 401 F.3d 540, 546 (4th Cir. 2005) (citing

Booker, 125 S. Ct. at 764-65, 767).

             Accordingly, while we affirm Hemby-Brown’s conviction, we

vacate her sentence and remand for resentencing.           We dispense with


     1
      As we noted in United States v. Hughes, 401 F.3d 540, 545 n.4
(4th Cir. 2005), “[w]e of course offer no criticism of the district
judge, who followed the law and procedure in effect at the time of
[Hemby-Brown’s] sentencing.”     See generally Johnson v. United
States, 520 U.S. 461, 468 (1997) (stating that an error is “plain”
if “the law at the time of trial was settled and clearly contrary
to the law at the time of appeal”).
     2
      Although the Sentencing Guidelines are no longer mandatory,
Booker makes clear that a sentencing court must still “consult
[the] Guidelines and take them into account when sentencing.” 125
S. Ct. at 767.      On remand, the district court should first
determine the appropriate sentencing range under the Guidelines,
making all factual findings appropriate for that determination.
Hughes, 401 F.3d at 546. The court should consider this sentencing
range along with the other factors described in 18 U.S.C.A.
§ 3553(a), and then impose a sentence. Id. If that sentence falls
outside the Guidelines range, the court should explain its reasons
for the departure as required by 18 U.S.C.A. § 3553(c)(2). Id.
The sentence must be “within the statutorily prescribed range and
. . . reasonable.” Id. at 547.

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oral   argument   because   the   facts   and   legal   contentions   are

adequately presented in the materials before the court and argument

would not aid the decisional process.



                                                     AFFIRMED IN PART;
                                          VACATED AND REMANDED IN PART




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