                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
                    UNITED STATES COURT OF APPEALS          December 12, 2005

                        FOR THE FIFTH CIRCUIT            Charles R. Fulbruge III
                                                                 Clerk



                             No. 05-30248




     UNITED STATES of AMERICA,

                                        Plaintiff-Appellee,

                                  v.

     SHAWN DECAREAUX KILGARLIN,

                                        Defendant-Appellant.



         Appeal from the United States District Court for the
                     Middle District of Louisiana
                           No. 3:02-cr-00007



Before BENAVIDES, STEWART, and OWEN, Circuit Judges.


PER CURIAM:*

     Appellant, Shawn Decareaux Kilgarlin, appeals her guidelines

sentence imposed based upon convictions for mail fraud (18 U.S.C.

§§ 1341 and 1346) and obstruction of justice (18 U.S.C. § 1503).

Also, for the first time on appeal, Appellant argues that the mail

fraud statute was unconstitutional as applied in her case.        After


     *
        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this opinion should not be published and is not precedent except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.
reviewing the record, we find no reversible error and affirm.

     Appellant owned and operated Enviro-Comp Laboratories, Inc.,

a Louisiana corporation that conducted, among other things, drug

testing. Anderson Industrial Scaffolding Services, Inc., (AIS) sent

two employees to Enviro-Comp to have blood drawn for a random drug

test.   Appellant did not have the specimens tested but nonetheless

mailed a $17 invoice to AIS.      AIS paid the bill my mailing a check

to Enviro-Comp.   While Appellant was on release awaiting sentencing

for other convictions, she fabricated several documents and forms

purporting to show that the above-referenced specimens had been

tested and provided these documents to the grand jury.             The false

documents provided to the grand jury formed the basis of an

obstruction of justice charge in the instant case.            As set forth

below, she was also charged with two mail fraud counts.

     Appellant    was   charged   by   grand   jury   indictment   with   (1)

devising a scheme to defraud in violation of the mail fraud statute,

(2) causing AIS to mail a check as payment for the purported drug

testing in violation of the mail fraud statute, and (3) obstructing

justice based on fabricating the documents given to the grand jury.

At trial, Appellant called only one witness, who testified that

Appellant physically retrieved the check from AIS instead of causing

it to be mailed as charged in count two of the indictment.          The jury

acquitted Appellant of count two and convicted her of the two

remaining counts.       Subsequent to the Supreme Court’s decision in



                                       2
United States v. Booker, 125 S. Ct. 738, 765 (2005), the district

court sentenced Appellant to a guidelines sentence of 46 months.



     I.   Sentencing Challenges

          A. § 3C1.1

     Appellant argues that the district court erred in assessing a

two-level   enhancement     for    obstruction   of   justice    pursuant    to

U.S.S.G. § 3C1.1 based on the finding that she had suborned the

perjury of Cherie Courtney, the sole defense witness.           Courtney was

a former employee of AIS. The crux of Courtney’s testimony was that

Appellant had physically retrieved the check from AIS instead of

causing it to be mailed as charged in count two of the indictment.

     Appellant asserts that there is insufficient evidence to

support the findings.      This Court reviews a finding of obstruction

of justice for clear error.        United States v. Holmes, 406 F.3d 337,

363 (5th Cir. 2005).      This Court has explained that to be adequate

a   district   court's    findings     "must   identify    false   testimony

concerning a material matter, indicate the witness testified with

willful   intent   to    provide    false   testimony,    and   indicate    the

defendant procured the witness's testimony.”              United States v.

Johnson, 352 F.3d 146, 148 (5th Cir. 2003).1


      1
        Appellant asserts that the district court made inadequate
findings to support the enhancement. The district court adopted
the findings in the Presentence Report (PSR), which provided that
"Courtney admitted to Agent McDowell that it was an intentionally
untruthful statement that Ms. Kilgarlin picked up a $17 check.”

                                       3
     Appellant asserts that the evidence is insufficient to support

the findings, claiming that the “record is unclear . . . whether

such testimony was perjurious as opposed to simply inaccurate.”

Contrary to Appellant’s assertion, there is evidence that Courtney

admitted to Agent McDowell that it was an intentionally untruthful

statement that Appellant picked up the check.         Courtney explained

to Agent McDowell that she lied in her testimony about Appellant

picking up the check because she believed that Appellant was

innocent and that both Appellant and her attorney had insinuated

that such testimony was necessary to exonerate Appellant. Thus, the

district   court   had   sufficient   evidence   to   conclude   that   the

testimony was perjured.

     Appellant further asserts that there was no evidence that she

played any role in suborning the perjury.             She contends that

“nowhere in the testimony of McDowell or in his reports is there any

indication that Kilgarlin attempted to influence Courtney in any way

to testify falsely.”     However, at Appellant’s bond hearing, Agent

McDowell testified that Courtney admitted to him that Appellant

contacted her the week prior to trial and “insinuated that the



Thus, the district court made the requisite finding that the
testimony was false. Further, it appears undisputed that the
testimony was material. In any event, the district court found that
Courtney’s false testimony resulted in Appellant’s acquittal of
count two, which constitutes a finding of materiality. Also, as
Appellant admits, the district court found that she procured
Courtney’s false testimony.     Accordingly, the district court’s
findings encompass all the factual predicates for a finding of
suborning perjury and thus are adequate to support the enhancement.

                                      4
evidence that they needed to present to the court was that she

actually came and picked up the check, versus the check being sent

through the mail.”          The evidence is sufficient to support the

finding that Appellant procured Courtney’s testimony.

      Finally, in a footnote, Appellant argues that because the

perjured testimony involved only a mail fraud count (of which she

was   acquitted),     the     district       court     erred   in     applying       this

enhancement    to   the     sentence     for    the     obstruction      of    justice

conviction.       Prior     to   the   time     of     Appellant’s     offense,       the

Sentencing    Commission      amended    §     3C1.1    by   clarifying       that    the

“obstruction must relate either to the defendant’s offense of

conviction (including any relevant conduct) or to a closely related

case.”   U.S.S.G. Manual, Appendix C, amend. 581 (Nov. 1, 1998).

Here, the § 3C1.1 enhancement based upon Appellant’s suborning

Courtney’s testimony was related to her obstruction of justice

conviction.    Appellant is not entitled to relief with respect to

this issue.

         B.    § 2J1.2

      Appellant     was   convicted      of     obstruction      of    justice       for

fabricating documents she provided to the grand jury in violation

of 18 U.S.C. § 1503.        She contends that the three-level enhancement

for substantial interference with the administration of justice

pursuant to § 2J1.2 for fabricating documents constitutes double

counting.     However, double counting is not prohibited unless the



                                         5
guideline in question forbids it. See United States v. Box, 50 F.3d

345, 359 (5th Cir. 1995).        As explained by the Sixth Circuit,

§ 2J1.2 simply “increases the punishment for a defendant who

obstructs justice when such obstruction has negative consequences.”

United States v. Tackett, 193 F.3d 880, 886 n.3 (6th Cir. 1999).

Here,   the   government   contends   the   substantial   expenditure   of

government     and   court   resources      constituted    the   negative

consequences. See § 2J1.2, comment. (n.1).

     The crux of the instant issue is whether the district court

clearly erred in finding that substantial resources were expended

because of Appellant’s falsification of documents.         In support of

its contention that the expenditure was substantial, the government

asserts that the fabricated documents appeared legitimate on their

face and that the agents had to learn Enviro-Comp Laboratories’s

chain of custody procedures for the specimens as well as the

operating procedures of lab and computer equipment, including the

Hitachi 717.    The PSR provided that:

        Ms. Kilgarlin falsified numerous documents that she
        provided to a federal grand jury in an effort to conceal
        her actions. The defendant attempted to obstruct the
        grand jury’s investigation of this offense by providing
        the grand jury with a variety of documents which reflect
        that the drug tests were actually performed. Numerous
        documents were provided which were printed on the
        standard company forms and appear on their face to be
        legitimate. Indeed, the false nature of these documents
        becomes apparent only after analyzing the documents and
        comparing the story told through the documents with
        other evidence, such as standard company procedure and
        witness testimony.


                                      6
(emphasis added).      As previously noted, the district court adopted

the findings in the PSR.

     At sentencing, Appellant objected to this enhancement, arguing

that there had not been a substantial expenditure of time and

resources by the government. In response, the district court found

as follows:

           I think the government’s position is well-taken
      that this is not your garden variety obstruction, even
      though the substantial interference—even though Ms.
      Kilgarlin has already been convicted of obstruction.
      This was a fairly complicated case in terms of the
      documents that were presented to and otherwise falsified
      and presented to the grand jury. And again it was done
      by Ms. Kilgarlin.

           And as Ms. Jones [the prosecutor] properly noted,
      because of the nature of the case this was not something
      that you could just pick up a document and look at it
      and say, oh, this is false. It required people who knew
      this business and the procedures employed in this
      business and the documents used in this business to look
      at the stuff and say, well, this is not what it purports
      to be.

           So the government did have to go through some
      additional investigation, and trouble, expense, use of
      time and resources in order to unravel the webs created
      by Ms. Kilgarlin.


     Although the court did not use the precise phrase “substantial

expenditure,” the above findings, which were in response to defense

counsel’s   argument    that   the   expenditure   of   resources   was   not

substantial, clearly indicate that the court did find a substantial

expenditure.   A review of the record indicates that the agents of

the Environmental Protection Agency did have to conduct further

investigation regarding the chain of custody procedures and the

                                      7
computer   and    lab   equipment   to    prove   the   documents    had   been

fabricated. Likewise, the trial was lengthened by demonstrating the

fruits of this additional investigation to the jury.           We note that,

in the context of addressing a similar guideline enhancement for

perjury, § 2J1.3, this Court has concluded that “where a defendant

actively conceals important evidence of which [he or] she is the

only source, a court may infer that the defendant’s interference

with the administration of justice was substantial.”          United States

v. Norris, 217 F.3d 262, 274 (5th Cir. 2000) (internal quotation

marks and citation omitted) (brackets in opinion).           In the instant

case, to the extent that Appellant was the only source of the

information she was concealing, we may infer that the interference

with the administration of justice was substantial.              Under these

circumstances, we are not persuaded that the district court clearly

erred in finding that Appellant’s fabrication of documents caused

unnecessary      expenditure   of   substantial     government      and    court

resources.2


     2
         In a footnote, Appellant cites authority from other
circuits indicating that the “substantial interference” must be
with respect to an offense other than the obstruction of justice
conviction.   We note that the cases cited involve      substantial
interference in the context of § 2J1.3 (an enhancement for
perjury), not the instant guideline, § 2J1.2 (obstruction of
justice). Although the instant question has been raised before
this Court in the context of § 2J1.2, ultimately we did not find it
necessary to decide the issue. United States v. Harrington, 82
F.3d 83, 87 n.1 (5th Cir. 1996). Nonetheless, we noted that we had
rejected that argument in the context of § 3C1.1 and such an
argument in the context of § 2J1.2 was “less persuasive than [the]
rejected argument.”     Id.    But cf. Norris, 217 F.3d at 273

                                      8
         C.   § 2F1.1(b)(2)(A)

     Appellant argues that the district court erred in assessing a

two-level enhancement for more than minimal planning pursuant to

U.S.S.G. § 2F1.1(b)(2)(A).3 The government does not respond to this

claim on the merits; instead, it replies that any error is harmless.

Thus, we will assume without deciding that this enhancement was

error.

     This Court has recognized “that the finding of an incorrect

application of the Guidelines shifts the burden to the proponent of

the sentence—whether that be the defendant or the government—to

persuade the court of appeals that the district court would have

imposed the same sentence absent the erroneous factor.”      United



(concluding that the “expenses incurred with the investigation and
prosecution of [the] instant perjury offenses may not form the sole
basis for applying section 2J1.3(b)(2)’s enhancement”). Moreover,
we opined that “[a]s a practical matter, it would seem that in most
cases the investigation of the underlying offense and of the
obstruction charge would be almost inextricably related.” Id. at
86-87. In the case at bar, the resources spent investigating the
fabricated documents were inextricably related to proving the
offense of the scheme of mail fraud, which was count one of the
indictment.    Thus, even assuming that § 2J1.2 requires the
substantial interference to be with respect to an offense other
than the obstruction of justice conviction, such a requirement
would be satisfied in this case.
     3
        It should be noted that this enhancement was deleted by
consolidation with § 2B1.1 effective November 1, 2001. U.S.S.G.
Manual app. C 617 (2003). The PSR indicates that the 2000 edition
of the Guidelines Manual was used because it was “less onerous than
the November 1, 2003 Guidelines Manual,” which was in effect at the
time of sentencing. See also United States v. Kimler, 167 F.3d
889, 893 (5th Cir. 1999) (explaining that a district court must use
the sentencing guidelines in effect at the time of sentencing
unless it would violate the Ex Post Facto Clause).

                                 9
States v. Tello, 9 F.3d 1119, 1129 (5th Cir. 1993) (citation,

brackets, and internal quotation marks omitted).             As the government

asserts,    the   PSR    grouped   the   convictions   for    mail   fraud   and

obstruction       of    justice    pursuant   to   U.S.S.G.      §   3D1.2(c).

Accordingly, the PSR determined the offense level based on the

obstruction of justice conviction because it was “the more serious

offense.”   In other words, the obstruction of justice offense level

was higher than the mail fraud offense level.           Thus, even assuming

the two-point enhancement of the mail fraud offense constituted

error, it did not affect Appellant’s sentencing guideline range

because it was determined without reference to the mail fraud

offense.    The sentencing range remains the same with or without the

enhancement.

     After reviewing the record, we are convinced that the error was

harmless.    Immediately prior to pronouncing sentence, the district

court addressed Appellant as follows:

           This is your second felony conviction. The conduct
      committed in this offense is, for all practical
      purposes, the same criminal conduct that you engaged in
      in your first conviction, fraudulent conduct and
      obstructive conduct, seeking to cover up and allow you
      to escape punishment for your crimes.        I see no
      indication in anything that I have looked at that you
      have any degree of remorse for anything that you have
      done.    It appears to the court that you are a
      manipulative person who is able to, at least in these
      last two cases, you have been able to get other persons
      to commit serious criminal offenses to assist you to
      escape responsibility for what you have done.

           Information was provided by Ms. Fournet [defense
      counsel] in the form of a sentencing memorandum which


                                         10
      also contained references to a substance abuse problem.
      There were tests and evaluations by Dr. Farina, if I
      recall correctly. I looked at that. And I couldn’t
      help but note that this information is completely at
      odds with the prior evaluations in the first presentence
      report. It’s completely at odds with the information
      that you provided to the probation officer in this
      report regarding the existence of any substance abuse
      problem. Again, the court views that as manipulative
      conduct.

           . . . For all of these reasons, the court is
      strongly tempted to impose what, if the guidelines were
      mandatory, what would be an upward departure. Stated
      quite frankly, Ms. Kilgarlin, I’m strongly tempted, and
      I think the circumstances warrant the imposition of a
      maximum sentence, because prior half steps have not
      worked.

           You were convicted of this same conduct before
      Judge Parker. And Judge Parker gave you the benefit of
      a break; gave you the benefit of probation. You took
      advantage of that by committing this offense while you
      were on release for the offense that Judge Parker
      sentenced you for.

           . . . .

           I am not going to impose a maximum sentence, but I
      am going to sentence at what would have been the upper
      end of the guidelines range had they been mandatory in
      this case. I have considered the sentencing guidelines.
      I have considered the sentencing factors . . . . I
      have considered the circumstances of this offense. And
      for the reasons I have just indicated, the court feels
      that the following sentence is appropriate.


(emphasis added).

     The district court’s comments just prior to imposing the

sentence demonstrate that the court would have imposed the same

sentence absent the erroneous enhancement.   Tello, 9 F.3d at 1129.

Any error in this enhancement did not affect the sentence and was


                                11
harmless.



     D.    Booker Reasonableness

     Appellant contends that regardless of whether her 46-month

sentence was calculated appropriately under the guidelines, it is

unreasonable in light of the factors enumerated in section 3553(a).

See United States v. Booker, 125 S. Ct. 738, 765 (2005).4       She

argues that there are numerous reasons why the court should have

exercised its discretion to impose a sentence below the calculated

range.    She asserts, among other things, that the billing involved

in the mail fraud was only $17, that the company suffered no loss

from her conduct, that her son was two years old, and that she

suffered from physical and emotional problems.

     In this case, the district court sentenced Appellant within the

correct guidelines range.5   “Given the deference due the sentencing

judge's discretion under the [Booker] regime, it will be rare for

a reviewing court to say such a sentence is ‘unreasonable.’” United

States v. Mares, 402 F.3d 511, 519 (5th Cir.), cert. denied, 126

S.Ct. 43 (2005). Appellant has not shown that her circumstances are

     4
          Appellant recognizes that this Court has concluded that
Booker did not alter the standard of review to determine whether
the district court properly interpreted and applied the guidelines.
See United States v. Creech, 408 F.3d 264, 270 n.2 (5th Cir. 2005).
She apparently raises it to preserve it for further review.
     5
       As previously discussed, although there may have been error
in calculating the mail fraud offense level, that did not change
the ultimate sentencing range for the grouping of the offenses.

                                   12
“rare.”    Moreover, in view of Appellant’s subornation of perjury

during the instant trial and her prior convictions for making a

material false statement and witness tampering, she has failed to

demonstrate      that   her   post-Booker   guidelines   sentence   was

unreasonable.6



     II.    Constitutionality of Mail Fraud Statute as Applied

         Appellant admits that she raises for the first time on appeal

the claim that the mail fraud statute, 18 U.S.C. §§ 1341 and 1346,

was unconstitutional as applied to an independent contractor and

that therefore it is reviewed for plain error.       See United States

v. Olano, 507 U.S. 725, 113 S.Ct. 1770 (1993).       We have found no

authority holding that the mail fraud statute is unconstitutional

as applied to an independent contractor.        To the contrary, the

Eighth Circuit has expressly rejected the argument that the mail



     6
        Appellant also argues that Booker afforded the sentencing
court discretion to depart downward from the guidelines. In a
footnote, Appellant mentions that she requested in the district
court a downward departure under §5K2.0(3), which involves
departures based on circumstances present to a degree not
adequately taken into consideration in the guidelines.      To the
extent that Appellant is challenging the district court’s refusal
to downwardly depart, this Court does not have jurisdiction to
review a district court’s refusal to grant a downward departure
from the guidelines unless the refusal was based on the sentencing
court’s erroneous belief that it lacked the authority to depart.
United States v. Buck, 324 F.3d 786, 797 (5th Cir. 2003).
Appellant makes no such allegation. Booker does not affect this
holding. See e.g., United States v. Puckett, 422 F.3d 340, 345
(6th Cir. 2005); United States v. Frokjer, 415 F.3d 865, 874-75
(8th Cir. 2005).

                                    13
fraud statute requires the breach of a fiduciary duty.       United

States v. Ervasti, 201 F.3d 1029, 1036 (8th Cir. 2000).    Further,

Appellant’s reliance on United States v. Brumley, 116 F.3d 728 (5th

Cir. 1997), is misplaced.7   Accordingly, even assuming that the

statute was unconstitutional as applied to Appellant, which we

doubt, such error would not be plain.   Having failed to demonstrate

plain error, Appellant is not entitled to relief.8

     The district court’s judgment is AFFIRMED.




     7
        Unlike the case at bar, this Court was not faced with an
independent contractor scenario; instead, the argument urged by the
appellant in Brumley was that neither the plain language of § 1346
nor its legislative history expanded the types of victims protected
by the statute to include a state employer.       116 F.3d at 730.
Ultimately, this Court rejected Brumley’s claims and found the
statute constitutional. Id.
     8
         Appellant also raises for the first time on appeal the
claim that her conduct lacked sufficient nexus with interstate
commerce in violation of the Commerce Clause. Assuming that this
issue has been adequately raised in the original brief, Appellant
has not cited a case in which application of the mail fraud statute
was unconstitutional under the Commerce Clause. Moreover, this
Court expressly rejected the argument that the Commerce Clause does
not support § 1346. Brumley, 116 F.3d at 730. Appellant cannot
show error, much less plain error.

                                14
