                                                      [DO NOT PUBLISH]

           IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT

                                                               FILED
                                                     U.S. COURT OF APPEALS
                                                       ELEVENTH CIRCUIT
                            No. 04-12532                  December 13, 2005
                                                        THOMAS K. KAHN
                                                              CLERK
                  D. C. Docket No. 03-60095 CR-KAM

UNITED STATES OF AMERICA,

                                            Plaintiff-Appellee,

                                versus

CINDI M. SMITH,
DAVID R. HARVEY,
WARREN G. MILLER,

                                            Defendants,

THAER M. AYOUB,

                                            Defendant-Appellant.



             Appeals from the United States District Court
                 for the Southern District of Florida

                         (December 13, 2005)
Before DUBINA and KRAVITCH, Circuit Judges, and STROM*, District Judge.

PER CURIAM:

       This case originally began as a multi-defendant criminal case; however, the

government dismissed its appeal against several defendants in the case, and all that

remains is Thaer M. Ayoub’s (“Ayoub”) cross-appeal.

       The following issues are presented for appellate review:

       (1) Whether the conspiracy count should have been dismissed as

duplicitous.

       (2) Whether the evidence presented at trial was sufficient to prove Ayoub

guilty of the conspiracy count.

       (3) Whether the district court correctly calculated Ayoub’s criminal history

category, U.S.S.G. § 4A1.1.

       (4) Whether the district court correctly denied Ayoub a mitigating-role

reduction, U.S.S.G. § 3B1.2.

       (5) Whether the district court committed plain reversible error in sentencing

Ayoub pursuant to a mandatory guideline scheme and on the basis of facts not

admitted nor proven beyond a reasonable doubt.

______________________
*Honorable Lyle E. Strom, United States District Judge for the District of Nebraska, sitting by
designation.


                                                2
      Thaer M. Ayoub appeals his conviction for conspiracy to defraud the United

States, 18 U.S.C. § 371, and his sentences for the conspiracy conviction and for

aiding and assisting in the preparation of a false document, 26 U.S.C. § 7206(2).1

Concerning the conspiracy conviction, Ayoub argues that (1) the conspiracy count,

which alleged both tax fraud and a coverup thereof, was duplicitous and should

have been dismissed; and (2) the evidence presented at trial was insufficient to

sustain the finding of guilt. Regarding his sentences, Ayoub contends that (1) the

district court incorrectly calculated his criminal history category by (a) adding one

point for a driving-under-the-influence conviction for which he was convicted

more than ten years before he committed the instant offenses; and (b) adding two

points for committing the conspiracy offense while serving probation for a second

drunk driving conviction; (2) the court erred in denying him a mitigating-role

reduction; and (3) his sentence was imposed in violation of the Sixth Amendment,

as set forth in United States v. Booker, 543 U.S. ___, 125 S. Ct. 738, 160 L. Ed. 2d

621 (2005).

      The conspiracy offense set forth in the indictment properly alleged multiple

means to achieve the objective of defrauding the government. Moreover, the

evidence adduced at trial was sufficient to sustain the conspiracy conviction. The

      1
          Ayoub does not appeal his aiding and assisting conviction.

                                                 3
district court did not clearly err in finding that Ayoub’s role was not minor nor that

he committed the conspiracy offense while serving probation. The record

demonstrates that Ayoub committed both offenses of conviction within ten years

of his first drunk driving offense. Thus, the district court correctly applied that

criminal history point which resulted in an increase in Ayoub’s criminal history

category.

      Finally, Ayoub fails to demonstrate that any plain Booker error affected his

substantial rights.

      Accordingly, we affirm Ayoub’s convictions and sentences.

      AFFIRMED.




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