                                                                                F I L E D
                                                                          United States Court of Appeals
                                                                                  Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                                 OCT 26 2004
                                 TENTH CIRCUIT
                                                                            PATRICK FISHER
                                                                                      Clerk

 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                           No. 03-4304
          v.                                                 Dist. of Utah
 CINDY LEWIS,                                        (D.C. No. 02-CR-740-DS)

               Defendant-Appellant.


                           ORDER AND JUDGMENT                *




Before KELLY , HENRY , and TYMKOVICH , Circuit Judges.               **




      Cindy Lewis appeals the order of restitution    1
                                                          imposed by the United States

District Court for the District of Utah. Lewis had pled guilty to one count of

making false statements to a Postal Inspector who was investigating a check


      *
         This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders; nevertheless, an order may be cited under the terms and
conditions of 10th Cir. R. 36.3.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
      1
       Lewis was sentenced to five months in prison and ordered to pay
$29,816.14 in restitution. Although Lewis has served her sentence, this appeal is
not moot as she has not fully paid the restitution.
cashing scheme, in violation of 18 U.S.C. § 1001. Lewis claims that the district

court violated United States Sentencing Guideline § 1B1.3(a)(1) (USSG) and

Blakely v. Washington,    124 S. Ct. 2531 (2004), by making findings of fact during

the restitution hearing when it considered her involvement in the check cashing

scheme as relevant conduct for sentencing and restitution purposes. Finding no

error by the district court, we affirm.

                                       Background

       A grand jury issued a four-count indictment against Lewis charging her

with conspiracy to steal and alter checks in the U.S. mail, making false statements

to a Postal Inspector, and two counts of possession of stolen mail. On June 17,

2003, Lewis entered into a plea agreement with the United States in which she

pled guilty to making false statements to the Postal Inspector and agreed to “pay

restitution, if any, for all relevant conduct (USSG § 1B1.3)   including counts to

which I have not pled guilty   and conduct charged in the indictment to be

determined at a restitution hearing.” (App. Vol. I, 10-11) (emphasis added). In

exchange, the government agreed to dismiss the remaining three counts of the

indictment and recommend a two-level reduction in her sentence for acceptance

of responsibility. The government also agreed to recommend a sentence on the

“low end of the guideline range.”

       Before the restitution hearing took place, Lewis contested what the court


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could consider as relevant conduct for purposes of restitution and sentence

enhancement. Under USSG § 2B1.1(b), a six-level upward adjustment is

appropriate if loss resulting from a crime involving fraud exceeds $30,000, and a

two-level upward adjustment is applicable if the fraud victimizes more than ten

persons. Lewis asserted that her actions during the check cashing scheme were

not relevant conduct under USSG § 1B1.3(a)(1) because they took place several

months before she made false statements to the Postal Inspector, the only crime

for which she was convicted.

      At the restitution hearing, the district court heard testimony from Lewis’s

alleged co-conspirator, a handwriting expert who examined certain documents for

evidence of forgery, the Postal Inspector, and Lewis’s ex-husband. The court also

examined checks written, altered, and/or cashed by Lewis. In a written order, the

district court rejected Lewis’s arguments and found that Lewis’s false statements

were part of a common scheme and plan,    see USSG § 1B1.3, to steal mail, cash

fraudulent checks, and cover up the crimes. That common scheme and plan

included conduct that resulted in actual and potential losses exceeding $30,000.

At the sentencing hearing held two months later, the court found Lewis’s relevant

conduct included the facts and findings as set forth in the presentence report,




                                          3
found the offense to be a total of level twelve,   2
                                                       sentenced Lewis to five months in

prison plus twelve months probation, and ordered her to pay restitution in the

amount of $29,816.14.     3



                                        Discussion

                                              I.

         We review “the legality of a restitution order de novo, . . . the factual

findings underlying the order for clear error and the amount of restitution for

abuse of discretion.”    United States v. Osborne , 332 F.3d 1307, 1314 (10th Cir.

2003).

         Lewis argues that the court violated USSG § 1B1.3(a)(1) when it

considered her involvement in the check cashing scheme as relevant conduct.

Lewis reads this particular guideline to mean that a court can only consider as

relevant conduct that conduct which occurred literally “during the commission of,

. . . in preparation for, . . . or in the course of attempting to avoid detection for”

the offense for which she was convicted. USSG § 1B1.3(a)(1). As such, Lewis



       A base level six for the offense of lying to the Postal Inspector; a six-level
         2

enhancement for losses exceeding $30,000; a two-level enhancement for losses
stemming from more than ten but less than fifty victims; and a two-level
downward adjustment for acceptance of responsibility.

         The actual loss, and thereby the amount Lewis was required to pay as
         3

restitution, was less than the total amount involved in the scheme because some
forged checks were recovered before they could be negotiated. See App. Vol. II,
73, 75.

                                              4
argues that none of her conduct during the actual check cashing scheme is

relevant for purposes of USSG § 1B1.3(a)(1) because it did not occur during, in

preparation of, or in an attempt to cover the crime of making false statements.

       Lewis’s plea agreement, however, specifically allowed for the court to

consider her conduct, for purposes of restitution, as it related to all other counts

of the indictment, including those to which she did not plead guilty. Thus,

Lewis’s interpretation of the guideline is irrelevant because her plea agreement

determined that which the district court could consider as relevant conduct,

including other uncharged conduct. In any event, the district court did not err in

finding the conduct was part of a “common scheme or plan” under USSG

§ 1B1.3(a)(2) since her false statements were designed to evade detection of her

thefts. Therefore, we find that the district court did not violate USSG

§ 1B1.3(a)(1) when it considered Lewis’s involvement in the check cashing

scheme as relevant conduct.

                                            II.

       In her Statement in Advance of Restitution Hearing, Lewis argued that she

was unfairly surprised, in violation of   Apprendi v. New Jersey , 530 U.S. 466

(2000). She claimed the government improperly sought to include her actions

during the check cashing scheme, which she lied about to the inspector, as

relevant conduct. Now on appeal, taking a slightly different approach, Lewis


                                            5
argues that Apprendi stands for the proposition that the maximum sentence a

judge may impose is that which is supported by facts as found by a jury. Thus,

Lewis argues, in light of the Supreme Court’s recent decision in        Blakely v.

Washington 124 S. Ct. 2531 (2004), that the district court violated her Sixth

Amendment rights when it considered the check cashing scheme as relevant

conduct because those facts were not found by a jury.          See Aplt. Motion to Amend

Opening Brief, p.2 (hereinafter “Aplt. Mtn.”).

        The Supreme Court in            Blakely held that Washington State’s sentencing

guidelines ran afoul of the Sixth Amendment right to trial by jury because they

permitted a defendant’s sentence to be increased based on facts not proved beyond

a reasonable doubt.    See Blakely , 124 S. Ct. at 2543. In Blakely , the Court found that

“the relevant ‘statutory maximum’ is . . . the maximum [sentence a judge] may

impose without any additional findings.”            Id. at 2537 (emphasis in original). The

Court noted, however, that a defendant’s Sixth Amendment right to trial by jury is

not violated if the defendant stipulates to the facts upon which the sentence is based

or consents to judicial fact finding.      Id. at 2451. Blakely has not yet been extended

to the federal sentencing guidelines, which are at issue here,       see Blakely , 124 S. Ct.

at 2538, n.9 (“The Federal Guidelines are not before us, and we express no opinion

on them.”), although the Supreme Court has recently heard arguments to extend the

reasoning of Blakely to the federal sentencing regime.         See United States v. Booker ,


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375 F.3d 508 (7th Cir. 2004),   cert. granted , 73 U.S.L.W. 3073 (U.S. Aug. 2, 2004)

(No. 04-104); Fanfan v. U.S. , No. 03-47, 2004 WL 1723114 (D. Maine 2004),        cert.

granted , 73 U.S.L.W. 3073 (U.S. Aug. 2, 2004) (No. 04-105).

       The government correctly points out that we need not reach the    Blakely issue

in this restitution appeal. We recently held that a restitution order does not violate

either Blakely or Apprendi if it does not exceed the statutory maximum restitution

amount or the value of the damages to the victim.    United States v. Wooten , 377 F.3d

1134, 1144 n.1 (10th Cir. Aug. 10, 2004). The district court here imposed restitution

pursuant to 18 U.S.C. § 3663, which does not specify a statutory maximum for

restitution.   Moreover, Lewis does not, and has not, challenged that the restitution

exceeds the amount her victims lost. Thus, under our holding in           Wooten , the

restitution Lewis was ordered to pay under 18 U.S.C. § 3663 does not exceed a

statutory maximum and does not violate     Apprendi .

       WE AFFIRM.

                                                Entered for the Court

                                                Timothy M. Tymkovich
                                                Circuit Court Judge




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