                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                 January 11, 2006

                                                            Charles R. Fulbruge III
                                                                    Clerk
                             No. 04-41742
                           Summary Calendar



UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

MARK THOMAS,

                                      Defendant-Appellant.


                          --------------------
             Appeal from the United States District Court
                   for the Eastern District of Texas
                             (1:04-CR-7-ALL)
                          --------------------

Before JONES, WIENER, and DeMOSS, Circuit Judges

PER CURIAM:*

         Defendant-Appellant Mark Thomas appeals his conviction and

sentence for making a false statement in a matter within the

jurisdiction of the United States Bureau of Prisons.       He contends

that the district court erred by denying his motion to suppress;

that the evidence was not sufficient to support his conviction; and

that the district court erred in its application of U.S.S.G. §

3A1.2(a).     He also asserts for the first time on appeal, that his



     *
       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this opinion should not be published and is not precedent except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.
sentence runs afoul of United States v. Booker, 125 S. Ct. 738

(2005).    We affirm.

Motion to Suppress

       Thomas filed a motion to suppress inculpatory statements he

made     following        a    polygraph    examination   and    interview     with

Department of Justice Special Agent William Senter.                        After a

suppression hearing during which both Thomas and Senter testified,

the district court denied the motion, rejecting as not credible

Thomas’s assertions that Senter threatened and coerced him into

making the statements.

       We review the voluntariness of a confession de novo, but we

review     the    district        court’s   factual   findings        underlying   a

voluntariness determination for clear error.                    United States v.

Bell, 367 F.3d 452, 460-61 (5th Cir. 2004).                  “Where a district

court’s denial of a suppression motion is based on live oral

testimony, the clearly erroneous standard is particularly strong

because the judge had the opportunity to observe the demeanor of

the witness.”        United States v. Santiago, 410 F.3d 193, 197 (5th

Cir. 2005).

       Although      on       appeal   Thomas   reiterates      his    self-serving

allegations of coercion and threats, he has failed to show that the

court clearly erred in finding his allegations of coercion and

threats not credible. See Santiago, 410 F.3d at 197.                   Accordingly,

the denial of the motion to suppress was not error.                   See Bell, 367

F.3d at 460-61.

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Sufficiency of the evidence

     Thomas insists that the evidence was insufficient to support

his conviction.      He argues that the government did not prove that

he acted willfully, asserting that he did not know that it was

unlawful to make “such a false statement.”          He also argues that the

government     did   not   prove   that     the   matter    was   within   the

jurisdiction of a branch of the United States Government.

     Thomas moved for a judgment of acquittal at the close of the

government’s case and renewed that motion at the close of all the

evidence.      We review the denial of such motions de novo.               See

United States v. Wise, 221 F.3d 140, 147 (5th Cir. 2000).            In doing

so, we view the evidence in the light most favorable to the

verdict,     accepting     all   credibility      choices   and    reasonable

inferences made by the jury.        Id.    We shall uphold the conviction

if a reasonable factfinder could have found that the government

proved the essential elements of the offense beyond a reasonable

doubt.   Id.

         A violation of 18 U.S.C. § 1001(a)(2) is committed by

knowingly making a materially false statement or representation in

any matter within the jurisdiction of the United States Government.

See § 1001(a)(2).        It is not necessary that the false statement

pervert a governmental function.          United States v. Rodriguez-Rios,

14 F.3d 1040, 1045 (5th Cir. 1994)(en banc).                The willfulness

requirement demands only that the defendant “act [] with knowledge



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that his conduct was unlawful.”           Id. at 1048 n.21 (internal

quotations and citation omitted).

         The indictment charged that the matter was within the

executive branch of the government, “to-wit: the United States

Bureau of Prisons.”      The evidence adduced at trial showed that

Officer Comstock was a staff member with the Bureau of Prisons

(BOP) and that the matter was investigated both by the BOP and the

Department of Justice.      The BOP is an agency of the Department of

Justice, which is within the executive branch of the government.

See United States v. Bourgeois, 423 F.3d 501, 508 (5th Cir. 2005).

Thomas’s     false   statement     against   Comstock    contained     his

acknowledgment that “I have been informed that it is a violation of

federal law to provide false information to federal agents.”

Thomas   indicated   that    he   acted   purposefully   in   making   the

statement.    The evidence is sufficient to establish that Thomas

acted with the knowledge that he was violating federal law by

providing false information to federal agents. See Rodriguez-Rios,

14 F.3d at 1048 n.21.

Application of § 3A1.2(a)

     Thomas contends that the district court erred by increasing

his base offense level by three levels under U.S.S.G. § 3A1.2(a)

based on Officer Comstock’s status as an “official victim.”             He

argues that in a prosecution for false statements, the victim is

the federal government and that, because Comstock did not suffer

any adverse consequences as a result of the false statements, she

                                     4
should not be considered a victim.         He also argues, for the first

time on appeal, that his actions were not motivated by Comstock’s

official status.   We review the sentencing court’s interpretation

and application    of   the   guidelines    de   novo,   and   that   court’s

findings of fact for clear error.       United States v. Burns, 162 F.3d

840, 854 (5th Cir. 1998); see United States v. Villegas, 404 F.3d

355, 359 (2005)(standards of review remain unchanged after Booker).

    Section 3A1.2(a) provides that if the victim was a government

officer or employee and the offense of conviction was motivated by

such status, the defendant’s offense level is increased by three

levels.   The adjustment does not apply when the victim is an

organization, agency, or the government.         § 3A1.2, comment. (n.1).

A “victim” is a “person who is directly and most seriously affected

by the offense.”   § 3D1.2, comment. (n.2)(grouping of counts).

     Several investigations into the matter were launched.                As

Comstock was forced to answer Thomas’s false charges, she was a

victim of the offense. Accordingly, the district court did not err

in concluding that Comstock was a victim of the offense.                 See

United States v. Kirkham, 195 F.3d 126, 133 (2d Cir. 1999).

    We review for plain error Thomas’s assertion that § 3A1.2 was

inapplicable because he was not motivated by Comstock’s official

status. Villegas, 404 F.3d at 358. Thomas acknowledged making the

allegations because he felt that Comstock did not perform her

duties as a prison official.      The district court’s application of

§ 3A1.2 was not error, plain or otherwise.

                                    5
Booker Error

        Thomas claims that his sentence was imposed in violation of

the precedent established in Booker, 125 S. Ct. at 738.            He argues

that the facts established at trial could have resulted in an

advisory sentencing range of only 12 to 18 months of imprisonment.

He also argues that he must be resentenced under an advisory

guidelines regime.     In Booker, 125 S. Ct. at 756, the Supreme Court

held that under the Sixth Amendment, “[a]ny fact (other than a

prior    conviction)   which   is   necessary   to   support   a   sentence

exceeding the maximum authorized by the facts established by a plea

of guilty or a jury verdict must be admitted by the defendant or

proved to a jury beyond a reasonable doubt.”             The Court also

excised 18 U.S.C. § 3553(b)(1) of the Sentencing Reform Act,

effectively rendering the guidelines as advisory only. Id. at 764-

65.     As Thomas failed to raise a challenge to the application of

the guidelines to his sentence in the district court, our review is

for plain error only.     See United States v. Mares, 402 F.3d 511,

520 (5th Cir.), cert. denied, 126 S. Ct. 43 (2005).

      When a sentencing court imposes sentencing adjustments based

on facts exceeding those admitted by the defendant or encompassed

in the judgment of conviction, the first two prongs of the plain-

error standard are met.        Mares, 402 F.3d at 521.          Similarly,

application of the guidelines in their mandatory form constitutes

error that is plain. United States v. Valenzuela-Quevedo, 407 F.3d

728, 733 (5th Cir.), cert. denied, 126 S. Ct. 267.             A defendant

                                     6
must nevertheless demonstrate that the court’s errors affected the

outcome of the proceedings.          See id.

     In the context of his Booker claim, Thomas must establish that

“the sentencing judge--sentencing under an advisory scheme rather

then a mandatory one--would have reached a significantly different

result.”    See Mares, 402 F.3d at 521.             In the context of his

challenge to the mandatory application of the guidelines, Thomas

must “demonstrate a probability sufficient to undermine confidence

in the outcome” of the sentencing proceedings.              See Valenzuela-

Quevedo,    407   F.3d   at    733   (internal    quotations   and   citation

omitted).

    Thomas has not met these burdens.            At the sentencing hearing,

the court noted the seriousness of the offense and Thomas’s lengthy

criminal    record.      The    court   found    that   Thomas’s    16   felony

convictions in 19 years indicated a “difficulty in reforming.”

Thomas has pointed to nothing that indicates any likelihood that he

would have received a significantly lesser sentence.               Neither has

he demonstrated that his sentencing would undermine confidence in

the process.      As Thomas has not shown that his substantial rights

were affected by the district court’s error in sentencing, his

conviction and his sentence are

AFFIRMED.




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