                                                               United States Court of Appeals
                                                                        Fifth Circuit
                                                                       F I L E D
                           REVISED AUGUST 3, 2005
                                                                        July 21, 2005
                   IN THE UNITED STATES COURT OF APPEALS
                            FOR THE FIFTH CIRCUIT                 Charles R. Fulbruge III
                           ______________________                         Clerk
                                 No. 03-50478
                           ______________________

                         UNITED STATES OF AMERICA,

                                                         Plaintiff-Appellee,
                                    versus

            JANE REASOR, a/k/a SAN JUANITA RANGEL REASOR,

                                              Defendant-Appellant.
       ____________________________________________________

            Appeal from the United States District Court
      for the Western District of Texas, San Antonio Division
       _____________________________________________________



Before REAVLEY, JONES and DENNIS, Circuit Judges.


DENNIS, Circuit Judge.

      Jane Reasor, a/k/a San Juanita Rangel Reasor, pleaded guilty

to   one   count    of   bank   fraud,    twenty-eight   counts   of    making,

uttering, and possessing forged or counterfeit securities, one

count of making a false statement on a credit application, and

three counts of mail fraud. See 18 U.S.C. §§ 1344, 513(a), 1014,

1341. (1) Ms. Reasor appeals her convictions and sentences based on

the twenty-eight counts of forgery of securities under 18 U.S.C. §




                                         -1-
513(a), contending that her forgery pleas were not supported by an

adequate factual basis as required by Fed. R. Crim. P. 11.1 (2)

Ms. Reasor appeals the denial of her motion to withdraw her pleas

of guilty to the entire indictment, and the calculation of her

sentences under the Federal Sentencing Guidelines based on alleged

improper loss calculations, an ex post facto application of a

sentencing enhancement, and United States v. Booker, 125 S.Ct. 738

(2005).    We affirm in part, vacate in part, and remand for further

proceedings. Ms. Reasor’s convictions of bank fraud, making a false

statement on a credit application, and three counts of mail fraud

are affirmed. Ms. Reasor’s convictions and sentences based on her

guilty pleas to forgery of securities under 18 U.S.C. § 513(a) are

vacated, and the case is remanded for further proceedings on the

forgery counts. Ms. Reasor’s remaining sentences are vacated and

the case is remanded to the district court for re-sentencing.

           I. Forgery Convictions Under 18 U.S.C. § 513(a)

                         A. Crime Definition

     It is a federal crime under 18 U.S.C. § 513(a) to (1) make,

utter or possess (2) a counterfeit security (3) of an organization

(4) with intent to deceive (5) another person, organization, or

government.    For this purpose, § 513(c) defines “organization” as

“a legal entity, other than a government, established or organized


     1
         See Fed. R. Crim. P. 11(b)(3).



                                 -2-
for any purpose, and includes a corporation, company, association,

firm, partnership, joint stock company, foundation, institution,

society, union or other association of persons which operates in or

the activities of which affect interstate or foreign commerce.”

This case presents the question of whether the factual basis of Ms.

Reasor’s guilty plea to twenty-eight counts of forgery under §

513(a) sufficiently established that at the relevant times the

entity whose securities she allegedly forged was an “organization,”

i.e., an entity which “operat[ed] in or the activities of which

affect[ed] interstate or foreign commerce.” Id.

                   B. Subject Matter Jurisdiction

     Initially, Ms. Reasor raised an argument that the district

court did not have subject matter jurisdiction over these counts

but she has conceded that it did in her reply brief.2        We agree

that the district court had subject matter jurisdiction.          The

prosecution of Ms. Reasor under 18 U.S.C. § 513 is a case arising

under the laws of the United States.3       More specifically it is a

case involving a federal crime, over which federal district courts

have jurisdiction pursuant to 18 U.S.C. § 3231.     Analogously, this



     2
       Ms. Reasor initially claimed that the district court did
not have subject matter jurisdiction over those charges. She now
concedes jurisdiction, but continues to assert that the district
court improperly accepted her guilty pleas.
     3
         U.S. Const. art. III, § 2 cl. 1.



                                 -3-
Court has ruled, in a Hobbs Act case, that an element can be

jurisdictional in nature without affecting the jurisdiction of the

court to adjudicate the case. United States v. Robinson, 119 F.2d

1205, 1212 n.4 (5th Cir. 1997). Also, in the context of a federal

arson prosecution, this Court has held that the interstate commerce

requirement is an element of that crime and not a prerequisite to

subject matter jurisdiction. United States v. Johnson, 194 F.3d

657, 659 (5th Cir. 1999) vacated and remanded for consideration in

light of Jones v. United States, 529 U.S. 848 (2000) by United

States v. Johnson, 530 U.S. 1201 (2000), reinstated by U.S. v.

Johnson, 246 F.3d 749 (5th Cir. 2001); accord United States v.

Rayborn, 312 F.3d 229, 231 (6th Cir. 2002); United States v. Rea,

169 F.3d 1111,1113 (8th Cir. 1999), vacated on other grounds, 223

F.3d 741 (8th Cir. 2000); United States v. Martin, 147 F.3d 529,

531-32 (7th Cir. 1998).     We see no indication in § 513 that

Congress intended for the statute’s interstate commerce nexus

requirement to serve any other purpose in the crime definition than

as an essential element of the crime.4


     4
       We note that the Ninth Circuit has held otherwise in two
published opinions. United States v. Nukida, 8 F.3d 665 (9th Cir.
1993)(holding that the interstate commerce nexus requirement in
18 U.S.C. § 1365(a) (tampering with a consumer product) is both
an element of the offense and a requirement affecting the subject
matter jurisdiction of the court intertwined together such that
the issue must be resolved by the jury); United States v. Barone,
71 F.3d 1442, 1444 n.4 (9th Cir. 1995)(applying the holding in



                                -4-
     And, as touched on above, the Commerce Clause, found in

Article I of the United States Constitution, implies limits on the

power of Congress to regulate, not on the Article III federal

courts’ power to adjudicate.5    Thus, it is logical to infer that in

drafting § 513, Congress included the interstate commerce nexus to

ensure that it was acting within its legislative power and not as

a limit on the judicial power of the courts to hear cases under the

statute.

           C. Indictment, Guilty Pleas, and Factual Basis

     A federal grand jury returned an indictment charging, in

counts two through twenty-nine, that Ms. Reasor did knowingly make,

utter and   possess   “forged   securities,   that   is   checks,   of   an

organization, namely, St. Dominic’s Catholic Church, San Antonio,

Texas,” wherein she altered, completed, signed and endorsed checks,

“said checks drawn on Church bank accounts with intent to deceive




Nukida to § 513). We must respectfully disagree. Neither Barone
nor Nukida explains why the essential interstate commerce nexus
element of the crime should be read to double as a prerequisite
to judicial jurisdiction in the absence of any plain words to
this effect. The language and structure of the statute indicate
that the requirement is merely an element of the crime. 18 U.S.C.
§ 513.
     5
      It is the courts that have the power to determine whether
Congress has exceeded the powers granted it under the Commerce
Clause. “It is emphatically the province and duty of the judicial
department to say what the law is.” Marbury v. Madison, 5 U.S.
299 (1803).




                                  -5-
another person or organization....all in violation of Title 18,

United States Code, Section 513(a).”                Each count listed a check of

the Church, each with a different check number, for a specific

amount made payable to a specifically named payee, “drawn on

Norwest Bank, San Antonio, Texas, account # 0230110916.”

     Ms. Reasor entered guilty pleas to the twenty-eight counts of

forgery.      At the time of the guilty pleas, the government made an

oral statement of a factual basis for the pleas.                     Prior to the

district court’s acceptance of the pleas, Ms. Reasor’s counsel,

without making a formal objection, informed the court that there

might be legal defenses to these counts. Subsequently, Ms. Reasor

filed a motion to withdraw her guilty pleas to the forgery charges

stating as one of the grounds that the government “articulated no

facts   on    the    record   which   would      have     shown   that   either   St.

Dominic’s Catholic Church, or the Archdiocese of San Antonio, was

an organization in interstate commerce.” The district court denied

Ms. Reasor’s motion to withdraw her pleas of guilty.

D. Church as Organization that Operates in or Conducts Activities

                      that Affect Interstate Commerce

     A district court cannot enter a judgment of conviction based

on a guilty plea unless it is satisfied that there is a factual

basis   for    the    plea.   Fed.    R.    Crim.    P.   11(f).     “The   purpose

underlying this rule is to protect a defendant who may plead with




                                           -6-
an   understanding   of   the   nature    of   the   charge,   but   ‘without

realizing that his conduct does not actually fall within the

definition of the crime charged.’” Johnson, 194 F.3d at 659.

Therefore,“[t]his factual basis must appear in the record . . . and

must be sufficiently specific to allow the court to determine that

the defendant’s conduct was within the ambit of that defined as

criminal.” United States v. Oberski, 734 F.2d 1030, 1031 (5th Cir.

1984); Accord Johnson, 194 F.3d at 659; United States v. Armstrong,

951 F.2d 626, 629 (5th Cir. 1992); United States v. Spruill, 292

F.3d 207, 215 (5th Cir. 2002).

      A guilty plea does not waive the right of a defendant to

appeal a district court’s finding of a factual basis for the plea

on the ground that the facts set forth in the record do not

constitute a federal crime. Johnson, 194 F.3d at 659; Spruill, 292

F.3d at 215.   In general, we regard a district court’s acceptance

of a guilty plea as a factual finding that we review under the

clearly erroneous standard. Johnson, 194 F.3d at 659 (citing United

States v. Rivas, 85 F.3d 193, 194 (5th Cir. 1996).              Because Ms.

Reasor objected to the sufficiency of the factual basis for her

pleas of guilty to forgery in the district court, we review her

argument that the district court erred in this regard under that

standard. See Johnson, 194 F.3d at 660; United States v. Bredimus,

352 F.3d 200, 204 (5th Cir. 2003).




                                    -7-
     Applying the standard to the record in this case, we conclude

that the factual basis does not support Ms. Reasor’s guilty pleas

to the federal crime charged in the indictment, namely, forging or

counterfeiting securities of an “organization,” that is, an entity

which operates in or the activities of which affect interstate or

foreign commerce. 18 U.S.C. § 513(c).6   The factual basis provided


     6
       The interstate commerce element of § 513 is markedly
different from that contained in many other federal crime
statutes. “The phrasing of the jurisdictional element of § 513
stands in clear contrast to the language Congress used in
defining a number of other federal crimes, which base federal
jurisdiction on the interstate effects of the offense conduct.”
United States v. Barone, 71 F.3d 1442, 1445 (9th Cir. 1995).
Instead, § 513 requires proof that the forged securities were
those of an organization which was operating in or whose
activities were affecting interstate commerce. “By drafting the
statute in this manner instead of using the broader language
included in other statutes, Congress evinced a clear intent that
the organization whose securities are forged, and not just the
forgery, be in or affecting commerce.” Id.
     Also, in Jones, a prosecution involving the arson of an
owner-occupied private residence, the Supreme Court analyzed the
arson statute which reads, in pertinent part, “[w]hoever
maliciously damages or destroys, or attempts to damage or
destroy, by means of fire or an explosive, any building, vehicle,
or other real or personal property used in interstate or foreign
commerce or in any activity affecting interstate or foreign
commerce shall be imprisoned . . . .” Jones v. United States, 529
U.S. 848 (2000); 18 U.S.C.A. § 844. In Jones, the Court rejected
the government’s argument that this language should be read
broadly as invoking the full reach of the commerce clause. Jones,
529 U.S. at 854. The Supreme Court disagreed noting that the
statute contained the qualifying words “used in” and found that
the proper inquiry “is into the function of the building itself,
and then a determination of whether that function affects
interstate commerce.” Id. at 854-55 (citing United States v.
Ryan, 9 F.3d 660, 675 (8th Cir. 1993) Consequently, the proper
inquiry in Ms. Reasor’s case is into the “operations” and
“activities” of the “organization” whose securities the defendant



                                -8-
by the government is not sufficiently specific to demonstrate that

St. Dominic’s Church operated in or affected interstate commerce.

As a general rule, a church is not a commercial entity which

operates in or conducts activities that affect interstate commerce.

That is not to say that a church’s activities may never affect

interstate commerce, but only that the operations and activities of

a church are not intrinsically in or affecting interstate commerce.

See United States v. Terry, 257 F.3d 366, 369 (4th Cir. 2001);

Rayborn, 312 F.3d 229.

     In the present case, the factual basis does not contain any

statement of specific, concrete facts from which it could be

inferred that the church’s operations and activities either were in

or affecting interstate commerce. On the contrary, the facts stated

tend to confirm that St. Dominic’s operations were typical of a

church   and   not   similar   to   those   of   a   commercial   enterprise

affecting interstate commerce.         The only references to specific

activities of the church in the factual basis provided were that,

“[t]he evidence would show that St. Dominic’s Catholic Church is

just one of many churches that has limited resources.             It doesn’t


is charged with forging or counterfeiting, and then into whether
those operations or activities were in or affecting interstate
commerce. Thus, unlike the statutes which require that the
offense conduct itself affect commerce, in both the arson
statute, § 844(i), and the forgery statute, § 513, the interstate
commerce element is removed from and must be charged and proved
separately from the criminal act of arson or forgery.



                                     -9-
employ a controller, it doesn’t have a business office . . . ” and

that the church’s bank accounts were insured by the Federal Deposit

Insurance Corporation.        The only other statements in the record

that the church had connections to interstate commerce were made in

argument by the government in its response to a motion to dismiss

for lack of federal subject matter jurisdiction. The prosecutor

argued that the role of the church is “to go forth and serve the

Lord” and so is not limited by geographic boundaries, and that,

accordingly,   the   church    received     donations   from   out   of   town

parishioners, made purchases from out of state vendors, and some of

the church’s bank accounts were serviced in other states.                 These

facts show that St. Dominic’s operations and activities were

typical of churches in general, most if not all of which have

accounts in banks insured by the FDIC, purchase some goods from out

of state vendors, and receive some donations from out of state

donors.

     Although there appear to be no reported cases construing §

513(a)’s interstate commerce element in connection with the forgery

of a church’s securities, we often have examined the somewhat

similar requirement that a church building must be “used in”

interstate   commerce   or    in   “an     activity   affecting   interstate

commerce” in order for its arson to constitute a federal crime

under 18 U.S.C. § 844(i).           For example, in Johnson, a case




                                    -10-
involving the adequacy of the factual basis for a guilty plea under

§ 844(i), the government relied on four facts to show the church

building’s connections to interstate commerce. 194 F.3d 657. The

government alleged that (1) the church was a member of a statewide

conference   to   which   it   annually   contributed   funds   (2)   the

conference forwarded those funds to a national denomination (3) the

national organization distributed those funds to various missionary

activities, seminaries, and institutions of higher education, and

(4) an out-of-state insurer paid the church’s claim for more than

$89,000. Id. at 662.      Thus, the government alleged substantially

more specific facts to show an interstate commerce nexus in Johnson

than in the meager factual basis advanced for Ms. Reasor’s pleas.

Yet this Court vacated Johnson’s guilty plea, finding that the

factual basis was not sufficient to establish the interstate

commerce element of § 844(i). Id. at 662-63.

     The relationship between church building use and interstate

commerce in an arson case was also considered by the Eleventh

Circuit in United States v. Odom, 252 F.3d 1289 (11th Cir. 2001).

At trial the government submitted evidence that the church (1)

received donations from two out-of-state donors (relatives of the

pastor), (2) used “a handful” of bibles and prayer books purchased

from an out-of-state supplier, and (3) made indirect contributions

to an out-of-state church organization through its membership in an




                                   -11-
in-state church organization. Id. at 1292-93. The Eleventh Circuit

found these       facts,    though    more      detailed    and    specific     than a

conclusory statement, insufficient to support a jury’s finding of

the requisite interstate nexus.              Id.   The purchase of goods from an

out-of-state supplier was insufficient, even in combination with

specific information about the receipt of out-of-state donations.

Id.   Although the facts of out-of-state purchases and the receipt

of out-of-state donations in Odom were more specific than those in

the government’s factual basis in Ms. Reasor’s case they were still

insufficient.

      Two   recent    decisions       upholding       federal     arson    convictions

illustrate the nature and extent of specific facts required to

demonstrate a sufficient interstate commerce nexus with church

building use.        In Rayborn, the Sixth Circuit found a sufficient

interstate commerce nexus where, inter alia, the church building

was used     to    record   sermons     that       were   regularly       broadcast   on

commercial        radio    stations     in      two    states.     312      F.3d   229.

Additionally, the broadcasts were used to carry on interstate

evangelism, attracting travelers from other states to                      worship and

make donations at the church building in question. Id. at 234.

Other significant factors were that the church (1) was located less

than five miles from the state border, (2) employed two people, (3)

received weekly collections of substantial sums from residents of




                                         -12-
other states, (4) made substantial purchases of goods in the local

market, and (5) owned several vehicles. Id. at 234-35.                        The

concurring judge found a sufficient nexus in the use of the church

building to record sermons for broadcast on commercial radio

stations, including a station located in Mississippi. He deemed the

other facts, without the broadcasts, to be insufficient. Id. at 236

(J. Gilman concurring).           In Terry, the Fourth Circuit found a

sufficient nexus between interstate commerce and the use of a

church building for the operation of a day care center. 257 F.3d at

369.   Use of a building for interstate radio broadcasts or for the

business of operating a day care center is plainly use of the

building    in    interstate   commerce        or   in   activities   affecting

interstate commerce.      Thus, Rayborn and Terry demonstrate the kind

and degree of factual specificity and concreteness required to show

an interstate nexus with church building use. Substantially more is

needed than ordinary church building use to prove a federal arson

case. Correspondingly, substantially more of this kind of factual

specificity and concreteness was required in Ms. Reasor’s case to

demonstrate a nexus between the church’s operations or activities

and interstate commerce.

       The Supreme Court, in another somewhat analogous situation,

held that “an owner-occupied residence not used for any commercial

purpose    does   not   qualify    as    property    ‘used   in’   commerce   or




                                        -13-
commerce-affecting activity; arson of such a dwelling, therefore,

is not subject to federal prosecution under § 844(i).” Jones v.

United States, 529 U.S. 848, 852 (2000).                  In Jones, the Court

concluded that the “Indiana dwelling [use] involved there was not

within § 844(i) notwithstanding that it was used by the owner as

collateral for a mortgage from an Oklahoma lender and by the lender

as security for that loan, was insured by a Wisconsin insurance

policy protecting both the owner and the lender, and used natural

gas from outside Indiana.” United States v. Johnson, 246 F.3d 749,

751 (5th Cir. 2001).            The Jones Court held that § 844(i) required

more, viz. “active employment for commercial purposes,” and noted

that       the   owner   "did   not   use    the   residence   in   any   trade   or

business." Id. (quoting Jones, 529 U.S. at 1910).

       Similarly, therefore, under § 513(a), a church not having

operations in or activities affecting interstate commerce is not an

“organization” so as to subject a forger of its securities to

federal prosecution under § 513(a).7                 Just as the government’s

arson cases failed in the foregoing instances, the government’s



       7
       In light of Jones, this Circuit in Johnson, 246 F.3d at
752, reconsidered and reaffirmed its previous decision in United
States v. Johnson, 194 F.3d 657 (5th Cir. 1999), concluding that
the factual basis for the plea as shown by the record did not
suffice to show that at the relevant time the church building in
Johnson was being actually employed for commercial purposes as to
be within the terms of § 844(i). Id. at 752 (citing United States
v. Rea, 233 F.3d 741 (8th Cir. 2000)).



                                            -14-
guilty plea conviction of Ms. Reasor fails here because the factual

basis does not demonstrate that the church whose securities she is

charged with counterfeiting was an organization whose operations

were in interstate commerce or commerce-affecting activity.

     “Notwithstanding an unconditional plea of guilty, we will

reverse on direct appeal where the factual basis for the plea as

shown of record fails to establish an element of the offense of

conviction.” Spruill, 292 F.3d at 215 (quoting United States v.

White, 258 F.3d 374, 380 (5th Cir. 2001); see United States v.

Baymon, 312 F.3d 725 (5th Cir. 2002)(same); Johnson, 246 F.3d 749.

Because the factual basis presented to the district court fails to

establish the essential interstate commerce element of 18 U.S.C. §

513(a) we must vacate the convictions of Ms. Reasor under this

statute.

                        E. Bank as Organization

     Significantly, even the government does not contend that the

facts asserted in the record were sufficient to establish a nexus

between    interstate   commerce   and    the   church’s   operations   or

activities. Instead, the government now argues, for the first time

in this case, that we must read the indictment and the factual

basis as if she were charged with forging securities of Norwest

Bank.     In this way, the government suggests, its miscues below




                                   -15-
won’t matter because the bank can stand in as the organization in

interstate commerce.

     The short answer is that the government did not make this

argument in the district court and therefore may not raise it for

the first time on appeal.   Furthermore, even if we were to consider

the argument, it is without merit.

     The Government can not use the appellate courts to reconstruct

a new record for its losing case.       An appellate court reviews the

district court finding that there was a factual basis for a guilty

plea according to a clear error standard. Compare U.S. v. Hall, 110

F.3d 1155, 1162 (5th Cir. 1997) with United States v. Briggs, 920

F.2d 287, 294-295 (5th Cir. 1991). Consequently, the function of a

court of appeals in such a review does not allow it to amend or

alter the record presented to the district court.

     Further, the argument that the Government would raise here for

the first time is based on two false premises: first, that the

deficiency in its indictment and factual basis can be disregarded

as a harmless variance in proof from the terms of the indictment;

and, second, that United States v. Chappell, 6 F.3d 1095 (5th Cir.

1993) supports this argument.

     Neither the courts nor the prosecutor may change the charge in

the indictment put forward by the grand jury, because the Fifth

Amendment guarantees that no person shall be held to answer for a




                                 -16-
capital or infamous crime unless on presentment or indictment of a

grand jury.8   If it were within the power of a court to change the

charging part of an indictment to suit its own notions the great

importance that the common law and the Constitution attach to an

indictment by a grand jury “may be frittered away until its value

is almost destroyed.” Ex parte Bain, 121 U.S. 1, 10 (1887).

     This court continues to adhere to these principles and to the

rules or tests set down by the Supreme Court in Stirone v. United

States, 361 U.S. 212 (1962).

         “Stirone requires that courts distinguish between
     constructive amendments of the indictment, which are
     reversible per se, and variances between indictment and
     proof, which are evaluated under the harmless error
     doctrine.   The    accepted   test    is    that   a   constructive
     amendment of the indictment occurs when the jury is
     permitted to convict the defendant upon a factual basis
     that effectively modifies an essential element of the
     offense charged [in the indictment]....In such cases,
     reversal is automatic, because the defendant may have
     been   convicted     on   a   ground       not   charged   in   the
     indictment.”
United States v. Chambers, 2005 WL 995671 (5th Cir. 2005)(quoting

United States v. Adams, 778 F.2d 1117, 1123 (5th Cir. 1985).



     8
       See 1 Charles Alan Wright & Arthur R. Miller, Federal
Practice and Procedure § 127 (2d ed. 1984) (citing, inter alia,
Stirone v. United States, 361 U.S. 212 (1960); Ex parte Bain, 121
U.S. 1 (1887); Russell v. U.S., 369 U.S. 749 (1962)).



                                    -17-
      Consequently, only a grand jury can amend an indictment to

broaden it; and such broadening need not be explicit to constitute

reversible error, but may be implicit or constructive. See United

States v. Doucet, 994 F.2d 169, 172 (5th Cir. 1993).               An implicit

or   constructive       amendment     of      the    indictment,   constituting

reversible error, occurs when it permits the defendant to be

convicted   upon    a   factual     basis     that   effectively   modifies   an

essential element of the offense charged or permits the government

to convict the defendant on a materially different theory or set of

facts than that with which she was charged. See Chambers, 2005 WL

995671 (reversing a conviction for being a felon in possession of

ammunition,   where     the   indictment       charged   possession   of   whole

ammunition “in or affecting commerce” and the jury was allowed to

convict based on the travel of component parts, rather than the

whole, of the ammunition in interstate commerce); Adams, 778 F.2d

at 1123 (reversing a conviction for making a false statement and

providing false identification in connection with the purchase of

a firearm, where the indictment charged Adams with using a false

name, but the jury was allowed to convict based on his use of a

false address); United States v. Salinas, 601 F.2d 1279, 1287-91

(5th Cir. 1979)(reversing a conviction for misapplication of bank

funds where the indictment charged that the defendant was a bank

director, but the jury was allowed to convict if it found that he




                                       -18-
was an officer, director, agent, or employee); United States v.

Salinas, 654 F.2d 319, 324 (5th Cir. 1981)(reversing a conviction

for aiding and abetting the misapplication of bank funds where the

indictment charged that the defendant aided and abetted a named

officer where the jury was allowed to convict on proof that he

aided and abetted a different officer); Doucet, 994 F.2d at 172

(reversing a conviction for possession of an unregistered firearm

modified to fire as a machine gun, where the indictment charged

possession of the modified gun and the jury was allowed to convict

on possession of the unassembled component parts); See, e.g.,

United States v. Nunez, 180 F.3d 227 (5th Cir. 1999).

     The Reasor indictment plainly charged that Ms. Reasor forged

securities of St. Dominic’s Catholic Church, an organization in or

affecting interstate commerce, in order to mislead and defraud the

victim of her scheme. Construing the indictment and the factual

basis as the government now urges would drastically alter the

indictment’s charges of the crimes that Ms. Reasor was held to

answer for. Those constructive amendments would arbitrarily recast

the bank in the role of the securities owner so that the bank, not

the church, would become the organization whose operations are

alleged to impact interstate commerce.

     As we said in Doucet, however, “an indictment is not putty in

the government’s hands.” 994 F.2d at 173.   Neither this court nor




                               -19-
the district court can permit the government to constructively

amend the indictment after the record has been made so as to fit

the proof it offered below.         Had the district court done so, it

would be our duty to reverse its judgment as clear error.                Hence,

we cannot countenance an argument by the government that calls upon

us to do that which we would be bound to set aside.

      The government unprofitably invokes Chappell in a futile

effort to show that the factual basis in this case supports the

interstate commerce elements contained in the indictment and the

statute, § 513(a). 6 F.3d 1095.        In Chappell, the defendants were

convicted of, inter alia, § 513(a) violations by their conspiracy

to cash counterfeit Mississippi Power and Light (MPL) payroll

checks drawn on Trustmark National Bank at Wal-Mart stores and

other supermarkets. Chappell, 6 F.3d at 1097.                 On appeal, the

defendants argued that the evidence was not sufficient to support

their   convictions   and    that   the      indictment     should    have    been

dismissed because it lacked specificity. Id. at 1098-99. But

Chappell   is   inapposite   because        the   court’s   opinion    does   not

describe or discuss the indictment and its charges in any detail.

Id.     Apparently,   because   of     very       general   pleadings   in    the

indictment, the court’s interpretation of the terms of the statute,

or the defendants’ lack of ability, or all of those factors, the

defendants were unable to raise the issue of variance of proof or




                                     -20-
constructive amendment of the indictment except in a very narrow

respect, viz., their objection to the government’s closing argument

depicting Trustmark as the ultimate victim. Id.

     The Chappell court held that the evidence was sufficient

because:(1) Trustmark, the bank on which the checks were drawn, was

plainly in interstate commerce; (2) The checks were securities of

both the bank, Trustmark, and MP&L, the company on whose accounts

the checks were forged or counterfeited; (3) Thus, it is was not

material that the government failed to prove that MP&L was an

“organization” under § 513; (4) Because the deceived victims were

individuals, viz., the store clerks who cashed the checks, they

were “persons” with respect to whom the statute does not require

proof of any relationship to interstate commerce. Chappell, 6 F.3d

at 1098-99.

     The Chappell defendants’ principal attack on the indictment

seems to have been its alleged lack of specificity regarding the

identity of the victims and their relationship with interstate

commerce. Id. at 1099.9   The court rejected the defendant’s motion

to dismiss the indictment because the defendants were not entitled

to have the indictment dismissed because of its lack of specificity


     9
       The defendants made a very limited argument that the
government constructively amended the indictment by arguing in
closing that Trustmark would have been the ultimate victim of the
defendants’ fraud if it had succeeded. Chappell, 6 F.3d at 1099.
The court rejected this argument without assigning reasons. Id.



                                -21-
as   to    the   identity    of    the    victims     and    their   connection     to

interstate commerce. Id. at 1099-1100. The indictment was specific

enough     because   it     charged      the     essential   elements       permitting

defendants to prepare a defense. Id. Further, although the court

did not specifically make the connection here, it earlier concluded

that the jury reasonably could have found that the victims were the

individual store clerks who were “persons” under § 513. Id. at

1098.

       The other cases upon which the government relies, United

States v. Wade, 266 F.3d 574 (6th Cir. 2001) and United States v.

Jackson, 155 F.3d 942, 945-46 (8th Cir. 1998) are distinguishable

because the indictments in those cases charged the defendants using

broad general terms similar to the provisions of § 513(a).

       In Wade, the defendant argued both that the evidence was

insufficient to convict him under § 513(a) and that a reversible

constructive      amendment       had    occurred.    226    F.3d    574.    The   Wade

indictment charged the defendant with violations of § 513(a)

largely in generic terms. Id. Wade was thus alleged to have made

and possessed “counterfeit securities of an organization with

intent to deceive and defraud other persons and organizations . .

. .”      Id. The counterfeit checks were drawn upon accounts at Key

Bank and Metropolitan Bank, which were named in the indictment. Id.

at 582, 583, n. 2. The court, in effect, held that the checks were




                                          -22-
securities   of   the     banks    and     that   the   banks   were   inherently

“organizations”     for    §      513(a)    purposes,     and   concluded    that

“[b]ecause the checks...purported to be drawn on accounts at Key

Bank and Metropolitan Bank, real entities that are organizations

under 18 U.S.C. § 513(c)(4), there was sufficient evidence to

convict Wade under Counts 17, 18 and 20.” Id. at 582 (citing

Chappell).      The court in Wade found “it doubtful that Wade’s

complaints even rise to the level of a variance . . . .                The checks

. . . listed . . . the names of the banks on their face.                Thus, the

evidence at trial proved that the checks listed in the indictment

counts were counterfeit securities of an organization.” Id. at 583.

       In Jackson, the defendant was convicted of, inter alia,

conspiracy to possess or utter counterfeit securities under § 513.

155 F.3d 942.     On appeal the defendant argued that the Government

had failed to prove that the object of the alleged conspiracy was

to violate § 513. Jackson, 155 F.3d at 944.                       The defendant

contended that the government’s case depended on whether a bank can

be an “organization” as referred to in § 513. Jackson, 155 F.3d at

946.    The court held that it could, saying it agreed with the

reasoning in Chappell. Jackson, 155 F.3d at 946 (citing Chappell,

6 F.3d at 1099. (“[S]ection 513 does not expressly or impliedly

state that a document may be a security of only one person.”)




                                         -23-
     There is no conflict between the cases relied upon by the

Government and our determination in Ms. Reasor’s case that the

factual    basis   is    not   sufficient      to    support   her    guilty   plea

conviction to the § 513 forgery charges in the indictment.                      The

major distinctions are: (1) In Reasor, the factual basis does not

support a finding of the essential interstate commerce element as

it was charged in the indictment, while in Chappell, et al., the

evidence was sufficient to support the jury’s finding of every

essential element of the § 513 offenses charged.                      (2) In Ms.

Reasor’s case, the indictment is written in very specific terms.

Ms. Reasor was charged with forgery of the securities of the St.

Dominic’s Church, an organization for purposes of § 513 in order to

deceive and defraud the Norwest Bank. In Wade and Jackson the

indictment was written in broad generic terms closely tracking the

statute. Thus, the government in the latter cases was afforded the

freedom of proving the elements of the crime in alternative ways;

whereas the Reasor indictment provided but one factual pattern

which the government was required to satisfy in the factual basis.

Chappell    did    not   argue   with     any       effort   that    there   was   a

constructive amendment of the indictment in his case.                   Moreover,

the court’s opinion does not describe or discuss the indictment so

as to give us a basis for comparison.




                                        -24-
     In   sum,    Ms.   Reasor   showed    that   the   factual     basis    was

insufficient as to an essential element of the crime charged.

Chappell, Wade and Jackson were unable to demonstrate insufficiency

of evidence as to any essential element of the crime charged in

their indictments.      The authorities cited by the government do not

conflict with the circuit precedents upon which we have relied and

give us no reason to abandon our analysis or our disposition.

     For these reasons we reject all of the Government’s arguments

on this point as being without merit.

          II. Denial of Motion to Withdraw Pleas of Guilty

     Ms. Reasor seeks reversal of all of her convictions, alleging

that her guilty pleas were not voluntary, as they were coerced by

the trial judge, and that they were obtained in violation of

Federal Rule of Criminal Procedure 11.            A plea must be voluntary

and intelligent to be valid.        Hill v. Lockhart, 474 U.S. 52, 56

(1985).   Furthermore, Federal Rule of Criminal Procedure 11(c)(1)

prohibits   the   court   from   “participat[ing]       in   any   discussions

between the parties concerning any such plea agreement.” United

States v. Rodriguez, 197 F.3d 156, 158 (5th Cir. 1999).10                   This

Court reviews the validity of guilty pleas de novo.            United States



     10
       Federal Rule of Criminal Procedure 11 was amended in
2002, moving this restriction on the trial court from 11(e)(1)(c)
to 11(C)(1), but the relevant amendment did not change the law.
Fed. R. Crim. P. 11 advisory committee’s note.



                                    -25-
v. Busto-Useche, 273 F.3d 622, 625 (5th Cir. 2001).       However, by

the express terms of the statute, Rule ll violations are subject to

harmless error analysis.   Fed. R. Crim. P. 11(h); United States v.

Miles, 10 F.3d 1135, 1140-41 (5th Cir. 1993).

     Ms. Reasor alleges that the trial court’s entry of sanctions

against her for the cost of unnecessarily assembling a jury venire,

refusal to accept a plea to anything but the entire indictment, and

statement that if she were found guilty she would be taken into

custody   pending   sentencing   were   coercive   and   an   improper

involvement of the trial court in the plea negotiation process.

The government responds that this series of events occurred on the

day the matter was scheduled to go to trial following months of

discovery and negotiations, allowing Ms. Reasor plenty of time to

reach a plea agreement with the government. The government further

points out that while there was no real plea agreement, Ms. Reasor

intended to plead guilty to most of the counts of the indictment

anyway.   Further, the government argues that Ms. Reasor was not at

risk of paying for the cost of an unnecessary jury venire in the

event she chose to stand trial. Thus, that risk could not have

coerced her to plead guilty.

     Prior to the plea hearing, Ms. Reasor indicated to the court

in writing her intent to plead guilty to the bank fraud count and

many of the § 513 counts. Therefore she cannot claim that those




                                 -26-
pleas were coerced by conduct of the trial court judge at the plea

hearing.   In addition, the § 513 convictions will be vacated by

this opinion, making any question of the validity of the pleas to

these counts moot.    Thus, only the pleas to one count of making a

false statement on a credit application and three counts of mail

fraud are at issue.    See 18 U.S.C. §§ 1014, 1341.

     While the conduct of Ms. Reasor’s plea hearing was hardly

ideal, we find that Ms. Reasor’s pleas were voluntary. We do not

condone the imposition of sanctions on late pleading criminal

defendants for the costs of bringing in a jury.       However, under

the particular circumstances of this case, the district court’s

rescinded sanction tended to encourage Ms. Reasor to go to trial,

not to plead guilty.    Therefore, this threatened sanction could

not have rendered Ms. Reasor’s plea involuntary.       Further, Ms.

Reasor admits that the district court judge was fully within his

rights to detain her if she were found guilty at trial.      Even if

we were to agree with Ms. Reasor that the court’s statement of its

intention to order Ms. Reasor taken into custody in the event of

a guilty verdict was ill-timed, we decline to find that, under the

circumstances, the court’s statement was so coercive as to render

Ms. Reasor’s plea involuntary.

     As for any violation of Federal Rule of Criminal Procedure

11's prohibition on judicial involvement in the plea negotiation

process, it is not clear that there was a plea negotiation process



                                 -27-
in which to interfere.    The transcript of the plea hearing records

defense counsel’s own declaration that there was “not actually an

agreement,” but that her client wanted to resolve the case through

a guilty plea or pleas.    This hearing took place on the scheduled

trial date and both parties declared their readiness to go to trial

that day. No discussion between the prosecutor and the defendant’s

counsel was ongoing as they had failed to reach an agreement.            It

seems the plea negotiation window had closed.11          As there was no

ongoing plea negotiation, Rule 11's prohibition does not apply and

these convictions are affirmed.

                           III. Sentencing

     As the guidelines group offenses like these for purposes of

calculating offense level the vacated convictions should affect the

calculation of all thirty-three of Ms. Reasor’s forty-two-month

concurrent   sentences.   See   former    U.S.S.G.   §2F.1.1   (1998).   In

addition, the application of former U.S.S.G §2F1.1(b)(5)(c)(I) of

the 2000 version of the Sentencing Guidelines to Ms. Reasor’s

sentences violated the Ex Post Facto Clause.          The ex post facto

violation is clear and conceded by the government. Ms. Reasor




     11
       In fact, the judge had set an earlier deadline for
notifying the court of any plea agreement and that date had come
and gone without agreement.


                                   -28-
should be re-sentenced with consideration given to the appropriate

version of the guidelines.12

                            IV. Conclusion

     Ms.   Reasor’s   convictions    of    bank   fraud,   making   a   false

statement on a credit application, and three counts of mail fraud

are AFFIRMED.   Ms. Reasor’s convictions and sentences for forgery

under 18 U.S.C. § 513(a) are VACATED. Ms. Reasor’s other sentences

are VACATED. The case is remanded to the district court for further

proceedings,    including   recalculation         and   re-sentencing      in

accordance with this opinion.




     12
       Ms. Reasor also asserted error in the loss calculation
used in determining the applicable sentencing range under the
guidelines. Because we remand for re-sentencing this issue is
not yet ripe. Ms. Reasor has also raised claims under Blakely v.
Washington, 124 S.Ct. 2531 (2004) and now United States v.
Booker, 125 S.Ct. 738 (2005). As we are vacating Ms. Reasor’s
sentences these claims are moot. Re-sentencing, of course, will
take place in accord with Booker.


                                    -29-
