Rehearing granted and mooting motion for rehearing en banc, October 4, 2006

                                    UNPUBLISHED

                        UNITED STATES COURT OF APPEALS
                            FOR THE FOURTH CIRCUIT


                                    No. 03-4857



     UNITED STATES OF AMERICA,

                                                    Plaintiff - Appellee,

               versus


     ROBERT LEE FOSTER,

                                                   Defendant - Appellant.



     Appeal from the United States District Court for the Eastern
     District of Virginia, at Richmond. Richard L. Williams, Senior
     District Judge. (CR-03-141)


     Submitted:   August 31, 2005            Decided:   September 23, 2005


     Before MICHAEL, TRAXLER, and SHEDD, Circuit Judges.


     Affirmed in part, vacated in part, and remanded by unpublished per
     curiam opinion.


     Christopher F. Cowan, COWAN & OWEN, P.C., Richmond, Virginia, for
     Appellant. Paul J. McNulty, United States Attorney, Michael J.
     Elston, Assistant United States Attorney, Alexandria, Virginia, for
     Appellee.


     Unpublished opinions are not binding precedent in this circuit.
     See Local Rule 36(c).
PER CURIAM:

          Robert Lee Foster appeals his conviction and sentence

entered on a jury verdict.   Foster was convicted on all counts of

a five-count indictment, charging him with conspiracy to defraud

the United States, in violation of 18 U.S.C. § 286 (2000), false,

fictitious, and fraudulent claims, in violation of 18 U.S.C. § 287

(2000), and aiding and abetting, in violation of 18 U.S.C. § 2

(2000).   Foster was sentenced to 156 months of imprisonment, 120

months on Count One and thirty-six months on Count Two, to be

served consecutively, and thirty-six months on the remaining three

counts, to be served concurrent to Count Two and consecutive to

Count One.    The court further imposed three years of supervised

release and restitution, jointly and severally with codefendant

Crystal Foster, in the amount of $240,802.70.

          On appeal, Foster challenges the sufficiency of the

evidence on all counts.   “The verdict of a jury must be sustained

if there is substantial evidence, taking the view most favorable to

the Government, to support it.” Glasser v. United States, 315 U.S.

60, 80 (1942).    We “have defined ‘substantial evidence,’ in the

context of a criminal action, as that evidence which ‘a reasonable

finder of fact could accept as adequate and sufficient to support

a conclusion of a defendant’s guilt beyond a reasonable doubt.’”

United States v. Newsome, 322 F.3d 328, 333 (4th Cir. 2003)

(quoting United States v. Burgos, 94 F.3d 849, 862-63 (4th Cir.


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1996)   (en    banc)).           We    review       both    direct     and   circumstantial

evidence and give the “[G]overnment the benefit of all reasonable

inferences         from    the        facts    proven       to    those      sought     to     be

established.”        United States v. Tresvant, 677 F.2d 1018, 1021 (4th

Cir. 1982).

              We must uphold a conviction under 18 U.S.C. § 287 “if the

evidence shows the submission of a false claim and if the defendant

acted   with       knowledge          that    the    claim       was   false     and    with   a

consciousness that he was either doing something which was wrong,

or which violated the law.”                  United States v. Bolden, 325 F.3d 471,

494 (4th Cir. 2003) (internal quotations and citation omitted). To

prove the conspiracy under § 286, the Government must prove (1)

“that there was a conspiracy to defraud the United States; (2) that

the defendant knew of the conspiracy and intended to join it; and

(3) that the defendant voluntarily participated in the conspiracy.”

United States v. Upton, 91 F.3d 677, 681-82 (5th Cir. 1996)

(internal quotations omitted).

              We conclude that the evidence was sufficient to satisfy

these statutes.           Foster, a self-styled “reparations activist” who

conducted      a    business          preparing       tax    returns      from    his    home,

encouraged several other individuals to allow him to file their tax

returns claiming the right to a refund for many thousands of

dollars based on an asserted entitlement to reparations.                                       He

admitted in a deposition, a portion of which was introduced at


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trial, that he had searched Internal Revenue Service (“IRS”)

publications but had found no basis for such a claim.                   Further,

Foster received one-fifth of the refund sent to his daughter,

Crystal Foster.          We find this evidence sufficient to support

Foster’s convictions.

              Foster    challenges    a    clarifying   instruction    given   in

response to a question from the jury during deliberations.                  This

court reviews a district court’s decision to respond to a jury’s

question, and the form of that response, for abuse of discretion.

United States v. Smith, 62 F.3d 641, 646 (4th Cir. 1995).                  “[I]n

responding to a jury’s request for clarification on a charge, the

district court’s duty is simply to respond to the jury’s apparent

source   of     confusion    fairly       and   accurately   without    creating

prejudice.”       Id.     An error requires reversal only if it is

prejudicial in the context of the record as a whole.                  See United

States v. United Med. & Surgical Supply Corp., 989 F.2d 1390,

1406-07 (4th Cir. 1993).         We conclude that the district court’s

response in this case was fair and accurate, and was certainly not

prejudicial when judged on the record as a whole.

              Foster next challenges a comment by the prosecutor to the

effect that every taxpayer was a victim of Foster’s crime.                     As

Foster did not object to this statement at trial, we review for

plain error.      Fed. R. Crim. P. 52(b); United States v. Olano, 507

U.S. 725, 731-32 (1993).         In assessing whether an appellant is


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entitled to relief from alleged prosecutorial misconduct at trial,

the court “must assess (1) whether the prosecutor’s remarks or

conduct was improper, and (2) whether such remarks or conduct

prejudicially affected the defendant’s substantial rights so as to

deprive [him] of a fair trial.”          United States v. Stockton, 349

F.3d 755, 762 (4th Cir. 2003)(internal quotation marks omitted).

Here, as the Government asserts, the challenged statement is both

obvious and true.       Foster has not explained how his substantial

rights are implicated by the statement, and we conclude that he has

failed to establish plain error.

              In a supplemental brief filed after the decision in

Blakely v. Washington, 542 U.S. 296 (2004), but before the decision

in   United    States   v.   Booker,   125   S.   Ct.   738   (2005),   Foster

challenges his sentence, arguing that the district court imposed

the sentence based on facts found by the judge on a preponderance

of the evidence standard.       Foster’s sentence was enhanced eighteen

levels beyond the base offense level because of the amount of loss

as found by the judge.         Three enhancements based on facts not

alleged in the indictment or found by the jury were also imposed.1



      1
      Foster argues that, based on the information charged in the
indictment, he can be held responsible only for $1,508,000, rather
than the $5,098,400.91 cited in the presentence report. He also
challenges the enhancements imposed for violation of a prior,
specific judicial order, U.S. Sentencing Guidelines Manual
§ 2B1.1(b)(7)(C) (2002); aggravating role in the offense, USSG
§ 3B1.1(a), and obstruction of justice, USSG § 3C1.1, because they
were based on facts found by the judge.

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As Foster raises this Sixth Amendment claim for the first time on

appeal, review is for plain error.       See United States v. Hughes,

401 F.3d 540, 547 (4th Cir. 2005).      The Supreme Court’s subsequent

decision in Booker applies to all cases pending on direct review at

the time it was decided.    Id. at 769 (citing Griffith v. Kentucky,

479 U.S. 314, 328 (1987)). Thus, Booker applies to Foster’s direct

appeal.

          In Booker, the Supreme Court held that the mandatory

manner in which the federal sentencing guidelines required courts

to impose sentencing enhancements based on facts found by the court

by a preponderance of the evidence violated the Sixth Amendment.

Id. at 746, 750 (Stevens, J., opinion of the Court).           The Court

remedied the constitutional violation by severing two statutory

provisions, 18 U.S.C.A. § 3553(b)(1) (West Supp. 2005) (requiring

sentencing courts to impose a sentence within the applicable

guideline range), and 18 U.S.C.A. § 3742(e) (West 2000 & Supp.

2005) (setting forth appellate standards of review for guideline

issues), thereby making the guidelines advisory.        Hughes, 401 F.3d

at 546 (citing Booker, 125 S. Ct. at 756-67 (Breyer, J., opinion of

the Court)).

          After   Booker,   courts   must   calculate   the   appropriate

guideline range, consider the range in conjunction with other

relevant factors under the guidelines and 18 U.S.C.A. § 3553(a)

(West 2000 & Supp. 2005), and impose a sentence.        If it imposes a


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sentence outside the guideline range, the district court must state

its reasons for doing so.       Hughes, 401 F.3d at 546.

            Here, Foster’s offense level was increased by eighteen

levels based on an amount of loss calculation that considered loss

beyond that charged in the indictments.        He also received three

enhancements based on facts found by the district court by a

preponderance of the evidence. Without any of these increases, his

total offense level would have been six.             Considered with his

criminal history category III, this total offense level yields a

sentencing range of two to eight months rather than the range of

151 to 188 months that the district court used to compute his

sentence.    We find that this sentencing constitutes plain error2

that warrants reversal.    Hughes, 401 F.3d at 555-56.3

            Finally,   Foster     challenges   the     district   court’s

calculation of his criminal history category, contending that this


     2
      Just as we noted in Hughes, 401 F.3d at 545 n.4, “[w]e of
course offer no criticism of the district judge, who followed the
law and procedure in effect at the time” of Foster’s sentencing.
See generally Johnson v. United States, 520 U.S. 461, 468 (1997)
(stating that an error is “plain” if “the law at the time of trial
was settled and clearly contrary to the law at the time of
appeal”).

     3
      In his original brief to the court, Foster challenged the
district court’s use of “intended loss” rather than “actual loss”
in determining the amount of loss for sentencing. We hold that the
district court correctly used “intended loss,” pursuant to USSG
§ 2B1.1. Under that provision, for purposes of determining the
offense level for property and financial crimes, loss is the
greater of actual or intended loss. Therefore, on remand, the
district court may continue to use intended loss.

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issue must also be charged in the indictment and proved to a jury

beyond a reasonable doubt.             Essentially, Foster argues that the

prior conviction exception laid out in Almendarez-Torres v. United

States, 523 U.S. 224 (1998), may no longer be good law.                            This

argument is foreclosed by the Supreme Court’s reaffirmation of the

Almendarez-Torres       prior       conviction     exception      in   Booker.      See

Booker,   125    S.    Ct.    at    756   (“Any     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.”).          While    Justice    Thomas’s

concurrence in Shepard v. United States, 125 S. Ct. 1254, 1263-64

(2005),   expressed         doubt    about   the     future       viability   of    the

exception, it is still good law.

           Nor       does    the    application      of    the     prior   conviction

exception to Foster raise any of the problems outlined in Shepard.

In Shepard, the Supreme Court instructed that Sixth Amendment

protections apply to disputed facts about a prior conviction.                       Id.

at 1262-63. Because no facts related to Foster’s prior convictions

were disputed, the district judge’s determination of his criminal

history did not violate the Sixth Amendment.                  Cf. United States v.

Washington,     404    F.3d   834,     843   (4th    Cir.    2005)     (finding    that

district court’s reliance on disputed facts about the defendant’s




                                          - 8 -
prior conviction violated the defendant’s Sixth Amendment right to

trial by jury).

          We accordingly affirm Foster’s conviction, but vacate his

sentence and remand for resentencing.      We dispense with oral

argument because the facts and legal contentions are adequately

presented in the materials before the court and argument would not

aid the decisional process.

                                                 AFFIRMED IN PART,
                                                  VACATED IN PART,
                                                      AND REMANDED




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