                                                                              United States Court of Appeals
                                                                                       Fifth Circuit
                                                                                    F I L E D
                    IN THE UNITED STATES COURT OF APPEALS
                                                                                   December 21, 2005
                                 FOR THE FIFTH CIRCUIT                           Charles R. Fulbruge III
                                                                                         Clerk


                                        No. 04-11343
                                      Summary Calendar



       UNITED STATES OF AMERICA,

                                                           Plaintiff-Appellee,

                                             versus

       WENDELL LYNN MINTS,

                                                           Defendant- Appellant.


                    Appeal from the United States District Court for
                             the Northern District of Texas
                            (USDC No. 7:02-CR-14-ALL)
           _________________________________________________________


Before REAVLEY, DAVIS and PRADO, Circuit Judges.

PER CURIAM:*

       Mints appeals (1) his jury conviction under a multi-count indictment for one count

of conspiracy on the grounds of insufficient evidence, and (2) the 41-month sentence

imposed by the district court on the grounds that the court unconstitutionally enhanced



       *
        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 R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
his sentence on the basis of facts neither pleaded to nor proved in violation of United

States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005). For the following reasons, we

affirm the conviction but remand for the limited purpose of consideration by the district

court of whether it will impose a different sentence under the now-advisory sentencing

guidelines and resentencing is necessary:

       1.     A conspiratorial agreement may be implicit, and the jury may infer its

              existence from circumstantial evidence. United States v. Montgomery, 210

              F.3d 446, 449 (5th Cir. 2000). In this case, there is strong circumstantial

              evidence of an agreement between Mints and Rural Community Insurance

              Services adjustor, Gracchus Feldman to file false crop loss claims. The two

              men worked daily in close physical proximity and had a long-term working

              relationship. See United States v. Brito, 136 F.3d 397, 409 (5th Cir. 1998)

              (“[A] conspiracy can be inferred from a combination of close relationships

              or knowing presence and other supporting circumstantial evidence.”).

              Feldman acknowledged that he had never before received a schedule of

              insurance from any farmer with the appraisals already filled out as the

              appraisals in this case were. Given their lengthy experience in the

              agriculture industry, the two men were equally aware that Feldman could

              not properly inspect and count Mints’s crops, alleged to have failed in June

              or July, in November, when Mints submitted the schedules to Feldman.

              That Feldman calculated backward from the numbers provided by Mints to

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     arrive at crop counts and that both men signed off on the reverse-engineered

     and backdated production and appraiser sheets strongly suggests a tacit

     agreement to bypass proper claim procedures. Further, Feldman testified

     that it was implied that he and Mints agreed on the course of action to be

     taken regarding Mints’s crop claims. Viewing the evidence in the light

     most favorable to the verdict, we find that a rational trier of fact could have

     found beyond a reasonable doubt that an implicit agreement existed

     between Mints and Feldman. United States v. Jackson, 313 F.3d 231, 233-

     34 (5th Cir. 2002).

2.   Because, under a mandatory sentencing guideline regime, the district court

     applied sentencing enhancements based on judicial fact finding regarding

     loss amounts and Mint’s role in the scheme, Booker error occurred. See

     United States v. Akpan, 407 F.3d 360, 375 (5th Cir. 2005). Because Mints

     preserved the Booker error, we review under a harmless error standard. Id.

     at 376. In its oral pronouncement of sentence, the district court expressly

     stated that it might consider taking evidence of Mint’s good character into

     consideration as a mitigating factor and impose a different sentence but for

     the preclusion of such consideration by the mandatory guidelines.

     However, in an addendum to the written judgment but not during oral

     pronouncement, the court stated that if the guidelines were determined to be

     unconstitutional, it would “take into consideration the factors addressed in

                                     3
     the Sentencing Guidelines” and would impose the same sentence.

     Sentencing in a criminal case is governed by Federal Rule of Criminal

     Procedure 43. Under Rule 43(a)(3), a defendant must be present for

     sentencing and we have strictly construed this requirement. See United

     States v. Navarro, 169 F.3d 228, 239 (5th Cir. 1999) (holding under prior

     version of the rule that sentencing via video conference violated FED. R.

     CRIM. P. 43). Imposition of an alternative sentence outside of the

     defendant’s presence does not comport with this requirement. Further,

     where there is a conflict between the oral pronouncement and the written

     judgment, the oral pronouncement controls. United States v. English, 400

     F.3d 273, 276 (5th Cir. 2005). Because the court’s oral pronouncement

     indicated that it would consider imposing a different sentence absent the

     mandatory nature of the Guidelines and because the inconsistent alternative

     sentence was not pronounced in Mints’s presence in open court, the

     Government has not met its burden to establish beyond a reasonable doubt

     that the court would have imposed the same sentence under an advisory

     guidelines scheme.

3.   Given our disposition of this case, we do not directly address Mint’s

     complaints regarding the district court’s loss calculations or adjustment to

     his sentence based on his role in the offense. See Akpan, 407 F.3d at 377

     n.62 (leaving to the discretion of the district court whether to impose

                                    4
identical adjustments on remand). We clarify that, post-Booker, a

sentencing judge remains entitled to find by a preponderance of the

evidence all facts relevant to the determination of a Guideline sentencing

range and all facts relevant to the determination of a non-Guidelines

sentence. United States v. Mares, 402 F.3d 511, 519 (5th Cir. 2005). The

Booker error here lay in such judicial fact finding under a mandatory

guidelines scheme. Id.

       We note that, because the record on appeal does not include the

exhibit showing the loss calculations ultimately adopted by the district

court, we are unable to make any observation as to the formulaic or

mathematical correctness of the court’s calculation. We assume that the

court, on remand, will clarify its calculations for the record. By way of

guidance, we do not find problematic the court’s inclusion of claims made

by Mints (but not paid) under the crop disaster program nor the paid 1999

claims on the specific crops for which Mints contends no evidence of non-

planting exists. The former clearly fall within the definition of intended

loss under the Guidelines. See U.S. SENTENCING GUIDELINES MANUAL §

2F1.1, cmt. (n.8)(b)(1)(A) (1998), as later clarified by § 2B1.1, cmt.

(n.3(A)(ii)) (2004). The latter were contractually forfeited by Mints in the

event of fraudulent claims on other 1999 crops and, to the extent such

fraudulent claims were proved, the wrongfully paid claims can fairly be

                               5
         considered part of the loss Mints intended in the overall scheme.

CONVICTION AFFIRMED; REMANDED FOR LIMITED RECONSIDERATION
CONSISTENT WITH THIS OPINION.




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