                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                 January 12, 2006

                                                           Charles R. Fulbruge III
                                                                   Clerk
                             No. 04-10705
                           Summary Calendar



UNTIED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

RICHARD ALLEN WILSON, JR.,

                                      Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Northern District of Texas
                   USDC No. 3:03-CR-182-ALL-H
                      --------------------

Before JOLLY, DAVIS and OWEN, Circuit Judges.

PER CURIAM:*

     Richard Allen Wilson, Jr., appeals from his jury trial

convictions for two counts of mail fraud, in violation of 18

U.S.C. § 1341.    He first contends that the evidence was

insufficient to support his convictions.      Blue brief, 19-24.

Specifically, Wilson argues that the mailings of the checks

underlying his convictions occurred both two years apart and

after he received property for personal use.      Wilson asserts that




     *
       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this opinion should not be published and is not precedent except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.
                            No. 04-10705
                                 -2-

these facts fail to satisfy the requirement that the mailings

were used to advance the scheme to defraud.    We disagree.

     The evidence adduced at trial revealed that Wilson’s scheme

to defraud was ongoing, running between March 1998 and February

2002.   The success of Wilson’s scheme depended on preventing

discovery of his illicit purchases by the Dallas Police

Patrolman’s Union (DPPU) so that the DPPU would continue to pay

for them.    To that end, Wilson’s criminal conduct required the

mailing of payments to American Express to conceal his fraudulent

purchases.    Under these circumstances, there was sufficient

evidence to satisfy the element of Wilson’s mail fraud

convictions requiring the use of the mails to execute the scheme

to defraud.    See Schmuck v. United States, 489 U.S. 705, 711-12

(1988).

     Wilson next argues that the district court abused its

discretion in refusing to instruct the jury concerning a good

faith defense and that he was entitled to the instruction because

there was some evidence that he acted in good faith.

Specifically, Wilson asserts that the evidence adduced at trial

revealed that he was authorized to “use the union’s American

Express card for personal purchases because the union could not

pay Wilson’s full salary and Wilson had expenses he needed to

take care of.”    Wilson concludes that his personal purchases fell

“within the scope of what the board authorized.”
                              No. 04-10705
                                   -3-

     The record reveals that the district court instructed the

jury that the Government was required to prove that Wilson acted

with “specific intent.”     A detailed definition of that term was

also given to the jury.     Moreover, defense counsel conveyed the

essence of a good faith argument to the jury during closing

argument.    Under these circumstances, the district court did not

abuse its discretion by refusing to give a good faith jury

instruction.     See United States v. Tomblin, 46 F.3d 1369, 1378

(5th Cir. 1995); United States v. St. Gelais, 952 F.2d 90, 93

(5th Cir. 1992).    Because Wilson has shown no error in connection

with his convictions, those convictions are AFFIRMED.

     Wilson argues that his sentence must be vacated in light of

United States v. Booker, 125 S. Ct. 738 (2005).       When, as here, a

Booker claim is preserved, we will ordinarily vacate and remand

unless the Government can show beyond a reasonable doubt that the

error was harmless.      See United States v. Pineiro, 410 F.3d 282,

285 (5th Cir. 2005).

     The district court’s imposition of a sentence based on facts

exceeding those contained in the judgment of conviction was

erroneous.     See id.   Further, the Government concedes that the

error was not harmless, and the record is silent with respect to

whether the district court would have imposed the same sentences

under an advisory guidelines scheme.      See id.   Accordingly,

Wilson’s sentences are VACATED and this matter is REMANDED for

resentencing.
