                                                          [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                    FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                              DEC 18, 2006
                              No. 06-13159                  THOMAS K. KAHN
                          Non-Argument Calendar                 CLERK
                        ________________________

                       D. C. Docket No. 05-00004-CR-4

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                    versus

RICHARD SMILEY,

                                                          Defendant-Appellant.


                        ________________________

                 Appeal from the United States District Court
                    for the Southern District of Georgia
                      _________________________

                            (December 18, 2006)

Before DUBINA, CARNES and HULL, Circuit Judges.

PER CURIAM:

     Richard Smiley appeals his 37-month sentence imposed after he pled guilty
to one count of conspiring to possess a counterfeit security, commit mail fraud,

commit wire fraud, and launder money, in violation of 18 U.S.C. § 371. On

appeal, Smiley argues that the district court erred by finding facts that were not

admitted or proven to a jury and by incorrectly calculating the number of victims

involved in his offense. After review, we affirm.

                                I. BACKGROUND

      Smiley and a co-defendant, James Patrick Densmore, set up a business

together ostensibly to sell commercial trucks. As part of their scheme, Smiley and

Densmore solicited investments from people by promising a quick 200 percent

return. These funds were supposed to be used to complete a deal with Xerox

Corporation. However, no such deal existed. Instead, Smiley deposited the money

in the company bank account and then made large cash withdrawals. The

investments made to Smiley and Densmore totaled $1,214,000.

      Smiley was indicted by a grand jury on the following nine counts relating to

the fraud scheme: (1) conspiring to possess a counterfeit security, commit mail

fraud, commit wire fraud, and launder money, in violation of 18 U.S.C. § 371

(Count One); (2) possessing a counterfeit security, in violation of 18 U.S.C.

§ 513(a) (Count Two); (3) committing mail fraud, in violation 18 U.S.C. § 1341

(Counts Three and Four); and (4) committing wire fraud, in violation of 18 U.S.C.



                                           2
§ 1343 (Counts Five through Nine). Pursuant to a plea agreement, Smiley pled

guilty to the conspiracy count.

      The presentence investigation report (“PSI”) listed investments made by the

following people identified as victims in the indictment:

Smiley’s Father and Stepmother          $154,000
John Hill                               $744,000
Thomas and Sarah Cooper                 $100,000
Fred and Emma Dunn                      $116,000
Robert Ballew                           $100,000
Total                                   $1,214,000

The PSI also listed Peter Berryman and Charlie and Shirley Morgan as “individuals

[who] also experienced losses due to Smiley’s and Densmore’s conduct in the

conspiracy.” The PSI noted that Berryman’s $20,000 investment was repaid by

Smiley’s father and that Charlie and Shirley Morgan, Smiley’s in-laws, had been

repaid $3,500 of their $76,000 investment by Smiley and did not wish to pursue

court-ordered restitution. The PSI indicated that, due to their investments with

Smiley: (1) Smiley’s father and stepmother suffered additional losses of $30,000

due to tax penalities and early withdrawal fees; (2) Thomas and Sarah Cooper

suffered additional losses of $25,000 in loan fees, interest and attorney’s fees; (3)

Dunn lost $2,000 in attorney’s fees; and (4) Ballew suffered $11,000 in losses due

to the fees of an attorney and private investigator. The total loss the PSI attributed

to Smiley and Densmore was $1,290,000.

                                           3
      The PSI assigned Smiley a base offense level of 6, pursuant to U.S.S.G.

§ 2B1.1(a)(2). The PSI recommended a 16-level increase because Smiley’s

offense involved more than $1,000,000 but less than $2,500,000, pursuant to

U.S.S.G. § 2B1.1(b)(1)(I). The PSI also recommended a 2-level increase, pursuant

to U.S. S. G. § 2B1.1(b)(2)(A)(i), because the offense involved more than ten but

less than fifty victims. Finally, the PSI recommended a 3-level reduction, pursuant

to U.S.S.C. § 3E1.1(a) and (b), for acceptance of responsibility. With a total

offense level of 21, and a criminal history category of I, the PSI recommended an

advisory guidelines range of 37 to 46 months’ imprisonment.

      Prior to sentencing, Smiley objected to the PSI’s application of the

enhancements for the number of victims and the amount of money involved in the

offense. He also raised the following objections to the way the PSI calculated the

total monetary loss: (1) the omission of the fact that Fred and Emma Dunn had

been repaid $15,000; (2) the inclusion of tax penalties, early withdrawal fees, loan

fees, interest, private investigator fees and attorney’s fees in the total monetary

loss; and (3) the inclusion in the loss calculation money that was loaned to Smiley

by his in-laws and money that was repaid. Smiley did not raise an objection based

on United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005). The government

filed a motion for a downward departure, pursuant to U.S.S.G. § 5K1.1, based on



                                           4
Smiley’s substantial assistance.

       At sentencing, Smiley reiterated his objections. Again, Smiley did not raise

a Booker objection. The district court overruled Smiley’s objections and adopted

the PSI and PSI Addendum. The district court noted that even if Smiley had repaid

$15,000 to the Morgans, the sentencing calculations would be the same. The

district court also stated that it did not find persuasive the fact that Smiley had not

benefitted from much of the money. The district court denied the government’s

motion for a downward departure and imposed a 37-month sentence. In addition,

the district court ordered Smiley to pay $1,214,000 in restitution, jointly and

severally with Densmore. Smiley filed this appeal.

                                     II. DISCUSSION

       For the first time on appeal, Smiley cites Booker and argues that the district

court violated his Sixth Amendment rights when it enhanced his sentence based on

facts not alleged in his indictment nor admitted by him during his guilty plea,

namely the $1,290,000 loss amount and the number of victims to his offense.

Smiley specifically notes that four of the victims – Peter Berryman, Emma Dunn

and Charlie and Shirley Morgan – were not identified in the indictment and that the

indictment alleged a loss of only $689,000.1


       1
         Because Smiley raises his Booker argument for the first time on appeal, we review only
for plain error. United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir.), cert. denied, 545

                                               5
        It is well-settled in this Circuit that, when the district court applies the

guidelines in an advisory manner, nothing in Booker prohibits the district court

from imposing guidelines enhancements based on facts found by the judge by a

preponderance of the evidence. See United States v. Chau, 426 F.3d 1318, 1323-

24 (11th Cir. 2005); United States v. Rodriguez, 398 F.3d 1291, 1301 (11th Cir.),

cert. denied, 545 U.S. 1127, 125 S. Ct. 2935 (2005). For this reason, Smiley’s

reliance on United States v. Yagar, 404 F.3d 967 (6th Cir. 2005), in which the

Sixth Circuit reached a contrary conclusion, is unavailing. The district court

sentenced Smiley under the advisory guidelines. Therefore, the district court’s

findings relating to the loss amount and the number of victims did not violate

Smiley’s Sixth Amendment rights.

        Smiley also argues that the district court erred in finding that his offense

involved ten or more victims.2 The Sentencing Guidelines provide for a 2-level

enhancement if the offense involved ten or more victims. U.S.S.G.

U.S. 1127, 125 S. Ct. 2935 (2005); see also United States v. Dowling, 403 F.3d 1242, 1245-46
(11th Cir.), cert. denied, 126 S. Ct. 462 (2005) (explaining that to preserve a Booker claim for
appellate review, the defendant must either refer to the Sixth Amendment, Apprendi v. New
Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000) or its progeny, or the right to have a jury decide a
disputed fact, or raise a challenge to the role of the judge as factfinder with regard to sentencing).
Plain error exists if “there is: (1) error, (2) that is plain, and (3) that affects substantial rights.”
Id. (quotation marks omitted). We will recognize such error if it “seriously affects the fairness,
integrity, or public reputation of judicial proceedings.” Id. (quotation marks omitted).
        2
        We review a district court’s application and interpretation of the guidelines de novo, but
review the factual findings only for clear error. United States v. Owens, 447 F.3d 1345, 1346
(11th Cir. 2006).

                                                   6
§ 2B1.1(b)(2)(A)(i). The commentary to § 2B1.1(b)(2) defines a victim as “any

person who sustained any part of the actual loss . . . .” Id. at cmt. n.1. An actual

loss is further defined as “reasonably foreseeable pecuniary harm that resulted

from the offense.” Id. at cmt. n.3(A)(i).

       Smiley contends that Peter Berryman and Charlie and Shirley Morgan are

not victims because Berryman was repaid all of the money he gave to Smiley and

Densmore by Smiley’s father and the Morgans were repaid a portion of the money

they gave Smiley and Densmore. However, this Court has ruled that victims who

are reimbursed for their losses are still victims for purposes of § 2B1.1(b)(2).

United States v. Lee, 427 F.3d 881, 894-95 (11th Cir. 2005), cert. denied, 126 S.

Ct. 1447 (2006). We likewise reject Smiley’s contention that the Morgans are not

victims because they are not seeking court-ordered restitution. The fact that the

Morgans elect not to seek restitution does not mean that they did not sustain an

actual loss. The district court did not clearly err in finding that Smiley’s offense

involved ten or more victims.

       For these reasons, we affirm Smiley’s 37-month sentence.3

       AFFIRMED.


       3
        In his appellate brief, Smiley twice states that his restitution should be lowered.
However, these statements are merely passing references unsupported by argument or citation to
authority. Therefore, we do not address them. See Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226,
1228 n.2 (11th Cir. 2005).

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