                            AMENDED OPINION

                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 08-4272


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

LOUIE GEORGE SINCLAIR, a/k/a Vincent Metallo,

                Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Durham.     James A. Beaty, Jr.,
Chief District Judge. (1:07-cr-00083-JAB-1)


Submitted:   August 18, 2008             Decided:   September 17, 2008

               Amended Opinion Filed:    March 8, 2011


Before WILKINSON, NIEMEYER, and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Louis C. Allen, Federal Public Defender, John A. Dusenbury, Jr.,
Assistant Federal Public Defender, Greenboro, North Carolina,
for Appellant.    Anna Mills Wagoner, United States Attorney,
Harry L. Hobgood, Angela Hewlett Miller, Assistant United States
Attorneys, Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

             Louie George Sinclair pled guilty to wire fraud, 18

U.S.C. § 1343 (2000), and was sentenced to eighteen months in

prison.          Sinclair    appeals.       His    attorney    has    filed      a   brief

pursuant to Anders v. California, 386 U.S. 738 (1967), raising

one issue but stating that there are no meritorious issues for

review.      Sinclair has filed a pro se supplemental brief raising

additional issues.          We affirm. *



                                             I

             Sinclair asserts that the district court erred when it

used the 2001 version of the U.S. Sentencing Guidelines Manual

(USSG)      in    calculating    his    advisory        Guidelines      range.          We

disagree.         We note first that, although Sinclair’s sentencing

hearing took place in February 2008, the district court properly

did   not    use    the     version    of    the     Guidelines      then   in       effect

because,     under     Fourth    Circuit          precedent,   see,    e.g.,         United

States v. Iskander, 407 F.3d 232, 242 & n.8 (4th Cir. 2005), to

do so would have resulted in a violation of the Ex Post Facto

Clause.      The court was obligated to use the Guidelines in effect




      *
       This opinion is issued following recall of the mandate
previously issued.



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when    Sinclair    committed      the   offense.            See    USSG       § 1B1.11(a),

(b)(1), p.s. (2007).

            We     have   stated    that       wire    fraud       is    not    an   ongoing

offense;    instead,      it   “occur[s]        on    [a]   specific,          identifiable

occasion[].”        United States v. Bakker, 925 F.2d 728, 739 (4th

Cir. 1991).      Wire fraud “is complete when a transmission is made

to further the overall scheme to defraud.”                              United States v.

Tulaner, 512 F.3d 576, 579 (9th Cir. 2008); United States v.

Carrington, 96 F.3d 1, 7 (1st Cir. 1996).                          Sinclair committed

wire fraud in March 2002, when the transmission in question took

place.     Accordingly, the district court correctly used the 2001

version of the Guidelines in calculating his advisory Guidelines

range, and his base offense level was correctly determined to be

6, see USSG § 2B1.1(a).          Further, there was no error in the two-

level    enhancement       for     unauthorized             use     of     a     means   of

identification under USSG § 2B1.1(b)(9)(C)(i).



                                           II

            Sinclair contends that the district court erred when

it enhanced his offense level by two levels under USSG § 3B1.3

for abuse of a position of trust.                      The record reflects that

Sinclair represented to his victim, Beverly Dube, that he was a

financial planner and tax preparer and that, in reliance on this

representation, Dube permitted Sinclair to prepare and file her

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tax returns for several years, claiming a sizable refund each

time.     Dube did not know that the returns contained materially

false    information          and     claimed       refunds         to   which      she   was     not

entitled.     Sinclair directed the IRS to wire each refund to a

joint account that he had persuaded Dube to open with him.                                         He

gave Dube bogus copies of the returns, which showed that she was

not due refunds, but instead owed tax.

             The adjustment applies “[i]f the defendant abused a

position of public or private trust, or used a special skill, in

a   manner    that          significantly         facilitated            the     commission        or

concealment       of    the     offense.”           USSG   § 3B1.3.             A      position    of

“[p]ublic or private trust” means a position “characterized by

professional           or     managerial        discretion               (i.e.,        substantial

discretionary          judgment       that   is      ordinarily          given      considerable

deference).”           USSG § 3B1.3, cmt. n.1.                      Whether the defendant

held a position of trust must be approached from the perspective

of the victim.          United States v. Godwin, 272 F.3d 659, 671 (4th

Cir.    2001).         We     review    de   novo      the      district         court’s      legal

interpretation          of    what     constitutes         a    position          of    trust     and

review     related          factual     findings       for       clear         error.        United

States v. Ebersole, 411 F.3d 517, 535-36 (4th Cir. 2005).

             Here,          Sinclair    represented            to    Dube      that     he   was    a

financial planner and that he prepared tax returns for a living.

Dube     relied    on        these     representations,              allowing       Sinclair       to

                                                4
prepare and file her tax returns.                Sinclair’s representations

significantly facilitated the commission of the instant offense,

and the enhancement was proper.



                                        III

            Sinclair contends that the district court erred when

it refused to depart for a variety of reasons, including his

criminal    history’s    over-representing       his     criminal     record,      his

having     voluntarily      surrendered,         his     compulsive         gambling

disorder,    and   his    being   an    alien.         This   court   lacks     “the

authority to review a sentencing court’s denial of a downward

departure unless the court failed to understand its authority to

do so.”     United States v. Brewer, 520 F.3d 367, 371 (4th Cir.

2008).     Because the district court at sentencing recognized that

it had the discretion to depart, but elected not to exercise

that discretion, its decision not to depart is not reviewable on

appeal.



                                        IV

            Sinclair     raises   a    variety   of     claims   in   the    pro    se

brief.      Because the issues are raised for the first time on

appeal, our review is for plain error.                   See Fed. R. Crim. P.

52(b); United States v. Martinez, 277 F.3d 517, 525 (4th Cir.



                                         5
2002).     We   conclude     that     Sinclair    has   not   established      plain

error with respect to any of these claims.



                                         V

            In accordance with Anders, we have thoroughly reviewed

the record for any meritorious issues and have found none.                           We

therefore affirm.        This court requires that counsel inform his

client, in writing, of his right to petition the Supreme Court

of the United States for further review.                If the client requests

that   a   petition    be    filed,    but    counsel   believes      that    such    a

petition would be frivolous, counsel may move this court for

leave to withdraw from representation.                  Counsel’s motion must

state that a copy of the motion was served on the client.                            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




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