                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 04-4508



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


ELIZABETH A. PAYNE,

                                            Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. T. S. Ellis, III, District
Judge. (CR-04-91)


Submitted:   February 2, 2005              Decided:   March 4, 2005


Before NIEMEYER, MOTZ, and GREGORY, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished per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


Jeffrey D. Zimmerman, LAW OFFICE OF JEFFREY D. ZIMMERMAN,
Alexandria, Virginia, for Appellant.     Paul J. McNulty, United
States Attorney, Charles F. Connolly, Assistant United States
Attorney, Alexandria, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

     Elizabeth A. Payne pled guilty without a plea agreement to an

information charging her with embezzlement, 18 U.S.C. § 656 (2000),

and was sentenced to a term of eighteen months imprisonment. Payne

appeals her sentence, alleging that the district court erred in

determining the amount of loss, U.S. Sentencing Guidelines Manual

§ 2B1.1(b)(1)(F) (2001), and in failing to recognize its authority

to depart downward for extraordinary restitution under Application

Note 15(B) to § 2B1.1 and USSG § 5K2.0, p.s.   Payne also contests

the two-level adjustment for abuse of a position of trust she

received under USSG § 3B1.3, and contends that her sentence was

imposed in violation of the Sixth Amendment right to jury trial

because the sentence enhancements were based on judicial fact

findings in violation of the rule set out in Blakely v. Washington,

124 S. Ct. 2531 (2004).   We affirm the district court’s initial

calculation of the guideline range, but we vacate the sentence in

light of United States v. Booker, 125 S. Ct. 738 (2005), and remand

for resentencing.

     In June 2002, Payne was the item processing supervisor at the

Fauquier Bank in Warrenton, Virginia. Payne stole a check from her

mother’s checkbook, made it out to herself for $160,000, and

deposited the check in her own account at the Fauquier Bank.   Later

that day, Payne removed the check from a bundle of checks that were

to be sent to the Federal Reserve Bank for processing to prevent


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her mother’s account at a different bank from being debited the

$160,000.    However, the Federal Reserve Bank notified the Fauquier

Bank that it was accountable for the missing $160,000 draft.

     In August 2002, after Payne’s supervisor notified her that the

bank would need a replacement check for the still-missing $160,000

check, Payne took another check from her mother’s checkbook, again

made it out to herself for $160,000, and gave it to the Fauquier

Bank.    She again removed this check from the bundle of checks that

were sent to the Federal Reserve Bank.                Finding another check in

that day’s bundle for $160,000, Payne photocopied the Fauquier

Bank’s indemnification from the back of her fraudulent check to the

back of the legitimate check in an attempt to disguise her fraud.

Payne was not successful; the Federal Reserve Bank notified the

Fauquier Bank that a second item was missing.

     After      an   internal      investigation,      Payne     was    placed    on

administrative leave.           The next day, she confessed to her employer

that she had taken the $160,000 check and that she had tried to

conceal   her    theft     by    using   her     position   as   item   processing

supervisor   in      the   proof    department.       Subsequently,      the     bank

received $126,000 from Payne, mainly proceeds from the sale of her

house.    The bank’s actual loss was $26,791.82.

     At Payne’s sentencing, the district court calculated the

guideline range by applying a base offense level of 6 under USSG

§ 2B1.1(a), a 10-level enhancement for a loss of $160,000 under


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subsection (b)(1)(F) (loss between $120,000 and $200,000), a 2-

level adjustment for abuse of a position of trust under USSG

§ 3B1.3, and a 3-level adjustment for acceptance of responsibility.

The resulting recommended final offense level was 15.                  Because

Payne was in criminal history category I, the guideline range was

18-24 months.      The district court imposed a sentence of eighteen

months imprisonment.

     Payne argues on appeal that (1) the district court erred in

deciding not to reduce the amount of loss by the amount she had

repaid the bank by the time of sentencing; (2) the court failed to

recognize    its   authority    to   depart   downward   for   extraordinary

restitution; and (3) the court enhanced her sentence for abuse of

a position of trust in violation of the rule set out in Blakely.

     In Booker, the Supreme Court held that the federal sentencing

guidelines    mandatory       scheme    which    provides      for    sentence

enhancements based on facts found by the court violated the Sixth

Amendment; the Court remedied the constitutional violation by

severing    and    excising    the   statutory   provisions    that    mandate

sentencing and appellate review under the guidelines, thus making

the guidelines advisory.        United States v. Hughes, ___ F.3d ___,

2005 WL 147059, at *3 (4th Cir. Jan. 24, 2005) (citing Booker,

Opinion of Justice Stevens for the Court at 20, Opinion of Justice

Breyer for the Court at 2).          In Hughes, we held that a sentence

that is enhanced based on facts found by the court, not by a jury


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or admitted by the defendant, constitutes plain error that affects

the defendant’s substantial rights and warrants reversal under

Booker.   2005 WL 147059, at *2-4 (citing United States v. Olano,

507 U.S. 725, 731-32 (1993)).

      Payne’s sentence was enhanced by ten levels for an intended

loss of $160,000, § 2B1.1(b)(1)(F), a fact she did not admit, and

by two levels for abuse of a position of trust, § 3B1.3, a fact the

court found by adopting the recommendations in the presentence

report.   In light of Booker and Hughes, we find that the district

court plainly erred in determining the amount of loss and imposing

a   sentence   that   exceeded   the   maximum   allowed   based   on   facts

admitted by Payne alone.1        However, we conclude that the court’s

initial calculation of the guideline range was correct.

      The district court’s interpretation of the term “loss,” as

used in the guidelines, is reviewed de novo; its calculation of the

loss under the correct interpretation is reviewed for clear error.

Hughes, 2005 WL 147059, at *6 (citing United States v. Miller, 316

F.3d 495, 498 (4th Cir. 2003)).            Application Note 2(E)(ii) to

§ 2B1.1 provides that, “[i]n a case involving collateral pledged or


      1
      Although Payne raised Blakely in her motion for release
pending appeal, filed within seven days of sentencing, we conclude
that she did not thereby preserve the issue for appeal. At that
point, the district court was without authority to alter the
sentence except for arithmetical, technical, or other clear error.
Fed. R. Crim. P. 35(a).     The constitutional error in Payne’s
sentence became “clear” only with the Supreme Court’s decision in
Booker.    See Hughes, 2005 WL 147059, at *4 (“Booker has now
abrogated our previously settled law.”).

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otherwise provided by the defendant,” the amount of loss “shall be

reduced” by “the amount the victim has recovered at the time of

sentencing from disposition of the collateral, or if the collateral

has not been disposed of by that time, the fair market value of the

collateral at the time of sentencing.”

      Payne   argues      that   her    house   was    “collateral      pledged     or

otherwise provided” by her on September 12, 2002, when she stated

in an email to the bank president, “I will gladly give my house for

collateral until you get the money,” and September 3, 2002, when

she signed the home over to the bank.              We disagree.       Payne did not

give the bank an interest in her house as part of her offense;

instead, she turned it over to the bank as part of her effort to

make restitution for the offense once it had been discovered.                       See

United   States      v.   Scott,   74    F.3d   107,    112    (6th    Cir.    1996)

(subsequent voluntary restitution is not the same as posting

collateral).         Therefore,    the    district     court    did    not    err   in

concluding that she was not entitled to a credit against the

intended loss for the amount the bank recovered from the sale of

her house.

      Payne next argues that the district court failed to recognize

its authority to depart for extraordinary restitution, see USSG

§§   2B1.1,   cmt.    n.15(B),     5K2.0,   p.s.       The    sentencing     court’s

discretionary decision not to depart is not reviewable unless the

court’s decision is based on a mistaken belief that it lacks


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authority to depart.       United States v. Wood, 378 F.3d 342, 351 n.8

(4th Cir. 2004).    Application Note 15(b) to § 2B1.1 states that, in

a case where the offense level “substantially overstates the

seriousness of the offense,” a downward departure may be warranted.

     Our review of the court’s ruling on Payne’s departure motion

convinces us that the court recognized its authority to depart and

exercised its discretion not to depart.         Payne’s argument that the

court mistakenly believed it lacked authority to depart is based on

several comments by the court which, when viewed in light of the

record as a whole, do not support her assertion.           We conclude that

Payne has not shown that the court’s decision not to depart was

made in the mistaken belief that it lacked authority to do so.

     Finally, Payne argues that the district court erred under

Blakely in making an adjustment for abuse of a position of trust,

since she did not admit that fact.

     In light of Booker and Hughes, we conclude that the district

court   plainly    erred    in   imposing   a   sentence    that   included

enhancements based on facts found by the court and thus exceeded

the maximum allowed based on the facts admitted by Payne alone.         We

therefore affirm the district court’s initial calculation of the

guideline range, but we vacate the sentence imposed by the district

court and remand for resentencing consistent with Hughes.                We

dispense with oral argument because the facts and legal contentions




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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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