                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 05-4196



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


MARILYN SWINTON ASHWORTH,

                                              Defendant - Appellant.



Appeal from the United States District        Court for the Middle
District of North Carolina, at Durham.         James A. Beaty, Jr.,
District Judge. (CA-04-295)


Submitted:   August 9, 2006             Decided:    September 7, 2006


Before NIEMEYER, MICHAEL, and KING, Circuit Judges.


Affirmed by unpublished per curiam opinion.


K. E. Krispen Culbertson, CULBERTSON & ASSOCIATES, Greensboro,
North Carolina, for Appellant. Anna Mills Wagoner, United States
Attorney, Kearns Davis, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

          Marilyn Swinton Ashworth appeals her forty-one month

prison sentence imposed pursuant to her guilty plea to bank fraud,

in violation of 18 U.S.C. § 1344(2) (2000).               Ashworth does not

appeal her conviction.      Finding no reversible error, we affirm.

          Ashworth contends that the district court improperly

sentenced her when it imposed a sentence greater than the maximum

authorized    by   the   facts   she    admitted   in   violation   of   United

States v. Booker, 543 U.S. 220 (2005).          Because she failed to raise

this claim below, we review it for plain error.             United States v.

Hughes, 401 F.3d 540, 547 (4th Cir. 2005).          To meet the plain error

standard: (1) there must be an error; (2) the error must be plain;

and (3) the error must affect substantial rights. United States v.

Olano, 507 U.S. 725, 732-34 (1993).            If the three elements of the

plain error standard are met, the court may exercise its discretion

to notice error only if the error seriously affects “the fairness,

integrity, or public reputation of judicial proceedings.”                Id. at

736 (citation omitted).

          At sentencing, Ashworth had a base offense level of six,

pursuant to U.S. Sentencing Guidelines Manual § 2B1.1(a) (2005).

Ashworth admitted that the loss was more than $200,000 but less

than $400,000, resulting in a twelve offense level increase under

USSG § 2B1.1(b)(1)(G).      The district court also added two offense

levels under USSG § 3A1.1(B)(1) because Ashworth knew or should


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have known that her victim was unusually vulnerable, yielding an

adjusted offense level of twenty. With a criminal history category

of I, Ashworth had a guideline range of thirty-three to forty-one

months’    imprisonment.    The    district    court     sentenced    her   to

forty-one months’ imprisonment.           Without the enhancement for a

vulnerable victim, the total offense level would be eighteen and

the     applicable   guideline    range     would   be    twenty-seven      to

thirty-three months’ imprisonment.           Ashworth’s forty-one month

prison sentence thus exceeded the sentence that could have been

imposed based only on the facts admitted.

            Nevertheless, the evidence supporting the vulnerable

victim enhancement was overwhelming and essentially uncontroverted.

In United States v. Cotton, 535 U.S. 625 (2002), the Supreme Court

held that when the evidence of a sentencing factor was overwhelming

and essentially uncontroverted, there was no basis to conclude the

error    seriously   affected    the   fairness,    integrity,   or   public

reputation of judicial proceedings on plain error review.             Id. at

633; United States v. Smith, 441 F.3d 254, 272 (4th Cir. 2006)

(applying Cotton after Booker).            USSG § 3A1.1(b)(1) adds two

offense levels “if the defendant knew or should have known that a

victim of the offense was a vulnerable victim.”           The definition of

“vulnerable victim” includes those who are “unusually vulnerable

due to age, physical, or mental condition.”              USSG § 3A1.1(b)(1)

n.2.    Ashworth, a nurse assistant at a retirement community, stole


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the personal information of Clara Morris, an 88-year-old resident.

Ashworth took advantage of the vulnerabilities of Morris to steal

$289,242.48 from Morris’ bank account.1 The evidence that Ashworth

stole from a vulnerable victim was overwhelming and essentially

uncontroverted      and   there   is    no   basis    to   conclude    the   error

seriously affected the fairness, integrity, or public reputation of

the judicial proceedings.         The district court thus did not commit

reversible error under Booker when it sentenced Ashworth using the

vulnerable victim enhancement.

             The    district   court’s       treatment     of   the    sentencing

guidelines as mandatory also does not require resentencing.                  While

the district court erred in treating the guidelines as mandatory,2

see United States v. Hughes, 401 F.3d 540, 547-48 (4th Cir. 2005),

we have held that in the plain error context, the error of

sentencing under the mandatory guidelines regime does not warrant

a presumption of prejudice.        United States v. White, 405 F.3d 208,

224   (4th   Cir.   2005).     Ashworth      cannot   satisfy    the   prejudice

requirement of the plain error standard.               Nothing in the record

suggests the error in applying the guidelines as mandatory affected



      1
      Morris’ credit union and their insurer were also victims in
this case and neither was a vulnerable victim.       However, USSG
§ 3A1.1(b)(1) does not require that all victims be vulnerable, just
that “a victim” was vulnerable.
      2
      This conclusion implies no criticism of the able district
judge who conducted Ashworth’s sentencing proceeding in full
compliance with the law and procedure in effect at the time.

                                       - 4 -
the   court’s   ultimate   determination   of   Ashworth’s   sentence   or

affected her substantial rights.

           Accordingly, we affirm the judgment of the district

court.   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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