                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 06-4020



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


MARK ANTHONY STROUPE,

                                              Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Charleston.   Patrick Michael Duffy, District
Judge. (CR-03-894)


Submitted:   August 16, 2006            Decided:   September 13, 2006


Before WILKINSON, NIEMEYER, and MICHAEL, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Mark Anthony Stroupe, Appellant Pro Se.    Michael Rhett DeHart,
Assistant United States Attorney, Charleston, South Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               Pursuant to a plea agreement, Mark Anthony Stroupe pled

guilty to conspiracy to commit wire fraud, in violation of 18

U.S.C. §§ 371, 1343 (2000).         The district court sentenced Stroupe

to fifty-seven months’ imprisonment.          Stroupe appeals, proceeding

pro se.

               Stroupe claims the Government breached the plea agreement

by purportedly not allowing him to be debriefed, which in turn

deprived him of the opportunity to receive a downward departure.

He also takes issue with the Government’s seeking of sentencing

enhancements that increased his total offense level beyond the

stipulated level of nineteen.1            Plea agreements are interpreted

according to contract law, and “‘each party should receive the

benefit of its bargain.’”         United States v. Peglera, 33 F.3d 412,

413 (4th Cir. 1994) (quoting United States v. Ringling, 988 F.2d

504, 506 (4th Cir. 1993)).         Here, the parties agreed that Stroupe

would be fully truthful and forthright; otherwise, the Government’s

obligations under the plea agreement would become null and void.

Additionally, the parties agreed that the Government retained the

sole       discretion   to   determine   whether   Stroupe   had   been   fully


       1
      Stroupe also contends, in conclusory fashion, that he was
prejudiced by an Internal Revenue Service agent’s alleged false
statements before the grand jury and by the fact that he pled
guilty before the Supreme Court’s decision in United States v.
Booker, 543 U.S. 220 (2005), but was sentenced after Booker, thus
rendering his guilty plea as unknowing. We reject both contentions
as meritless.

                                     - 2 -
truthful and forthright.         Stroupe frustrated the Government’s

efforts to debrief him by attempting to limit the scope of the

questioning, and claimed in an objection to the presentence report

that he never guaranteed his financial services were safe and

without risk, in the face of evidence plainly contradicting this

claim.    The Government acted within its discretion in determining

that Stroupe was not compliant with the bargained terms of the plea

agreement, and the district court properly rejected Stroupe’s

motion    to   enforce   the    Government’s    obligations   under        the

agreement.2

            Stroupe also challenges his sentence. First, he contends

that his sentence should be evaluated as if it were imposed prior

to United States v. Booker, 543 U.S. 220 (2005), because he entered

into the plea agreement and pled guilty prior to the Supreme

Court’s opinion in that case. Therefore, Stroupe maintains that he

was entitled to application of a reasonable doubt standard at

sentencing, despite the fact that the district court recognized the

sentencing guidelines were advisory in light of Booker. Regardless

of when Stroupe entered into the plea agreement, the district court

was   entitled   to   make     the   relevant   factual   findings    by    a

preponderance of the evidence when, as here, the guidelines were


      2
      Although Stroupe styled his motion in part as an attempt to
withdraw from the plea agreement, it appears that he sought
specific performance of its terms.    At the sentencing hearing,
Stroupe reaffirmed that he did not wish to withdraw his guilty
plea.

                                     - 3 -
applied in an advisory manner.          See United States v. Dalton, 409

F.3d 1247, 1252 (10th Cir. 2005); United States v. Mares, 402 F.3d

511, 519 (5th cir.), cert. denied, 126 S. Ct. 43 (2005); see also

United States v. Hughes, 401 F.3d 540, 546 (4th Cir. 2005), cert.

denied, 126 S. Ct. 2309 (2006) (consistent with Booker, “a district

court shall first calculate (after making the appropriate findings

of fact) the range prescribed by the guidelines”).                  Furthermore,

Stroupe’s    contention     is    futile      because    the     district   court

explicitly    noted   at   sentencing      that   it    found    the   challenged

enhancements to be appropriate by either a preponderance of the

evidence or beyond a reasonable doubt.

            Next,   Stroupe      challenges    the     factual   basis   for   the

offense level enhancements corresponding to the amount of loss,

pursuant to U.S. Sentencing Guidelines Manual (“USSG”) § 2F1.1

(1998),3 and his leadership role in the offense, pursuant to USSG

§ 3B1.1(c).     We review a district court’s factual findings at

sentencing for clear error and its legal conclusions, including its

interpretation and application of the sentencing guidelines, de

novo.    United States v. Allen, 446 F.3d 522, 527 (4th Cir. 2006);

United States v. Collins, 415 F.3d 304, 315 (4th Cir. 2005).




     3
      Although USSG § 2F1.1 was deleted in 2001 and its provisions
consolidated with USSG § 2B1.1, see USSG App. C, amend. 617, the
pre-amendment guidelines applied to Stroupe’s case to avoid an ex
post facto violation. See United States v. Morrow, 925 F.2d 779,
782-83 (4th Cir. 1991).

                                     - 4 -
           We first turn to the amount of loss, which is generally

a factual question reviewed for clear error.         Hughes, 401 F.3d at

557.    “[T]he loss need not be determined with precision,” and

“[t]he court need only make a reasonable estimate of the loss,

given the available information.”        USSG § 2F1.1, comment. (n.9).

We conclude the district court made a reasonable estimate.          The

parties submitted a voluminous record with respect to the amount of

loss, and the district court calculated the amount of loss more

conservatively   than   the   presentence   report   recommended.    The

district court did not commit clear error in finding this amount of

loss.   See Allen, 446 F.3d at 527.

           Moreover,    the    sentencing    enhancement    under   USSG

§ 3B1.1(c) was appropriate.     “An upward departure may be warranted

. . . in the case of a defendant who did not organize, lead,

manage, or supervise another participant, but who nevertheless

exercised management responsibility over the property, assets, or

activities of a criminal organization.”       The district court found

that Stroupe exercised management responsibility over the property,

assets, or activity of his criminal organization. This finding was

not clearly erroneous.    See id..

           Next, Stroupe contends his fifty-seven-month sentence, at

the top of the sentencing guidelines range and within the statutory

maximum of sixty months’ imprisonment, was unreasonable because the

district court allegedly failed to provide an adequate statement of


                                 - 5 -
reasons, failed to consider all of the relevant factors in 18

U.S.C.A. § 3553(a) (West 2000 & Supp. 2005), and imposed a sentence

that   was    greater   than   necessary    to   achieve   the   purposes   of

sentencing.      In a post-Booker sentencing, district courts must

calculate the appropriate guideline range, consider the range in

conjunction with other relevant factors under the guidelines and

§ 3553(a), and impose a sentence.       United States v. Green, 436 F.3d

449, 455-56 (4th Cir.) (citing Hughes, 401 F.3d at 546).            However,

“a district court need not explicitly discuss every § 3553(a)

factor on the record,”         United States v. Eura, 440 F.3d 625, 632

(4th Cir. 2006), petition for cert. filed (U.S. June 20, 2006) (No.

05-11659), nor must it “robotically tick through § 3553(a)’s every

subsection,” United States v. Johnson, 445 F.3d 339, 345 (4th Cir.

2006).       “[A] sentence imposed within the properly calculated

Guidelines range . . . is presumptively reasonable.”              Green, 436

F.3d at 457 (internal quotation marks and citation omitted).                We

conclude that Stroupe has failed to rebut the presumption that his

sentence was reasonable.

             Finally, Stroupe argues that his sentence violates the Ex

Post Facto Clause because he pled guilty prior to Booker, when the

guidelines were applied as mandatory, and he was sentenced post-

Booker, under the current advisory guidelines scheme.                 At the

guilty plea hearing, Stroupe was advised of the statutory maximum

of five years’ imprisonment; the statutory maximum did not change


                                    - 6 -
between his guilty plea and the sentencing hearing, and he was

sentenced below this maximum punishment.           See United States v.

Williams, 444 F.3d 250, 254 (4th Cir. 2006) (ruling defendant had

fair warning that distributing cocaine base was punishable by a

prison term of up to twenty years, as spelled out in the United

States Code); United States v. Davenport, 445 F.3d 366, 369-70 (4th

Cir. 2006) (ruling that retroactive application of remedial holding

of Booker did not violate Ex Post Facto Clause; defendant was on

notice of statutory penalty when he committed crime).            When he

committed the crime, and as later reaffirmed at his guilty plea

hearing, Stroupe was on notice that the maximum statutory penalty

was five years’ imprisonment; this is all that is required to

satisfy the concerns of fair notice embodied by the Ex Post Facto

Clause.    See Davenport, 445 F.3d at 370.

            Stroupe has also filed a motion to correct a purported

clerical error in the district court’s judgment.         In the motion,

Stroupe claims that the six months’ home detention imposed by the

district court to commence his three years’ supervised release

term,     when   combined   with     the    fifty-seven-month   term   of

incarceration imposed by the district court, would exceed the

statutory    maximum   of   sixty   months’    imprisonment.    However,

“Congress generally views home confinement as a part of a sentence

of probation or supervised release, not as imprisonment.”         United

States v. Hager, 288 F.3d 136, 137 (4th Cir. 2002).             Thus, no


                                    - 7 -
correction of the judgment is required, and we deny Stroupe’s

motion.

          Accordingly, we affirm the district court’s judgment. We

grant the Government’s motion to file a supplemental appendix.   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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