                                                                    United States Court of Appeals
                                                                             Fifth Circuit
                                                                          F I L E D
                     UNITED STATES COURT OF APPEALS
                          FOR THE FIFTH CIRCUIT                             May 17, 2005

                            _______________________                   Charles R. Fulbruge III
                                                                              Clerk
                                  No. 04-30544
                            _______________________

                           UNITED STATES OF AMERICA,

                                                             Plaintiff-Appellee,

                                       versus

                              PATRICIA A. RICHARD,
                           a/k/a Patricia A. Chevis,

                                                             Defendant-Appellant.



             Appeal from the United States District Court
                 for the Western District of Louisiana
                             6:03-CR-60036


Before REAVLEY, JONES, and GARZA, Circuit Judges.

PER CURIAM:*

             Appellant Patricia A. Richard, a/k/a Patricia Chevis,

received Social Security benefits covering a period from 1992

through 2001, despite the fact she was receiving income from her

own   business,     the    St.   Landry   Public       Assistance    Corporation,

throughout most of that period. The Social Security Administration

(SSA)     paid   Richard    benefits    based     on   her    misrepresentations

regarding the nature and extent of her alleged disability and her

inability to maintain employment.               Had Richard candidly informed



      *
            Pursuant to 5TH CIR. R. 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
SSA employees and judges of her income, she would not have received

benefits.     Richard received approximately $83,278 in disability

payments for herself and her minor children.               After her ruse was

detected, Richard pled guilty to one count of making a false

statement to the SSA.             She was sentenced to five months of

imprisonment, three years of supervised release (with five months

to   be   served    in    home   confinement),    and    was   ordered   to    pay

restitution to the SSA in the amount of $76,870.               She now appeals

her sentence.

            Richard raises three claims of error:              (1) The district

court erred in calculating the amount of loss attributable to her

misrepresentation,        leading   to   an    increased   sentence;     (2)   The

sentence violated United States v. Booker, 125 S. Ct. 738 (2005);

and (3) The restitution award is improper.

            The district court loss calculation of $76,870 increased

Richard’s base offense level by eight points, pursuant to U.S.S.G.

§ 2B1.1(b)(1).       The district court’s calculation of loss under

§ 2B1.1 is a finding of fact, reviewable only for clear error.

United     States    v.    Randall,      157   F.3d     328,   330   (5th      Cir.

1998)(construing former U.S.S.G. § 2F1.1).1              Even after Booker, we

review the district court’s interpretation of the guidelines de

novo.     United States v. Villegas, __ F.3d __, 2005 WL 627963, *4



      1
            Section 2F1.1 was deleted by Guideline Amendment 617 and was
consolidated with § 2B1.1, effective November 1, 2001. Richard’s offense of
conviction was committed on December 4, 2001.

                                         2
(5th Cir. Mar. 17, 2005).   When calculating the loss under § 2B1.1,

the district court need only make a reasonable estimate of the

loss, given the available information. § 2B1.1, comment. (n.3(C));

Randall, 157 F.3d at 330.    The method of calculating the loss must

bear a reasonable relationship to the actual or intended harm

caused by the offense.      Randall, 157 F.3d at 331.   In order to

attribute losses to a defendant’s fraudulent conduct, the Govern-

ment must establish a factual basis to conclude that the losses

resulted from the fraud.    Id.   The calculation of the loss amount

for sentencing purposes may include all relevant conduct undertaken

by the defendant, including acts that occurred “in the course of

attempting to avoid detection or responsibility for that offense.”

§ 1B1.3(a)(1); see also United States v. Somsamouth, 352 F.3d 1271,

1278 (9th Cir. 2003), cert. denied, 124 S. Ct. 2049 (2004) (affirm-

ing loss calculation based on proof of the earliest time the

defendants engaged in substantial gainful activity, not the date of

their false statements made for the purpose of retaining their

benefits).   The facts Richard admitted at sentencing fully support

the district court’s loss finding, which we will not disturb.

          For the first time on appeal, Richard challenges her

sentence under the United States Sentencing Guidelines on the basis

of United States v. Booker, 125 S. Ct. 738 (2005).   Thus, we review

her sentence for plain error as held in United States v. Mares, 402

F.3d 511 (5th Cir. 2005).    Under plain error review, the defendant

must demonstrate that (1) there was error, (2) which was clear or

                                  3
obvious, (3) that affects substantial rights, and (4) the error

seriously affects the fairness, integrity, or public reputation of

judicial proceedings.    United States v. Olano, 507 U.S. 725, 732,

113 S. Ct. 1770, 1776-77 (1993).

           Richard meets the first two prongs of this test: In light

of Booker, the district court erred in sentencing Richard under the

now unconstitutional mandatory sentencing guidelines scheme based

on judicial fact finding; this error is now plain from the record.

The key issue is the third prong of plain error review under Mares,

“whether   [Richard]   demonstrated    that   the   sentencing   judge   —

sentencing under an advisory scheme rather than a mandatory one —

would have reached a significantly different result.”       Mares, 2005

WL 503715 at *9.    Richard quotes the following passage from the

district court judge at sentencing in support of her claim:

     I got to be a Judge in 1994. These Sentencing Commission
     Guidelines come [sic] in 1986. The judges that were on
     the bench before I’m there and some that come after me,
     frankly — and I just kind of got with the crowd when I
     got there — were complaining that it was taking away the
     authority of the district court, which the Supreme Court
     said, no it’s not. Congress can set these guidelines
     through the Sentencing Commission.     It gave a lot of
     older judges heartburn. Well, one of the things it took
     off the district judge’s plate, which philosophically, I
     suppose, while it may be legal for Congress to do that,
     it may not be a good idea for them to do it, but they’ve
     done it. It takes this kind of case off the district
     judge’s plate because here I am.     If I want to cheat
     intellectually right now and give a different result, I
     can make a factual finding and go with you on the amount
     of the loss, and I don’t think anybody could touch it.
     Then I can do a lesser degree than called for by the
     current guidelines.     But I can’t be intellectually
     dishonest.


                                   4
R. Vol. 3 at 156-57 (quoting and citing the record) (emphasis

added).   Throughout the sentencing proceeding, the district judge

indicated both sympathy for Richard as well as his resolved feeling

that she had committed the crime and the punishment was warranted.

Compare United States v. Shelton, __ F.3d __, 2005 WL 435120, at *6

(11th Cir. Feb. 25, 2005) (reversing sentence on plain error where

the district court made numerous, clear statements characterizing

guidelines-mandated sentence as “too severe” and “unfortunate[],”

and then imposed lowest possible sentence under the guidelines)

with R. at 157 (acknowledging that the SSA should have detected

Richard’s conduct earlier, but noting that the “complicity of the

bureaucracy . . . doesn’t relieve her culpability for what she

did”), 162 (denying Richard’s motion for downward departure).

Richard cannot meet her burden of proof under Mares.

          Finally, Richard claims the restitution award requires

her to pay restitution for acts she never admitted or pled guilty

to, in violation of United States v. Hughey, 495 U.S. 411, 110 S.

Ct. 1979 (1990).   This court reviews a district court’s order of

restitution de novo.   United States v. Adams, 363 F.3d 363, 365

(5th Cir. 2004).    Once the court determines that an award of

restitution is permitted by the appropriate law, the court reviews

the propriety of a particular award for an abuse of discretion.

Id.

          A district court may order restitution stemming from a

fraudulent scheme even when the defendant pleads guilty only to

                                 5
some counts in the indictment so long as the defendant’s plea

agreement contemplates a broader scheme to defraud.               United States

v. Cothran, 302 F.3d 279, 289-90 (5th Cir. 2002).            In United States

v.   Arnold,   947   F.2d   1236   (5th    Cir.    1991),   for   example,   the

defendant pled guilty only to some of the counts for which he was

indicted, but also explicitly admitted to causing the loss on which

the district court based its restitution award and failed to object

to the restitution order at trial.               Id. at 1238.     Richard pled

guilty to Count 2 of the indictment, and in exchange the Government

dismissed Count 1. However, Richard also admitted facts sufficient

to support the district court’s restitution award.                See R. 50-51

(admitting that Richard knew the statement to be false “because on

November 3, 1994, she along with others, formed the St. Landry

Public    Assistance    Corporation,”      and    also   admitting   to   hiring

several employees, serving 2,205 clients, and executing a contract

through this company). Richard’s admissions placed her guilty plea

to Count 2 in the framework of a course of conduct and thus

provided the district court sufficient basis for its restitution

award.2

            AFFIRMED.




      2
             Richard further objects, for the first time on appeal, to the
restitution award because the award includes activity outside the statute of
limitations period of Count 2. However, Richard’s failure to raise this claim
in the district court, dovetailed with her admissions through the plea agreement,
preclude reduction of the restitution award in this court on that basis.

                                       6
EMILIO M. GARZA, Circuit Judge, specially concurring:



     I concur with the majority’s opinion, except for the de novo

standard of review.      For the reasons stated in my concurrence in

United States v. Creech, No. 04-40354, 2005 WL 1022435, at *9 (5th

Cir. May 3, 2005), I do not agree that we review a district court’s

interpretation     of   the   Sentencing   Guidelines   de   novo.   While

endorsed in dicta in Villegas, this standard is inconsistent with

the Supreme Court’s decision in Booker, requiring appellate court’s

to review sentencing decisions for unreasonableness.           Booker, 125

S. Ct. at   767.    Because I agree that the district court in this

case correctly interpreted the Sentencing Guidelines, I conclude

that the sentence was not unreasonable.       See Mares, 402 F.3d at 519

(“Given the deference due the sentencing judge’s discretion under

the Booker/Fanfan regime, it will be rare for a reviewing court to

say [a sentence in which the district court properly applied the

Guidelines] is ‘unreasonable.’”).




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