                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
                  UNITED STATES COURT OF APPEALS
                           FIFTH CIRCUIT                    December 12, 2005

                                                         Charles R. Fulbruge III
                                                                 Clerk
                          No.    04-41206


                    UNITED STATES OF AMERICA,

                                                Plaintiff-Appellee,

                                versus

                      RONALD KENDRIC McCOY,

                                                Defendant-Appellant.



          Appeal from the United States District Court
                for the Eastern District of Texas
                       (4:04-CR-38-RAS-ALL)


Before KING, Chief Judge, and BARKSDALE and PRADO, Circuit Judges.

PER CURIAM:*

     Primarily at issue is whether, pursuant to our plain-error

review, the district court reversibly erred by sentencing Ronald K.

McCoy based on an amount of loss greater than that authorized by

the non-binding amount in his plea agreement.    AFFIRMED.

                                  I.

     In March 2004, McCoy was indicted on 11 counts for mail and

wire fraud, in violation of 18 U.S.C. §§ 1341 and 1343.           On 29

April 2004, pursuant to a written plea agreement, McCoy pleaded

     *
       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this opinion should not be published and is not precedent except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.
guilty to the first count, which charged he defrauded purchasers on

eBay (a popular internet auction site) by purporting to sell items

he did not intend to deliver.

      In the plea agreement, McCoy and the Government made a non-

binding stipulation that, for Sentencing Guidelines purposes, the

total loss resulting from the offense was $119,870.35.          In the

factual resume for the plea, however, McCoy acknowledged losses to

victims totaling over $140,000.

      In the presentence investigation report (PSR), the total loss

was calculated as $139,232.21.     Accordingly, the probation officer

assigned McCoy a base offense level of seven. (The plea agreement’s

$119,870.35 total differed from the PSR’s $139,232.21 because the

PSR utilized the factual resume, which included two additional

frauds committed by McCoy.       Although the individually enumerated

losses totaled $140,209.92 in the factual resume, the PSR stated

the total loss as $139,232.21.     The Government claims this was due

to the probation officer’s giving McCoy credit for a duplication in

transactions listed in two different sections of the factual

resume. Because there is no difference for Guidelines purposes for

the   two   amounts,   the   disparity   is   irrelevant.   U.S.S.G.   §

2B1.1(b)(1)(F) (2004).)

      To the base offense level of seven, the PSR added:           ten

levels, pursuant to U.S.S.G. § 2B1.1(1)(F), because the loss amount

was between $120,000 and $200,000; and two levels, pursuant to

                                    2
U.S.S.G. § 2B1.1(b)(2), because the offense involved 34 victims.

The PSR recommended a three-level reduction for acceptance of

responsibility.

       The district court denied the reduction, finding that McCoy

had violated the terms of his release and engaged in fraudulent

conduct after entering his guilty plea.            Accordingly, based on an

offense level of 19 and a criminal history category of II, McCoy’s

sentencing range was 33 to 41 months.              He was sentenced to 40

months imprisonment.

                                        II.

       For the first time on appeal, McCoy claims the district court

committed two types of error under United States v. Booker, 125 S.

Ct. 738 (2005).       Because McCoy failed to raise these issues in

district court, we review only for plain error.            United States v.

Mares, 402 F.3d 511, 520 (5th Cir.), cert. denied, 126 S. Ct. 43

(2005).    For that review, we determine whether there was a “clear”

or    “obvious”    error   that   affected    McCoy’s   substantial   rights.

Johnson v. United States, 520 U.S. 461, 466-67 (1997); Mares, 402

F.3d at 520-21.      If so, we have discretion whether to correct the

error; generally, we will not do so unless it “seriously affect[ed]

the    fairness,    integrity,     or     public   reputation   of    judicial

proceedings”.       Mares, 402 F.3d at 520 (internal citation and

quotation marks omitted).



                                         3
     First, McCoy claims structural error because the mandatory

sentencing guidelines were used in determining his sentence.          The

requisite error is lacking; this claim is foreclosed by United

States v. Malveaux, 411 F.3d 558, 560 n.9 (5th Cir.), cert. denied,

126 S.Ct. 194 (2005).

     Second, McCoy claims his sentencing enhancement was based on

a factor neither admitted nor found by a jury beyond a reasonable

doubt.    See Booker, 125 S. Ct. at 756; Mares 402 F.3d at 521.       The

Government    responds   that   there   was   no   error   because   McCoy

stipulated to all of the facts upon which the district court based

the sentence.

     Booker error occurs when a defendant’s “sentence was enhanced

based on findings made by the judge that went beyond the facts

admitted by the defendant or found by the jury”.           Mares, 402 F.3d

at 521.    McCoy contends incorrectly that the district court based

its amount-of-loss finding on an amount not admitted by McCoy.

McCoy’s signed factual resume, filed the same day as his plea

agreement, listed individual loss amounts. For example, the resume

stated:

                 I did knowingly cause to be transmitted
            in interstate commerce, by means of wire
            communication ... the fraudulent wire transfer
            of funds ... totaling $40,125.46 for various
            sales transactions involving eBay.
                 ....
                 ... I, for the purpose of executing and
            attempting to execute the scheme and artifice

                                    4
            [to defraud], knowingly caused to be delivered
            by the United States Postal Service ... an
            envelope, containing three (3) checks totaling
            $9,200 ....
                 ....
                 ... I ... caused to be delivered by the
            United States Postal Service ... an envelope,
            containing $11,139.57 ....

The unwritten sum of all listed amounts was more than $140,000.

Also, at his plea hearing, McCoy orally agreed to the facts

contained in that resume.           Although McCoy and the Government

stipulated to $119,870.35 of loss in the plea agreement, it stated:

“The government and the defendant agree that this stipulation is

not binding on the United States Probation Office or the Court.”

(Emphasis   added.)     At    the   plea         hearing,   the    district   court

verified:    McCoy agreed that the total loss was $119,870.35, but

also agreed that the total was not binding.                  Therefore, because

McCoy had admitted at the plea hearing to a loss amount of more

than $140,000, the district court acted within its discretion at

sentencing by accepting the probation officer’s recommendation of

$139,232.21 as the loss amount.

     McCoy directs us to United States v. Borders, 992 F.2d 563

(5th Cir.    1993),   for    guidance       on    whether   the    district   court

committed Booker error by sentencing him under a different loss

amount than that stated in his plea agreement.                    In Borders, a 28

U.S.C. § 2255 motion maintained, inter alia, that movant’s counsel

was ineffective because he erroneously stated that movant had

                                        5
pleaded   guilty   to   conspiracy   to   distribute   1,000   pounds   of

marijuana.    Id. at 567.   Although the PSR stated that the amount

involved was 1,000 pounds (approximately 454 kilograms), the plea

agreement stated that movant conspired to distribute less than 50

kilograms.    Id. at 564-65.

     Our court stated that it “might be inclined to accept the

government’s argument” that the 1,000 pounds was the correct amount

for sentencing purposes “had the plea agreement not contained

language expressly limiting the quantity of drugs to which [the

movant] was pleading guilty and had it not contained a provision

that the government would not enhance the defendant’s sentence”.

Id. at 567.   The case was remanded for an evidentiary hearing on,

inter alia, interpretation of the plea agreement.        Id. at 569.

     Unlike the plea agreement in Borders, McCoy’s did not limit

the court regarding the loss amount.           Instead, his agreement

stated:   although the parties agreed that the loss amount was

$119,870.35, that amount was not binding on either the district

court or the probation officer.

     In this regard, McCoy contends that his plea agreement and his

factual resume conflict, giving rise to ambiguity that should be

interpreted in his favor.      See United States v. Harvey, 791 F.2d

294, 300 (4th Cir. 1986) (stating that courts may hold “the

Government to a greater degree of responsibility than the defendant



                                     6
... for imprecisions or ambiguities in plea agreements”).                      This

contention     fails    because   his    plea    agreement     stated   that    the

district court and McCoy’s probation officer were not bound by the

$119,870.35 stipulation; thus, the court was free to sentence him

based on the greater amount of loss admitted in McCoy’s factual

resume.

     Therefore, McCoy’s stipulation to the individual loss amounts

in his factual resume (which totaled more than $140,000) and his

acknowledgment at the plea hearing that he had done so permitted

the district court to base his sentence on $139,232.21, rather than

the non-binding $119,870.35 stated in the plea agreement.

     Accordingly, the district court did not commit Booker error in

sentencing McCoy.        McCoy’s having failed to show the requisite

error,    we   need    not   consider    the    balance   of   our   plain   error

standard.

                                        III.

     For the foregoing reasons, the judgment is

                                                                 AFFIRMED.




                                         7
