                                                               United States Court of Appeals
                                                                        Fifth Circuit
                                                                      F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                        November 2, 2005

                                                                   Charles R. Fulbruge III
                                                                           Clerk
                               No. 04-11141



UNITED STATES OF AMERICA,

                                                       Plaintiff-Appellee,

versus

CHARLES E. REYNOLDS,

                                                       Defendant-Appellant.

                       --------------------
           Appeal from the United States District Court
                for the Northern District of Texas
                        (3:03-CR-290-ALM-N)
                       --------------------

Before HIGGINBOTHAM, WIENER, and DENNIS, Circuit Judges.

PER CURIAM:*

     Defendant-Appellant         Charles     E.   Reynolds     appeals       his

convictions of, and sentence imposed for, violating (1) 18 U.S.C.

§   1001(a)(2),      which    prohibits      “knowingly      and     willfully

. . . mak[ing] any materially false, fictitious or fraudulent

statement or representation” “in any matter within the jurisdiction

of the Executive, Legislative, or Judicial Branch of the Government

of the United States”; and (2) 18 U.S.C. § 2 for aiding and

abetting   false    statements    to   the   federal    government.         More

specifically,      Reynolds   challenges      the   sufficiency        of    the

     *
       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this opinion should not be published and is not precedent except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.
government’s evidence for two elements of the § 1001 offense, viz.,

whether the false statements were made “in any matter within the

jurisdiction” of the United States Department of Housing and Urban

Development (“HUD”), and whether, if so, the false statements were

material. Reynolds also challenges the sufficiency of the evidence

to sustain the charge of aiding and abetting; and, finally, he

challenges his sentence, seeking a re-sentencing in light of United

States v. Booker.1

     As the factual premise underlying the criminal charges against

Reynolds    arose   in   the    context     of   HUD’s   “Direct    Endorsement

Program,”   under   which      HUD   agrees   in   advance   to    insure   loans

generated by specifically identified and pre-approved participating

lenders, Reynolds contends that even materially false statements

are not within the jurisdiction of HUD until HUD actually insures

a loan that has already been applied for, granted, and funded by

the lender. Thus, argues Reynolds, any materially false statements

that he might have made in connection with each loan at issue were

made before the loan ever became a “matter within the jurisdiction”

of HUD.

     Albeit a nice legal argument skillfully presented by able

counsel for Reynolds, it misses the mark.                 In the end we are

     1
       Reynolds also challenged the sufficiency of the government’s
evidence that he knowingly presented his false statements to HUD.
As presentation is not an element of § 1001(a)(2), however —— the
statute requires only that the defendant knowingly and willfully
made a false statement in the matter within the jurisdiction of an
executive agency —— we do not address this irrelevant challenge.

                                        2
satisfied that statements of the nature made by Reynolds, or aided

and abetted by him, during the application and grant process of

loans under the Direct Endorsement Program here at issue are made

in connection with matters within HUD’s jurisdiction, even if made

to the qualified and participating lenders during the pre-approval

and authorization process.2    Reynolds’s jurisdictional argument

therefore fails.

     Our examination of the record further satisfies us beyond

cavil that the evidence adduced in support of the conclusion that

Reynolds’s   statements   concerning   the    income,   assets,   and

creditworthiness of the borrowers under the HUD-insured mortgages

here at issue was not only sufficient to support the conclusion

that they were matters within the jurisdiction of HUD, but also

that they were material both as to his direct violation of the

statute and to his aiding and abetting.3     We therefore affirm each

of Reynolds’s convictions.

     We also decline to reverse and remand Reynolds’s case for re-

sentencing on the basis of Booker.     The district court expressly

enunciated an alternative basis for imposing these sentences, which


     2
       See, e.g., United States v. Lutz, 154 F.3d 581, 587 (6th
Cir. 1998); cf. United States v. Ross, 77 F.3d 1525, 1544-45 (7th
Cir. 1996); United States v. Montemayor, 712 F.2d 104, 108-09 (5th
Cir. 1983).
     3
       See United States v. Swaim, 757 F.2d 1530, 1534 (5th Cir.
1985) (defining as material a statement that has “a natural
tendency to influence, or [is] capable of affecting or influencing,
a government function”).

                                 3
were correctly calculated under the then-mandatory United States

Sentencing Guidelines (the “Guidelines”).   The sentencer announced

that, as a precaution against the possibility that the Guidelines

might ultimately be held to be non-mandatory (as they eventually

were in Booker), the court would alternatively proceed to exercise

its discretion as though operating under non-mandatory Guidelines,

and it then imposed precisely the same sentence.   Therefore, under

Booker and its progeny, including our post-Booker decisions, we

perceive no reason to vacate and remand for resentencing.

AFFIRMED.




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