                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 January 11, 2007

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 06-50393
                          Summary Calendar


UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

PHILLIP JOSEPH SMITH,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                       USDC No. 7:05-CR-198
                       --------------------

Before SMITH, WEINER, and OWEN, Circuit Judges.

PER CURIAM:*

     Phillip Joseph Smith appeals his conviction and sentence on

three counts of mail fraud in violation of 18 U.S.C. § 1341.

Finding no error, we affirm.

     Smith first contests the sufficiency of the evidence to

support the fraud conviction, arguing that he did nothing more than

attempt to recover fees owed to him for work performed on behalf of

his client, Dunois Beman, and that he had no intention to defraud

the Bemans.    Viewing the evidence in the light most favorable to

the verdict, as we must, see United States v. Holmes, 406 F.3d 337,

     *
       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this opinion should not be published and is not precedent except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.
                           No. 06-50393
                                -2-

351 (5th Cir.), cert denied, 126 S. Ct. 375 (2005), we conclude

that the evidence was sufficient.   Inter alia, Smith continued to

demand his full fee after he lost his license despite knowing that

he could no longer represent Beman and thereby fulfill his part of

the contract, and without informing Beman of his licensure status.

Although Smith contends that he spent many hours working on the

case, the evidence shows that he provided little to no benefit to

Beman.   He received checks via mail from Beman’s mother after he

surrendered his license, and he sent a letter to the federal habeas

court clearly indicating that he represented Beman despite the loss

of his license.   It was well within the jury’s province to reject

Smith’s testimony and explanations.   Id.    Given the evidence, we

cannot say that the jury’s conclusion that Smith committed mail

fraud was unreasonable.   Id. at 351, 353.

     Smith next argues that the district court erred by imposing a

two-level upward adjustment for abuse of position of trust under

U.S.S.G. § 3B1.3. We review the district court’s interpretation of

the Guidelines de novo and its factual findings for clear error.

See United States v. Creech, 408 F.3d 264, 270 & n.2 (5th Cir.),

cert denied, 126 S. Ct. 777 (2005).          As Smith continued to

represent that he was an attorney and continued giving advice

during the time that he attempted to collect his fees, we cannot

say that the district court clearly erred in concluding that Smith

abused a position of trust.
                              No. 06-50393
                                   -3-

     Smith asserts that the district court erred in failing to

award him a reduction for acceptance of responsibility pursuant to

U.S.S.G. § 3E1.1.    This contention is without merit.    Throughout

the proceedings, and on appeal, Smith has steadfastly maintained

that he is not guilty of mail fraud, a position wholly inconsistent

with acceptance of responsibility.      See United States v. Watson,

988 F.2d 544, 551 (5th Cir. 1993); § 3E1.1, comment. (n.2).      The

district court committed no error.

     Finally, Smith argues that the district court erred in the

amount of restitution ordered, asserting that there was no loss to

the Bemans.    We review for plain error and find none.   First, the

cursory nature of Smith’s brief on this point would be sufficient

to warrant rejecting his argument.     See Cinel v. Connick, 15 F.3d

1338, 1345 (5th Cir. 1994).    In addition, given that Smith received

$8,100, but provided no valuable services, the district court did

not err, plainly or otherwise, in determining that restitution of

$8,100 was appropriate.

     For the foregoing reasons, the judgment of the district court

is AFFIRMED.
