                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                   May 10, 2005

                                                          Charles R. Fulbruge III
                                                                  Clerk
                           No. 04-10803
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

TOMMY E. T. INGRAM,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Northern District of Texas
                     USDC No. 4:04-CR-46-A-1
                       --------------------

Before JONES, BARKSDALE and PRADO, Circuit Judges.

PER CURIAM:*

     Tommy E. T. Ingram appeals his sentence following his guilty

plea to one count of mail fraud and one count of subscribing to a

false tax return.

     Ingram argues that the district court erred in finding that

the loss amount attributable to him for sentencing and

restitution purposes was approximately $12,500,000.     Following

the Supreme Court’s decision in United States v. Booker, 125

S. Ct. 738 (2005), this court has held that the application and


     *
       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this opinion should not be published and is not precedent except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. 04-10803
                                 -2-

interpretation of the guidelines continue be reviewed de novo.

See United States v. Villegas, __ F.3d __, No. 03-21220, 2005 WL

627963 at *2, (5th Cir. Mar. 17, 2005).    When the parties have

agreed that factual findings are reviewed for clear error, we

also have “assume[d] without deciding that clear error is the

proper standard post-Booker.”   United States v. Infante, __ F.3d

__, No. 02-50665, 2005 WL 639619 at *12 n.14, (5th Cir. Mar. 21,

2005).   Prior to Booker, the parties in the instant case also

agreed that factual findings should be reviewed for clear error.

Therefore, we “assume without deciding” that the clear error

standard applies.   See id.; see also United States v. Randall,

157 F.3d 328, 330 (5th Cir. 1998) (loss amount under U.S.S.G.

§ 2F1.1 reviewed for clear error).   The propriety of a particular

award of restitution is reviewed for an abuse of discretion.       See

U.S. v. Hughey, 147 F.3d 423, 436 (5th Cir. 1998).

     The district court did not clearly err in attributing fraud

committed by Ingram’s co-defendant to him or abuse its discretion

in its restitution award.   Ingram admits that he knew

approximately 60% of the submitted invoices were fraudulent.

Despite Ingram’s assertion that he could not determine whether

the other invoices were fraudulent because he was unqualified for

his job, given that the scale of the fraud was so great, the

district court’s finding that the full amount of the fraud was

reasonably foreseeable to him was not clearly erroneous.
                           No. 04-10803
                                -3-

     Ingram also argues that the district court clearly erred by

imposing a two-level enhancement for the use of “sophisticated

means.”   U.S.S.G. § 2F1.1(b)(6)(C).   Although the basic

principles of the scheme were simple, Ingram and Brooks used

sophisticated means to carry out their scheme, to shield it from

scrutiny, and to disguise the source of their gains.    The

district court’s findings were not clearly erroneous.

     Ingram also argues that the district court erred by denying

a reduction for acceptance of responsibility.    Our standard of

review is highly deferential, and we will “affirm a sentencing

court’s decision not to award a reduction under U.S.S.G. § 3E1.1

unless it is ‘without foundation.’”     United States v. Anderson,

174 F.3d 515, 525 (5th Cir. 1999).     The district court’s decision

was not “without foundation.”   Although Ingram entered a timely

guilty plea and provided extensive information to the Government,

the district court found that he had tried to minimize the amount

of money he received and his awareness of the scope of the

scheme.

     Ingram also argues that his sentence must be vacated

pursuant to Blakely v. Washington, 124 S.Ct. 2531 (2004).     He

concedes that this issue was not raised below and that plain

error review applies.   Neither party has addressed the effect of

the Supreme Court’s recent decision in Booker, which held that

Blakely was applicable to the federal sentencing guidelines.

125 S. Ct. at 746.   We conclude that, following Booker, Ingram
                            No. 04-10803
                                 -4-

has demonstrated “error” that was “plain” because the district

court made findings not admitted or proven to a jury that

resulted in an enhanced sentence.    See United States v. Mares, __

F.3d __, No. 03-21035, 2005 WL 503715 at *8 (5th Cir. Mar. 4,

2005).    However, because the district court sentenced Ingram to

the statutory maximum (and indicated it would have imposed an

even higher sentence but for the statutory maximum), we conclude

that Ingram can not demonstrate that the district court “would

have reached a significantly different result” under an advisory

scheme.    Id. at *8-9.

     AFFIRMED.
