               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                           No. 01-10007
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

TERRY DON RADER,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Northern District of Texas
                   USDC No. 3:00-CR-191-ALL-T
                      --------------------
                          June 19, 2002

Before DeMOSS, PARKER, and DENNIS, Circuit Judges.

PER CURIAM:*

     Terry Don Rader, federal prisoner #08734-078, appeals his

guilty-plea conviction and sentence for computer fraud, in

violation of 18 U.S.C. § 1030(a)(4).   Rader avers that (1) his

plea was involuntary and that his sentence of 48 months’

imprisonment was imposed in violation of the plea agreement and

(2) the district court erred in (a) assessing a two-level

increase, pursuant to U.S.S.G. § 3B1.3, based upon its finding


     *
        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that this opinion should not be published and is not precedent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. 01-10007
                               -2-

that he had abused a position of trust; (b) assessing a four-

level increase, pursuant to U.S.S.G. § 2F1.1, based on its

finding that his fraudulent scheme substantially jeopardized the

safety and soundness of a financial institution and/or his

conduct affected a financial institution and he derived more than

$1 million in gross receipts from the offense; (c) determining

the amount of loss attributable to him for sentencing purposes;

(d) failing to grant his request for a downward departure; and

(e) determining the amount of restitution and in failing to

determine his ability to pay.   Rader further avers that counsel

was ineffective for a variety of reasons and that the indictment

was defective in light of Apprendi v. New Jersey, 530 U.S. 466

(2000) because it failed to allege an amount of loss.

     Rader has failed to show that the imposition of his 48-month

sentence constituted a breach of the plea agreement.     United

States v. Valencia, 985 F.2d 758, 760 (5th Cir. 1993).    Although,

as part of the plea agreement, the parties entered into a

stipulation of applicable guidelines, which provided that the

parties agreed that the court would not sentence Rader higher

than an offense level of 21, the stipulation specifically

provided, and Rader was advised at his plea hearing, that the

stipulation was not binding on the court.

     The district court did not plainly err in assessing a two-

level increase, pursuant to U.S.S.G. § 3B1.3, based upon its

finding that Rader had abused a position of trust.     United States
                            No. 01-10007
                                 -3-

v. Vonn, 122 S. Ct. 1043, 1043, 1046 (2002).      The presentence

report reflected that Rader occupied a position characterized by

professional or managerial discretion.      See U.S.S.G. § 3B1.3,

application note 1.   He was certainly subject to little, if any,

supervision in his responsibilities.     Moreover, Rader’s position

placed him in a superior position to commit the crime, and he

took advantage of that superior position to facilitate and

conceal the crime.    United States v. Reeves, 255 F.3d 208, 212

(5th Cir. 2001).   Lastly, the presentence report demonstrated

that Rader used his special knowledge of the inventory and

trading accounts and of the data-entry systems to facilitate and

hide his fraudulent activities.

     The district court also did not err in assessing a four-

level increase, pursuant to U.S.S.G. § 2F1.1, based on its

finding that Rader’s fraudulent scheme substantially jeopardized

the safety and soundness of a financial institution and/or his

conduct affected a financial institution and he derived more than

$1 million in gross receipts from the offense.      The evidence

before the district court showed that Southwest Securities, upon

its discovery of Rader’s fraud, required a payment from Weber

Investment of $2.4 million.   Because Weber Investment could not

come up with the funds, Garry Weber, as the company’s guarantor,

paid the $2.4 million to Southwest.    If he had not done so, Weber

Investment would have been shut down.      Accordingly, there was

evidence on which the district court could find that Rader’s
                            No. 01-10007
                                 -4-

scheme put Weber Investment in substantial jeopardy of insolvency

or even dissolution, which was enough, under U.S.S.G.

§ 2F1.1(b)(6)(A) and its commentary, to qualify Rader for the

enhancement.

     Moreover, the evidence was sufficient to show that Weber

Investment and Southwest Securities were each “affected” by the

crime under U.S.S.G. § 2F1.1(b)(6)(B).     Southwest, although not

financially affected by Rader’s actions, certainly was affected

i.e., Rader’s fraudulent activities caused Southwest to

unknowingly submit false financial reports to the Federal Reserve

Bank and caused it to have inventory accounts which were false

and incorrect.   Weber Investment was also affected in that it was

required to repay Southwest, albeit the money coming from Garry

Weber.   The affidavit evidence also showed that Rader derived

more than $1 million in gross receipts from the scheme.

     Rader avers that the district court erred in a finding that

the amount of loss attributable to him for sentencing purposes

totaled $2.4 million.   The district court did not clearly err in

its loss calculation.    United States v. Wimbish, 980 F.2d 312,

313 (5th Cir. 1992).    The fact that Rader repaid Weber Investment

$1.2 million is of no moment.   Payments of restitution may not be

used to reduce the amount of loss.    United States v. Cockerham,

919 F.2d 286, 289 (5th Cir. 1990), overruled on other grounds,

United States v. Calverley, 37 F.3d 160, 162-64 (5th Cir. 1994)

(en banc).
                            No. 01-10007
                                 -5-

     With respect to Rader’s assertion that the district court

erred by denying his motion for a downward departure, we do not

have jurisdiction to review the matter because the district

court’s refusal to depart downward was based on its determination

that departure was not warranted on the facts of the case.

United States v. Guajardo, 950 F.2d 203, 208 (5th Cir. 1991).

     Rader avers that the district court erred in ordering

restitution in the amount of $2.4 million.   There was ample

evidence before the court supporting the amount of the

restitution.    The district court did not abuse its discretion in

requiring Rader to pay restitution in the amount of $2.4 million.

 United States v. Myers, 198 F.3d 160, 168 (5th Cir. 1999).

     Rader’s contention that the district court erred when it

ordered him to make restitution without considering his ability

to pay is also without merit.   Rader’s restitution was based upon

18 U.S.C. § 3663A, which makes restitution mandatory for offenses

involving fraud without consideration of the defendant’s ability

to pay.   See   18 U.S.C. § 3663A(a)(1); Myers, 198 F.3d at 168.

     With regard to Rader’s ineffective-assistance-of-counsel

claims, the court will not address these claims because the

record is inadequate to enable the court to evaluate the claims

fairly on the merits.    United States v. Scott, 159 F.3d 916, 924

(5th Cir. 1998); United States v. Higdon, 832 F.2d 312, 313-14

(5th Cir. 1987).   Rader’s argument regarding the application of

Apprendi is also without merit because he was sentenced below the
                           No. 01-10007
                                -6-

statutory maximum.   See United States v. Doggett, 230 F.3d 160,

166 (5th Cir. 2000), cert. denied, 531 U.S. 1177 (2001).

     Given the foregoing, Rader’s conviction and sentence are

AFFIRMED.   In light of the disposition of the appeal, his motion

for release pending appeal is denied as MOOT.

     AFFIRMED; MOTION FOR RELEASE PENDING APPEAL DENIED AS MOOT.
