                                                        [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                                                                  FILED
                         ________________________ U.S. COURT OF APPEALS
                                                           ELEVENTH CIRCUIT
                                                            November 17, 2005
                                No. 05-10169
                                                            THOMAS K. KAHN
                            Non-Argument Calendar               CLERK
                          ________________________

                     D. C. Docket No. 04-00001-CR-1-SPM

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                     versus

RONALD RYAN SHEPARD, JR.,
a.k.a. Ronald Ryan Sheppard, Jr.,

                                                            Defendant-Appellant.


                          ________________________

                  Appeal from the United States District Court
                      for the Northern District of Florida
                        _________________________

                              (November 17, 2005)

Before MARCUS, WILSON and PRYOR, Circuit Judges.

PER CURIAM:

      Ronald Ryan Sheppard, Jr., appeals his convictions and sentences for wire
fraud. 18 U.S.C. § 1343. Sheppard makes three arguments on appeal: (1) the

district court erroneously admitted evidence of other acts, under Federal Rule of

Evidence 404(b); (2) the evidence presented at trial was insufficient to support the

verdict; and (3) the district court erred when it enhanced his sentence for the use of

sophisticated means and denied a downward departure. Because the district court

did not abuse its discretion when it admitted the evidence of other acts and the

evidence at trial supports the verdict, we affirm the convictions. Because the

district court properly applied the Sentencing Guidelines, we also affirm the

sentences.

                                I. BACKGROUND

       Sheppard was indicted on ten counts of wire fraud, which involved acts

against Tennessee Dressed Beef Company and Westex Cattle Company. The

indictment alleged that, in 1999, Richard Hall and Sheppard formed Ron Shepard

Cattle Company as a division of the Tennessee Dressed Beef Company. As part of

the business arrangement, Sheppard bought and sold cattle for the Tennessee

Dressed Beef Company and split the proceeds with Hall. Sheppard operated from

Florida and sent invoices to Hall in Nashville, Tennessee, by fax. In 2000, Hall

discovered that invoices sent to him by Sheppard falsely recorded sales of cattle

and other falsities.



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      The indictment also alleged that, in 2001, Sheppard entered into an

agreement with Joey Patterson to form the Westex Cattle Company. The

agreement provided that Sheppard would buy and sell cattle, Patterson would

provide financing, and the two would split the profits. Under the agreement,

Sheppard was required to send invoices by fax to Patterson in Texas. The

indictment alleged that from April 2001 to July 2001 Sheppard sent Patterson

multiple invoices that falsely stated sales of cattle or the number of cattle sold.

Sheppard deposited the money he received based on the fictitious invoices into his

personal bank account.

      A jury found Sheppard guilty of six of the ten counts. The jury found that

the total amount of loss was $256,000. The jury attributed a loss of $176,000 to

Patterson and a loss of $89,000 to Hall.

      The district court sentenced Sheppard to concurrent sentences of 57 months

of imprisonment on each count. When it applied the Sentencing Guidelines, the

district court imposed a two level enhancement for the use of sophisticated means.

The district court also denied Sheppard’s motion for a downward departure based

on diminished capacity.

                           II. STANDARD OF REVIEW

      “We review the district court’s evidentiary rulings for an abuse of



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discretion.” United States v. Hasner, 340 F.3d 1261, 1274 (11th Cir. 2003). “We

review a defendant’s challenge to sufficiency of the evidence de novo.” United

States v. Klopf, 423 F.3d 1228, 1236 (11th Cir. 2005). We review the findings of

fact of the district court for clear error and the application of the Sentencing

Guidelines de novo. United States v. Crawford, 407 F.3d 1174, 1177-78 (11th Cir.

2005).

                                  III. DISCUSSION

         Sheppard makes two arguments regarding his convictions and one argument

regarding his sentences. We first address the arguments that challenge the

convictions and then address the challenge to his sentences.

   A. The District Court Did Not Abuse Its Discretion in Its Evidentiary Rulings.

         Sheppard argues that the district court erroneously admitted business records

and financial statements, under Federal Rule of Evidence 404(b), and the

admission of those records violated the Confrontation Clause as interpreted in

Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354 (2004). Sheppard argues

that because the records admitted by the government contained evidence regarding

offenses that were not charged in the indictment, the records were unduly

prejudicial under Rule 404(b). This argument fails.

         The records were admissible. Under Rule 404(b) “[e]vidence of other



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crimes, wrongs, or acts is not admissible to prove the character of a person in order

to show action in conformity therewith.” “[E]vidence of criminal activity other

than the charged offense[, however,] is not extrinsic under Rule 404(b) if it is (1)

an uncharged offense which arose out of the same transaction or series of

transactions as the charged offense, (2) necessary to complete the story of the

crime, or (3) inextricably intertwined with the evidence regarding the charged

offense.” United States v. McLean, 138 F.3d 1398, 1403 (11th Cir. 1998) . All of

the records of which Sheppard complains involved conduct that arose out of the

same series of transactions as the charged offense, were necessary to complete the

story, were inextricably intertwined with the evidence, and were not unduly

prejudicial. The admission of the records also did not violate the Confrontation

Clause, under Crawford, because the evidence was not testimonial. The district

court did not abuse its discretion when it admitted the evidence.

            B. The Evidence Was Sufficient to Support the Convictions.

      Sheppard argues that the district court erroneously denied his motion for

judgment of acquittal because the evidence was not sufficient to support his

convictions. Sheppard argues that the evidence did not prove his intent to defraud

because Hall and Patterson had a duty to verify the truth of Sheppard’s assertions

to them. He argues that a “person of ordinary prudence would not rely on [the]



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representations of a seller, in short, a ‘scheme to defraud’ has not been proved

where a reasonable juror would have to conclude that the representation is about

something which the customer should, and could, easily confirm.” This argument

fails.

         Section 1343 provides that “[w]hoever, having devised or intending to

devise any scheme or artifice to defraud, . . . transmits or causes to be transmitted

by means of wire . . . any writings, signs, signals, pictures, or sounds for the

purpose of executing such scheme or artifice” is guilty of wire fraud. 18 U.S.C. §

1343. To establish a violation of section 1343 the government must prove that the

defendant “(1) intentionally participated in a scheme to defraud; and (2) used the

mails to further that scheme.” United States v. Brown, 40 F.3d 1218, 1221 (11th

Cir. 1994). The government presented ample evidence that Sheppard intentionally

and successfully defrauded his business partners, and Sheppard used faxes, sent

interstate, in the course of his scheme. The district court did not err when it denied

the motion for acquittal.

          C. The District Court Correctly Applied the Sentencing Guidelines.

         Sheppard argues that the district court erred when it applied an enhancement

to his sentence for the use of sophisticated means and denied a downward

departure for diminished capacity. We reject Sheppard’s first argument and are



                                           6
without jurisdiction to review the second.

      First, as to the sophisticated means enhancement, section 2B1.1 of the

sentencing guidelines instructs the district court to apply a two-level enhancement

if “the offense otherwise involved sophisticated means.” U.S.S.G. 2B1.1(b)(8)(C)

(2003). Sophisticated means is defined as “means especially complex or especially

intricate offense conduct pertaining to the execution or concealment of an offense.”

Id. cmt. n.7(B). Sheppard’s scheme involved the use of duplicate, altered, and

fictitious invoices to defraud his business partners. We cannot say that the

conclusion of the district court that this conduct qualified Sheppard for the

sophisticated means enhancement was clearly erroneous.

      Second, we are without jurisdiction to review the decision of the district

court not to apply a downward departure if the district court recognizes its

authority to depart. United States v. Winningear, 422 F.3d 1241, 1245 (11th Cir.

2005). The parties do not dispute that the district court recognized its authority to

depart. The refusal of the district court to depart downward is not properly before

us.

      Although the district court sentenced Sheppard under a mandatory guideline

system, Sheppard did not make any argument under United States v. Booker, __

U.S. __, 125 S. Ct. 738 (2005), in his initial brief to this Court. Sheppard’s only



                                             7
mention of the Booker decision in his initial brief was in his statement regarding

oral argument in which he wrote, “This case was tried in the generation of Blakely

vs. Washington, 542 U.S. 512 (2004), Booker and Fann Fann, 2005 WL 50108

(U.S. 2005) and will pose sentencing issues currently being considered by Federal

Court [sic] in a new light.” Any argument regarding the error of the district court

when it sentenced Sheppard under a mandatory system of guidelines is waived.

See United States v. Dockery, 401 F.3d 1261 (11th Cir. 2005).

                               IV. CONCLUSION

      We affirm Sheppard’s convictions and sentences.

      AFFIRMED.




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