                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS         October 27, 2003
                         FOR THE FIFTH CIRCUIT
                                                           Charles R. Fulbruge III
                                                                   Clerk

                             No. 01-20973



UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee,

versus


DANIEL STRAIN,

                                                Defendant-Appellant.

                       --------------------
           Appeal from the United States District Court
                for the Southern District of Texas
                          (H-00-CR-132-2)
                       --------------------

Before JOLLY and WIENER, Circuit Judges and WALTER,* District
Judge.

PER CURIAM:**

     Defendant-Appellant Daniel Strain appeals his conviction by a

jury on 13 of 21 counts in an indictment for student financial aid

fraud in violation of 20 U.S.C. § 1097(a).      He also appeals the

sentence and restitution imposed by the district court as well.

Regarding his conviction, Strain contends that the evidence was

insufficient to prove beyond a reasonable doubt that he knowingly

     *
         District Judge of the Western District of Louisiana,
sitting by designation.
     **
        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this opinion should not be published and is not precedent except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.
and   willfully    misapplied      any      student   aid   funds,     within   the

contemplation     of   §   1097(a).         Regarding    his   sentence,   Strain

contends that (1) he cannot be held liable for an amount of loss

not proved to the jury beyond a reasonable doubt because facts that

increase the maximum sentence available under the United States

Sentencing Guidelines ("U.S.S.G." or the "Guidelines") must, under

Apprendi v. New Jersey, 530 U.S. 466 (2000), be charged in the

indictment and be proved to and found by the jury beyond a

reasonable doubt; (2) the district court's calculations of the

amount of loss are incorrect; and (3) he did not abuse a public

trust within the contemplation of the Guidelines.                       We affirm

Strain's      conviction     and    the       sentence      imposed,    including

restitution.

      To be guilty of violating § 1097(a), Strain had to have

consciously,      voluntarily,        and     intentionally      exercised      and

authorized     control     or   dominion       over      federally-provided      or

guaranteed Title IV funds by fraud, false statement, or forgery

that interfered with the rights of the funds' true owner or owners,

for Strain's use and benefit or the use and benefit of another,

when Strain knew that such an exercise of control or dominion over

the funds was a violation of law.1               For Strain to be guilty of

aiding and abetting the commission of an offense (which he was

found to have done), he had to have associated with a criminal


      1
          See Bates v. United States, 522 U.S. 23, 30 and n.7 (1997).

                                         2
venture, participated in that venture, and sought by his action to

make the venture succeed.2            We have meticulously reviewed the

record on appeal, including all testimony (among which was that of

Strain) and exhibits, and are satisfied that, irrespective of which

standard   of   review    is    applied,   the    evidence,   including    that

apparently credited by the jury, is more than sufficient to support

Strain's conviction on all counts of which he was found guilty.

     As for his sentence, Strain first complains that the district

court erred in increasing his score under the Guideline, albeit

within the statutory range, for the amount of loss or intended loss

of the fraudulent scheme at issue.               First, as the prison term

imposed did     not    exceed   the   statutory    maximum    of   five   years,

Apprendi is not implicated.        Second, our painstaking review of the

proof supporting by a preponderance of the evidence the actual loss

in excess of $1.025 million, and the intended loss of more than

$1.3 million and actual           loss in excess of $1.1 million, as

determined in the presentencing report ("PSR") are sufficient to

justify the court's use of the intended loss as greater than the

actual loss pursuant to U.S.S.G. § 2F1.1, Comment (Background).

Indeed, both the actual and intended losses exceed the minimum

amount of $800,000 required for an 11-level upward adjustment under

the Guidelines.       Our review and analysis of the PSR and its several

addenda satisfies us that, under either plain error or clear error,

     2
       United States v. Garcia, 242 F.3d 593, 596 (5th Cir. 2001);
United States v. Fierro, 38 F.3d 761, 768 (5th Cir. 1994).

                                       3
the district court's determination of the amounts of actual and

intended loss is not erroneous.

      Finally, Strain's complaint that he could not have violated a

public trust within the intendment of U.S.S.G. § 3B1.3 because his

position    was    irrelevant     to   the   commission   of    the   fraud,   is

unavailing.       The record evidence in this regard, including, for

example, the nature of Strain's responsibilities in the welding

school operations, his falsifying of student records such as

fraudulent GED certificates, and his interaction with, and training

and   supervision     of,   the    person     who   submitted   the   false    or

misleading    information         regarding     the    unaccredited     school,

sufficiently undergirds the district court's determination that

Strain abused his position of public trust within the intendment of

§ 3B1.3, eschewing error in that regard.

      The district court's conviction of Strain based on the jury's

finding of guilt on 13 counts of the indictment, and all aspects of

the sentence imposed are, in all respects,

AFFIRMED.




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