                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                         REVISED APRIL 29, 2005
                 IN THE UNITED STATES COURT OF APPEALS          April 14, 2005
                          FOR THE FIFTH CIRCUIT
                                                           Charles R. Fulbruge III
                                                                   Clerk

                             No. 03-20875



UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee,

versus


ERNEST NDA AKPAN; CHIJIOKE VICTOR
OKORO, MD, also known as Victor
Okoro, also known as Chiji V.
Okoro

                                              Defendants-Appellants.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                         (H-01-CR-399-2)
                      --------------------

Before WIENER and PRADO, Circuit Judges, and LITTLE,* District
Judge.

WIENER, Circuit Judge:

     Defendant-Appellant Ernest Nda Akpan appeals his conviction

and sentence after a jury trial for mail fraud in violation of 18

U.S.C. § 1341.    Defendant-Appellant Chijioke Victor Okoro appeals

his conviction and sentence after a jury trial for fifteen counts

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

filing false tax returns in violation of 26 U.S.C. § 7206(1), and


     *
      District Judge of the Western District of Louisiana, sitting
by designation.
seven counts of healthcare fraud in violation of 18 U.S.C. § 1347.

Finding no error in the district court’s rulings or the jury trial,

we affirm Akpan’s and Okoro’s convictions.                   We also affirm Akpan’s

sentence, but, in light of the Supreme Court’s opinion in United

States v. Booker1 and our recent opinion in United States v. Mares,2

we vacate Okoro’s sentence and remand for resentencing.

                         I.    FACTS AND PROCEEDINGS

     Doctor Okoro is a native of Nigeria who came                         to the United

States     to   attend   college      in       the    1970s.         He    received     an

undergraduate     degree      in   chemistry         and   graduated      from   medical

school.    As a licensed physician, Okoro practiced medicine in the

United States from 1981 until 2002.                  He also developed a medical

missionary program to bring medical care to his native Nigeria.

Between 1984 and 2000, Okoro traveled to Nigeria twice a year to

provide medical care to impoverished Nigerians.                        In 1989, Okoro

moved to Houston, Texas to work as an emergency room doctor at

Memorial    Hospital     Northwest     (“Memorial”).            In     1990,     Memorial

promoted him      to   the    Director     of    the       Emergency      Department,    a

position that he held until his arrest. In 1999, Okoro became a

United States citizen.

     A.     Mail Fraud




     1
          —— U.S. —— , 125 S.Ct. 738 (Jan. 12, 2005).
     2
         —— F.3d ——, 2005 WL 503715 (5th Cir. Mar. 4, 2005).

                                           2
      Okoro also worked for the Westchase Clinic (“Westchase”) until

it closed in 1995, when he began work for Westchase’s successor,

Spectrum Medical Clinic (“Spectrum”).              Okoro and Akpan worked

together at both Westchase and Spectrum.             In 1996, Spectrum was

dissolved and became Houston Medcare (“Medcare”), a minor injury

clinic owned by Okoro.         Many of Spectrum’s employees joined Okoro

at Medcare.        Most importantly, Okoro hired Akpan as Medcare’s

administrator      to   work    with    lawyers    and   insurance      company

representatives to ensure that the clinic received payment for the

services that it rendered.             Akpan coordinated the transfer of

patients from Spectrum to Medcare and also supervised Spectrum’s

office staff.

      In March 1996, the Federal Bureau of Investigation (“FBI”),

the   Internal     Revenue   Service    (“IRS”),   and   the   United    States

Department    of    Health     and   Human   Services    (“DHHS”)    began    to

investigate attorneys and physicians suspected of submitting false

claims to insurance companies for non-existent medical services

purportedly provided to victims of motor vehicle accidents.                  The

results of the undercover investigation by FBI Special Agent

Lorraine Tucker and Houston Police Officer Sheryl Jefferson reveals

the fraudulent scheme alleged by the government in the indictment

against Okoro and Akpan.

      Tucker (posing as “Lorraine Bell”) and Jefferson (posing as

“Sheryl King”) took out insurance policies under their aliases in

cooperation with representatives of the United Services Automobile

                                        3
Association (“USAA”).3       They then filed a fictitious accident

report that listed Jefferson as the driver.

     Tucker received a phone call on her undercover telephone from

an individual who identified herself as Cindy Halla, allegedly a

representative of a Christian organization called Sisters of Grace.

Halla    informed   Tucker   that   the   Sisters   of   Grace   provided

transportation and referrals for victims of car accidents. Halla’s

associate, Walter Oji, picked up Tucker at her undercover apartment

and took her to Spectrum, which was then still in operation.

Tucker wore a hidden recording device during this first visit to

Spectrum.    When they arrived at the clinic, a Spectrum employee

gave Tucker some paperwork to complete.      She filled it out and gave

it to Oji, who then gave it to the receptionist.

     Claudia Ramon, a Spectrum nurse, led Tucker to the back of the

clinic, where Ramon recorded Tucker’s height, weight, and blood

pressure and told her that a doctor would be in to see her shortly.

Dr. Sunil Vachhani, a licensed chiropractor employed by Okoro,

examined Tucker.     She informed him that her right shoulder hurt.

Dr. Vachhani recommended that Tucker receive physical therapy, but

she received none during her first visit.           After Dr. Vachhani

examined Tucker, Oji took her to the law offices of Gabriel Giwa,

whom she retained to recover payment from USAA for the injuries

that she had received in the purported car accident.

     3
       For ease of comprehension, we refer to Tucker and Jefferson
by their real names.

                                    4
     Oji again transported Tucker to Spectrum in late March 1996.

Tucker asked Oji if she should sign in for Jefferson as well, and

Oji informed her that she could if she wanted.         Tucker wrote both

of their undercover names on the sign-in sheet.         Ramon led Tucker

to an examination room, where she handed Tucker a sheet of yellow

paper that contained multiple dates.      Ramon asked Tucker to record

the dates in her patient file.    Tucker then signed the daily sign-

in sheets for the month of March, as well as the daily sign-in

sheets for all of the days listed on the yellow paper.

     Tucker told Ramon that her roommate Jefferson had been in the

same accident but that Jefferson was out of town.              Ramon told

Tucker that she would speak to her superior about Jefferson.          Ramon

then introduced   Tucker   to   Akpan,   to   whom   Tucker   spoke   about

Jefferson.   Akpan told her that “he would work something out” and

would contact their attorney.

     In April 1996, Tucker returned to Spectrum by herself.            She

signed in as usual, and Ramon again gave her a sheet of paper that

contained multiple dates.       Tucker recorded the dates into her

patient file and signed her name on the corresponding daily sign-in

sheets.   Ramon told Tucker to bring Jefferson with her on her next

visit.

     On May 1 and 9, 1996, Tucker returned to Spectrum with

Jefferson.   During the May 9 visit, Tucker and Jefferson met with

Akpan. When he asked Jefferson why she had not visited Spectrum

earlier, she explained that she had been out of town.          Akpan told

                                   5
them that he would help them but that they should not tell others,

explaining that car accident lawsuits often settled and that

problems arose when the lawyers distributed the settlement funds.

Akpan also told them that patients often denied the amount of

services that they received at the clinic to avoid payment.   Akpan

explained that he would get his money and asked if they “were all

together on that.”     Tucker and Jefferson assured him that they

were.    At the close of the meeting, Ramon provided both Tucker and

Jefferson with more sign-in sheets for multiple future dates, which

they signed.

     Spectrum ultimately billed USAA $1550 for services rendered to

Tucker, claiming 27 physical therapy treatments from March 20 to

May 9, 1996.     Spectrum also billed USAA $3190 for Jefferson’s

medical treatment, also for 27 visits between March 20 and May 9,

1996, with multiple treatments rendered on the same day.    Okoro’s

signature appeared on much of the paperwork, even though Okoro had

never examined either Tucker or Jefferson. In fact, neither Tucker

nor Jefferson had ever even met Okoro.

     The “sign-in” scheme was replicated with many of the clinic’s

patients — Minh Nguyen, Audrey Santos, Simon Mosongo, Yolanda

Coleman, Rebecca Whitfield, Dexter Hall, Iyomo Louison, Lora Goree,

Halane Dunn, and Manuel Roth.         Although some of the patients

received physical therapy treatments and some were examined by

Okoro, each patient signed blank sign-in sheets and blank patient

forms.    In addition, Okoro signed most of the forms himself, yet

                                  6
many of the patients testified that he had never examined them, and

the evidence at trial demonstrated that he was out of the country

—— in Nigeria —— during many of their “visits.”

      B.     Healthcare Fraud4

      Okoro also worked with 21 other physical therapy clinics.

Medicare issues a group number to each health care facility and an

individual provider number to physicians within the facility.

Physicians must complete a “reassignment of benefits” application

to   allow   the    facility    to   bill    Medicare     for   the   physician’s

services.       Medicare    then     reimburses     the   facility       under   the

physician’s provider number.          The facility may bill Medicare for

services that the physician renders only when he is present.

      Between 1998 and 2000, Okoro received individual provider

numbers in connection with 21 physical therapy clinics.                      These

clinics were owned by Akpan, Sekibo Williams, a foreign medical

student who worked at Medcare, and Henry Johnson, Spectrum’s

previous     owner.        In   total,       the   clinics      billed    Medicare

$9,788,724.76, and Medicare paid a total amount of $4,192,544.16 to

the clinics.       Of this amount, Okoro received $324,373.87 from the

clinics between 1999 and 2001.

      The evidence at trial demonstrated that many of the physical

therapy clinics billed Medicare for services that Okoro allegedly

rendered after he deactivated his individual provider number for


      4
          Okoro does not appeal his conviction for tax fraud.

                                         7
that clinic.      In addition, Okoro signed patient documents that

stated that he had treated those patients on specific dates and at

specific times on which Okoro could not possibly have rendered

services.      For example, many of the dates on which Okoro alleged

that he provided services were dates when he was in Nigeria.

     C.     Indictment and Trial

     In   May    2001,   a   federal    grand   jury    returned    a   22-count

indictment against Okoro and Akpan.              The following February, a

grand   jury    returned     a   25-count   second    superceding   indictment

against Okoro, Akpan, as well as counts against Claudia Ramon,

Guadalupe Castro, and Ana Lilia Garcia. The district court severed

the charges against these additional defendants before trial, and

they are not a subject of this appeal.               Counts one through 15 of

the second superceding indictment charged Okoro with aiding and

abetting mail fraud in violation of 18 U.S.C. §§ 1341 and 2.

Counts 16 through 18 charged Okoro with filing false federal income

tax returns in violation of 26 U.S.C. § 7206(1).            Counts 19 through

25 charged Okoro with health care fraud in violation of 18 U.S.C.

§ 1347.   Count One charged Akpan with mail fraud in violation of 18

U.S.C. § 1341.

     Trial against Okoro and Akpan began in September 2002.                After

deliberating, the jury found Okoro guilty on all twenty-five counts

and found Akpan guilty on Count One.            Akpan timely filed a motion

for a new trial, which the district court denied.            In August of the



                                        8
following year, the district court sentenced Akpan to 41 months in

the custody of the Bureau of Prisons on count one.           One month

later,    the   district   court   sentenced   Okoro   to   120   months

imprisonment for the mail and healthcare fraud violations.          The

district court also sentenced Okoro to a 31-month sentence for tax

fraud to run consecutively to the 120-month sentence for mail and

healthcare fraud.     Both Okoro and Akpan timely filed notices of

appeal.



                             II. ANALYSIS

     A.     Motion for a Mistrial

     Okoro and Akpan (collectively, “appellants”) first argue that

the district court abused its discretion when it refused to grant

their motion for a mistrial grounded in the court’s allowing the

jurors to remove the government’s summary trial notebooks from the

courtroom before trial started.         We review a district court’s

refusal to grant a mistrial for abuse of discretion.5

     After the court empaneled the jury, it instructed the jurors:

(1) not to seek outside information about the case; (2) not to

discuss experiences that were not in evidence; (3) not to discuss

the case or the evidence with anyone —— their spouse or among

themselves —— before the district court’s final instructions; (4)

to keep an open mind about the evidence; and (5) not to form an


     5
         United States v. Moreno, 185 F.3d 465, 475 (5th Cir. 1999).

                                    9
opinion until they had heard all of the evidence.                 The district

court then recessed for lunch.

     During the recess, the government received permission from the

district court to place summary notebooks on each juror’s chair.

The summary notebooks contained “key” documents of the government’s

case against appellants.        Specifically, each notebook contained

excerpts of government exhibits one to forty-three.                Before jury

selection,   the     district       court     had   entertained    appellants’

objections   to    the   exhibits    in     the   summary   notebooks   but   had

admitted all of them.6

     After the jury returned from lunch, the court recessed for the

day and informed the jury that opening statements would begin the

next day.7   As the jury left the courtroom, one juror asked the

district court if they could take the summary notebooks with them.

The district court responded: “You can take it home or leave it

here, it’s up to you.”      The jury then left the courtroom.

     After the jury left, the following colloquy occurred between

Akpan’s defense counsel, Robert Fickman, and the district court:

     Fickman: Your Honor, are they allowed to take the exhibit
     notebooks home with them?
     Court: They’re copies. Why not? I let them take their
     notes home. I let them take their minds home. Why is
     that a problem?

     6
        Neither   appellant  challenges              the    district    court’s
evidentiary rulings on the exhibits.
     7
       Doctors for Okoro’s lead counsel, Richard Haynes, had
scheduled emergency surgery for the afternoon of September 10, 2002
on a tumor in his hand.

                                       10
     Fickman: Well, I’ve never seen it before, I guess.

The record reflects that this colloquy occurred immediately after

the jury left the room.   Later, before the court recessed for the

day, counsel for Akpan explicitly objected to the removal of the

summary notebooks from the courtroom on the grounds that it (1) was

prejudicial, (2) would encourage the jurors to discuss the evidence

with others, and (3) would allow the jurors to deliberate before

all evidence had been presented.   The district court overruled the

objection, stating that   “I might have made them keep it if it had

been done before it was an accomplished fact, but . . . .”      The

district court also informed counsel for Akpan that if he could

think of a better reason, the court would not allow the jurors to

remove the notebooks from the courtroom the following day. Okoro’s

defense counsel made no objection to the court’s order even though

three attorneys were present.        Although Richard Haynes, lead

counsel for Okoro, was in surgery, Sharon Levine, Paul Coselli, and

Mike Durham, all counsel for Okoro, were present in the courtroom

during the exchange.

     The next day, Haynes and Fickman moved for a mistrial on the

ground that the district court had allowed the jurors to leave the

courtroom with the summary notebooks.     The district court denied

the motion and reminded defense counsel that the court had already

admitted into evidence all of the notebook exhibits.        Defense

counsel then moved the district court to poll the jury to see



                                11
whether any of the jurors had actually left the courtroom with the

summary notebooks.       The district court denied the motion too.

     The    government    argues   that   Fickman’s   colloquy   with   the

district court after the jury left the courtroom amounts to neither

a specific nor timely objection to preserve an abuse-of-discretion

standard of review for the district court’s denial of a mistrial.

The government contends that we should review the district court’s

denial of a mistrial for plain error.        We reject this argument.

     The government appears to argue that because counsel for

appellants did not object to the removal of the summary notebooks

before the jury left the courtroom, they failed to preserve their

objection to the district court’s denial of a mistrial.                 This

argument misconstrues the basis of appellants’ assignment of error.

Okoro and Akpan ultimately appeal the district court’s denial of

their motion for a mistrial based on its alleged error in allowing

the jury to leave the courtroom with the summary notebooks.         Under

Federal Rule of Criminal Procedure 51, “[a] party may preserve a

claim of error by informing the court —— when the court ruling or

order is made or sought —— of the action the party wishes the court

to take, or the party’s objection to the court’s action and the

grounds for that objection.”8         On the day following the jurors’

putative removal of the notebooks from the courtroom, Attorney

Haynes specifically (and immediately) sought a mistrial, arguing


     8
         FED. R. CRIM. P. 51(b).

                                     12
that allowing the jurors to consider the summary notebooks outside

of the courtroom prejudiced appellants because the books contained

conclusions and allegations of the prosecution.      When Haynes and

Fickman sought a mistrial for appellants, they followed Rule 51

precisely: They advised the district court of the action that they

wished it to take and the grounds for that action.    The appellants

preserved their objection to the denial of a mistrial for appeal,

which we review for abuse of discretion.9

     Akpan and Okoro do not challenge the government’s use of

summary notebooks.   Rather, they challenge whether the district

court erred when it did not grant a mistrial on the grounds that

one or more of the jurors may have left the courtroom with the

summary notebooks.   The general rule in this circuit is that “no

material either introduced in evidence or excluded from evidence


     9
       We also note that the district court considered and treated
Fickman’s statements as objections. When court reconvened the next
day, the following colloquy occurred between Haynes and the
district court:
     Mr. Haynes: . . . in my absence yesterday I’m advised
     that Juror No. 2 . . . requested of the Court
     instructions as to whether or not the jurors could take
     home with them what’s in evidence as Government’s Exhibit
     41DD, which is their summary of the conclusions and
     allegations and et cetera. The Court apparently, over
     objection timely made by counsel for Defendant Akpan ——
     The Court: Actually before objection.
     Mr. Haynes: Sir?
     The Court: Before objection.
     Mr. Haynes: Before objections?
     The Court: The objection was made after the jury had left.
The record clearly reflects that the district court considered
Fickman’s colloquies as objections and specifically treated them as
such the next day when lead counsel for Okoro moved for a mistrial.

                                13
should be in the possession of members of the jury outside of the

courtroom.”10       This is not, however, an immutable rule.    For

example, in Rothstein, we ruled that the alleged possession of

evidence by jurors outside of the courtroom amounted to harmless

error because: (1) no misconduct was charged to anyone; (2) defense

counsel admitted that it was no one’s fault; (3) the jurors used

the summaries on the day after they may have taken them home; and

(4) there was no proof that any juror actually had possession of

the summaries outside of the courtroom.11

     The record supports a similar conclusion here.      First, the

jurors used the summary notebooks throughout the trial with no

further objection from appellants.     Second, appellants charge no

one with misconduct and, indeed, there is no record evidence that

any juror actually left the courthouse with a copy of the summary

notebooks.12    Third, before the government distributed the summary

notebooks, the district court had entertained and denied objections

to the exhibits and admitted them into evidence.

     This last finding —— that the district court had already

admitted all of the notebook exhibits into evidence —— is central



     10
          United States v. Rothstein, 530 F.2d 1275, 1279 (5th Cir.
1976).
     11
          See id.
     12
       Although the district court denied appellants’ motion to
poll the jury, neither the record nor any evidence obtained later
reflects that any one of them left the courtroom with the summary
notebooks. Indeed, only one juror asked if he could do so.

                                  14
to our holding that the district court did not abuse its discretion

in not granting a mistrial under these circumstances.   Although we

have found no case law directly on point, we recognize that other

circuits that have considered objections to summary notebooks

distinguish those instances when the exhibits in the notebooks have

been admitted from those in which they have not.13

     We are admittedly concerned with the district court’s denial

of appellants’ motion to poll the jury, but we recognize that the

court specifically admonished the jury —— before allowing them to

leave the courtroom with the summary notebooks —— to keep an open

mind about the evidence and not to arrive at a conclusion until


     13
       In United States v. Rana, for example, where the defendant
objected to the use of notebooks at trial, the Third Circuit held
that “[t]he use of [a] notebook containing still-to-be admitted
exhibits . . . conflicts with” a defendant’s right to have an
impartial jury base its verdict on properly admitted evidence 944
F.2d 123, 126-27 (3rd Cir. 1991) (emphasis added).       In United
States v. Smith, the defendant objected to the jury’s use of
summary notebooks at trial because they contained “four incomplete
exhibits, four exhibits that were never admitted, and all the
exhibits before they were admitted in evidence.” 966 F.2d 1446,
1992 WL 137523, at *3 (4th Cir.) (unpublished disposition). The
Fourth Circuit rejected the defendant’s challenge because there was
no evidence in the record that the jury had considered any of the
exhibits before the district court admitted them. See id. Nor did
the record support the defendant’s claims that any juror noticed or
studied the four exhibits that were never admitted. See id.
     Lastly, in United States v. Best, the defendant challenged the
jury’s use of summary binders in the jury room during
deliberations. 939 F.2d 425, 429 (7th Cir. 1991). The Seventh
Circuit found no error in the jury’s use of the binders because the
district court had admitted into evidence all of the exhibits in
them. See id. at 431. In addition, the district court there
“verified, through individual voir dire of each juror, that the
jurors considered all the evidence, not just the binders, in
arriving at their verdict.” Id.

                                15
they had heard all of the evidence.          As the district court itself

noted, “[j]uries are presumed to follow the instructions of the

court,” and there is no indication here that the jurors did not do

so.14

        Akpan and Okoro appear to raise the same argument raised by

the defendant in Best, which was rejected by the Seventh Circuit.15

Appellants assert that the government’s summary notebooks made it

easier for the jury to follow the government’s case, i.e., the

summary notebooks served as a “road map” to the defendants’ guilt.

Thus, they urge, the district court should have granted a mistrial

on this basis. Even were we to “accept the argument that the

binders permitted greater access to the government’s exhibits,” it

is unclear how “easy access by itself amounts to error.”16 Although

the summary notebooks here contained excerpts of exhibits one to

forty-three, there is no record evidence that the jury did not have

access to the originals.17

        Again, neither Akpan nor Okoro challenge the admissibility of

any     of    the   exhibits    contained   in   the   government’s   summary

notebooks, only the district court’s refusal to grant a mistrial


        14
       United States v. Fletcher, 121 F.3d 187, 197 (5th Cir. 1997)
(citing Zafiro v. United States, 506 U.S. 534, 540-41 (1993)).
        15
             939 F.2d at 429.
        16
             Id. at 430.
        17
        See id. (noting that “the original exhibits, both the
government and the defense documents, were carefully organized in
boxes that were just as easily accessible to the jury.”).

                                       16
because one of the jurors may have taken home the notebook.                  Under

the demanding abuse-of-discretion standard,18 however, we will not

reverse a district court unless “no reasonable person could take

the trial court’s adopted position.”19             We do not find the district

court’s ruling so erroneous that no reasonable person would have

arrived at the same conclusion.

     Furthermore,     even    if   the    district       court   had   abused   its

discretion, such “abuse is only reversible i[f] the error affected

a substantial right of the complaining party,” i.e, we would

subject the abuse to harmless error review, and conclude that if

any error occurred here, it was harmless.20              As noted, the district

court had admitted into evidence all of the exhibits in the

notebooks   (to    which     appellants       do   not    object),     the   jurors

eventually saw each exhibit, and the district court did not allow

the jurors to remove the summary notebooks from the courtroom after

the appellants brought to its attention that they disagreed with

the practice.     If one juror happened to have taken his copy of the

summary notebook one evening, doing so did not affect either

appellant’s substantial rights.           We hold that the district court

     18
        See id.   (noting that although defendant objection to the
presence of the   binders in the jury room during deliberations, the
proper standard   of review was whether the district court abused its
discretion when   it failed to grant a new trial).
     19
       Whitehead v. Food Max of Miss., Inc., 332 F.3d 796, 803 (5th
Cir. 2003).
     20
        Green v. Administrators of Tulane Educ. Fund, 284 F.3d 642,
660 (5th Cir. 2002).

                                         17
did not abuse its discretion when it denied Okoro and Akpan’s

motion for a mistrial.

     We are nevertheless constrained to reiterate the general rule

of this circuit that “no material either introduced in evidence or

excluded from evidence should be in the possession of members of

the jury outside of the courtroom.”21      Appellants note, and we

agree, that such a rule discourages jurors from deliberating

outside of the jury room and from discussing evidence with those

who are not part of the trial process.   The rule also keeps jurors

from contemplating evidence before its admission. The context in

which evidence is introduced is crucial to the weight that the jury

potentially affords it.    Although we reiterate that this is not a

bright-line rule, we caution any district court that considers

making such an exception to the rule that adequate cautionary

instructions and procedural safeguards must be present to ensure

that an allowance of this kind does not so taint the trial process

as to require a new trial.

     B. Sufficiency of the Evidence: Okoro

     Okoro also contends that the evidence adduced at trial was

insufficient to support his convictions on counts seven and eight,

which charged him with aiding and abetting mail fraud under 18

U.S.C. §§ 1341 and 2.     At the close of the government’s evidence

and at the end of trial, both Okoro and Akpan moved for a judgment


     21
          Rothstein, 530 F.2d at 1279.

                                  18
of acquittal under Federal Rule of Criminal Procedure 29 with

regard to all counts.              Okoro expressly sought a judgment of

acquittal on counts seven and eight.

      We review a denial of a motion for judgment of acquittal de

novo.22      We “review[] jury verdicts with great deference and

evaluate[] the evidence in the light most favorable to the verdict

and afford the government the benefit of all reasonable inferences

and credibility choices.”23            When treating a challenge to the

sufficiency of the evidence to sustain a conviction, we consider

“‘whether, viewing the evidence in the light most favorable to the

government, a rational trier of fact could have found the essential

elements     of    the   offense    beyond     a   reasonable   doubt.’”24   “All

reasonable inferences from the evidence must be construed in favor

of   the    jury   verdict.”25       We   will     not   “supplant   the   jury’s

determination of credibility with . . . [our] own.”26

      To prove a mail fraud violation under Section 1341, the

government must establish: “(1) a scheme to defraud; (2) use of the



      22
           United States v. McCauley, 253 F.3d 815, 818 (5th Cir.
2001).
      23
       Id. (quoting United States v. Odiodio, 244 F.3d 398, 400-02
(5th Cir. 2001)) (quotations omitted).
      24
       Id. (quoting United States c. De Leon, 170 F.3d 494, 496
(5th Cir. 1999)).
      25
           United States v. Martinez, 975 F.2d 159, 161 (5th Cir.
1992).
      26
           Id.

                                          19
mails to execute the scheme; and (3) the specific intent to

defraud.”27     “Each separate use of the mails to further a scheme to

defraud is a separate offense.”28 The government need not establish

that the defendant used the mails himself or that he actually

intended that the mails be used.29              The government need only prove

that the scheme depended for its success in some way upon the

information and documents which passed through the mail.30 Further,

a defendant acts with the intent to defraud when he “acts knowingly

with the specific intent to deceive for the purpose of causing

pecuniary ‘loss to another or bringing about some financial gain to

himself.’”31

     To obtain a conviction for aiding and abetting under 18 U.S.C.

§ 2, the government must prove “that the defendant associated with

a criminal venture, purposefully participated in the criminal

activity,       and    sought   by   his     actions   to   make   the   venture

successful.”32        A defendant associates with a criminal venture when


     27
       United States v. Floyd, 343 F.3d 363, 371 (5th Cir. 2003);
United States v. Tencer, 107 F.3d 1120, 1125 (5th Cir. 1997).
     28
        United States v. Pazos, 24 F.3d 660, 665 (5th Cir. 1994)
(citing United States v. McClelland, 868 F.2d 704, 706 (5th Cir.
1989)).
     29
          Id.
     30
          See id.
     31
       United States v. Blocker, 104 F.3d 720, 732 (5th Cir. 1997)
(quoting United States v. Jimenez, 77 F.3d 95, 97 (5th Cir. 1996)).
     32
       Id. at 733 (citing United States v. Polk, 56 F.3d 613, 620
(5th Cir, 1995).

                                           20
he “shares in the criminal intent of the principal.”33                         To

establish that the defendant participated in the criminal activity,

the government must prove that “he has acted in some affirmative

manner to aid the venture.”34            “Mere presence and association are

insufficient to sustain a conviction for aiding and abetting.”35

     Counts seven and eight charged Okoro with the receipt —— by

mail —— of funds from USAA for medical services that he did not

render to Audrey Santos. Okoro argues that the evidence adduced at

trial was insufficient to uphold his conviction because Santos

never testified.           Santos’s boyfriend, Minh Nguyen, testified at

trial     with    regard    to   the   treatment   that   both   he   and   Santos

received.        In sum, Okoro argues that Nguyen’s testimony alone is

insufficient to sustain his conviction.                   Thus, he urges, the

government failed to prove that he falsely represented to USAA the

medical services that he rendered to Santos.                     We reject this

argument.

     Nguyen testified that he and Santos went to MedCare on the

advice of their attorney after they were injured in an automobile

accident.        The same man examined both him and Santos.            Guadalupe

Castro (“Lupy”) then took them to adjacent rooms, placed them on

therapy beds, and set the timers.              Although Nguyen testified that

     33
       Id. (citing United States v. Jaramillo, 42 F.3d 920, 923
(5th Cir. 1995)).
     34
          Id.
     35
          Id.

                                          21
he never witnessed a doctor examine Santos, he also stated that he

would have been aware if she had received any treatment on her

therapy bed because her treatment room was immediately adjacent to

his.   Nguyen testified that he and Santos could converse with each

other from the adjacent rooms.      Moreover, Nguyen stated that they

attended other therapy sessions at Medcare together, and that on

the one occasion when Santos attended a session alone, he drove her

there.

       Nguyen further testified that in each others’ presence, Lupy

instructed the two of them to sign the blank sign-in sheets, and

they did so.    Nguyen also stated that he saw Santos fill out the

forms and that each of them signed forms for dates on which they

did not visit the clinic. Nguyen also identified the MedCare bills

that each received, testifying that each bill noted that the

patient had received treatments that he or she had not.          And, USAA

mailed the settlement checks to Nguyen’s and Santos’s attorney,

who, in turn, paid both patients.

       The record belies Okoro’s contention that the government

relied solely on Nguyen’s testimony to sustain counts seven and

eight.   At trial, Dr. Vachhani identified Okoro’s signature on the

progress notes    in   Nguyen’s   patient   file,   and   on   the   medical

summary, the progress notes, and the narrative in Santos’s file.

Nguyen stated that Okoro never examined either him or Santos.

Indeed, Okoro himself testified that he never treated either

patient.

                                   22
     Other evidence adduced at trial established that Okoro and the

other clinic employees followed this pattern with all the patients

named by the government in counts one through four and nine through

fifteen of the second superceding indictment, including Nguyen

himself.     The jury was entitled to rely on all of the other

evidence and testimony to determine whether a scheme to defraud

existed and whether Okoro followed that scheme with regard to

Santos.36    The evidence was sufficient for a jury to conclude that

Okoro falsely reported medical services that he rendered Santos

when he had not —— medical services that were subsequently billed

via mail to USAA.        We hold that the evidence was sufficient to

support Okoro’s convictions on counts seven and eight.

     C.     Sufficiency of the Evidence: Akpan

     Akpan also argues that the evidence was insufficient to

convict him of aiding and abetting mail fraud in violation of

Sections    1341   and   2.   Count    one   of   the   second   superceding

indictment charged Akpan with aiding and abetting such mail fraud

by receiving inflated insurance payments from USAA for treatment

that Agents Tucker and Jefferson allegedly received.             Akpan argues

that the evidence is insufficient to uphold his conviction on count

one, because the government relied solely on an audiotape of a

     36
       See, e.g., Tencer, 107 F.3d at 1127-28 (noting that even
though patient charged in indictment did not testify at trial with
regard to fraudulent services, jury was entitled to rely on
circumstantial evidence in form of testimony of other patients with
regard to whether claims submitted to insurance company were
fraudulent).

                                      23
conversation between him and the two undercover agents.                Akpan

advances    that   the   audiotape   is   unintelligible    and     does   not

demonstrate that he stood to derive any financial benefit from

Tucker’s or Jefferson’s cases. In sum, Akpan maintains that the

audiotape merely demonstrates that he performed his job as the

clinic administrator.

     Contrary to Akpan’s argument, the government did not rely

solely on the audiotape.        Thus, his reliance on an allegedly

unintelligible     audiotape   is    meritless.   Agent    Tucker    herself

testified in detail at trial as to her interaction with Akpan. Her

testimony revealed that Claudia Ramon was in the room during the

conversations with Akpan, that Akpan had Tucker’s and King’s files

with him, and that he returned them to Ramon when the conversation

ended.    Tucker also testified that after she, Ramon, and King left

Akpan’s office, Ramon provided them with the dates to fill in on

their patient files.

     Further, as noted, to conclude that Akpan participated in a

scheme to defraud, the jury was entitled to rely on “circumstantial

evidence and by inferences drawn from the facts and circumstances

surrounding the scheme.”37     Although the district court agreed to

give a limiting instruction to the jury regarding which witnesses

and evidence it could consider during deliberations on count one

(the sole count that charged Akpan with mail fraud), even Akpan’s


     37
          United States v. O’Brien, 119 F.3d 523, 532 (7th Cir. 1997).

                                     24
counsel conceded that other witness testimony could establish a

common scheme or plan.

     The government established that Akpan and Okoro had an ongoing

business relationship.      They had worked together at Westchase and

Spectrum Clinics before they transferred to MedCare.               In addition,

Akpan owned one of the clinics for which Okoro worked as a

provider. Most importantly, the evidence at trial established that

at both Spectrum and MedCare, Akpan was the administrator who

supervised   the   office   staff   and    worked   with    the    lawyers   and

insurance companies to ensure that the clinic received its share of

the settlement funds for the services rendered to the car accident

“victims.”    Akpan thus supervised the key activity of the mail

fraud scheme —— the mailing of letters to the insurance companies

and the attorneys to ensure that they paid the clinic and, in turn,

the receipt of such funds through the mails.                    The audiotape,

containing the most damning evidence, viz., Akpan’s insistence that

the clinic receive its money (because, as he alleged, many patients

denied    receiving   services      as    many   times     as     their   record

demonstrated), further bolstered the government’s allegation of a

common scheme or plan. The record demonstrates sufficient evidence

to sustain Akpan’s conviction on count one.

     D.    Rule 404(b) Evidence

     Okoro maintains that the district court committed reversible

error when it admitted extrinsic evidence of his involvement with



                                     25
seventeen home health care agencies in support of the health care

fraud charges in counts twenty through twenty-six of the second

superceding indictment.         Okoro first contends that the government

failed to provide him with notice before trial of its intent to use

Rule 404(b) evidence.          Okoro argues in the alternative that the

evidence does not pass Rule 404(b)’s admissibility test.

     Generally,        we   review   a   trial    court’s   decision    to   admit

evidence for abuse of discretion.38           As Okoro did not object to the

admissibility of the evidence until his motion for a new trial, we

review the district court’s decision for plain error only.39                 Also,

Okoro raises for the first time on appeal the issue whether he

properly received notice of the government’s intent to use the

specific acts evidence. Accordingly, we also review this objection

for plain error.40

     Okoro’s contention that Rule 404(b) applies here is off the

mark. Okoro forfeited the protection of Rule 404(b) when he placed

his character at issue by testifying at trial.41                  Although this

“does     not   give    the   prosecution        free   rein,”   it   allows   the

     38
          United States v. Riggio, 70 F.3d 336, 339 (5th Cir. 1995).
     39
       United States v. Smith, 203 F.3d 884, 890 (5th Cir. 2000)
(“However, if a defendant fails to object at trial, this Court will
only review evidentiary rulings for plain error.”).
     40
          Id.
     41
        United States v. Mikolajczyk, 137 F.3d 237, 244 (5th Cir.
1998) (citing United States v. Tomblin, 46 F.3d 1369, 1388 (5th
Cir. 1995)) (“A defendant makes his character an issue, losing the
protection of rule 404(b), when he testifies.”).

                                         26
government, under Federal Rule of Evidence 608(b), to cross-examine

the defendant “with respect to instances of misconduct that are

clearly    probative   of   truthfulness    or    untruthfulness,       such   as

perjury, fraud, swindling, forgery, bribery, and embezzlement.”42

Because the government offered the other-acts evidence to impeach

Okoro on cross-examination while he was on the stand so as “to show

the character of the witness for untruthfulness,” Rule 404(b)’s

notice provision and its two-part admissibility test do not apply

here.43

     The    government’s    evidence    pertained       directly   to    Okoro’s

character for truthfulness or the lack thereof.            Okoro insisted on

direct examination that he did not enter into a scheme to defraud

Medicare.     He   testified   that    he   did   not    authorize      the   home

healthcare clinics to bill Medicare under his provider number for

services that he himself did not render.          Okoro stated that he had

regularly treated patients in nursing or halfway homes from 1996

until 1999, but that he did not charge for these services and did

not receive many payments for services that he did provide.

     On cross-examination, the government demonstrated that, to the

contrary, seventeen home healthcare providers had charged Medicare


     42
       Id. (quotations omitted); see also Bustamente, 45 F.3d at
945-46 (“FRE 608(b) allows the government to inquire into specific
instances of conduct relevant to Bustamente’s character for
truthfulness.”).
     43
       Tomblin, 46 F.3d at 1388 & n. 51 (quoting United States v.
Schwab, 886 F.2d 509, 511 (2d Cir. 1989)).

                                      27
almost two million dollars for Okoro’s services.                 Of this two

million dollars, the home healthcare providers paid Okoro $15,000

in “consulting fees.”     This evidence directly contradicted Okoro’s

testimony that the home healthcare providers did not pay him.            The

district court did not abuse its discretion in admitting this

evidence under Rule 608(b).

     E.      Admissibility of Witness Testimony

     Okoro informed the district court that he intended to call

three groups of witnesses: (1) personal injury attorneys who had

represented car accident victims named in the indictment, which

attorneys would testify that their clients were satisfied with the

services Okoro had rendered and who never questioned the amount of

money that the insurance companies paid; (2) former patients of

Okoro not named in the indictment who would testify that they were

satisfied with Okoro’s services; and (3) owners of physical therapy

clinics who would rebut the allegations that Okoro billed them for

services that he did not perform.         Okoro argues that the district

court     severely   limited   his   right   to   call   these    witnesses,

contending that the district court excluded testimony of Okoro’s

former patients and the owners of the medical clinics.             We review

a district court’s rulings on the admissibility of the testimony of

a witness for abuse of discretion.44




     44
          United States v. Gray, 105 F.3d 956 (5th Cir. 1997).

                                     28
     The government first argues that Okoro made no proffer with

regard to the testimony of the witnesses who he intended to call.

Federal Rule of Evidence 103 states that no “[e]rror may be

predicated upon a ruling which admits or excludes evidence unless

a substantial right of the party is affected, and . . . the

substance of the evidence was made known to the court by offer or

was apparent from the context within which questions were asked.”45

We have held that a defendant will preserve his challenge to

excluded evidence if “‘the trial court has been informed as to what

counsel intends to show by the evidence and why it should be

admitted,    and   this   court   has    a   record   upon   which   [it]   may

adequately examine the propriety and harmfulness of the ruling.’”46

We will not review a challenge to excluded evidence, however,

unless the defendant made an offer of proof at trial.47              We reject

the government’s contention on this point because the record

reflects that Okoro’s counsel held a lengthy discussion with the

district court in which he informed the court about the testimony

of the witnesses that he intended to call.

     Contrary to Okoro’s argument, however, the district court did

not exclude these witnesses.             Okoro called four patients who



     45
          FED. R. EVID. 103(a) & (a)(2).
     46
        United States v. Jimenez, 256 F.3d 330, 343 (5th Cir.
2001)(quoting United States v. Ballis, 28 F.3d 1399, 1406 (5th Cir.
1994)).
     47
          United States v. Winkle, 587 F.2d 705, 708 (5th Cir. 1979).

                                        29
testified to their relationship with Okoro and that they were

satisfied with Okoro’s services.        Although the district court

limited Okoro’s former patients’ testimony and stated that they

could not testify with regard to billing matters because the

indictment did not name these patients, Okoro did not object to

this ruling or attempt to proffer the testimony of other patients

after the four testified.

     Further, the following colloquy occurred when Okoro mentioned

the third set of witnesses —— the clinic owners:

     Mr. Haynes: Well, that would be what we would want the
     clinic people to say and that is, one, they had the
     agreement with [Okoro], two, that he was salary or actual
     hours there, three that he came by when he told then he
     would be scheduled to come by and that when he did come
     by, he performed evaluations on the patients for whom
     they gave bills to the insurance company and/or Medicare.
     The Court: Well, now, that’s three things, all of which
     that’s fine.

The district court then stated that it would allow the clinic

owners to testify as to the custom or practice of the clinic at the

times that Okoro was there.       Okoro did not object at trial that

this testimony would be too limited; in fact, he called one clinic

owner to the stand.   After that clinic owner’s testimony, counsel

for Okoro informed the district court that he would let everyone

know after lunch whether he would call another owner to the stand.

After lunch, however, counsel for Okoro made no further mention

about calling another clinic owner. Okoro’s objections are without

merit.   We find no error here.



                                   30
      F.      Okoro’s Sentence

      Okoro       asserts    several       challenges       to    his      sentence.

Specifically, he contends that under United States v. Booker,48 the

district    court    erred   when    it    calculated       the   amount    of   loss

attributable to him under United States Sentencing Guidelines

(“U.S.S.G.”) § 2F1.1.49       Okoro also challenges the district court’s

application of U.S.S.G. § 2F1.1(b)(8)(B), pursuant to which the

district court enhanced Okoro’s base offense level by four levels

because he had deprived one or more financial institutions of more

than one million dollars. In his supplemental Rule 28(j) letter to

this court, Okoro also challenges the district court’s enhancement

of   his   base    offense   level   by:       (1)   four   levels   for    being   a

leader/organizer of the criminal activity; (2) two levels for more

than minimal planning; and (3) two levels for abuse of his position

of trust.50

      48
       —— U.S. ——, 125 S. Ct. 738 (Jan. 12, 2005).
      After the Supreme Court handed down Blakely v. Washington, ——
U.S. ——, 124 S. Ct. 2531, both appellants raised Blakely challenges
to their sentences in a Rule 28(j) letter to this court. When the
Supreme Court decided Booker, we ordered the parties to brief its
effect on their sentences.      Thus, because Booker specifically
applies to the U.S.S.G., we refer to each appellant’s challenge to
his sentence as a Booker challenge.
      49
       The district court increased Okoro’s base offense level by
14 levels based on a total loss of between five and ten million
dollars. The indictment alleged a total loss of $75,408.47.
      50
       Okoro also contends that the district court erred when it
specified that his 31-month sentence for tax fraud should run
consecutively to his 120-month sentence for mail and healthcare
fraud. As we remand for resentencing in light of Booker, we need
not and therefore do not reach this challenge.

                                          31
     The Supreme Court made clear in Booker that “[a]ny fact (other

than a prior conviction) which is necessary to support a sentence

exceeding the maximum authorized by the facts established by a plea

of guilty or a jury verdict must be admitted by the defendant or

proved to the jury beyond a reasonable doubt.”51                    The government

argues that Okoro has not properly preserved his Booker objection

and that we should review Okoro’s challenge for plain error.52

Okoro did not, however, fail to preserve his Booker challenge to

the district court’s loss calculation.                 Our review of Okoro’s pre-

sentencing      objections     to    the    Presentence     Investigation     Report

(“PSR”) and his objections during his sentencing reveal that Okoro

repeatedly objected to the district court’s determination of a

range of financial loss between five and ten million dollars on the

ground that that figure had not been proven at trial.                     Okoro also

consistently      urged       that     the       district   court    confine      its

determination of loss to the amount alleged in the indictment.

Although Okoro never explicitly mentioned the Sixth Amendment,

Apprendi, or Blakely until his Rule 28(j) letter, we are satisfied

that his objections adequately apprised the district court that

Okoro     was   raising   a    Sixth       Amendment    objection    to    the   loss

calculation because the government did not prove to the jury beyond

a reasonable doubt that the loss was between five to ten million

     51
          123 S.Ct. at 756.
     52
       See United States v. Mares, —— F.3d ——, 2005 WL 503715, at
*7-8 (5th Cir. Mar. 4, 2005).

                                            32
dollars.53 When, as here, a defendant preserves his error, “we will

ordinarily vacate the sentence and remand, unless we can say the

error is harmless under Rule 52(a) of the Federal Rules of Criminal

Procedure.”54

     We recognize that several circuit courts appear to be taking

divergent positions on the question whether a harmless error

analysis applies when a Sixth Amendment violation occurs.55   Were

     53
       See, e.g., United States v. Selwyn, 398 F.3d 1064, 1066-67
(8th Cir. 2005) (noting, in case involving Sixth Amendment
violation, that defendant preserved error by objecting to drug
quantity findings); United States v. Fox, 396 F.3d 1018, 1027 (8th
Cir. 2005) (noting, in case involving Sixth Amendment violation,
that Booker objection to drug quantity finding in supplemental pro
se brief preserved error).
     We recognize, as have other circuits, that there exists some
question “whether, in cases not involving a Sixth Amendment
violation, there must be an objection to the mandatory nature of
the guidelines in order to preserve that error on appeal, or
whether a general objection to the sentence imposed under the
guidelines is sufficient to preserve a Booker challenge.” United
States v. Sayre, —— F.3d ——, 2005 WL 544819, at * 1 (8th Cir. Mar.
9, 2005). Because a pure Booker Sixth Amendment violation occurred
here, however, we need not —— and do not —— resolve this debate.
     54
          Mares, 2005 WL 503715, at *7 n. 9.
     55
        For example, the Sixth Circuit seems to intimate that a
harmless error analysis is not required when a constitutional
violation occurs. See, e.g., United States v. Oliver, 397 F.3d
369, 381 (6th Cir. 2005) (noting in a case where defendant failed
to preserve error that “[h]aving concluded that the district
court’s sentencing determinations in this case plainly violate the
Sixth Amendment, we need not consider whether such an error is
harmless.”). The Sixth Circuit’s position finds support in the
last sentence of the remedial Booker opinion. —— U.S. at ——, 125 S.
Ct. at 769 (“It is also because, in cases not involving a Sixth
Amendment violation, whether resentencing is warranted or whether
it will instead be sufficient to review a sentence for
reasonableness may depend upon application of the harmless-error
doctrine.”).
     On the other hand, the District of Columbia Circuit appears to

                                  33
we to review Okoro’s sentence for harmless error, however, we would

find that here the error was harmful.56           Harmless error is “[a]ny

defect, irregularity, or variance that does not affect substantial

rights” of the defendant,57 and “arises when the mistake fails to

prejudice the defendant.”58 “Prejudice occurs when the error ‘ha[s]

affected the outcome of the district court proceedings.’”59                The

government must bear the burden of demonstrating that the error was

harmless60 by demonstrating beyond a reasonable doubt that the

federal constitutional error of which a defendant complains did not

contribute to the sentence that he received.61

     The government cannot meet this burden here.            It can point to

no record evidence that would prove beyond a reasonable doubt that

the district court would not have sentenced Okoro differently had

it acted under an advisory Guidelines regime.          Based on the record

before    us,   we   cannot   say   that   the   mandatory   nature   of   the



assume that Booker challenges are “governed by the harmless error
standard appropriate for constitutional error . . . .”     United
States v. Coumaris, —— F.3d ——, 2005 WL 525213, at *6 (D.C. Cir.
Mar. 8, 2005).
     56
          Mares, 2005 WL 503715, at *7 n. 9.
     57
          FED. R. CRIM. P. 52(a).
     58
       United States v. Munoz, 150 F.3d 401, 413 (5th Cir. 1998)
(citing United States v. Olano, 507 U.S. 725, 734 (1993)).
     59
          Id.
     60
          See id.
     61
          Chapman v. California, 386 U.S. 18, 24 (1967).

                                      34
Guidelines at the time of Okoro’s sentence did not contribute to

the sentence that he received.           Accordingly, we vacate Okoro’s

sentence and remand for resentencing.62

     G.      Akpan’s Sentence

     Akpan     also   challenges   his   sentence   on   Booker   grounds.

Specifically, Akpan argues that the district court violated Booker

when it calculated the loss and increased his sentence based on an

amount of loss not found by the jury nor admitted by him.           Akpan

also argues that the district court violated his right to trial by

jury when it increased his base offense level by two levels for

more than minimal planning and by three levels for a leadership

role in the offense. The government counters that Akpan has not

preserved his Booker challenge as he raised it for the first time

on appeal.      Our review of the record demonstrates that this

contention is accurate.     Akpan did not couch his arguments in the

district court as to the loss calculation in the same terms as

Okoro.    Thus, we review Akpan’s sentence for plain error.63

     Under the plain error test, we may not correct an error that

the defendant has failed to preserve unless there is “(1) error,




     62
        Because we vacate and remand Okoro’s entire sentence, we
need not and do not reach his other arguments of sentencing errors;
rather, we leave to the discretion of the district court, whether
in its discretion, it will impose the identical sentence with the
identical departures or enhancements, or both.
     63
          Mares, 2005 WL 503715, at *7-8.

                                    35
(2) that is plain, and (3) that affects substantial rights.”64 Even

if the defendant carries his burden as to these three factors,

however, we will not correct the error unless “the error seriously

affects the fairness, integrity, or public reputation of judicial

proceedings.”65

     Under Mares, Akpan passes the first two requirements for plain

error,66 but he fails the third.         To demonstrate that the error

affected his substantial rights, Akpan had to show that the error

affected the outcome of the district court proceedings.67 Thus, the

defendant, rather than the government, bears the burden here.68

Akpan must “demonstrate a probability ‘sufficient to undermine

confidence in the outcome.’”69

     Under Mares, Akpan cannot satisfy his burden.          He cannot

demonstrate that the district judge —— sentencing under an advisory

rather than a mandatory Guidelines regime —— would have sentenced

him differently.70   The record does not contain anything to reflect



     64
          United States v. Cotton, 535 U.S. 625, 631 (2002).
     65
          Id.
     66
          2005 WL 503715, at *8.
     67
       See id. (quoting United States v. Olano, 507 U.S. 725, 734
(1993)).
     68
          Olano, 507 U.S. at 734.
     69
       United States v. Dominguez-Benitez, —— U.S. ——, 124 S. Ct.
2333, 2340 (2004).
     70
          Mares, 2005 WL 503715, at *9.

                                    36
what the district court would have done had it sentenced Akpan

under an advisory Guidelines regime.         The district court made no

remarks on the record to indicate that (1) it was bound by the

Guidelines, (2) it felt constrained by the Guidelines to sentence

Akpan in the way that it did, or (3) it would have sentenced him

differently if it had had the discretion to do so.        In the total

absence of any such language, Akpan cannot carry his burden on the

third prong of the plain-error test.

     Akpan also contends that the district court erred when it did

not state the reasons for imposing his particular sentence under 18

U.S.C. § 3553(c)(1).      As Akpan failed to object to the district

court’s failure to state its reasons for imposing his particular

sentence, our review is again for plain error.71

     Under 18 U.S.C. § 3553(c), “[i]f a defendant’s guidelines

sentencing range exceeds twenty-four months, the district court

must state in open court its reasons for the particular sentence

that it has imposed.”72     Akpan   argues    that the district court

failed to state its reasons in open court for imposing a 41-month

sentence as to Count One.

     Based on a total offense level of 21 and a criminal history

category of I, the district court determined that Akpan’s guideline

range was between 37 to 46 months imprisonment.           “Although 18


     71
          United States v. James, 46 F.3d 407, 407-08 (5th Cir. 1995).
     72
          Id. at 407 (citing 18 U.S.C. § 3553(c)(1)).

                                    37
U.S.C. § 3553(c) requires the sentencing judge to state in open

court the reasons for its imposition of the particular sentence .

. . the district court need not provide reasons for imposing a

sentence at a particular point within the [applicable Guidelines

range] if this range is less than twenty-four months.”73 Here,

Akpan’s guideline range did not span a range of twenty-four months.

His argument   is   therefore   without   merit.    We   affirm   Akpan’s

sentence.

                           III. CONCLUSION

     For the foregoing reasons, we AFFIRM both Okoro’s and Akpan’s

convictions, as well as Akpan’s sentence.          In light of Okoro’s

preservation of Sixth Amendment error, however, we VACATE his

sentence and remand for resentencing.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED.




     73
       United States v. Pippin, 903 F.2d 1478, 1484-85 (11th Cir.
1990) (citations and quotations omitted). See also United States
v. Richardson, 925 F.2d 112, 117 (5th Cir. 1991) (“Following the
reasoning in United States v. Ehret, 885 F.2d 441 (8th Cir. 1989),
cert. denied, 493 U.S. 1062 110 S. Ct. 879, 107 L. Ed.2d 962
(1990), we find that when the spread of an applicable Guideline
range is less than 24 months, the district court is not required to
state its reasons for imposing a sentence at a particular point
within the Guideline range.”).

                                  38
