                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 05-4020



UNITED STATES OF AMERICA,

                                                Plaintiff - Appellee,

          versus


ANTHONY D. DAVIS,

                                               Defendant - Appellant.


Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Gerald Bruce Lee, District
Judge. (CR-04-98)


Submitted:   January 11, 2006              Decided:   February 8, 2006


Before WILKINSON, MOTZ, and KING, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Bruce A. Johnson, Jr., BRUCE A. JOHNSON, JR., L.L.C., Bowie,
Maryland, for Appellant. Paul J. McNulty, United States Attorney,
John Eisinger, Assistant United States Attorney, Alexandria,
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

           Anthony D. Davis was found guilty at the conclusion of a

bench trial of thirteen counts of a second superceding indictment

charging him in Count One conspiracy to transport, possess, and

sell stolen motor vehicles, in violation of 18 U.S.C. § 371; Counts

Two   through       Five   interstate    transportation      of   stolen   motor

vehicles, in violation of 18 U.S.C. § 2312; Counts Six through Nine

possess, conceal, and sell stolen motor vehicles, in violation of

18    U.S.C.    §    2313,   Counts     Ten     through   Thirteen   interstate

transportation of fraudulent motor vehicle titles, in violation of

18 U.S.C. § 2314.          The district court sentenced Davis to fifty-

seven months’ imprisonment on each of the thirteen counts, to be

served concurrently with one another, three years of supervised

release, and ordered payment of restitution of $53,911.45 and

payment of a $1300 special assessment.               Davis asserts on appeal

that:   (1) the district court erred in calculating total loss; (2)

the evidence was not sufficient to support the district court’s

findings beyond a reasonable doubt that Davis was in the business

of receiving and selling stolen property, that the offense involved

sophisticated means, and that the offense involved the organized

scheme to steal vehicles; (3) the district court erred in allowing

the Government to use Davis’ pretrial statements in its case-in-

chief; and (4) his sentence is invalid in light of United States v.

Booker, 543 U.S. 220 (2005).             Davis also has filed a motion to


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remand for resentencing, citing Booker.           For the reasons that

follow, we deny Davis’ motion for remand and affirm his conviction

and sentence.

            Davis’ first contention, that the district court erred in

calculating total loss relative to the stolen vehicles, is without

merit    because   the   district   court   properly   made   a   reasonable

estimate of loss based on the fair market value of the stolen

vehicles, as reflected by the amounts paid out by the respective

insurance companies to the victims of the crimes.                  See U.S.

Sentencing Guidelines Manual § 2B1.1(b)(1), comments. (n.3(C),

3(C)(I)) (2004).     In declining Davis’ invitation to credit him for

the proceeds obtained when those vehicles ultimately were auctioned

off after their retrieval following his arrest, the district court

did not err.    Hence, the district court’s conclusion that the loss

was greater than $70,000 was reasonable and Davis’ guideline range

properly was calculated on that basis.

            Davis next asserts that the evidence was insufficient to

support the district court’s determinations, beyond a reasonable

doubt, that Davis was in the business of receiving and selling

stolen property and that the offense involved sophisticated means,

as well as its ultimate four-level enhancement of Davis’ offense

level based on those determinations.*           Because Davis failed to


     *
      He also asserts error in the district court’s finding beyond
a reasonable doubt that the offense involved the organized scheme
to steal vehicles.

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raise the sufficiency of the evidence issue in the district court,

we review the claim for plain error.          United States v. Olano, 507

U.S. 725, 732 (1993); United States v. Higgs, 353 F.3d 281, 324

(4th Cir. 2003).

           A defendant challenging the sufficiency of the evidence

faces a heavy burden.      See United States v. Beidler, 110 F.3d 1064,

1067 (4th Cir. 1997). In reviewing a sufficiency challenge, “[t]he

verdict   of   [the   factfinder]     must    be    sustained   if   there   is

substantial    evidence,    taking    the    view   most   favorable   to    the

Government, to support it.” Glasser v. United States, 315 U.S. 60,

80 (1942).     This court “ha[s] defined ‘substantial evidence,’ in

the context of a criminal action, as that evidence which ‘a

reasonable finder of fact could accept as adequate and sufficient

to support a conclusion of a defendant’s guilt beyond a reasonable

doubt.’” United States v. Newsome, 322 F.3d 328, 333 (4th Cir.

2003) (quoting United States v. Burgos, 94 F.3d 849, 862 (4th Cir.

1996)).

           We find there was substantial evidence, when viewed in

the light most favorable to the Government, to support the district

court’s verdict and findings, which evidence included testimony

from those who purchased the stolen vehicles from Davis, the

victims whose vehicles were stolen, and an agent who interviewed

Davis following his arrest, as well as documentary and other

evidence demonstrating Davis’ use of fraudulent and fictitious


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identification and documentation relating to the vehicles, and the

interstate       transportation       of    those       vehicles       and     documents.

Accordingly, we find no error in the district court’s findings,

beyond    a     reasonable     doubt,      with    respect       to    the     sentencing

allegations included in the indictment, that Davis was in the

business of receiving and selling stolen property, that the offense

involved sophisticated means as it relates to the fake Vehicle

Identification Numbers and title documents, and that the scheme was

an organized scheme to sell stolen vehicles.

              Davis next challenges the district court’s decision to

allow the Government to use Davis’ pretrial statements made to law

enforcement officers as part of a plea agreement into which he

ultimately did not enter.             Specifically, he contends that he did

not   knowingly     and   voluntarily        waive      his   right      to     allow   the

Government to introduce the statements he made during his plea

negotiations, because he did not follow through with his guilty

plea.

              A district court's decision to allow the introduction of

evidence is entitled to substantial deference and will not be

reversed by this court absent a clear abuse of discretion.                         Sasaki

v. Class, 92 F.3d 232, 241 (4th Cir. 1996). Case-by-case inquiries

are appropriate to determine whether waiver agreements are the

product    of     fraud   or    coercion,         and   absent        some    affirmative

indication      that   the     plea   statement         waiver    was        entered    into


                                        - 5 -
unknowingly     or     involuntarily,   the   agreement   to    waive   the

exclusionary provision of the plea-statement Rules is valid and

enforceable.         United States v. Mezzanatto, 513 U.S. 196, 210

(1995).

          Here, the parties stipulated that the following provision

appeared in paragraph 15 of Davis’ plea agreement, which was signed

by Davis, his attorney, and the Government attorney:

     This agreement is effective when signed by the defendant,
     the defendant’s attorney, and an attorney for the United
     States.   The defendant agrees to entry of this plea
     agreement at the date and time scheduled with the Court
     by the United States . . . If the defendant withdraws
     from this agreement . . . violates any provision of this
     agreement, then:

     (c) Any prosecution that is the subject of this
     agreement, may be premised on any information provided,
     or statements made, by the defendant, and all such
     information, statements, and leads derived therefrom may
     be used against the defendant. The defendant waives any
     right to claim that statements made before or after the
     date of this agreement, including the statement of facts
     accompanying this agreement or adopted by the defendant
     and any other statements made pursuant to this or any
     other agreement with the United States, should be
     excluded or suppressed under Fed. R. Evid. 410, Fed. R.
     Crim. P. 11(f), the Sentencing Guidelines or any other
     provision of the Constitution or federal law.

(Emphasis added; citations omitted).

          We find that, pursuant to the explicit terms of the

agreement,     the    waiver   agreement   became   effective    upon   the

signatures of the parties and was not contingent on Davis’ ultimate

acceptance of the plea arrangement. Davis clearly waived any right

to claim that his statements made during plea negotiations were not


                                   - 6 -
admissible   at   trial,   and   his   assertion   that   his   waiver   is

ineffective merely because he did not ultimately follow through

with his plea is without merit.            Davis has not shown that the

district court’s ruling on the admissibility of his statements made

during plea negotiations was clearly erroneous.

          Davis contends that the district court clearly erred in

sentencing him under a mandatory guidelines regime, in violation of

the rule announced in Booker.          This contention, raised in his

briefs on appeal, also forms the basis for his pending motion to

remand for resentencing.         As stipulated to by the parties, we

review for plain error any sentencing issues raised pursuant to

Booker.   See United States v. Hughes, 401 F.3d 540, 546-60 (4th

Cir. 2005); United States v. White, 405 F.3d 208, 215 (4th Cir.

2005).

          This court will find plain error in the district court’s

imposition of a sentence under the former mandatory guidelines

regime, even in the absence of a Sixth Amendment violation, only

where the defendant “demonstrate[s], based on the record, that the

treatment of the guidelines as mandatory caused the district court

to impose a longer sentence than it otherwise would have imposed.”

White, 405 F.3d at 224.     Here, while the district court sentenced

Davis at the bottom of the sentencing range, it made no comment

regarding the mandatory nature of the guidelines, nor did it make

any comments in sentencing Davis that would indicate that it would


                                   - 7 -
have imposed a different sentence under an advisory guideline

system.   Therefore, as the record does not reveal a nonspeculative

basis for concluding that the district court would have imposed a

shorter sentence had it known it possessed discretion to do so, we

find that Davis cannot demonstrate that the district court’s error

in sentencing him under a mandatory guidelines regime affected his

substantial rights such that he is entitled to resentencing.          See

United States v. Olano, 507 U.S. 725, 734-35 (1993).

           Accordingly,   we   deny   Davis’   motion   to   remand   for

resentencing, and affirm his conviction and sentence.        We dispense

with oral argument because the facts and legal contentions are

adequately presented in the materials before the court and argument

would not aid the decisional process.



                                                                AFFIRMED




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