           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                           March 26, 2009
                                       No. 07-20785
                                                                       Charles R. Fulbruge III
                                                                               Clerk
UNITED STATES OF AMERICA

                                                   Plaintiff-Appellee

v.

WESLEY ALFORD BOYD, JR

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:02-CR-120-5


Before JONES, Chief Judge, and WIENER and STEWART, Circuit Judges.
PER CURIAM:*
       Following a jury trial, Wesley Alford Boyd, Jr., was convicted of one
conspiracy charge, two charges of violating the anti-kickback statute, and one
charge of committing healthcare fraud. This court reversed Boyd’s conviction for
healthcare fraud and remanded for resentencing. United States v. Jackson &
Boyd, 220 F. App’x 317, 333 (2007) (unpublished). On remand, the district court
sentenced Boyd to serve a total of 78 months in prison and pay restitution of
$527,039. Boyd challenges his sentence on two grounds.



       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
                                 No. 07-20785

      First, he argues that the district court used unreasonable methods of loss
calculation both in determining the appropriate Guidelines offense level and in
calculating the restitution he owed. We decline to consider these claims. The
same methods were used at both his first and second sentencing proceedings.
Boyd could have challenged these loss calculation methods in his first appeal,
but he did not. He has therefore waived both of these loss calculation issues.
See United States v. Griffith, 522 F.3d 607, 610 (5th Cir. 2008), cert. denied,
129 S. Ct. 211 (2008).
      Boyd’s reliance on United States v. Matthews, 312 F.3d 652, 659 (5th Cir.
2002), for a contrary result is misplaced. It is true that, as in Matthews, Boyd
obtained a reversal of one of his convictions, and he was resentenced for a
different crime using a different Guideline than in his first sentencing. But,
unlike in Matthews, Boyd was sentenced for no new crime. In Matthews, the
defendant was convicted of a new crime — simple carjacking — after we
reversed his conviction for carjacking resulting in serious bodily injury and
remanded for entry of conviction on the lesser included offense. The defendant
had never been sentenced for simple carjacking.       In contrast, Boyd’s first
sentencing addressed all of the crimes at issue in his second sentencing; the
Guidelines simply directed      that a different conviction     controlled   the
recommended length.
      That formal difference, which was sufficient but not necessary to reopen
all sentencing issues in Matthews, does not end our inquiry however. If Boyd
had no reason or incentive to raise the computation issue from his resentencing
in his first appeal, the issue is not waived. We note that the money laundering
Guideline under which Boyd was resentenced looks through to the source of the
funds (here, Boyd’s “healthcare fraud”), so the district court was required to
perform exactly the same calculation as it had during Boyd’s first sentencing.
Boyd therefore had every incentive to challenge the method of computation then,
but he did not.

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      Second, Boyd argues for the first time in this appeal that the district court
used the wrong version of the Sentencing Guidelines to calculate his sentence.
He claims that his involvement in the conspiracy ended in 1998 and that,
consequently, the district court should have used the 1998 Guidelines to
calculate his sentence, which would have resulted in a lower offense level. As
Boyd did not raise this issue before the district court, we review for plain error.
United States v. Mares, 402 F.3d 511, 520 (5th Cir. 2005). We will not correct an
error the defendant failed to raise in the district court unless there is “‘(1) error,
(2) that is plain, and (3) that affects substantial rights.’” Id. (quoting United
States v. Cotton, 535 U.S. 625, 631 (2002)). “‘If all three conditions are met an
appellate court may then exercise its discretion to notice a forfeited error but
only if (4) the error seriously affects the fairness, integrity, or public reputation
of judicial proceedings.’” Id. We address only the second element of the test,
whether the error was plain.
      After Booker, it is not clear that an ex post facto violation occurs when a
district court sentences a defendant under the incorrect version of the now-
advisory guidelines. United States v. Rodarte-Vasquez, 488 F.3d 316, 325 (5th
Cir. 2007) (Jones, C.J., concurring). If such an ex post facto problem exists,
Boyd’s sentence might have been improperly calculated under U.S.S.G. § 1B1.11
or imposed in contravention of the Constitution. Even if we accept that Boyd has
sufficiently demonstrated that all of the criminal conduct for which he was
convicted occurred prior to the 2001 revision of the Guidelines, the doubt we
have previously expressed about the continued viability of an ex post facto
challenge in this context renders any error not obvious — at least not today. The
Seventh Circuit’s holding that the ex post facto concerns which courts had with
using newer, harsher versions of the Guidelines when the Guidelines were
mandatory no longer obtain post-Booker, see United States v. Demaree, 459 F.3d
791, 794-95 (7th Cir. 2006) (Posner, J.), only strengthens the conclusion that any



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error was not obvious, even though we do not decide today whether we agree
with that approach.
     The judgment of the district court is AFFIRMED.




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