                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                November 10, 2005

                                                          Charles R. Fulbruge III
                                                                  Clerk
                           No. 05-50105
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

MELISSA SPARKS,
also known as Melissa Johnson,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                   USDC No. 1:04-CR-177-ALL-SS
                       --------------------

Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Melissa Sparks (“Sparks”) pleaded guilty to an indictment

charging her with six counts of wire fraud.   After granting

Sparks a downward departure, the district court sentenced Sparks

to 24 months of imprisonment as to each count, to be served

concurrently, and to a five-year term of supervised release.         The

district court also ordered Sparks to pay $1,653,176.70 in

restitution.   Sparks argues that the district court plainly erred

in applying the two-point increase under U.S.S.G.

     *
       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this opinion should not be published and is not precedent except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.
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§ 2B1.1(b)(12)(A).   Specifically, Sparks contends that the

increase under U.S.S.G. § 2B1.1(b)(12)(A) was not warranted

because there was no finding that she individually derived more

than $1,000,000 in gross receipts from the offense.

     Sparks acknowledges that she did not object to the district

court’s determination pursuant to U.S.S.G. § 2B1.1(b)(12)(A) and

that review is for plain error.    See United States v. Villegas,

404 F.3d 355, 358 (5th Cir. 2005).   This court finds plain error

when: (1) there was an error; (2) the error was clear and

obvious; and (3) the error affected the defendant’s substantial

rights.   See United States v. Olano, 507 U.S. 725, 732-37 (1993).

“Questions of fact capable of resolution by the district court

upon proper objection at sentencing can never constitute plain

error.”   See United States v. Young, 981 F.2d 180, 188 (5th Cir.

1992) (internal quotation marks and citation omitted); United

States v. Fierro, 38 F.3d 761, 773 n.4 & 774 (5th Cir. 1994).

The record is unclear on the amount of gross receipts that Sparks

individually derived, and Sparks acknowledges that the district

court could have resolved her fact-based argument had she

properly objected at sentencing.   Sparks has failed to

demonstrate reversible plain error on this claim.     See Fierro, 38

F.3d at 774.

     For the first time on appeal, Sparks also argues that the

district court plainly erred in increasing her base offense level

by two levels, pursuant to U.S.S.G. § 2B1.1(b)(12)(A), without a
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jury finding that she had derived more than $1,000,000 in gross

receipts from the offense.    Sparks relies on the Supreme Court’s

decision in United States v. Booker, 125 S. Ct. 738 (2005).

     We review for plain error.     See United States v. Mares, 402

F.3d 511, 520-21 (5th Cir. 2005), cert. denied, ___ S. Ct. ___

(Oct. 3, 2005) (No. 04-9517).    Following Booker, the error is

plain and obvious.    Id.   However, Sparks makes no showing that

the district court would likely have sentenced her differently

under the Booker advisory scheme.    Similarly, there is no

indication from the court’s remarks at sentencing that the court

would have departed further under an advisory guideline scheme.

Thus, Sparks has not demonstrated that her substantial rights

were affected, she has thus failed to carry her burden under

plain-error review.    See id. at 521-22.   Accordingly, Sparks’s

sentences are AFFIRMED.
