                                                               United States Court of Appeals
                                                                        Fifth Circuit
                                                                     F I L E D
                      UNITED STATES COURT OF APPEALS                  August 8, 2003
                           FOR THE FIFTH CIRCUIT
                                                                 Charles R. Fulbruge III
                                                                         Clerk
                               No. 02-11244
                             Summary Calendar


                        UNITED STATES OF AMERICA,

                                                        Plaintiff-Appellee,

                                  versus

                             LARRY DON KEITH,

                                                    Defendant-Appellant.


             Appeal from the United States District Court
                  for the Northern District of Texas
                       USDC No. 4:98-CR-109-16-Y


Before BARKSDALE, EMILIO M. GARZA, and DENNIS, Circuit Judges.

PER CURIAM:*

     Larry     Don   Keith   appeals   his   sentence    of   probation      and

restitution following his nolo contendere plea to one count of

unlawful adulteration of milk. See 21 U.S.C. §§ 331(a), 333(a)(2).

     Keith first contends, for the first time on appeal, that the

district court incorrectly used the Sentencing Guidelines edition

in effect at the time of his offense, rather than the one in effect

at sentencing.       The district court did not commit plain error in


     *
        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that this opinion should not be published and is not precedent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.
using the    earlier    edition,       because       the   edition       in    effect    at

sentencing    would    have    resulted      in    a    higher     specific         offense

characteristic    enhancement      than       that      required    by    the       earlier

edition; concerns use of the later edition would have caused ex

post   facto.    Compare       U.S.S.G.       §    2B1.1(b)(1)(E)         (2001)       with

§ 2F1.1(b)(1)(G)(1994); see United States v. Domino, 62 F.3d 716,

719-720 (5th Cir. 1995); U.S.S.G. § 1B1.11.

       Keith asserts that his sentence was improperly enhanced based

on an unreliable loss amount calculation.                    The PSR provides an

“adequate    evidentiary      basis”    for       the   enhancement;          the   burden

shifted to Keith to rebut the loss amount in the PSR.                                United

States v. Peters, 283 F.3d 300, 314 (5th Cir.), cert. denied, 536

U.S. 934 (2002). Because Keith failed to present evidence to rebut

the amount, the district court did not commit clear error in

accepting the loss determination; nor did it err in applying the

offense level increase.         See U.S.S.G. § 2F1.1(b)(1)(G)(1994).

       Keith maintains the district court clearly erred by increasing

his offense level by two levels for abuse of a position of “public

trust”, pursuant to U.S.S.G. § 3B1.3.                   Even if determining Keith

held a position of “public trust” was clear error, our record

review persuades us:          (1) Keith occupied a position of “private

trust” with respect to Associated Milk Producers, Inc.; and (2) he

abused that position “in a manner that significantly facilitated

the commission or concealment of the offense”.                     U.S.S.G. § 3B1.3


                                         2
(1994); see United States v. Fisher, 7 F.3d 69, 70 (5th Cir. 1993);

cf. United States v. Iloani, 143 F.3d 921, 922-23 (5th Cir. 1998).

Because Keith abused a position of private trust, we need not

address whether he abused a position of public trust.           See United

States v. McSween, 53 F.3d 684, 687 n.3 (5th Cir.) (court may

affirm on any ground supported by the record), cert. denied, 516

U.S. 874 (1995).

     Next, Keith bases error on the district court’s requiring

restitution for the entire conspiracy, despite his plea to only a

single instance of adulteration.        We review only for plain error.

Because Keith’s offense involved a fraudulent scheme, and because

his factual resume acknowledged multiple instances of fraud, there

was no plain error in basing restitution on the entire scheme.           See

United States v. Cothran, 302 F.3d 279, 289 (5th Cir. 2002); 21

U.S.C. § 333(a)(2) (imposing additional penalties if adulteration

committed “with the intent to defraud or mislead”).

     Finally,   Keith   claims    ineffective    assistance    of   counsel

because   counsel   failed   to   object   on   several   grounds   to   his

sentence.   Because this claim was not presented to the district

court, the record is not sufficiently developed.            Therefore, we

decline to address this issue, without prejudice to Keith’s raising

it pursuant to 28 U.S.C. § 2255.        See United States v. McIntosh,

280 F.3d 479, 481 (5th Cir. 2002).

                                                              AFFIRMED

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