                                                     United States Court of Appeals
                                                              Fifth Circuit
                                                            F I L E D
                       REVISED MAY 23, 2005
             IN THE UNITED STATES COURT OF APPEALS           May 3, 2005
                      FOR THE FIFTH CIRCUIT
                      _____________________            Charles R. Fulbruge III
                                                               Clerk
                                04-40354
                         _____________________

UNITED STATES OF AMERICA

               Plaintiff - Appellee
     v.

SCOTT SCHIRMANN CREECH

               Defendant - Appellant
                       ___________________

          Appeal from the United States District Court
           for the Eastern District of Texas, Sherman
                         4:03-CR-95-1-LED
                       ___________________


Before KING, Chief Judge, and GARZA and BENAVIDES, Circuit

Judges.

BENAVIDES, Circuit Judge:

     Defendant-Appellant Scott Schirmann Creech appeals his

criminal conviction and sentence for four counts of mail fraud in

violation of 18 U.S.C. § 1341, use of a fire to commit a felony

in violation of 18 U.S.C. § 844(h), and conspiracy in violation

of 18 U.S.C. § 371.   Because Creech fails to demonstrate

reversible error either as to his conviction or sentence, we

affirm the judgement of the district court.

                              BACKGROUND

     In July of 1998, Creech began operating a night club called



                                   1
Rick’s Place located in Denton, Texas.      He leased the premises

from Peggy Harvey, the owner of the building. The contents of the

building were owned by Rick Reid.      Because of declining liquor

sales at Rick’s Place between the time Creech began operating the

club and August of 2000, Creech had difficulty paying all his

bills on time.   Several of his checks had “bounced” due to

insufficient funds, his liquor license was revoked, and the Texas

Comptroller’s office executed several seizures of cash because of

overdue taxes.   By August 16, 2000, Creech owed approximately $

70,000 to various creditors.

     In early August, Creech approached a disk jockey or deejay

named Reese Haisler, who had at one time worked for Creech but

had since left Rick’s Place, about the possibility of Haisler

returning to Rick’s Place as a manager.      Creech also asked

Haisler to help remodel the club to improve business.      Haisler

accepted Creech’s proposal.    Creech later asked Haisler to help

him set fire to the bar so that it would look like a fire had

accidentally started during the remodeling.      In that way, Creech

could collect insurance money to help him with the remodeling

process.   Haisler expressed discomfort with the idea but

proceeded to help Creech remove items from the bar that Creech

did not want burned in the fire.

     On Monday, August 14, Creech increased the limits of the

insurance policy he had obtained in June of 2000.      He raised the

recovery limit on his business personal property from $50,000 to

                                   2
$150,000.    That very day, Creech closed Rick’s Place for

renovations.     Haisler and Creech purchased materials and

arranged the club to look like it was being remodeled.    That

evening, Creech told Haisler that he would set up the fire to go

off sometime after Creech and Haisler had left the building.     He

also said he was going to leave town under the false pretense

that he had “family issues” to attend to.

      The next day, Creech called his brother’s long-time friend,

Charles Luff, from Arizona and told him that he had attempted to

burn down the club but was not sure that his attempt was

successful.    He asked Charles to check the building, and if it

had not burned down, to set another fire.    In exchange, Creech

promised to pay $10,000 of the insurance proceeds to Charles.

Charles discussed the offer with his twin brother, John, and they

agreed to do the job. Creech told the twins that he had left

several halogen lamps near some paint, paint thinner, and

newspaper.    He said he had tried to get the halogen lamps to

ignite the newspaper and asked them to re-attempt the same set-

up.

      At about 4:00 am on August 16, the Luff twins retrieved a

key to the club that Haisler, according to instructions from

Creech, had left behind the building in which the club was

located.    They attempted to ignite a fire using the halogen lamps

in the club, but they were unsuccessful. Consequently, the Luff

twins decided to light the newspaper on fire with cigarette

                                  3
lighters, which proved successful.     A few days after the fire,

Creech called his insurance agent and requested that a claim be

filed.

      Creech was indicted in a seven-count indictment.     Count 1

charged conspiracy to (1) commit arson in violation of 18 U.S.C.

§ 844(i), (2) use fire to commit a felony in violation of 18

U.S.C. § 844(h), and (3) commit mail fraud in violation of 18

U.S.C. § 1341.    Count 2 charged Creech with arson in violation of

18 U.S.C. §844(I) and aiding and abetting in violation of 18

U.S.C. § 2.   Count 3 charged Creech with using fire to commit a

felony (mail fraud) in violation of 18 U.S.C. § 844(h) and aiding

and abetting in violation of 18 U.S.C. § 2.     The remaining counts

charged Creech with four counts of mail fraud in violation of 18

U.S.C. § 1341 and aiding and abetting in violation of 18 U.S.C. §

2.   The jury convicted on all counts except Count 2 (arson).

                             DISCUSSION

      Creech raises thirteen different arguments in support of

reversal or re-sentencing.    We treat each in turn.

            I.   Constitutionality of 18 U.S.C. § 844(h)

      First, Creech raises a Commerce Clause challenge to 18

U.S.C. § 844(h), which provides an additional penalty for anyone

who “uses fire . . . to commit any felony which may be prosecuted

in a court of the United States.”     He essentially argues that

because the statute does not require a jurisdictional nexus with


                                  4
interstate commerce to be proved in court, it does not come under

Congress’s authority to regulate interstate commerce.   Because

Creech did not raise this challenge below, we review for plain

error. See United States v. Johnson, 520 U.S. 461, 467-68 (1997).

     Creech’s argument fails because § 844(h)’s jurisdictional

nexus is derived from the underlying felony, which must be one

that “may be prosecuted in a court of the United States.” By

definition, then, a violation of § 844(h) must necessarily be

based on an underlying crime that is properly within federal

jurisdiction. Cf. United States v. Pappadopoulos, 64 F.3d 522,

528 (9th Cir. 1995) (finding that “Section 844(h) does not

facially exceed Congress’s commerce power because it requires

that the underlying felony itself be one that can be prosecuted

‘in a court of the United States’”). Indeed, we have previously

found a very similar statute, 18 U.S.C. § 924(c)1, “a valid

exercise of Congress’ commerce power, even though no specific

nexus with interstate commerce is required for conviction.”

United States v. Owens, 996 F.2d 59, 61 (5th Cir. 1993).

     Here, the underlying crime was mail fraud in violation of 18

U.S.C. § 1431.   Creech does not contend that § 1431 is an invalid

exercise of Congress’s Commerce Clause power.   Consequently, we


     1
       Section 924(c) provides for an additional penalty for the
use, carrying, or possession of a firearm “during and in relation
to any crime of violence or drug trafficking crime . . . for
which the person may be prosecuted in a court of the United
States. . . .”

                                 5
find that Creech’s indictment and conviction under § 844(h) was

not unconstitutional.

                II.     Reasonable Doubt Instruction

     Next, Creech challenges for the first time on appeal the

district court’s jury instructions regarding reasonable doubt.

We review for plain error. United States v. Daniels, 252 F.3d

411, 414 (5th Cir. 2001).

     Creech argues that the district court’s “two-inference”

explanation of reasonable doubt, which instructed jurors to

acquit the defendant if the evidence equally supported two

reasonable theories, one of innocence and one of guilt, was

improper. He contends that the instruction over-represented the

amount of exculpating evidence that might create a reasonable

doubt in jurors’ minds.    However, the district court’s

instructions, “taken as a whole, . . .correctly conve[yed] the

concept of reasonable doubt to the jury.” Victor v. Nebraska, 511

U.S. 1, 5 (1994).   The district court emphasized, both before and

after giving the challenged instruction, the presumption of

innocence accorded to all criminal defendants and the heavy

burden borne by the government in overcoming that presumption.

The district court specifically advised the jury that “[t]he law

does not require a defendant to prove his innocence or produce

any evidence at all.”    We find no plain error in the district

court’s instructions regarding reasonable doubt.


                                   6
                     III.   Pinkerton Instruction

     Creech challenges the district court’s jury instructions

regarding the Pinkerton theory of liability in which a defendant

may be found criminally liable for the acts of co-conspirators.

He argues that the instruction did not "clearly and unequivocally

inform the jury that it had to find every element of the

substantive offense under consideration by the jury beyond a

reasonable doubt."   We review this claim for plain error because

it was not raised below.     See Johnson, 520 U.S. at 467-68.

     We find no plain error in the district court’s instructions.

The instructions, which were virtually identical to instructions

provided in the Fifth Circuit Criminal Pattern Jury Instructions,

correctly stated the law of Pinkerton liability.     See United

States v. Thomas, 348 F.3d 78, 84-85 (5th Cir. 2003) (rejecting

appellant’s argument that Pinkerton charge should not have been

given and noting that the Pinkerton charge, which followed those

outlined in the Fifth Circuit Pattern Jury Instructions,

“correctly stated the law”).

                     IV.    Unanimity Instruction

     Creech next claims that the district court violated the

Sixth Amendment by failing to sua sponte give a specific

unanimity instruction as to Counts 3 through 7 requiring the jury

to convict only upon agreeing on all elements of the offense

under at least one theory of criminal responsibility.    Because


                                   7
Creech did not raise this argument below, we review the

instruction for plain error.     Johnson, 520 U.S. at 467-68.

     The Sixth Amendment requires unanimity as to the elements of

the offense.    Richardson v. United States, 526 U.S. 813, 817

(1999).    “In the routine case, a general unanimity instruction

will ensure that the jury is unanimous on the factual basis for a

conviction, even where an indictment alleges numerous factual

bases for criminal liability.”     United States v. Holley, 942 F.2d

916, 925-26 (5th Cir. 1991). However, such an instruction is

insufficient if “there exists a genuine risk that the jury is

confused or that a conviction may occur as the result of

different jurors concluding that a defendant committed different

acts.”    Id. at 926 (citation and quotation marks omitted).

     Here, the district court did give a general unanimity

instruction requiring the jurors to be unanimous on each count of

the indictment and Creech fails to point to any evidence of

confusion or disagreement within the jury.     See United States v.

Tucker, 345 F.3d 320, 336 (5th Cir. 2003) (finding no plain error

where appellant “does not corroborate his claim of prejudicial

error with a modicum of evidence tending to show that the jury

was confused or possessed any difficulty reaching a unanimous

verdict”).    Accordingly, we find no plain error.

                    V.   Sufficiency of Indictment

     Creech challenges the sufficiency of Counts 4 through 7 of


                                   8
the indictment for failure to charge Creech with making a

materially false representation, an element of the crime of mail

fraud.   See U.S. v. Bieganowski, 313 F.3d 264, 285 (5th Cir.

2002) (“Where the government charges a defendant with mail fraud,

it must prove the materiality of the fraudulent statement as an

element of the offense.”).   Because Creech did not raise this

challenge below, we review it for plain error. United States v.

Partida, 385 F.3d 546, 554 (5th Cir. 2004) (applying plain error

review where, at trial, defendant failed to raise argument that

indictment was insufficient in failing to allege all elements of

a crime).

     Contrary to Creech’s assertions, the indictment’s omission

of the word “material” in the mail fraud counts does not, by

itself, warrant a finding of error.   See id.   Rather, “an

allegation of fraud in an indictment will be sufficient so long

as ‘the facts alleged in the indictment warrant an inference that

the false statement is material.’” Id. (quoting United States v.

McGough, 510 F.2d 598, 602 (5th Cir. 1975)).

     Here, each count complained of incorporated and specifically

referred to the allegations made in Count 1, which included

allegations that Creech paid someone to burn down Rick’s Place

and that Creech submitted a claim to his insurance company for

losses sustained during the fire. These facts certainly give rise

to the inference that a material false representation was made.


                                 9
See United States v. Richards, 204 F.3d 177, 191-93 (5th Cir.

2000)(finding that wire fraud counts that incorporated

allegations from conspiracy count involving misrepresentations

about the profitability of an investment program sufficiently

warranted inference of materiality of misrepresentation)

overruled on other grounds by United States v. Longoria, 298 F.3d

367, 371 (5th Cir. 2002). We find no plain error in the

indictment.

                 VI.   Sufficiency of the Evidence

     Creech next argues that the evidence presented at trial was

insufficient to support his mail fraud convictions. Specifically,

he claims that the government failed to introduce any evidence to

prove that he made a materially false representation, an element

of mail fraud.

     In evaluating the sufficiency of the evidence, we review the

record in the light most favorable to the government and

ascertain whether a rational trier of fact could have found the

essential elements of the offense beyond a reasonable doubt.

United States v. Reyes, 239 F.3d 722, 735 (5th Cir. 2001).     “We

accept all credibility choices that tend to support the jury’s

verdict.”   United States v. Anderson, 933 F.2d 1261, 1274 (5th

Cir. 1991).

     A review of the record shows that a rational juror could

have found that Creech made a materially false representation.


                                 10
The record shows that Creech devised and executed a scheme to

burn down Rick’s Place and then submitted a claim of loss for the

damaged property.   While Creech is correct in noting that the

“notice of loss/claim” document that Creech submitted to the

insurance company was not in evidence, it was nonetheless clear

from the evidence that Creech did submit a claim.    Based upon the

testimony of Don Morton, an insurance agent at Best Buy

Insurance, and Alan Renshaw, an insurance adjustor for Penn

America, a rational juror could have found that Creech falsely

claimed a legitimate business loss.    We find no reversible error.

                    VII.   Duplicity of Indictment

     Creech contends that Counts 3 through 7 of the indictment

were rendered duplicitous by each count’s incorporation of Count

1.

     Creech has waived this objection by not raising it below.

Objections to the indictment, such as objections on the basis of

duplicity, must be raised prior to trial.    Fed. R. Crim. P.

12(b)(3) & (e) (failure to object to indictment before trial

constitutes waiver of objection); United States v. Baytank

(Houston), Inc., 934 F.2d 599, 608-09 (5th Cir. 1991) (“Even if

Baytank’s duplicity argument had merit, Baytank has waived it by

failing to object below.”).

        VIII.   Perjury Enhancement under U.S.S.G. § 3C1.1

     Next, Creech challenges the district court’s two-level


                                  11
enhancement of his sentence for obstruction of justice under

U.S.S.G. § 3C1.1, arguing that the district court did not make

the required findings before applying the enhancement.   We review

the district court’s factual findings in applying the Sentencing

Guidelines for clear error.   See United States v. Snell, 152 F.3d

345, 346 (5th Cir. 1998).2

     2
        Creech’s sentence was imposed under the mandatory
sentencing scheme in effect at the time of Creech’s trial and
sentencing. During the pendency of this appeal, the Supreme Court
issued its opinion in United States v. Booker, 125 S.Ct. 738
(2005), which rendered the U.S. Sentencing Guidelines advisory.
However, the opinion did not invalidate the Guidelines in their
entirety. Rather, the Supreme Court instructed that district
courts must still consider the Guidelines when sentencing
defendants. See Booker, 125 S. Ct. at 764-65, 767; United States
v. Mares, 2005 WL 503715, at *6-7 (5th Cir. 2005). This
requirement indicates that Booker did not alter the standard of
review we must employ, as part of our overall review of the
sentence, to determine whether the district court properly
interpreted and applied the Guidelines. See United States v.
Villegas, 2005 WL 627963 (5th Cir. Mar. 17, 2005). Likewise, we
continue to apply the same standard of review to claims of
erroneous fact-finding with respect to the application of
enhancements, i.e., we review for clear error. See United States
v. Holmes, 2005 WL 768942, at *16 (5th Cir. Apr. 6, 2005)
(reviewing for clear error a district court's fact finding made
in relation to a Guidelines enhancement); see also United States
v. Cacho-Bonilla, 2005 WL 851713, at *5-7 (1st Cir. Apr. 14,
2005) (reviewing the district court's Guidelines interpretation
and application de novo and its fact-findings in relation to
Guidelines enhancements for clear error); United States v. Parra,
2005 WL 703936, at *8-9 (7th Cir. Mar. 29, 2005) (noting that
although the Guidelines are now advisory, there is a strong
interest in ensuring that they are applied properly; applying
pre-Booker clear-error standard to the district court's
fact-finding made in relation to its denial of a downward
adjustment for a lesser role in criminal activity); United States
v. Doe, 398 F.3d 1254, 1257 & n.5 (10th Cir. 2005) ("When
reviewing a district court's application of the sentencing
Guidelines, we review legal questions de novo and we review any
factual findings for clear error . . . ."); United States v.

                                12
     Before applying a sentence enhancement resulting from a

defendant’s trial testimony, “a district court must review the

evidence and make independent findings necessary to establish a

willful impediment to or obstruction of justice, or an attempt to

do the same . . . .” United States v. Dunnigan, 507 U.S. 87, 95

(1993).   While it is preferable that the district court “address

each element of the alleged perjury in a separate and clear

finding,” the district court’s findings are sufficient if “the

court makes a finding of an obstruction of, or impediment to,

justice that encompasses all of the factual predicates for a

finding of perjury.” Id.

     We find that the district court fulfilled its duty.   During

the sentencing hearing, the district judge stated, “The Court

finds that the Defendant did testify falsely with regard to the

conspiracy aspect of the case and, therefore, sustains the

Government’s objection number one.”   Although it did not address

each element necessary for a finding of perjury, the court’s

statement, when read in light of the immediately preceding

discussion between the court and both parties regarding the



Hazelwood, 398 F.3d 792, 795, 800-01 (6th Cir. 2005) (maintaining
pre-Booker standards for Guidelines interpretation and
enhancement fact-findings); United States v. Rodriguez, 398 F.3d
1291, 1296 (11th Cir. 2005) (reviewing enhancement fact findings
for clear error); United States v. Hughes, 401 F.3d 540, 556-60
(4th Cir. 2005) (reviewing Guidelines interpretation de novo and
fact findings in relation to Guidelines enhancements for clear
error).

                                13
jury’s conviction on the conspiracy count regardless of Creech’s

testimony that he played no role in the conspiracy, encompassed

all the factual predicates for such a finding.   See United States

v. Morris, 131 F.3d 1136, 1140 (5th Cir. 1997) (upholding the

district court’s application of an enhancement for perjury under

U.S.S.G. § 3C1.1 where the district court had found that the

defendant “was untruthful at trial with respect to material

matters in this case”).

            IX.   Validity of Sentencing Enhancements

     Creech also argues that his sentence is improper under

Blakely and Booker because the judge relied on facts not found by

a jury beyond a reasonable doubt in calculating his sentence

under the U.S. Sentencing Guidelines. Blakely v. Washington, ---

U.S. ----, 124 S.Ct. 2531 (2004); United States v. Booker, ---

U.S. ----, 125 S.Ct. 738 (2005). Because he did not raise this

issue below, we review for plain error. See United States v.

Mares, --- F.3d ----, 2005 WL 503715 at *7 (5th Cir. March 4,

2005).

     Creech’s base offense level for each of Counts 1

(conspiracy) and 4-7 (mail fraud) was calculated at 20.   See

U.S.S.G. § 1B1.2(d).   The district court applied a two-level

enhancement for obstruction of justice under U.S.S.G. § 3C1.1 and

a two-level enhancement for Creech’s role in the conspiracy under

U.S.S.G. § 3B1.1(c).   Under the Guidelines, the resulting offense


                                14
level of 24, when combined with a Criminal History Category I,

yielded a range of 51 to 63 months in prison.   The district court

assessed a sentence of 51 months for each of Counts 1 and 4-7, to

run concurrently.   Finally, the judge imposed a 10 year sentence

for Creech’s conviction on Count 3 (using fire to commit a

felony), to run consecutive to the 51 months already assessed as

required by 18 U.S.C. § 844(h). In total, Creech was sentenced to

171 months imprisonment.

     We may only correct any error in Creech’s sentence if “there

is (1) error, (2) that is plain, and (3) that affects substantial

rights. 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. at *8 (citations

and quotation marks omitted).   The first prong of the plain error

test is met here.   Creech’s sentence was enhanced based on facts

found by the judge but not by the jury under a mandatory

Guidelines regime in violation of the Sixth Amendment.     See id.

The enhancement under U.S.S.G. § 3B1.1(c), for example, required

the judge to find that Creech was “an organizer, leader, manager,

or supervisor” in the criminal activity.

     The error is also plain.   See Johnson v. United States, 520

U.S. 461, 468(1997) (holding that error is plain for purposes of

plain error review as long as the law regarding the issue is


                                15
settled at the time of appellate consideration).

     The third prong of plain error review, which requires the

appellant to show that the error affected substantial rights, is

not met here.   Creech points to the district judge’s expressions

of sympathy for his situation and his family’s plight3 and the

judge’s explanations of the mandatory nature of the Guidelines4.

However, mere sympathy toward either the defendant or the

defendant’s family is not indicative of a judge’s desire to

sentence differently under a non-mandatory Guidelines regime.

Neither is a sentencing judge’s mere summary of sentencing law as

it existed at the time sufficient, where, as here, the summary

contains no indication that the district court wished to impose a

different sentence.   Accordingly, Creech has not met his burden

of “demonstrating that the result would have likely been

different had the judge been sentencing under the Booker advisory

     3
      Specifically, Creech directs our attention to a portion of
the sentencing hearing in which the district court rejected
Creech’s motion for a downward departure. In declining to hear
any more statements from Creech’s family, the district court
stated, “[T]he court is sympathetic, Mr. Creech, to your family’s
plight and your situation. It’s a very sad day when someone with
your abilities and your gifts has made such a poor judgment as
you did in this incident, which I’m sure at the time that you did
it you never foresaw that the consequences could be such as they
are. . . .”
     4
     The district court explained to Creech, “You . . . elected
to go to trial. The jury found you guilty. The Congress of the
United States has passed Sentencing Guidelines, which because of
the nature of the crime [of which] you were convicted, imposes
certain guideline ranges that this Court cannot depart from
except in extraordinary circumstances, and your case does not
rise to that level.”

                                16
regime rather than the pre-Booker mandatory regime,” Mares, 2005

WL 503715, at *9, and we thus find no plain error in Creech’s

sentence.

      X.    Sentence Stacking Pursuant to 18 U.S.C. § 844(h)

     Creech challenges the application of the “stacking”

provision of 18 U.S.C. § 844(h) to his sentence.      He contends

that this “stacking” provision is limited to situations in which

the defendant used an explosive, rather than fire, in the

commission of a felony.    Thus, he argues that because the count

in which he was charged with violating § 844(h) only alleged the

use of fire, not explosives, his conviction under § 844(h) did

not trigger the application of the stacking provision.

     Because Creech did not raise this argument below, his claim

is reviewed for plain error. Johnson, 520 U.S. at 467-68.

The text of § 844(h) prohibits the use of “fire or an explosive

to commit any felony which may be prosecuted in a court of the

United States” and the carrying of an explosive during the

commission of a felony, § 844(h)(1) and (2).      The subsection

provides for an additional sentence, beyond the sentence for the

underlying felony, of 10 years imprisonment for a first

conviction under the subsection.      Id.   The additional 10 years

“imposed under this subsection” shall not “run concurrently with

any other term of imprisonment including that imposed for the

felony in which the explosive was used or carried.”


                                 17
     The specific reference to an explosive-related felony does

not render the stacking provision applicable only to offenses

involving explosives.     Quite to the contrary, the statute’s

language specifically dictates that the additional term imposed

under the section, which applies equally to explosive- and fire-

related felonies, run consecutively to “any other term of

imprisonment.”    Moreover, the statute in no way attempts to limit

the stacking provision to felonies in which explosives are used

but explicitly merely includes such felonies. Cf. United States

v. Grassie, 237 F.3d 1199, 1214-16 (10th Cir. 2001) (holding that

§ 844(h)’s stacking provision applies both to fire- and

explosive-related felonies); United States v. Colvin, 353 F.3d

569, 574 (7th Cir. 2003) (stating, “we agree with the Tenth

Circuit that the structure of the statute suggests that Congress

intended to treat fires and explosives as interchangeable” in

holding that consecutive sentences for violations of § 844(h)

does not violate double jeopardy bar); Sicurella v. United

States, 157 F.3d 177, 178-79 (2nd Cir. 1998) (reaffirming an

earlier holding that “§ 844(h)’s requirement of consecutive

sentencing does apply to fire-related felonies”) .       Accordingly,

we find no plain error in the application of § 844(h)’s stacking

provision to Creech’s sentence.

                 XI.   Failure to Charge Pinkerton and

            Aiding and Abetting Theories of Liability


                                   18
     Next, Creech argues that because the elements necessary to

find him guilty under either an aiding and abetting or Pinkerton

theory of criminal liability were not set forth in the indictment

but nonetheless offered to the jury as theories of criminal

liability, the indictment violates the Fifth Amendment’s right to

“presentment or indictment of a Grand Jury.”   Because Creech did

not raise this argument before the district court, the

appropriate standard of review is for plain error. Partida, 385

F.3d at 554.

     Creech acknowledges that our precedent permits district

courts to give juries instructions regarding criminal liability

for aiding and abetting and under Pinkerton even though those

theories were not set forth in the indictment.     See, e.g.,

Montoya v. Scott, 65 F.3d 405, 415 (5th Cir. 1995).    However, he

maintains that the U.S. Supreme Court’s decisions in Apprendi v.

New Jersey, 530 U.S. 466 (2000), Ring v. Arizona, 536 U.S. 584

(2002), and Blakely v.Wasington, 124 S. Ct. 2531 (2004), call

into question that long-standing practice.   Nevertheless, we see

nothing in those cases addressing the Fifth Amendment argument

raised by Creech in this case.   Indeed, courts have continued to

approve Pinkerton and aiding and abetting instructions even

without such a theory charged in the indictment.     See, e.g.,

United States v. Hayes, 391 F.3d 958, 963 (8th Cir. 2004) (“[T]he

District Court was warranted in giving this [Pinkerton]

                                 19
instruction, even though co-conspirator liability was not charged

in the indictment.”); United States v. Lopez, 271 F.3d 472, 480

(3rd Cir. 2001) (“[W]e have little difficulty following our

sister circuit courts of appeals in determining that a conspiracy

need not be charged in order for Pinkerton's doctrine to

apply.”).

                      XII.   Double Jeopardy

     Finally, Creech argues that his sentences for (1) the use

fire during the commission of mail fraud in violation of 18

U.S.C. § 844(h) and (2) mail fraud in violation of 18 U.S.C. §

1341 are two separate punishments for the same offense and

therefore violative of double jeopardy jurisprudence.

     Creech acknowledges that the U.S. Supreme Court’s opinion in

Missouri v. Hunter, 459 U.S. 359 (1983), demands that this issue

be resolved against him.   We must leave to the U.S. Supreme Court

the “prerogative of overruling its own decisions.”   Rodriguez de

Quijas v. Shearson/American Exp., Inc., 490 U.S. 477, 484 (1989).

                             CONCLUSION

     For the foregoing reasons, we AFFIRM Creech’s conviction and

sentence.




                                 20
EMILIO M. GARZA, Circuit Judge, concurring in part and dissenting

in part:



       I concur in the judgment and the excellent opinion of Judge

Benavides except for footnote 2.                     Although, I agree with footnote

2 that Booker did not invalidate the Guidelines in their entirety

and that district courts must still “consider” the Guidelines

when sentencing defendants, I cannot agree that this “indicates

that Booker did not alter the standard of review we must employ

when reviewing a court’s interpretation and application of the

Guidelines.”         For this proposition the majority cites dicta from

United States v. Villegas, No. 03-21220, 2005 WL 627963 (5th Cir.

Mar. 17, 2005) (a plain error case that did not apply proffered

standard of review).             See also Cacho-Bonilla, 2005 WL 851713, at

*6 (citing pre-Booker case law and stating, without discussion,

that it reviews questions of law under the Guidelines de novo);

Doe, 398 F.3d at 1257 (same); Hazelwood, 398 F.3d at 801 (same); and Hughes, 401

F.3d at 557 (same).5 I believe footnote 2 and Villegas’s dicta contravene the clear language in


       5
          These cases, like the majority, seem to find it more comfortable to return to the default
position of appellate review; namely, de novo review for legal issues and clearly erroneous review
for factual issues. See, e.g., Hazelwood, 398 F.3d at 801 (“district courts are required by statute
to consult [the Guidelines], and since a district court’s misinterpretation of the Guidelines
effectively means that it has not properly consulted the Guidelines, we hold that it was error for
the district court to apply the threat of death enhancement in this case”) (emphasis in original).
Clearly, this position makes perfect sense in a mandatory scheme. It is, however, contrary to an
advisory one. The majority, like the court in Hazelwood, equates “misinterpretation of the
guidelines” with “not properly consulted the guidelines,” a total misreading of Booker.

                                                21
Booker.

       Nothing in Booker suggests a de novo review. Rather, Booker instructs courts of appeals

to “review sentencing decisions for unreasonableness.” Booker, 125 S. Ct. at 767 (emphasis

added). Significantly, Booker severed and excised § 3742(e), “the provision . . . [requiring] de

novo review of departures from the applicable Guidelines range.” Id. at 763. Thus, I believe we

review sentencing decisions for unreasonableness regardless of whether the district court applies

the Guidelines and, in cases where the district court does apply the Guidelines, regardless of

whether it does so correctly.

       Villegas and thus the majority draw support for continued de novo/clearly erroneous

review in part from 18 U.S.C. § 3742(f)(1). This reliance is misplaced. Section 3742(f)(1),

while not expressly excised, must now be read in light of the excised § 3742(e), the provision that

sets forth standards of review on appeal, including de novo review of departures from the

applicable Guideline range. Having excised § 3742(e), we no longer review sentences for

“violation of law” and “incorrect application,”18 U.S.C. § 3742(e)(1), (2), but rather for

unreasonableness. Booker, 125 S. Ct. at 767. As Justice Scalia correctly wrote, “[i]t is

incomprehensible how or why [§ 3742(f)(1)] can be combined with an obligation upon the

appellate court to conduct its own independent evaluation of the ‘reasonableness’ of a sentence.”

Booker, 125 S. Ct. at 791, n.6 (Scalia, J., dissenting). In his majority opinion, Justice Breyer

responds to Justice Scalia’s mystification by acknowledging that “some provisions [of the

Guidelines] will apply differently from the way Congress had originally expected.” Id. at 767.

The continuing validity of § 3742(f)(1) is in serious doubt. I cannot agree, therefore, that §

3742(f)(1) lends force to a de novo standard of review.


                                                 22
          By replacing Booker’s unreasonableness standard of review with a de novo review, the

court is essentially reimposing 18 U.S.C. § 3553(b)(1), the severed provision that made the

Guidelines mandatory. Booker recognizes that de novo review is used in conjunction with

mandatory systems. Booker states, “[i]n 2003, Congress modified the pre-existing text, adding a

de novo standard of review for departures and inserting cross-references to § 3553(b)(1). In light

of today’s holding, the reasons for these revisions))to make Guidelines sentencing even more

mandatory than it had been))have ceased to be relevant.” Booker, 125 S. Ct. at 765 (citation

omitted). Following Booker’s admonition, de novo review is inconsistent with an advisory

system.

          Here, the district court properly interpreted and applied the Guidelines, resulting in a

reasonable sentence. United States v. Mares, No. 03-21035, 2005 WL 503715, at *7 (5th Cir.

Mar. 4, 2005) (“Given the deference due the sentencing judge’s discretion under the

Booker/Fanfan regime, it will be rare for a reviewing court to say . . . a sentence [in which the

district court properly applied the Guidelines] is ‘unreasonable.’”). This statement from Mares is

significant, for it explicitly recognizes the proper standard of review. Footnote 2 and the dicta in

Villegas, however, suggest that the improper application makes the sentence unreasonable per se.

I agree that to ascertain whether the Guidelines have been applied properly, a preliminary step in

our review, requires de novo review of legal issues and clearly erroneous review of factual issues.

However, any determination that either or both determinations are error does not end the inquiry

as it did pre-Booker. The court must take the additional step to determine whether the sentence

decision is unreasonable in light of the factors listed in § 3553(a). Booker, 125 S. Ct. at 766

(“Section 3553(a) remains in effect, and sets forth numerous factors that guide sentencing. Those


                                                   23
factors in turn will guide appellate courts, as they have in the past, in determining whether a

sentence is unreasonable.”). In reviewing for reasonableness, we must remember that “the most

important point is that an unreasonable application of federal law is different from an

incorrect application of federal law.” Williams v. Taylor, 529 U.S. 362, 410 (2000) (discussing

unreasonable applications under AEDPA) (emphasis in original). Here, the district court’s

sentence was a correct application of the advisory Guidelines, and I agree that we should hold

Creech’s sentence reasonable. Thus, I concur in the judgment and in most of the opinion except

for this most important, but erroneous, footnote.




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