                      Rehearing granted, May 13, 2005

                                UNPUBLISHED

                      UNITED STATES COURT OF APPEALS
                          FOR THE FOURTH CIRCUIT


                                No. 02-4708



UNITED STATES OF AMERICA,

                                                 Plaintiff - Appellee,


          versus

JUDITH LUGO,
                                                Defendant - Appellant.


                                No. 02-4734



UNITED STATES OF AMERICA,

                                                 Plaintiff - Appellee,


          versus

JOEL KATZ,

                                                Defendant - Appellant.


                                No. 04-4124



UNITED STATES OF AMERICA,

                                                 Plaintiff - Appellee,


             versus
JOEL KATZ,

                                                 Defendant - Appellant.


                               No. 04-4241



UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee,


           versus

JUDITH LUGO,

                                                 Defendant - Appellant.


Appeals from the United States District Court for the District of
Maryland, at Baltimore.    Frederic N. Smalkin, District Judge;
Andre M. Davis, District Judge. (CR-01-373-AMD; CR-01-374-AMD)


Argued:   September 29, 2004                 Decided:   January 19, 2005


Before WILLIAMS, KING, and DUNCAN, Circuit Judges.


Affirmed in part; vacated and remanded in part by unpublished per
curiam opinion.


ARGUED: Thomas Walsh Farquhar, Washington, D.C., for Judith Lugo;
Francis Joseph Gorman, GORMAN & WILLIAMS, Baltimore, Maryland, for
Joel Katz.     Joyce Kallam McDonald, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore,
Maryland, for the United States. ON BRIEF: Christopher C. Bosley,
GORMAN & WILLIAMS, Baltimore, Maryland, for Joel Katz. Thomas M.
DiBiagio, United States Attorney, Robert R. Harding, Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Baltimore, Maryland, for the United States.



                                  - 2 -
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).




                             - 3 -
PER CURIAM:

     In   July   2001,   a   grand     jury   in   Maryland    returned    two

indictments charging Joel Katz and Judith Lugo with various crimes

in connection with a fraudulent telemarketing scheme, and Katz with

bankruptcy fraud and illegal possession of a firearm.               In three

separate trials on these charges, juries convicted Katz and Lugo on

all counts.   The district court imposed custodial sentences of 97

months for Katz and 51 months for Lugo.        For the following reasons,

we affirm the Appellants’ convictions and Katz’s sentence, but

vacate Lugo’s sentence and remand for resentencing.



                                       I.

     The criminal conduct underlying this appeal centered around a

telemarketing scheme devised by Katz.         Katz purchased an automatic

dialing machine that would sequentially dial telephone numbers.

When a call was answered, a recorded message would state that a

“VISA-card    processing     center”    was   attempting      to   reach   the

individual and that the individual could be connected automatically

with an “operator” for further information.             If the individual

agreed to be connected automatically, the machine would transfer

the call to one of Katz’s telemarketers, who would then attempt to

sell the individual a membership in “The Money Club,” “Tele-Money

Club,” “Smart Savers Club,” or “Cash Card Express.”                Membership

would entitle the individual to a pre-approved VISA credit card and


                                     - 4 -
up to $2,500 in coupons.   The cost of these memberships varied from

$49.95 to $149.95, but at no time did Katz have an agreement with

a credit card issuer or financial institution to make such offers.

Rather than distributing the promised cards or coupons, Katz would

mail the individuals a list of institutions that did offer such

cards.

     Lugo initially worked for Katz as a telemarketer, offering

credit card club membership programs to consumers.           Subsequently,

Lugo moved up within Katz’s operation and became responsible for

supervising a room of telemarketers, writing sales scripts, and

confirming the individuals’ authorization to debit their checking

account to pay for their memberships.          When Katz was later forced

from his organization by his creditors as a result of the growing

number of complaints and requests for refunds, Lugo opened a

separate call center modeled on Katz’s scheme.

     Poor   performance    led   to    the     eventual   collapse    of   the

operation, which left Katz with debts that far exceeded his assets.

Apparently mindful of his potential default, Katz ensured that most

of his property was held in the name of Martha Tuxford, his long-

time girlfriend.   Katz eventually capitalized on this arrangement

in filing for personal bankruptcy by declaring only $5,280 in

assets, despite his possession of a house and two cars.              During an

investigation   into   whether        Katz’s    bankruptcy   petition      was

fraudulent, authorities learned that Katz’s operation routinely


                                  - 5 -
issued monthly “Martha checks” that covered the amount of the

mortgage and upkeep on the home, and that almost all of the funds

necessary to acquire the home and two cars came from Katz’s

businesses.   Additionally,   when   authorities   investigating   the

adequacy of Katz’s bankruptcy petition executed a search warrant at

Katz’s home on April 24, 2001 as part of their inquiry, they

discovered a shotgun in Katz’s bedroom closet.

     Three separate trials were conducted with respect to Katz’s

and Lugo’s conduct.   A two-day jury trial that began on October 15,

2001 resulted in Katz’s conviction under 18 U.S.C. § 922(g)(1)

(2000) for possessing a shotgun despite a prior felony conviction.

A second jury returned a conviction as to the bankruptcy fraud

charges against Katz on October 23, 2001.    The charges related to

Katz’s and Lugo’s participation in the telemarketing fraud scheme

were also tried before a jury, which returned a guilty verdict as

to each defendant on June 6, 2002.      At the conclusion of these

trials, the district court sentenced Katz to ninety-seven months’

incarceration followed by three years’ supervised release, and Lugo

to fifty-seven months’ incarceration followed by three years’

supervised release.   In addition, the court fined Katz $10,000 and

ordered restitution in the amount of $867.77. Katz and Lugo timely

appeal.




                               - 6 -
                                      II.

     Katz and Lugo offer five challenges to their convictions.1

First, Katz argues that the district court erred in denying his

request   for    a   jury   instruction      regarding   justification      for

possessing a firearm.       Second, Katz argues that the court erred in

denying his requests for jury instructions regarding his alleged

reliance on advice of counsel in filing his bankruptcy petition.

Third, Katz challenges the district court’s jury instruction as to

what constitutes an equitable interest in property that must be

disclosed when filing for bankruptcy. Fourth, Katz argues that the

court erred in allowing evidence of an injunction that prevented

him from using the VISA brand name.          Finally, Lugo argues that the

court erred in allowing evidence of a prior conviction to be

admitted on cross-examination.        We consider these issues in turn.

                                      A.

     Katz’s     first   assignment    of     error   addresses    the   court’s

decision to deny his request for a jury instruction regarding the

defense of justification in his firearms trial.                  We review the

denial of a requested jury instruction de novo.            United States v.

Perrin, 45 F.3d 869, 871 (4th Cir. 1995).                In support of his



     1
      Prior to argument, Katz and Lugo sought leave to supplement
their brief with claims under Blakely v. Washington, 124 S. Ct.
2531 (2004).   Although we granted leave to file a supplemental
brief, we denied relief under Blakely in accordance with United
States v. Hammoud, 381 F.3d 316, 348-53 (4th Cir.) (en banc),
petition for cert. filed,(U.S. Aug. 6, 2004) (No. 04-193).

                                     - 7 -
proposed instruction, Katz argued that a threat against Martha

Tuxford by a disenchanted creditor in 1998 justified his possession

of the shotgun discovered in his closet in 2001.       However, the

district court found the nature of this threat was insufficient to

support a justification defense, and we agree.2   In order to assert

a justification defense, a defendant cannot continue to possess a

weapon long after the threat has ceased to be imminent.   See United

States v. Holt, 79 F.3d 14, 16 (4th Cir. 1996).     As a result, we

find the district court properly concluded that Katz could not

justify his possession of the shotgun in question in 2001 based on

a threat made three years earlier.

                                B.

     Katz next argues the district court improperly denied a jury

instruction regarding his reliance on the advice of counsel when

completing his bankruptcy petition.   In support, Katz asserts that

because he retained Howard Rubenstein, a bankruptcy attorney, and

Andrew Radding, a criminal defense attorney, prior to filing his

fraudulent bankruptcy petition, it should be presumed that he

completed the petition in reliance on their legal advice. Although

demonstrating a reliance on poor legal advice may negate the

inference of fraudulent intent in completing a bankruptcy petition,



     2
      For purposes of our analysis, we assume without deciding that
a defendant may base a defense of justification on a threat of
death or serious bodily injury to a third person.       See United
States v. Newcomb, 6 F.3d 1129, 1135-36 (6th Cir. 1993).

                              - 8 -
see, e.g., In re Hatton, 204 B.R. 477, 484 (E.D. Va. 1997), that

defense is not absolute. A defendant must demonstrate that he made

full disclosure of all pertinent facts to counsel and relied on

counsel’s advice in good faith.    See United States v. Butler, 211

F.3d 826, 833 (4th Cir. 2000).     We agree with the district court

that Katz failed to present an adequate foundation as to either

Radding or Rubenstein under Butler, as Katz offered only the fact

that he retained counsel as a basis for his instruction.3    Such a

foundation is clearly inadequate.

                                  C.

     Katz’s third challenge to his conviction concerns the district

court’s instruction to the jury in his bankruptcy fraud trial as to

what constitutes an “equitable interest” in property that he was

required to disclose in filing for bankruptcy.     In a bankruptcy

petition, a debtor must disclose all interests in property as of

the date of his petition, including equitable interests.     In re

Morehead, 283 F.3d 199, 202 (4th Cir. 2002).   The nature of a pre-

petition interest is determined based on state law. In re Shearin,



     3
      Indeed, Katz actually stipulated prior to trial that he had
not relied on Radding’s advice in completing his bankruptcy
petition.   To the extent Katz argues that the district court
improperly allowed the United States to use his stipulation as
leverage to prevent him from presenting at trial the evidence
necessary to support an advice of counsel defense as to Radding, we
agree with the district court that the proper recourse, if Katz
were to proceed with such evidence, was to “allow the stipulation
to be put into evidence, and the jury . . . to decide what effect
it has.” J.A. 77.

                              - 9 -
224 F.3d 346, 349 (4th Cir. 2001).            Katz argues that he was not

required to disclose an interest in the house held in the name of

Martha Tuxford, as he possessed only a defeasible contingent

remainder   interest,    and    that   the    jury   should   have   been   so

instructed.     As before, we review the denial of a requested jury

instruction de novo.     Perrin, 45 F.3d at 871.

     Our review of the foundation for Katz’s proposed instruction

indicates that it was properly denied.           The deed to the home in

which he and Tuxford lived conferred the property and improvements

thereon to Katz in fee simple, while reserving for Tuxford a life

estate and the power “to sell, lease, mortgage, convey or otherwise

dispose of or encumber the whole and entire fee simple estate,”

J.A. 532-33, even in a manner that would defeat Katz’s contingent

remainder interest. Emphasizing the unusually broad powers granted

to   Tuxford,   Katz    cited   a   Georgia    bankruptcy     case   for    the

proposition that a “contingent remainder . . . is not property of

the debtor’s estate.”      In re Hicks, 22 B.R. 243, 244 (N.D. Ga.

1982). However, the conclusion in Hicks turned not on the labeling

of the interest in question as a “contingent remainder” but the

fact that such an interest could not be transferred or assigned

under Georgia law.     See In re Baydush, 171 B.R. 953, 957 (E.D. Va.

1994) (discussing Hicks as applied to Virginia law).            In Maryland,

a contingent interest assigned by the grantor to a designated

remainderman and contingent only to an event is descendible,


                                    - 10 -
divisible, and may be assigned by the remainderman. See Willoughby

v.   Trevisonno,    97     A.2d   307,    311   (Md.     1953).         As   the    only

remainderman to Tuxford’s life estate, Katz had an equitable

interest in the home deeded to Tuxford for life, and thus was

obliged to disclose this interest in his bankruptcy petition.

                                         D.

      Katz’s final challenge addresses the introduction of evidence

in his telemarketing fraud trial regarding an injunction that

enjoined   Katz     from     trespassing        on    the      VISA     trademark     by

“‘participating in any manner in or with any business, enterprise,

venture, entity or individual that solicits customers” or otherwise

used the trademark VISA “‘in any way.’”               J.A. 1176, 1181, 1426-34.

Although Katz had secured a pre-trial ruling preventing the United

States from introducing his subsequent criminal contempt conviction

for violating the injunction, Katz testified in his defense, and

during cross-examination the United States indicated its intent to

question   Katz    about    the   injunction         itself.      The    court     found

discussion of the injunction alone to be appropriate for cross-

examination, and Katz was allowed to explain his understanding of

the injunction on redirect.              We review Katz’s challenge to the

district   court’s       evidentiary      determination         for     an   abuse    of

discretion.   United States v. Godwin, 272 F.3d 659, 670 (4th Cir.

2001).




                                     - 11 -
     We find no merit in Katz’s theory that any reference to the

injunction constituted an attempt to introduce evidence of his

prior conviction in violation of Fed. R. Evid. 404(b).                          Although

Katz argues that the 1985 injunction was both stale and irrelevant,

we agree with the court below that it was a permissible subject for

cross-examination in light of the heavy reliance on the VISA name

in Katz’s telemarketing strategy and Katz’s assertions that his

offers were not fraudulent.            Hence, we find no error on this issue,

or indeed on any of the issues underlying Katz’s convictions.

                                            E.

     Turning to Lugo’s only challenge to her conviction on mail and

wire fraud charges, we find no error in the district court’s

decision     to    allow   the   United      States    to     reference        her    prior

conviction        for   conspiring      to       distribute      cocaine       base    for

impeachment purposes during trial.                 Essentially, Lugo argues that

the district court failed to make the findings required by the

balancing test of Fed. R. Evid. 609(a) before allowing discussion

of her prior conviction on cross-examination.                         United States v.

Gray, 852 F.2d 136, 139 (4th Cir. 1988) (noting a court’s duty to

“make   an    explicit     finding     on    the    record”      as    to    whether   the

probative value of the evidence outweighs its prejudicial effect

before allowing a party to question a witness about a prior felony

conviction on cross-examination).                Although Lugo’s counsel raised

several      objections    to    the    introduction        of    her       prior    felony


                                        - 12 -
conviction, and demonstrated his familiarity with the balancing

requirement for admitting evidence under Rule 609(a), he did not

contest the adequacy of the district court’s findings under Rule

609(a) before or during trial.4

       When a defendant presents on appeal an objection she failed to

raise at trial, our review is for plain error only.                      Under plain

error, Lugo must show:         (1) there was error; (2) that is plain; (3)

that       affects   her   substantial     rights;   (4)   and    that    the   error

“affected fairness, integrity or public reputation of judicial

proceedings” to such a degree that this court is persuaded to

exercise its discretion to correct the error.                    United States v.

Vonn, 535 U.S. 55, 62-63 (2002) (internal quotations omitted).

Assuming for the purposes of our analysis that Lugo has identified

error that qualifies as plain, Lugo completely fails to demonstrate

prejudice beyond the conclusory assertions to that effect in her

brief, which we find unpersuasive given the weight of the evidence

presented against her at trial. See United States v. Hastings, 134

F.3d       235,   240-41   (4th   Cir.    1998)   (discussing     requirement     of

demonstrating prejudice in order to satisfy the substantial rights




       4
      Instead, Lugo’s counsel filed a motion in limine, which the
court denied, and withdrew an objection that the prior conviction
did not constitute a felony for purposes of Rule 609.
Additionally, at trial, Lugo’s counsel objected to the manner in
which the conviction was characterized, and received the jury
instruction he requested, without ever objecting that the court had
failed to conduct the balancing test required by Gray.

                                         - 13 -
prong of the plain error analysis).          As a result, we find Lugo

fails to demonstrate error in her conviction.



                                     III.

     Katz and Lugo also offer several challenges to the calculation

of their sentences.      Katz and Lugo first argue jointly that the

court erred in denying their request for the aid of a forensic

accountant at sentencing.         Second, Katz argues that the district

court applied the wrong guideline in determining his sentence.

Third, Lugo contends the district court erred in applying a two-

level enhancement under U.S. Sentencing Guidelines Manual § 3C1.1

(1998).5    Finally, Lugo also argues the court failed to properly

determine     her   degree   of    responsibility   in   Katz’s   criminal

enterprise.    We consider each issue in turn.




     5
      At sentencing, the district court used the 1998 Sentencing
Guidelines Manual.    Generally, a sentencing court applies the
Guidelines Manual that is in effect on the date of sentencing.
USSG § 1B1.11(a) (2004). However, a sentencing court must apply
instead “the Guidelines Manual ‘in effect on the date that the
offense of conviction was committed,’ if it determines that use of
the Guidelines Manual ‘in effect on the date that the defendant is
sentenced would violate the ex post facto clause of the United
States Constitution.’” Elliott v. United States, 332 F.3d 753, 767
n.12 (4th Cir.) (quoting § 1B1.11(b)(1)), cert. denied, 72 U.S.L.W.
3308 (U.S. Nov 03, 2003) (No. 03-6382). Because there appears to
be little difference between the 1998 and 2002 Guidelines Manuals,
and to attenuate any potential confusion, we rely on the 1998
Guidelines Manual.

                                    - 14 -
                                      A.

     Katz and Lugo first argue jointly that the district court

abused its discretion in denying their request for a forensic

accountant to assist in establishing the total loss for which they

could be held accountable at sentencing.                Under the Criminal

Justice Act of 1964, see 18 U.S.C. § 3006A, the district court may,

at   its   discretion,    authorize        appointed   counsel     “to   obtain

investigative, expert, or other services necessary for adequate

representation,” provided the expertise is necessary “and that the

person is financially unable to obtain them.”             Id.     The district

court   nevertheless     determined   that     a   forensic     accountant   was

unnecessary, as “the evidence presented at trial and the arguments

set forth in the government’s sentencing memorandum” indicated that

the loss exceeded $1.5 million by a wide margin.                J.A. 1502.   The

district court’s denial of authorization for an expert witness is

reviewed for an abuse of discretion.            United States v. Hartsell,

127 F.3d 343, 349 (4th Cir. 1997).

     We    find   no     abuse   of   discretion        under     the    present

circumstances. The Sentencing Guidelines permit a sentencing court

to make “a reasonable estimate of the loss” based on the evidence

presented.   USSG § 2F1.1, cmt. n.8 (1998).            Here, the loss figure

underlying the Appellants’ sentencing calculations was based on

evidence and testimony presented at trial.              The Appellants were

able to cross-examine the witnesses who testified as to loss in


                                  - 15 -
order to probe the validity of their calculations and the manner in

which    the   final   numbers   were   derived.       Finally,   the   records

substantiating these estimations of loss were presented at trial

and   explored    in   some   detail.        Because   the    method    used    in

calculating the loss was clear, as was the foundation for the loss

figures presented by the United States at trial, we find no error

in the district court’s denial of a court-appointed forensic

accountant.

                                        B.

      Katz next argues the court applied the wrong guideline in

determining      his   sentence.        Generally,     a     district   court’s

application of the Sentencing Guidelines is reviewed de novo, while

any underlying factual findings are reviewed for clear error.

United States v. Daughtrey, 874 F.2d 213, 217 (4th Cir. 1989).                 The

district court calculated Katz’s sentence under the guideline

applicable to mail and wire fraud as defined by 18 U.S.C. §§ 1341,

1343, see § 2F1.1, rather than money laundering as defined by 18

U.S.C. § 1956(a)(1)(B)(1), see USSG § 2S1.1 (1998). However, Katz’s

contention that his conviction for money laundering under § 1956

represents the “most serious offense,” as § 2S1.1 provides a higher

base offense level than § 2F1.1, reflects a mistaken understanding

of the Sentencing Guidelines.

        Under the Sentencing Guidelines, convictions for offenses

punishable under § 2F1.1 (mail and wire fraud) and § 2S1.1 (money


                                   - 16 -
laundering) are closely related counts that must be grouped.                     See

USSG       §   3D1.2(d)   (1998).         When   offenses      are    grouped   under

§ 3D1.2(d), the sentencing court is to apply “the offense guideline

that produces the highest offense level” when determined “in

accordance with Chapter Two and Parts A, B and C of Chapter Three”

as applied to the defendant’s aggregate conduct.                     USSG § 3D1.3(b)

(1998). Hence, the “most serious” offense is that which yields the

highest total offense level, rather than the conviction that

carries the highest base offense level.              See id.6        Katz’s argument

is premised on his misunderstanding that “most serious offense” is

predicated on base offense level, rather than total offense level,

and as such is without merit.

                                           C.

       Turning to the first of Lugo’s two challenges to her sentence,

we find no error in the district court’s decision to apply a two-

level enhancement to Lugo’s offense level following her perjurious

testimony at trial.          Lugo’s presentence report states that Lugo

testified       at   trial   that   she    was   merely   “a    clerical    employee

fulfilling only administrative duties,” misrepresented her dates of

employment by Katz, and denied (a) “being a supervisory employee,”



       6
      See also United States v. Harris, 959 F.2d 246, 267 (D.C.
Cir. 1992), overruled on other grounds, Bailey v. United States,
516 U.S. 137 (1995) (noting that “any error in the choice of the
base offense level when convictions are grouped pursuant to section
3D1.2 always benefits the defendant, because the Guidelines require
the imposition of the highest available offense level”).

                                      - 17 -
(b) opening a telemarketing room on behalf of a successor to Katz,

and (c) knowing that the sales promises underlying the scheme were

empty. Lugo argues that these are insufficient bases to justify an

offense level enhancement for obstruction of justice under § 3C1.1.

In order to apply § 3C1.1 based on a defendant’s testimony at

trial, the sentencing court must find that the defendant gave

“false testimony concerning a material matter with the willful

intent to provide false testimony” under oath.              United States v.

Dunnigan, 507 U.S. 87, 94-95 (1993).

     Here, we find no error in the district court’s application of

§ 3C1.1.     Lugo argues that some of the issues on which she is

accused     of   testifying    falsely    include     her   awareness   during

verification calls of a particular individual’s age or whether

another    individual   with    whom     she   was   speaking   was   disabled.

However,    Lugo’s   statements    on     these   matters   were   offered   to

attenuate her involvement in Katz’s operation, and by extension her

culpability.     Further, the district court specifically considered

whether Lugo’s assertions were “knowing falsehoods on a material

issue” and specifically identified as a “knowingly false statement”

Lugo’s representations at trial regarding her awareness of a

particular consumer’s disability status. Hence, the district court

findings are sufficient to support Lugo’s § 3C1.1 enhancement under

Dunnigan.




                                   - 18 -
                                        D.

       We find Lugo’s second sentencing objection, however, to be

well-founded.      Lugo argues the district court erred in failing to

properly establish the amount of loss attributable to her in

calculating her sentence.       Under the Sentencing Guidelines, when a

defendant is charged with “jointly undertaken criminal activity,”

USSG   §     1B1.3(a)(1)(B)    (1998),       this   Court   requires     “that   a

sentencing court, in order to hold a defendant accountable for the

conduct of his coconspirators, should make particularized findings

with respect to both prongs of § 1B1.3(a)(1)(B).” United States v.

Bolden, 325 F.3d 471, 499 (4th Cir. 2003).                   Specifically, in

calculating fraud loss, “a sentencing court must first apply the

principles of ‘relevant conduct.’”            Id at 498 (citing § 1B1.3).        As

a result “the fraud loss properly attributable to a defendant[]

must be determined on the basis of (1) the acts and omissions

committed, aided, abetted, counseled, commanded, induced, procured,

or willfully caused by a defendant; and (2) in the case of a

jointly undertaken criminal activity, all reasonably foreseeable

acts   and    omissions   of   others    in    furtherance    of   the   jointly

undertaken criminal activity.”          Id.    Lugo argues that the district

court failed to identify “(1) the scope of the criminal activity

[s]he agreed to jointly undertake, [and] (2) whether all the

[losses] were reasonably foreseeable.”              Id. at 499.




                                   - 19 -
       This assignment of error reflects a legal determination under

the Sentencing Guidelines that is reviewable de novo.                     Daughtrey,

874 F.2d at 217.            As noted above, the loss attributable to Katz’s

scheme was amorphous.            Evidence at trial demonstrated that Lugo

served as a supervisor of one of Katz’s telemarketing rooms and

that in that capacity, Lugo oversaw several operators, was familiar

with    the       scheme,    distributed     scripts    to   the   operators,       and

confirmed the authorization of debits from the victims.                      Further,

there       was    sufficient     evidence      to    demonstrate     her     willful

participation.         However, while the loss attributable generally to

a defendant’s fraud may be reasonably estimated, see § 2F1.1, cmt.

(n.9), when the defendant is not situated at a top position in a

particular criminal organization, the district court must go beyond

simply estimating what portion may fairly be attributed to that

defendant.

       At     sentencing,       the     district     court   did    not     make    the

particularized         findings       this   court   subsequently    found     to    be

necessary in Bolden.            Rather, the district court stated

              in the absence of a clearer indication of
              precisely when Ms. Lugo not only foresaw, as
              you say, but culpably insinuated herself with
              the scheme, so far as I can tell, the $1.6
              million or the $1.5 million is excessive. So,
              I am going to give Ms. Lugo the benefit of a
              doubt that is, and I can understand the
              government’s position on this, a doubt that
              perhaps she is not entitled to. But I am going
              to find that Ms. Lugo’s relevant conduct fell
              between $500,000 and $800,000.     Frankly, I
              think that is a generous finding.

                                         - 20 -
J.A. 1565.   Although the district court did not have the benefit of

Bolden in calculating Lugo’s sentence in 2002, we conclude that

Bolden    requires   re-sentencing.         Indeed,      the   district     court’s

attempt to apportion the loss on a temporal basis appears to

recognize the need for some objective specificity.                  The need for

such specificity is apparent from the circumstances surrounding

Lugo’s involvement in Katz’s telemarketing operations, and Bolden

makes clear that “a verdict speaks to the scope of the defendant’s

agreement only in very general terms:               It does not address the

question of which specific actions demonstrated at trial were in

furtherance of that single conspiracy or were foreseeable to the

conspirators.” 325 F.3d at 498. Although there was ample evidence

to implicate Lugo in Katz’s scheme, the calculation of Lugo’s

sentence     is    not    supported    by        that    evidence      alone,   as

“[n]otwithstanding the verdict, the court was obliged to make

individualized findings on fraud loss.”             Id. (emphasis added).



                                      IV.

     In    light   of    the   foregoing    we    find    no   error   in   either

Appellant’s conviction or Katz’s sentence.                However, because the

district court did not have the benefit of Bolden in determining

Lugo’s sentence, we vacate her sentence and remand for resentencing

in accordance with the principles discussed herein.

                                                            AFFIRMED IN PART;
                                                 VACATED AND REMANDED IN PART

                                    - 21 -
