United States v. Keith , 73 F. App'x 35 ( 2003 )

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that this opinion should not be published and is not precedent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
3