United States v. Ballard ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT November 10, 2005
Charles R. Fulbruge III
Clerk
No. 04-10575
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BECKIE BALLARD, also known as Becky Ballard,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Texas
(4:03-CR-292-ALL)
Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
The opinion filed in this case on 12 January 2005 was
withdrawn in the light of the Supreme Court’s decision that same
day in United States v. Booker, 125 S. Ct. 738 (2005), discussed
infra. Subsequently, Beckie Ballard was permitted to proceed pro
se. Ballard appeals her sentence, imposed following her guilty
plea to effecting fraudulent transactions with access devices
issued to another, in violation of 18 U.S.C. § 1029(a)(5). Ballard
challenges the computation of her criminal history points, the
*
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this opinion should not be published and is not precedent except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.
enhancement to her base offense level for obstructing justice, the
denial of an adjustment for acceptance of responsibility, and the
district court’s upward departure from the Guidelines’ range of
imprisonment.
Ballard objected in district court to the Presentence Report’s
(PSR) assignment of criminal history points for a 1991 conviction
for acquiring a controlled substance by fraud, and its proposed
enhancement of her base offense level for obstructing justice and
denial of an adjustment for acceptance of responsibility. She also
objected to the upward departure.
At sentencing, however, Ballard withdrew her objections except
to the obstruction of justice enhancement. Therefore, she has
waived review of the criminal history points assigned for her 1991
conviction, the denial of acceptance of responsibility, and the
upward departure. United States v. Olano, 507 U.S. 725, 733
(1993)); see United States v. Musquiz, 45 F.3d 927, 931 (5th Cir.
1995).
With regard to the obstruction of justice enhancement, we
review the district court’s factual findings for clear error.
United States v. Villanueva, 408 F.3d 193, 203 n.9 (5th Cir.),
cert. denied, 2005 WL 1841329 (U.S. 3 Oct. 2005) (No. 05-5580). “A
factual finding is not clearly erroneous as long as it is plausible
in light of the record as a whole.” United States v. Holmes, 406
F.3d 337, 363 (5th Cir.), cert. denied, 2005 WL 2414188 (U.S. 3
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Oct. 2005) (No. 05-38) (quoting United States v. Powers, 168 F.3d
741, 752 (5th Cir.), cert. denied, 528 U.S. 945 (1999)). A two-
level enhancement is warranted if a “defendant willfully obstructed
or impeded ... the administration of justice during the course of
the investigation, prosecution, or sentencing of the instant
offense of conviction”. U.S. SENTENCING GUIDELINES MANUAL § 3C1.1
(2003). This Guideline applies where, inter alia, a defendant has
provided “materially false information to a probation officer in
respect to a presentence or other investigation for the court”.
Id. § 3C1.1 cmt. n.4(h).
The PSR recommended a two-level increase because Ballard
provided materially false information to the probation officer on
three separate occasions: she failed to report a former employer
from whom she had forged checks that caused losses of $50,000; she
reported that she had left another employer to be closer to her
husband, but she left when confronted about writing herself extra
payroll checks totaling $500; and she denied a prior conviction for
acquiring a controlled substance by fraud. Ballard maintains that
both of the employment-related failures were misunderstandings,
immaterial to the proceedings; and she denies the omitted prior
conviction.
Ballard’s assertion that she did not intend to deceive the
probation officer is implausible. See Holmes, 406 F.3d at 363.
This omitted information was damaging to Ballard because it
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involved prior incidents of theft by fraud against other employers.
Id. Further, the omitted information was “material” under the
Guidelines because it provided additional justification for the
district court’s decision to grant an upward departure. See U.S.
SENTENCING GUIDELINES MANUAL § 3C1.1. Therefore, the district court did
not commit clear error when it imposed a two-level enhancement for
obstruction of justice.
Ballard’s claim that the district court plainly erred by
assigning three criminal history points for a 1 September 1987
conviction for theft of livestock does not amount to the requisite
“clear” or “obvious” error. See Olano, 507 U.S. at 732-35
(requiring that this error “affect substantial rights” and leaving
the “decision to correct the forfeited error within the sound
discretion of the court of appeals”); United States v. Robinson,
187 F.3d 516, 519 (5th Cir. 1999); U.S. SENTENCING GUIDELINES MANUAL §
4A1.2 cmt. n.3. Ballard also fails to show the district court
plainly erred by assigning a criminal history point for her October
2002 conviction for theft over $20 because she fails to show it
affected her substantial rights. See Olano, 507 U.S. at 734.
The district court’s comments at sentencing, expressing
concern with Ballard’s continuing disregard for the law and her
likelihood of committing future crimes, foreclose Ballard’s
contention that her sentence constitutes clear or obvious error
under Booker, which affects her substantial rights. See United
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States v. Mares, 402 F.3d 511, 520-21 (5th Cir.), cert. denied,
2005 WL 816208 (U.S. 3 Oct. 2005) (No. 04-9517). Because there is
no Booker error, we need not review Ballard’s assertion that, if
her sentence were to be vacated and remanded under Booker, the Ex
Post Facto clause would be violated; in any event, this contention
is foreclosed. See United States v. Scroggins, 411 F.3d 572, 577
(5th Cir. 2005) (rejecting the Ex Post Facto challenge of a
defendant who was resentenced post-Booker).
Because Ballard’s ineffective assistance of counsel (IAC)
claims rely on unsupported allegations, the record is not
sufficiently developed to permit direct review of these claims.
See United States v. Brewster, 137 F.3d 853, 859 (5th Cir. 1998).
Our not addressing these IAC claims is without prejudice to her
raising them in a 28 U.S.C. § 2255 motion. See Massaro v. United
States, 538 U.S. 500, 508 (2003).
AFFIRMED
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