United States v. Sparks

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT November 10, 2005
Charles R. Fulbruge III
Clerk
No. 05-50105
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MELISSA SPARKS,
also known as Melissa Johnson,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:04-CR-177-ALL-SS
--------------------
Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
Melissa Sparks (“Sparks”) pleaded guilty to an indictment
charging her with six counts of wire fraud. After granting
Sparks a downward departure, the district court sentenced Sparks
to 24 months of imprisonment as to each count, to be served
concurrently, and to a five-year term of supervised release. The
district court also ordered Sparks to pay $1,653,176.70 in
restitution. Sparks argues that the district court plainly erred
in applying the two-point increase under U.S.S.G.
*
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this opinion should not be published and is not precedent except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.
No. 05-50105
-2-
§ 2B1.1(b)(12)(A). Specifically, Sparks contends that the
increase under U.S.S.G. § 2B1.1(b)(12)(A) was not warranted
because there was no finding that she individually derived more
than $1,000,000 in gross receipts from the offense.
Sparks acknowledges that she did not object to the district
court’s determination pursuant to U.S.S.G. § 2B1.1(b)(12)(A) and
that review is for plain error. See United States v. Villegas,
404 F.3d 355, 358 (5th Cir. 2005). This court finds plain error
when: (1) there was an error; (2) the error was clear and
obvious; and (3) the error affected the defendant’s substantial
rights. See United States v. Olano, 507 U.S. 725, 732-37 (1993).
“Questions of fact capable of resolution by the district court
upon proper objection at sentencing can never constitute plain
error.” See United States v. Young, 981 F.2d 180, 188 (5th Cir.
1992) (internal quotation marks and citation omitted); United
States v. Fierro, 38 F.3d 761, 773 n.4 & 774 (5th Cir. 1994).
The record is unclear on the amount of gross receipts that Sparks
individually derived, and Sparks acknowledges that the district
court could have resolved her fact-based argument had she
properly objected at sentencing. Sparks has failed to
demonstrate reversible plain error on this claim. See Fierro, 38
F.3d at 774.
For the first time on appeal, Sparks also argues that the
district court plainly erred in increasing her base offense level
by two levels, pursuant to U.S.S.G. § 2B1.1(b)(12)(A), without a
No. 05-50105
-3-
jury finding that she had derived more than $1,000,000 in gross
receipts from the offense. Sparks relies on the Supreme Court’s
decision in United States v. Booker, 125 S. Ct. 738 (2005).
We review for plain error. See United States v. Mares, 402
F.3d 511, 520-21 (5th Cir. 2005), cert. denied, ___ S. Ct. ___
(Oct. 3, 2005) (No. 04-9517). Following Booker, the error is
plain and obvious. Id. However, Sparks makes no showing that
the district court would likely have sentenced her differently
under the Booker advisory scheme. Similarly, there is no
indication from the court’s remarks at sentencing that the court
would have departed further under an advisory guideline scheme.
Thus, Sparks has not demonstrated that her substantial rights
were affected, she has thus failed to carry her burden under
plain-error review. See id. at 521-22. Accordingly, Sparks’s
sentences are AFFIRMED.