United States v. Crook

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES CO URT O F APPEALS January 25, 2007 TENTH CIRCUIT Elisabeth A. Shumaker __________________________ Clerk of Court

U N ITED STA TES O F A M ER ICA,

Plaintiff-Appellee,

v. No. 05-7106 (E.D. Okla.) V ICKY L. C RO O K , (D.Ct. No. 05-CR -24-P)

Defendant-Appellant. ____________________________

OR D ER AND JUDGM ENT *

Before BR ISC OE and B AL DOCK , Circuit Judges, and BROR BY, Senior Circuit Judge.

The district court dismissed fifteen counts of theft of public money, in

violation of 18 U.S.C. § 641, against Appellant Vicky L. Crook following a hung

jury and prior to a retrial on the same offenses; thereafter, a grand jury indicted

M s. Crook on one count of theft of funds by an agent of an organization receiving

federal program funds, in violation of 18 U.S.C. § 666. Following the district

court’s denial of her double jeopardy claim, a jury convicted M s. Crook of

* This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 (eff. Dec. 1, 2006) and 10th Cir. R. 32.1 (eff. Jan. 1, 2007). violating § 666, and the district court sentenced her to eighteen months

imprisonment, thirty-six months supervised release, and restitution in the amount

of $38,400.22. M s. Crook appeals her conviction and sentence, contending: (1)

the district court erred in denying her double jeopardy claim, causing her to be

tried twice for the same offense in violation of the Fifth Amendment; (2)

insufficient evidence supported the jury verdict; and (3) her sentence is improper

under the Supreme Court’s decision in United States v. Booker, 543 U.S. 220

(2005). W e exercise jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C.

§ 1291 and affirm M s. Crook’s conviction and sentence.

I. Factual Background

From July 1994 to M arch 2001, M s. Crook was employed as the executive

director of the Stilwell Housing Authority, a federally-funded organization

providing low income housing for needy families in the Stilwell, Oklahoma area. 1

1 Neither party nor their counsel has fully provided applicable portions of the record on which they rely or references to the record in their appeal briefs, as required under Federal Rules of Appellate Procedure 10 and 28 and Tenth Circuit Rules 10, 28.1, and 28.2. W e remind counsel it is the responsibility of the parties to provide the applicable portions of the records on which they rely, as well as the applicable record references in support of their briefs. See generally Scott v. Hern, 216 F.3d 897, 912 (10th Cir. 2000) (holding “[w]here the record is insufficient to permit review we must affirm”); United States v. Rodriguez- Aguirre, 108 F.3d 1228, 1237 n.8 (10th Cir. 1997) (explaining court will not sift through the record in absence of essential references to the record in a party’s brief); Rios v. Bigler, 67 F.3d 1543, 1553 (10th Cir. 1995) (stating it is not this court’s burden to hunt down pertinent materials when a proper record is not (continued...)

-2- Both M s. Crook and her secretary received rental payments from housing

authority tenants, after which they placed the payments in a bank bag, issued the

tenants a receipt, and kept copies of the receipts for office use. At the end of the

day, M s. Crook counted the payments, reconciled the receipts, made out a deposit

slip, and took the daily deposit to the bank. M s. Crook’s secretary never handled

or delivered the bank deposits.

In 2000, a company performing fee accounting services for the Stilwell

Housing Authority discovered a discrepancy between the amounts of money

collected, as evidenced by the receipts, and the amounts deposited in the bank. In

December 2000, another entity took over the fee accounting services and

subsequently reported to the United States Department of Housing and Urban

Development (HUD) (the federal agency providing federal funding to the Stilwell

Housing Authority) that approximately $50,000 was missing in deposits from the

housing authority and someone was “lapping” payments by using current rental

payments to cover earlier shortages. Thereafter, a certified public accountant

determined money from the housing authority rental payments was not being

1 (...continued) provided on appeal). In this case, however, we can proceed to assess the merits of M s. Crook’s appeal because the district court and other pleadings characterize the contents of certain documents and proceedings, and the limited size of the record on appeal allows us to more readily locate the pertinent portions of the record not referenced by the parties.

-3- deposited into the bank. A HUD employee reviewing the matter confirmed

someone was improperly “lapping” rental payments by taking money received in

the current month to pay money which was due in previous months.

A forensic auditor with the HUD Inspector General’s Office conducted an

audit which revealed a consistent pattern of deposits which were less than the rent

payments made to the Stilwell Housing Authority. In addition, an investigation

by a special agent with the HUD Inspector General’s Office revealed the same

person stole the money because the method of theft and cover-up was the same.

In addition, discrepancies associated with the missing deposits continued after

M s. Crook’s secretary left employment with the housing authority. However,

when M s. Crook w as questioned by different individuals about the missing funds,

she claimed her secretary, whom she fired, was culpable for the missing money.

At trial, several bank employees confirmed M s. Crook was the only person who

made deposits on behalf of the Stilwell Housing Authority. Additionally, through

testimony of the government’s H UD witnesses, certain records w ere admitted into

evidence at trial, including various banking records, rental receipts, over 100

deposit slips, and a prepared schedule and spread sheet documenting M s. Crook’s

suspect transactions with regard to the rental monies.

-4- II. Procedural Background

A grand jury indicted M s. Crook on fifteen counts of embezzlement or theft

of government funds in violation of 18 U.S.C. § 641. A jury trial commenced

which concluded with a hung jury. After the case was reset for trial, M s. Crook

filed a motion for dismissal from prosecution on grounds the government failed to

establish the money taken belonged to the federal government. Following the

government’s response, the district court entered an order granting M s. Crook’s

motion and dismissing the criminal case against her based on its determination no

evidence offered at trial established the theft of tenant payments involved

government funds.

A few months later, a grand jury indicted M s. Crook on one count of

violating 18 U.S.C. § 666 for theft of funds by an agent of an organization

receiving federal program funds. M s. Crook filed a motion for dismissal on

double jeopardy grounds. The district court denied M s. Crook’s motion, and

thereafter the trial commenced, with a jury finding M s. Crook guilty.

Prior to and at sentencing, M s. Crook objected to the probation officer’s

recommendation in the presentence report that the district court apply a six-level

enhancement to her sentence under United States Sentencing Guidelines M anual

(“Guidelines” or “U.S.S.G.”) § 2B1.1(b)(1)(D), for theft of at least $30,000 but

-5- less than $70,000. M s. Crook objected to the enhancement on grounds the jury

did not make a finding beyond a reasonable doubt on the amount taken. The

district court overruled M s. Crook’s objection, applied the six-level enhancement

in calculating her Guidelines range at fifteen to twenty-one months imprisonment,

and sentenced her to eighteen months imprisonment. This appeal followed.

III. Discussion

A. Double Jeopardy Claim

The crux of M s. Crook’s appeal rests on her double jeopardy claim, in

which she argues “[t]he district court incorrectly denied [her] double jeopardy

argument and improperly permitted [her] to be tried twice for the same offence.”

Apt. Br. at 5-6. In support of her double jeopardy argument, she claims: (1) the

district court’s dismissal of the first § 641 offenses barred her retrial on the

second § 666 offense, based on the principles outlined in United States v. M artin

Linen Supply Co., 430 U.S. 564 (1977), and because an essential element of the

first offense was not proven when the government failed to provide evidence the

money taken belonged to the government; (2) the second indictment and trial

were impermissibly predicated on the “same conduct” as the first indictment and

trial; and (3) the second offense for which she was tried is a lesser included

offense of the first § 641 offenses.

-6- W e address M s. Crook’s double jeopardy claim by first examining the basic

legal principles and our standard of review on double jeopardy claims. “The

Double Jeopardy Clause provides that no ‘person [shall] be subject for the same

offence to be twice put in jeopardy of life or limb.’” United States v. M orris, 247

F.3d 1080, 1083 (10th Cir. 2001) (quoting U.S. Const. amend. V). W e have said

“[t]his protection applies not only to successive prosecutions but also to

successive punishments for the same offense.” Id. (relying on United States v.

Dixon, 509 U.S. 688, 696 (1993)). In determining if two successive punishments

or prosecutions violate the double jeopardy clause, we apply the “same evidence”

test set forth in Blockburger v. United States, 284 U.S. 299 (1932), which

“provides that offenses charged are identical in law and fact only if the facts

alleged in one would sustain a conviction if offered in support of the other.”

United States v. M intz, 16 F.3d 1101, 1104 (10th Cir. 1994) (quotation marks and

citation omitted). In other words, “where the same act or transaction constitutes a

violation of two distinct statutory provisions, the test to be applied to determine

whether there are two offenses or only one is whether each provision requires

proof of an additional fact which the other does not.” Blockburger, 284 U.S. at

304. This test is met “notwithstanding a substantial overlap in the proof offered

to establish the crimes.” Iannelli v. United States, 420 U.S. 770, 785 n.17 (1975).

In applying the “same evidence” test, the Supreme Court has rejected

-7- application of the “same conduct” test once applied in double jeopardy cases. 2

Dixon, 509 U.S. at 703-04 (overruling Grady, 495 U.S. at 510). Thus, we have

determined “a person may be prosecuted for more than one crime based on the

same conduct (1) if each crime requires proof of a fact that the other does not or

(2) if Congress has clearly expressed its intent to impose cumulative punishment

for the same conduct under different statutory provisions.” M orris, 247 F.3d at

1083 (emphasis added and quotation marks and citations omitted). W hile ‘‘[w ]e

review the factual findings underlying the defendant’s double jeopardy claim for

clear error ..., [t]he district court’s ultimate determination regarding double

jeopardy is, however, a question of law we review de novo.” United States v.

Rodriguez-Aguirre, 73 F.3d 1023, 1024-25 (10th Cir. 1996) (citation omitted).

The defendant has the burden of proving double jeopardy in order to prevail on

such a claim. See M intz, 16 F.3d at 1104.

Having considered the applicable legal principles and our standard of

review, we examine the statutes at issue. The statute on w hich M s. Crook’s first

offenses w ere predicated, 18 U.S.C. § 641, states in relevant part:

W hoever embezzles, steals, purloins, or knowingly converts to his

2 The “same conduct” test w ould prohibit “‘a subsequent prosecution if, to establish an essential element of an offense charged in that prosecution ..., the government will prove conduct that constitutes an offense for which the defendant has already been prosecuted ....’” Dixon, 509 U.S. at 703-04 (quoting Grady v. Corbin, 495 U.S. 508, 510 (1990)).

-8- use or the use of another, or without authority, sells, conveys or disposes of any record, voucher, money, or thing of value of the United States or of any department or agency thereof, or any property made or being made under contract for the United States or any department or agency thereof ... [s]hall be fined under this title or imprisoned not more than ten years, or both ....

18 U.S.C. § 641. W e have determined § 641 applies to all persons regardless of

their employment or fiduciary duty, see United States v. Davila, 693 F.2d 1006,

1007-08 (10th Cir. 1982), and the elements which must be proven under the

statute include proof the accused person: (1) intentionally; 3 (2) embezzled, stole,

purloined, or converted; 4 (3) a record, voucher, money, or something of value

exceeding $100; 5 (4) which the government owned. 6 See generally 18 U.S.C.

§ 641.

3 Intent, while not explicitly mentioned in the statute, is an element of any crime under § 641. See Morissette v. United States, 342 U.S. 246, 263 (1952). Intent applies to embezzlement, stealing, purloining, and conversion and does not mean “the thief knew who owned the property he took,” but it is “enough that he knew it did not belong to him.” United States v. Speir, 564 F.2d 934, 937-38 (10th Cir. 1977). See also United States v. Leavitt, 599 F.2d 355, 360 (10th Cir. 1979). 4 See United States v. Hill, 835 F.2d 759, 763 (10th Cir. 1987) (explaining embezzlement, stealing, and conversion are alternate means of committing the statutory offense under § 641). 5 See Speir, 564 F.2d at 938-39 (indicating one element under § 641 requires proof the property is valued over $100). 6 See U nited States v. McPhilomy, 270 F.3d 1302, 1307 (10th Cir. 2001) (indicating the United States’ ownership of the property is an element of § 641 which must be proven).

-9- In contrast, M s. Crook’s second offense was based on 18 U.S.C. § 666,

which states in relevant part:

(a) W hoever, if the circumstance described in subsection (b) of this section exists–

(1) being an agent of an organization, or of a State, local, or Indian tribal government, or any agency thereof–

(A) embezzles, steals, obtains by fraud, or otherwise without authority knowingly converts to the use of any person other than the rightful owner or intentionally misapplies, property that–

(i) is valued at $5,000 or more, and

(ii) is owned by, or is under the care, custody, or control of such organization, government, or agency; ...

shall be fined under this title, imprisoned not more than 10 years, or both.

(b) The circumstance referred to in subsection (a) of this section is that the organization, government, or agency receives, in any one year period, benefits in excess of $10,000 under a Federal program involving a grant, contract, subsidy, loan, guarantee, insurance, or other form of Federal assistance.

18 U.S.C. § 666(a) and (b). W e have explained the elements of proof for

conviction under § 666(a) require the government to prove the defendant:

(1) was an agent of an organization, state, local, or Indian tribal government, or any agency thereof, (2) [who] embezzled, stole, obtained by fraud, or otherwise without authority knowingly converted ... property, (3) that is valued at $5,000 or more, and (4) that was owned by, or under the care, custody, or control of such organization, government, or agency.

United States v. Frazier, 53 F.3d 1105, 1110 (10th Cir. 1995). In addition, under

-10- § 666(b), the government must prove that such organization, government, or

agency “annually benefits in excess of $10,000 under a Federal program

involving a grant, contract, subsidy, loan, guarantee, insurance, or other form of

Federal assistance.” United States v. Pretty, 98 F.3d 1213, 1218 (10th Cir. 1996)

(quotation marks and citation omitted).

In comparing the elements of § 641 and § 666, it is clear there is a

substantial overlap of some of the elements. However, the two statutes are

distinct from each other because each offense requires proof of a fact the other

does not. Specifically, § 641 requires proof of federal ownership of the money or

property taken, while § 666 requires no proof of federal ownership and, instead,

requires proof M s. Crook was an agent of the entity from which she took money

and said entity received at least $10,000 annually from the federal government.

Because these different elements require different evidentiary proof, the

circumstances presented do not implicate the Blockburger “same evidence” test

required for a successful double jeopardy claim.

For these reasons, we reject M s. Crook’s claim the district court’s dismissal

of the first offense barred her retrial because an essential element was not proven

when the government failed to provide evidence the money taken belonged to the

government. The fact M s. Crook was acquitted under § 641 does not preclude her

-11- retrial under § 666 because it plainly does not require proof the money belonged

to the government. Having made this determination, we find M s. Crook’s

reliance on M artin Linen Supply misguided. In that case, the Supreme Court held

that following discharge of the jury, a district court’s judgment of acquittal,

entered under Federal Rule of Criminal Procedure 29(c) on grounds the

government failed to prove facts supporting the crime alleged, prevented the

government from appealing said acquittal on double jeopardy grounds. 430 U.S.

at 572, 575. In contrast, in this case, the government did not appeal the district

court’s acquittal of the § 641 charges, but rather brought a new charge under

§ 666, which requires proof of at least one separate and distinct element from

Next, although we have long applied the Blockburger “same evidence” test

in analyzing double jeopardy claims, M s. Crook asks us to apply the “same

conduct” test applied in Grady v. Corbin; Illinois v. Vitale, 447 U.S. 410 (1980);

and Brown v. Ohio, 432 U.S. 161 (1977). She contends her second prosecution

constituted double jeopardy because it involved the same conduct as her first

prosecution, which also required proof of embezzlement, theft, or conversion.

Admittedly, both cases involved M s. Crook taking the same amount of

money in the same way from the tenant rental payments. However, the “same

-12- conduct” test announced by the Supreme Court in Grady was soundly overturned

in Dixon, when the Court explained the “same conduct” rule w as “wholly

inconsistent with earlier Supreme Court precedent and with the clear common-law

understanding of double jeopardy.” Dixon, 509 U .S. at 704. W e also reject M s.

Crook’s reliance on Brown v. Ohio and Illinois v. Vitale. In rejecting the “same

conduct” test, the Supreme Court, in Dixon, explained that Brown v. Ohio

contains no support for the “same conduct” test, except for a footnote based on

dictum which contradicts the text of the opinion. 509 U .S. at 706. It also

explained Vitale did not suggest a “same conduct” test. Id. at 707. Thus, as

previously indicated, we rely on the “same evidence” test, and therefore, M s.

Crook can “be prosecuted for more than one crime based on the same conduct” if,

as here, “each crime requires proof of a fact that the other does not ....” M orris,

247 F.3d at 1083 (emphasis added). For these reasons, we must reject M s.

Crook’s claim both offenses are impermissibly predicated on the “same conduct,”

constituting double jeopardy.

As an alternative argument, M s. Crook relies on Harris v. Oklahoma, 433

U.S. 682 (1977), and Brown v. Ohio for her argument § 666 is a lesser included

offense of § 641. However, in both of those cases, the Supreme Court determined

the Double Jeopardy Clause was implicated because conviction of the greater

crime could not occur w ithout conviction of the lesser crime. See Harris, 433

-13- U.S. at 682; Brown v. Ohio, 432 U.S. at 168. As previously discussed, the

statutes in this case may have some overlapping elements, but both clearly have

elements distinct and separate from each other, causing us to reject M s. Crook’s

claim that one is a lesser included offense of the other. In addition, as the Eighth

Circuit has explained, § 666 was enacted as a separate offense from § 641 when

Congress, in enacting § 666 and examining the law prior to its enactment, stated:

thefts from other organizations or governments receiving federal financial assistance can be prosecuted under the general theft of federal property statute, 18 U.S.C. 641, only if it can be shown that the property stolen is property of the United States. In many cases, such prosecution is impossible because title has passed to the recipient before the property is stolen, or the funds are so commingled that the federal character of the funds cannot be shown. This situation gives rise to a serious gap in the law, since even though title to the monies may have passed, the federal government clearly retains a strong interest in assuring the integrity of such program funds.

United States v. Sabri, 326 F.3d 937, 943-44 (8th Cir. 2003) (alterations omitted)

(quoting S. Rep. No. 98-225, at 369 (1984), as reprinted in 1984 U.S.C.C.A.N. at

3182, 3510-11). As the Eighth Circuit points out, “Congress decided that the

most effective way to insure the integrity of federal funds disbursed to sub-

national agencies was to change the enforcement paradigm from one that

monitored federal funds to one that monitored the integrity of the recipient

agencies.” 7 Id. at 944. In this case, the district court dismissed charges M s.

7 As this court stated in United States v. LaH ue, “[t]he legislative history [of § 666] reveals ... its underlying purpose [is] to ‘protect the integrity of the (continued...)

-14- Crook violated § 641 on grounds the government failed to prove the money she

took belonged to the federal government – the very problem of proof which

Congress addressed in enacting § 666 and requiring no proof of federal ownership

for convictions under § 666. Thus, we hold § 666 is not a lesser included offense

of § 641.

A pplying the applicable legal principles and our standard of review, we

conclude M s. Crook has not carried her burden of establishing a double jeopardy

violation warranting reversal of her conviction under 18 U.S.C. § 666. Therefore,

the district court did not err in denying her motion claiming a double jeopardy

violation.

B. Sufficiency of the Evidence

As part of the appeal of her conviction, M s. Crook claims the government

failed to offer sufficient evidence to prove elements required for conviction under

18 U.S.C. § 666 “beyond a reasonable doubt.” W hile she acknowledges the

evidence presented established money was missing from the Stilwell Housing

Authority rental deposits, she suggests no evidence pointed to her as the source of

7 (...continued) vast sums of money distributed through federal programs from theft, fraud, and undue influence by bribery.’” 170 F.3d 1026, 1030 (10th Cir. 1999) (quoting S. Rep. No. 98-225, at 370 (1984), as reprinted in 1984 U.S.C.C.A.N. at 3182, 3511).

-15- the disappearance, or, in other words, no witness submitted “any proof [she]

comm itted the alleged acts of theft, embezzlement or conversion.” Apt. Br. at 18-

19. Instead, she claims the government’s case consisted solely of “speculation

and conjecture” and that a H UD “case agent admitted to having nothing but a

theory as to [her] guilt ....” 8 Apt. Br. at 4, 18-19. She also notes the government

did not attempt to rehabilitate the same agent’s testimony after he admitted the

theft of money stopped occurring almost a year before she left the housing

authority and that he had no information she acquired expensive items, had taken

expensive trips, or otherw ise changed her lifestyle.

W e review de novo the issue of the sufficiency of evidence to support a

conviction. See United States v. Weidner, 437 F.3d 1023, 1032 (10th Cir. 2006);

M cPhilomy, 270 F.3d at 1307. “In doing so, we consider both direct and

circumstantial evidence, and all reasonable inferences therefrom, in the light most

favorable to the government.” Weidner, 437 F.3d at 1032. This court will not

reverse a conviction if, “‘after view ing the evidence in the light most favorable to

8 Specifically, the HUD Inspector General special agent answered the following question:

Q: And I understand you have got a theory, but then that is what you do, isn’t it? A: Yes.

R., Vol. 2 at 208. From the context of the discussion, we assume the question pertained to a theory that M s. Crook took the missing money.

-16- the prosecution, any rational trier of fact could have found the essential elements

of the crime beyond a reasonable doubt.’” M cPhilomy, 270 F.3d at 1307 (quoting

Jackson v. Virginia, 443 U.S. 307, 319 (1979)). In so doing, we do not question

the jury’s credibility determinations or its conclusions about the weight of the

evidence. Weidner, 437 F.3d at 1032. In considering evidence sufficient to prove

theft or conversion under 18 U.S.C. § 666, “we said that even though so-called

direct evidence may be lacking, a criminal conviction can be sustained solely on

circumstantial evidence,” and “circumstantial evidence is entitled to the same

weight as that given to direct evidence in determining the sufficiency of the

evidence to support a guilty verdict.” United States v. Neighbors, 23 F.3d 306,

308-10 (10th Cir. 1994) (quotation marks and citation omitted) (holding

circumstantial evidence, resulting in part from an audit, sufficiently established

defendant was the only pharmacist who converted drugs for his own purposes,

even though evidence did not include any eyewitnesses or admissions by the

defendant).

In this case, the fact the government did not provide direct evidence M s.

Crook took money from the Stilwell Housing Authority does not mean

insufficient evidence supported the jury’s verdict. Instead, circumstantial

evidence offered by the government established M s. Crook and only one other

employee physically received money from tenants, M s. Crook was the only

-17- person who made the bank deposits which did not reconcile with the amount

received, and that the theft of money and cover-up continued in the same w ay

after the other employee left. This evidence was sufficient for any rational trier

of fact to find the essential element of the crime of theft by M s. Crook beyond a

reasonable doubt. The fact the agent who conducted the investigation admitted to

certain circumstances weighing in M s. Crook’s favor, such as the fact she did not

appear to have purchased any expensive items, does not change our conclusion.

W e assume the jury weighed this evidence, together with the government’s much

more inculpatory evidence, in rendering its guilty verdict. W hile M s. Crook may

not have changed her lifestyle or spent money on expensive items or trips, the

jury reasonably concluded this evidence did not exonerate her as the thief.

Similarly, we assume the jury considered the fact no money was taken from the

housing authority for approximately a one-year period before M s. Crook left its

employment and concluded, as would we, that this evidence does not establish she

was not culpable for the prior theft of money. For these reasons, we conclude

sufficient evidence supports the jury’s guilty verdict and M s. Crook’s conviction.

C. Booker Issue

In appealing her sentence, M s. Crook contends the six-level enhancement

under U.S.S.G. § 2B1.1(b)(1)(D), for theft of at least $30,000, is improper under

the Supreme Court’s decision in United States v. Booker, because the district

-18- court permitted a “mini-trial of a substantive offense for the purpose of enhancing

the sentence.” Apt. Br. at 4-5. M ore specifically, M s. Crook objects to the

enhancement on grounds the jury did not make a finding beyond a reasonable

doubt as to the amount taken. How ever, during oral argument on this issue, M s.

Crook’s counsel conceded that since briefing the issue, the law on this issue has

“jelled” without support for M s. Crook’s claim, but nevertheless did not withdraw

the issue, preserving it for further review on appeal.

The law regarding enhancement of a sentence based on facts found by a

judge rather than a jury under an advisory Guidelines scheme is now settled in

this circuit. W e have held Booker permits enhancement of a sentence on the basis

of judicial fact-finding by a preponderance of the evidence when the Guidelines

are applied in an advisory manner. See United States v. Bustamante, 454 F.3d

1200, 1202 (10th Cir. 2006). In so holding, we have concluded “when a district

court makes a determination of sentencing facts by a preponderance test under the

now-advisory Guidelines, it is not bound by jury determinations reached through

application of the more onerous reasonable doubt standard.” United States v.

M agallanez, 408 F.3d 672, 685 (10th Cir.), cert. denied, 126 S. Ct. 468 (2005).

“Booker therefore does not render judicial fact-finding by a preponderance of the

evidence per se unconstitutional. The remedial portion of Booker demonstrates

that such fact-finding is unconstitutional only when it operates to increase a

-19- defendant’s sentence mandatorily.” United States v. Dalton, 409 F.3d 1247, 1252

(10th Cir. 2005).

In this case, the district court recognized it was not bound by the

Guidelines, but considered them advisory in nature. It also explained Booker did

not render judicial fact-finding by a preponderance of the evidence

unconstitutional as long as the sentence did not exceed the maximum sentence

authorized by the jury verdict. Finally, it determined that while the jury did not

make a finding regarding the loss amount, the testimony and evidence presented

at trial established the loss figure at $38,400.22, 9 and that a reasonable probability

existed that the jury, applying a reasonable doubt standard, would have found the

loss to be at least that amount. Under the circumstances presented, it is clear no

constitutional error occurred in the district court’s factual finding on the amount

of theft involved for the purpose of applying the disputed six-level enhancement

to M s. Crook’s sentence.

9 In complaining a jury, not a judge, should have determined the amount taken, M s. Crook has not provided the amount which she believes should have been used to calculate her enhancement and the amount of restitution. Even if w e were to construe her appeal as raising an issue that $38,400.22 is inaccurate as to the total theft of rental payments, she has not provided any of the physical evidence admitted at trial, including the receipts and deposit slips at issue or the presentence report summarizing such evidence, both of which were relied on by the district court in determining the total amount taken by M s. Crook. As previously discussed, “[w ]here the record is insufficient to permit review we must affirm.” Scott v. Hern, 216 F.3d at 912.

-20- IV. Conclusion

For the foregoing reasons, we AFFIRM M s. Crook’s conviction and

sentence.

Entered by the C ourt:

W ADE BRO RBY United States Circuit Judge

-21-