United States v. Sudeen

United States Court of Appeals
Fifth Circuit
F I L E D
December 23, 2005
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 04-30067
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
MOTILLAL L. SUDEEN, ALSO KNOWN AS MOTI SUDEEN,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
______________________________
Before JOLLY, SMITH, and DEMOSS,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Motilall Sudeen was convicted of wire
fraud, travel fraud, money laundering and
conspiracy offenses and sentenced to 220
months’ imprisonment. He appeals, contend-
ing that the district court committed reversible
error (1) in severing his trial from that of his
co-defendant; (2) in admitting evidence of an
uncharged investment scheme and statements
he alleges to be hearsay; (3) in the application
of the sentencing guidelines; and (4) by finding
certain facts in contravention of United States
v. Booker, 543 U.S. ___, 125 S. Ct. 738
(2005). We find Booker error with respect to
the district court’s use of the 2002, rather than
the 2000, guidelines. As to all other claims
pertaining to conviction or punishment, we
find no reversible error. We therefore affirm

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the conviction and vacate the sentence and
remand for resentencing.
I.
Sudeen sought to build a large urea pro-
cessing plant in Poplarville, Mississippi, where
he ultimately consolidated all his business
dealings.1 He formed a corporation, MS
Carbamate (“Carbamate”), and acquired land
on which to build the plant. He contends that
he was “financing” the plant using a variety of
investment devices.
The plant was never built, because of al-
leged regulatory difficulties. As a result, Su-
deen breached contracts with investors.
The investment programs Sudeen alleged
he was using to finance the plant were, in ac-
tuality, constituent frauds in a fairly elaborate
Ponzi scheme. Sudeen and his co-conspirators
represented to potential investors that their
money would be placed in “high yield
investment programs” that would generate
profits for them at greater-than-market rates of
return.2
Sudeen told investors that their principal
would remain safely in banks and would be ex-
posed to little or no risk; that the high yield
programs involved marquee banks, including
the World Bank and the IMF; and that the
trading programs were monitored by the fed-
eral government. Sudeen periodically molli-
fied investors by returning “dividends” from
the programs;3 by encouraging investors to roll
over their investments instead of seeking im-
mediate returns; and by reassuring investors
that their money had been safely invested and
that they would be paid soon.4 Sudeen and his
co-conspirators used the funds to make “lull-
ing” payments to encourage further investment
in the “programs” and for Sudeen's personal
and business expenses.5
Sudeen and Freeman continued to maintain
the appearance of safety by issuing investors
bogus “Private Placement Agreements” and
“Joint Venture Agreements.” They also told
investors that Sudeen’s personal wealth guar-
anteed their investment. Investors were told
to purchase Certificates of Deposit from vari-
ous banks to allow Sudeen to use the credit for
loans, the proceeds of which would also be in-
vested. When a given investor demanded pro-
ceeds, Sudeen and Freeman would claim that
the investor was ineligible because he had
failed to comply with fictitious requirements,
1 Sudeen characterizes his efforts to acquire the
necessary funds for the plant as “legitimate ar-
rangement[s] made with sophisticated investors.”
He states that he signed agreements with investors
to use their money in “projects” that centered on
the plant.
2 Sudeen sought to finance Carbamate with the
high-yield investment program and what he de-
scribed to investors as a “private placement se-
cured trading programs.” Sudeen told investors
that these programs would yield 20-50% per month
and that he would return their principal on the
expiration of the investment terms.
3 Sudeen also lied about the composition of the
banks taking part in the financing. Sudeen and an
accomplice, Jerry Freeman, sought to make the
trading programs appear legitimate and safe.
4 More than fifty people participated in the
high-yield trading program, and the victims spent
more than $ 17 million.
5 Sudeen used the funds, in addition to making
lulling payments, to pay Freeman’s salary, to re-
model Sudeen’s house, support Sudeen’s wife and
children, purchase property including luxury
goods, and to make credit card payments.

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3
that the profits were “tied up” by the federal
government, or that the returns could not be
liquidated from overseas assets.
1. Sudeen was a principal in another
Ponzi scheme involving insulin (the
“insulin scheme”), for which he and
Freeman were not indicted. Sudeen
co-mingled funds involved in the two
schemes, making lulling payments
using resources of one to the other.
On this issue the government cites to
the record extensively, whereas
Sudeen does nothing more than ad-
vance speculation.
In February 2002 Sudeen and Freeman
were indicted on one count of conspiracy un-
der 18 U.S.C. § 371, fourteen counts of wire
fraud under 18 U.S.C. § 1343, two counts of
travel fraud under 18 U.S.C. § 2314, and
twenty-one counts of money laundering under
18 U.S.C. § 1957. Trial was originally set for
May 2002. The district court granted several
of the defendants’ motions for continuance.
In December 2002, Sudeen’s cardiologist
informed the court that Sudeen was healthy
enough to go to trial in January. In January
2003 Sudeen and Freeman again moved for
continuance because Freeman’s attorney had a
conflict with a case previously scheduled for
trial in North Carolina. The government op-
posed the motion and moved to sever the trials
and proceed with Sudeen’s. The district court
granted Freeman a continuance, denied a con-
tinuance to Sudeen, and granted the govern-
ment's motion to sever, thus forcing Sudeen to
proceed to trial on January 13.
The jury found Sudeen guilty on
thirty-eight of the counts. Applying the 2002
sentencing guidelines, the court calculated an
offense level of 37, which produced a guide-
lines range of 210-262 months’ imprisonment.
The court sentenced Sudeen to 220 months.
II.
Sudeen argues that because his and Free-
man’s counsel had prepared their defenses
jointly, Sudeen was prejudiced by a severance.
We disagree.
A.
We review a grant or denial of severance
for abuse of discretion. See United States v.
Ramirez, 954 F.2d 1035, 1037-38 (5th Cir.
1992). A severance is reversible only on a
showing of specific compelling prejudice. See
United States v. Barnett, 197 F.3d 138, 144
(5th Cir. 1999).6
B.
Although it is generally true that “defen-
dants who are indicted together should be tried
together,” see United States v. Piaget, 915
F.2d 138, 142 (5th Cir. 1990), that gener-
alization says nothing of the legal circum-
stances that justify deviating from it. Sudeen
cites no authority for the standard he advances
as the criteria for such deviation: “[W]hether
the Government articulated a specific risk that
could be averted only through severance, and
it must further query whether alternative
means less prejudicial to Sudeen existed to
remedy that risk.” Sudeen seems to be fabri-
6 Under our caselaw, to demonstrate an abuse of
discretion as it relates to severance, Sudeen must
show “specific and compelling prejudice.” United
States v. Mitchell, 777 F.2d 248, 260 (5th Cir.
1995). The Mitchell standard requires that we
determine abuse of discretion by reference to
whether the severance caused Sudeen clear and
compelling prejudice, not whether the district court
adequately identified evidence in the record show-
ing that Sudeen would have been prejudiced by
joinder.

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4
cating that standard entirely.
Sudeen’s primary argument attempting to
show such prejudice involves the short period
in which his attorney had to prepare for trial
after the severance. Sudeen does not allege
prejudice with any specificity. His counsel was
ready for trial anyway, because Sudeen would
have been deemed the principal had the two
defendants been tried jointly, and Sudeen’s and
Freeman’s attorneys had been working on a
joint defense for many months. Moreover, Su-
deen’s attorney was, by all accounts, well
prepared for trial.7
III.
Sudeen actually orchestrated another fraud-
ulent venture involving insulin contracts. He
does not deny that the funds from those in-
vesting in the insulin contracts were used as
lulling payments to investors in the fertilizer
plant and vice versa.8 The district court there-
fore found that the funds from the two ven-
tures were commingled and that the evidence
regarding the insulin venture was “intrinsic.”
Sudeen argues that the insulin evidence was
extrinsic and should have been excluded under
Federal Rules of Evidence 403 and 404(b).
First, we must decide whether the district
court reversibly erred in finding the insulin
evidence intrinsic. Second, if we that the
evidence was extrinsic, we must determine
whether the court erred by failing to exclude
the evidence under other evidence rules. We
terminate our inquiry at the first stage by find-
ing that the court did not abuse its discretion in
treating the evidence as intrinsic.
A.
We review admission of evidence for abuse
of discretion. See United States v. Hicks, 389
F.3d 514, 522 (5th Cir. 2004). That Sudeen
commingled funds between the two sub-
schemes is not a contested fact. Intrinsic evi-
dence is generally admissible to allow the jury
to “evaluate all the circumstances under which
the defendant acted.”9 Evidence is considered
intrinsic if it is “inexorably intertwined” with
evidence used to prove the crime charged. See
Navarro, 169 F.3d at 233. Where evidence is
intrinsic, it qualifies without reference to rule
404(b), which states generally that “evidence
of other crimes, wrongs, or acts is not admissi-
ble to prove the character of a person in order
to show action in conformity therewith.” See
id.10 Citing superior authority and referencing
the record far better than Sudeen does, the
government overwhelmingly establishes the
two propositions necessary for it to prevail on
this argument: (1) Funds for the insulin scheme
7 In fact, the greatest possibility for prejudice
appears to have been that to the detriment of the
government, if the district court had allowed de-
fendants to proceed jointly. The trial had been
pushed back four times already, and Sudeen’s
health problems posed a significant potential for
further delay.
8 In oral argument on appeal, Sudeen’s counsel
expressly admitted to the co-mingling of funds
between the two schemes.
9 United States v. Navarro, 169 F.3d 228, 233
(5th Cir. 1999); see also United States v. Wil-
liams, 900 F.2d 823, 825 (5th Cir. 1990) (stating
that evidence qualifies as “intrinsic” “when the evi-
dence of the other act and the evidence of the other
crime charged are ‘inextricably intertwined’ or
both acts are part of a ‘single criminal episode’ or
other acts were ‘necessary preliminaries’ to the
crime charged”) (internal citations omitted).
10 See 1 STEVEN A. SALTZBURG, MICHAEL M.
MARTIN & DANIEL J. CAPRA, FEDERAL RULES OF
EVIDENCE MANUAL § 404.02[11] (LexisNexis 8th
ed. 2002).

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5
were commingled with funds from the fertilizer
scheme, and initial investments in each were
used to make lulling payments to investors in
the other;11 and (2) such commingling of funds
qualifies the insulin scheme as intrinsic
evidence.12
B.
Rule 403 states that: “Although relevant,
evidence may be excluded if its probative value
is substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or
misleading the jury, or by considerations of
undue delay, waste of time, or needless
presentation of cumulative evidence.”13 The
insulin evidence must pass the rule 403 bar
without respect to whether the district court
admitted it as intrinsic evidence.
The district court noted that if it considered
evidence of the insulin scheme to be intrinsic,
it would not exclude that material on the
ground that it is prejudicial under rule 403.14
This holding is consistent with language in our
circuit stating that rule 403 should generally
not be used to exclude intrinsic evidence,
because intrinsic inculpatory evidence is by its
very nature prejudicial.15 The insulin evidence
proves both the source of the lulling payments
made to Poplarville investors and the destina-
tion of funds paid in by those investors. It is
highly probative of the existence of a Ponzi
scheme, and it is prejudicial only to the extent
that it establishes elements of the offense.16
IV.
Sudeen further contends that the district
court abused its discretion in admitting the
out-of-court statements of Earl Gamble and
Walter Lauren under Federal Rule of Evidence
11 Even if each direction were not specifically
proven (i.e., the state specifically identified only a
particular transaction where money flowed from
one scheme to another, and not vice versa), the co-
mingling of funds obviously justifies the inference
that money actually flowed both ways.
12 The district court alternatively ruled, in an in
limine hear ing, that the insulin evidence was ad-
missible under rule 404(b), which states that prior
(or other) wrongs or acts are admissible as “proof
of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or ac-
cident.” See United States v. Dula, 989 F.2d 772,
777 (5th Cir. 1993) (“Evidence of an uncharged
offense arising out of the same transaction or series
of transactions as the charged offense is not an
‘extrinsic’ offense within the meaning of [rule]
404(b) and is therefore not barred by this rule.”)
We do not reach this issue.
13 FED. R. EVID. 403; see also 1 SALTZBURG ET
AL., supra, § 403.02[16], at 403-37 (stating that
rule 403 “is one of exclusion of otherwise admiss-
ible evidence”).
14 Specifically, the court stated: “It’s not con-
fusing if it’s the same, if it’s advancing one, it’s not
misleading, it’s not prejudicial any more than the
indictment[,] charge or something [that] is pre-
judicial in the sense that it’s offensive but it’s part
of the crime.”
15 See United States v. Powers, 168 F.3d 741,
749 (5th Cir. 1999) (“all probative evidence is by
its very nature prejudicial”) (internal citations
omitted); United States v. Leahy, 82 F.3d 624, 637
(5th Cir. 1996) (stating that rule 403 should be
used sparingly and only where the prejudicial effect
substantially outweighs the evidence’s probative
value).
16 Sudeen contends that the court inappropri-
ately failed to give a limiting instruction as to the
purposes of the insulin evidence. First, we see no
reason why such an instruction is necessary if we
deem the evidence intrinsic. Second, the record
indicates that the jury instructions quite candidly
addressed the limited character of “similar acts.”

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6
801(d)(2)(D) and/or 801(d)(2)(E). Rule 801-
(d)(2)(D) deems non-hearsay a statement of-
fered against a party made by “the party’s
agent or servant concerning a matter within
the scope of the agency or employment, made
during the existence of the relationship.”
Similarly, rule 801(d)(2)(E) provides that a
statement is not hearsay if it is offered against
a party and is “a statement by a co-conspirator
of a party during the course and in furtherance
of the conspiracy. The contents of the state-
ment shall be considered but are not alone
sufficient to establish the declarant’s author-
ity[.]”
Sudeen contends that the district court’s
finding that Gamble and Lauren were agents or
co-conspirators was not supported by sub-
stantial evidence.17 He correctly notes that the
statements themselves are not sufficient evi-
dence of the relationship to render them ad-
missible. He then asserts that the government
offered no additional proof of Gamble’s and
Lauren’s roles as co-conspirators or agents of
Sudeen. He characterizes them as owners of
investment companies who dealt at arm’s
length with Sudeen and the potential investors.
A.
We review for abuse of discretion the ad-
mission of out-of-court statements under rule
801(d)(2)(D) and (E).18 There was
corroborating material (evidence other than
the statements themselves) demonstrating that
Lauren’s and Gamble’s statements were
admissible under either subsection.
B.
Lauren received significant commissions for
recruiting investors. At least one investor
described him as an “associate” of Sudeen’s.
Lauren received reports from investors who
were recruiting other investors in the high-
yield trading program. An employee of MS
Carbamate testified that Lauren worked for
Sudeen. In light of this corroborating testi-
mony, the district court did not abuse its dis-
cretion in admitting Lauren’s statements.
Some of the investors testified that they
thought Gamble and Sudeen were business
partners. Gamble introduced several potential
investors in the high-yield trading program to
Sudeen. Another investor described Gamble
as an “associate” of Sudeen’s.
Sudeen told one potential investor that
Gamble would be her “agent” if she decided to
participate in the high-yield program. That
same investor wrote a check to Gamble for
investment in the program, and that check was
later deposited in one of Sudeen’s business ac-
counts. Sudeen informed that investor that
Gamble would receive a commission of one
percent of her investment principal. When in-
vestors inquired as to why they were not re-
ceiving the promised returns, Gamble provided
17 There is some discrepancy between the briefs
as to which of the two subsections applies to
Gamble and which to Lauren. The government
asserts that Gamble’s statements were admitted
under the agency exception of subsection (d)(2)(D)
and that Lauren’s were admitted under either (D)
or (E). Whether the relationship among these three
men is one of agency or co-conspiracy, however,
need not be decided for us to rule on this issue. For
a general discussion of agent versus co-conspirator
admissions, see 4 SALTZBURG ET AL., supra, §
801.02[6] [f]-[g].
18 See United States v. Solis, 299 F.3d 420, 443
(5th Cir. 2002) (stating standard with respect to
FED. R. EVID. 801(d)(2)(E); United States v. Cent.
Gulf Lines, Inc., 974 F.2d 621 (5th Cir. 1992)
(same with respect to FED. R. EVID.
801(d)(2)(D)).

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7
explanations for the delays and reassurances
that their money was safe. The district court
did not abuse its discretion in admitting
Gamble’ testimony.
V.
Sudeen contends the court improperly en-
hanced his sentence for abuse of a position of
private trust, arguing that he was not a legiti-
mate trader or investment broker. Section
3B1.3 of the United States Sentencing Guide-
lines provides for a two-level increase in of-
fense level if “the defendant abused a position
of public or private trust, . . . in a manner that
significantly facilitated the commission or
concealment of the offense.”
A.
Even after Booker, we review a district
court’s interpretation and application of the
guidelines de novo. See United States v. Vil-
legas, 404 F.3d 355, 359 (5th Cir.2005) (per
curiam). We thus proceed to review the appli-
cation of guideline § 3B1.3 here without def-
erence to the district court’s interpretation.19
B.
Sudeen relies on United States v. Echevar-
ria, 33 F.3d 175 (2d Cir. 1994), for the propo-
sition that the district court may enhance a
sentence pursuant to § 3B1.3 only where the
defendant legitimately occupied a position of
trust. Sudeen makes no arguments beyond
analogy to that case.
A subsequent Second Circuit case, United
States v. Hussey, 254 F.3d 428, 433 (2d Cir.
2001), repudiates the reasoning of (but stops
short of overruling) Echevarria. That court
noted that two other courts of appeals have
rejected or criticized Echevarria;20 it also ex-
plains that, by adding an application note,21 the
19 The government cites United States v.
Reeves, 255 F.3d 208, 212 (5th Cir. 2001), for the
proposition that the panel “review[s] the appli-
cation of the guideline to the facts for clear error.”
This reasoning should be distinguished from our
more recent holding in Villegas. The apparent dis-
crepancy is nonetheless something we feel com-
pelled to address, even though the standard-of-
review issue makes little difference in the ultimate
outcome here, because Sudeen’s challenge would
fail even under our de novo scrutiny.
We assess this issue much as did the Second
Circuit:
Section 3B1.3 of the Sentencing Guidelines
provides for a two-level enhancement if the de-
(continued...)
19(...continued)
fendant “abused a position of public or private
trust, or used a special skill, in a manner that
significantly facilitated the commission or con-
cealment of the offense.” U.S.S.G. § 3B1.3
(1998). Whether a defendant occupies a “posi-
tion of trust” within the meaning of this pro-
vision is viewed from the perspective of the
victim, and is a question of law, which we re-
view de novo. See United States v. Wright,
160 F.3d 905, 910 (2d Cir.1998). Whether a
defendant abused a position of trust in a manner
that “significantly facilitated the commission or
concealment of the offense” is a question of
fact, which we review for clear error. See
United States v. Hirsch, 239 F.3d 221, 227 (2d
Cir.2001).
United States v. Hussey, 254 F.3d 428, 431 (2d
Cir. 2001). We endorse this distinction.
20 See Hussey, 254 F.3d at 432 n.3; see, e.g.,
United States v. Gill, 99 F.3d 484, 489 (1st Cir.
1996); United States v. Barnes, 125 F.3d 1287,
1292 (9th Cir. 1997).
21 Application note 2 to U.S.S.G. § 3B1.3 now
(continued...)

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8
United States Sentencing Commission rejected
Echevarria’s reasoning in November 1998.
See id. at 433 n.3. Most importantly, Reeves,
255 F.3d at 212, affirmed an abuse-of-trust
enhancement where the defendants had posed
as financial planners and advised their clients
to invest in a company owned by a co-
defendant. There is no meaningful way to
distinguish the facts in that case from the ones
here. Therefore, the district court did not err
in its application of § 3B1.3.
VI.
Sudeen claims the district court committed
reversible error under Booker, 543 U.S. at
___, 125 S. Ct. at 738. Specifically, he rea-
sons that the court improperly found facts at
sentencing relating to (1) the amount of loss;
(2) the number of victims; (3) the use of spe-
cific means; and (4) the effective date of the
conspiracy’s end. Sudeen’s brief styles the last
of these items—the only Booker objection we
ultimately believe has merit—as a hybrid of a
Booker and an ex post facto violation. It is
evident from oral argument and from briefing
that neither the government nor Sudeen is en-
tirely sure how the two sets of precedent in-
teract. We conclude that the district court’s
application of the 2002 edition of the guide-
lines—as opposed to the 2000 edition of the
same—is reversible error for the reasons set
forth below and in the companion opinion is-
sued contemporaneously herewith, United
States v. Freeman, No. 04-30037.
A.
1.
First, we briefly dispose of Sudeen’s Book-
er claims involving amount of loss, number of
victims, and use of specific means. He con-
cedes that he did not preserve a Sixth Amend-
ment objection to these issues at sentencing,
and we review unpreserved Booker arguments
for plain error. See United States v. Mares,
402 F.3d 511, 520 (5th Cir.), cert. denied, 126
S. Ct. 43 (2005). The third prong of the plain
error analysis requires that, to prove reversible
error, Sudeen “demonstrate a probability
‘sufficient to undermine confidence in the out-
come.’” Id. at 521 (quoting United States v.
Dominguez Benitez, 542 U.S. 74, 124 (2004)).
Under Mares, “[t]he pertinent question is
whether [Sudeen] demonstrated that the sen-
tencing judge—sentencing under an advisory
scheme rather than a mandatory one—would
have reached a significantly different result.”
Id. Even if all three of these preceding condi-
tions are satisfied, we may exercise our discre-
tion to notice a forfeited error only if that
mistake seriously affects “the fairness, integ-
rity, or public reputation of judicial proceed-
ings.” United States v. Cotton, 533 U.S. 625,
631 (2002).
2.
Sudeen attempts to carry his burden by do-
ing nothing more than identifying, for each en-
21(...continued)
provides:
Th[e] adjustment . . . also applies in a case in
which the defendant provides sufficient indicia
to the victim that the defendant legitimately
holds a position of private or public trust when,
in fact, the defendant does not. For example,
the adjustment applies in the case of a defen-
dant who (A) perpetrates a financial fraud by
leading an investor to believe that the defendant
is a legitimate investment broker; or (B) per-
petrates a fraud by representing falsely to a
patient or employer that the defendant is a
licensed physician. In making the misrepresen-
tation, the defendant assumes a position of
trust, relative to the victim, that provides the
defendant with the same opportunity to commit
a difficult-to-detect crime that the defendant
would have if the position were held legit-
imately.

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9
hancement, the error and pointing out that the
district court sentenced him at the low end of
the guidelines range. Under the computed
range, the district court could have sentenced
him to a term of 210 to 262 months; it in fact
imposed 220 months. Therefore, Sudeen con-
tends, the court, if it had known of its discre-
tion to do so, likely would have imposed a
lesser sentence.
This logic is unpersuasive. A sentence at
the low end of the range does not show that
the error “must have affected the outcome of
the district court proceedings.” United States
v. Olano, 507 U.S. 725, 734 (1993). More-
over, in denying Sudeen’s request to sentence
him to the minimum guidelines sentence, the
district court indicated that it considered Su-
deen’s offenses to be very serious.22 Sudeen
cannot show a reasonable probability that the
court would have imposed a lower sentence
under an advisory guidelines regime, so he
cannot prevail under a plain error standard of
review.
B.
Sudeen asserts that the district court im-
properly used the 2002 edition of the guide-
lines instead of the 2000 edition.23 Although
we discuss this issue as part of our “Booker
error” analysis, the objection actually subdi-
vides into two distinct inquiries, only one of
which Booker technically controls: (1) whether
the use of the 2002 edition constitutes an
independent Booker error and (2) whether the
use of the 2002 edition violated the Ex Post
Facto Clause (a claim we analyze the same as
we would have before Booker).
1.
Sudeen asserts that, under Booker, the dis-
trict court cannot constitutionally have made
factual determinations regarding the end-date
of the conspiracy. Sudeen neither admitted
that end-date, nor was it found by a jury be-
yond a reasonable doubt. Nevertheless, that
finding plainly increased his sentencing range.
a.
The government argues that Sudeen did not
preserve his error under Booker. At sentenc-
ing, however, Sudeen’s attorney made the fol-
lowing remarks:
And we would suggest that where like Ap-
prendi the guidelines have [sic], I don’t
want to say legal effect, but clearly the
practical effect of increasing the statutory
maximum for the continuing offense. By
having that offense drive a set of numbers
that are greater than what you can be sen-
tenced to it [sic] under that offense and
which apply to the whole case, it[’]s appro-
priate to begin looking at is that an issue
the jury has to decide.
22 Specifically, the district court stated:
I’ve heard countless stories . . .that people lost
their whole life savings or their future. And
they entrusted it to you. They gave you their
life savings.
It wasn’t for many of them given to you for the
urea plant, it was given to you to invest in the
high interest scheme that you told them about.
And there was no such program . . . You just
used their money, used Peter’s money to pay
Paul . . . And these victims didn’t do anything
wrong and you just abused them.
23 The government posits that the court actually
used the 2003 version, which was in effect on the
date of sentencing. The difference is irrelevant,
because § 2S1.1 is the same in both. Use of the
2000 version, as urged, would have yielded a sub-
stantially lower range.

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10
As we have held in the companion case, Free-
man, this language is enough for us to find a
mistake preserved for purposes of choosing
between plain and harmless error analysis.24
b.
There is no dispute that if the conspiracy
was proven to extend to a date on or after No-
vember 1, 2001, a set of guidelines later than
the 2000 version would apply (in an advisory
capacity, of course, in the wake of Booker).
The indictment states that “[b]eginning in or
about March 1997, and continuing to the pres-
ent [meaning February 28, 2002], . . . the de-
fendants . . . did knowingly and willfully . . .
conspire . . . .” The indictment charges the
overt acts under the conspiracy with specifi-
city; the latest such charged act is Sudeen’s
promise to pay a particular investor additional
money, an act alleged to have occurred “[i]n
or about August 2001.”
In its brief on appeal, the government, in an
effort to avoid use of the 2000 guidelines,
points to proof of several acts occurring on or
after November 1, 2001.25 The government
also accurately points to the fact that at sen-
tencing, the district court made a finding that
the conspiracy continued past November 1,
24 Not only does this language resemble that
which we found sufficient for preserving error in
Freeman, but it is more specific than that which we
held to satisfy the error preservation requirements
in United States v. Akpan, 407 F.3d 360 (5th Cir.
2005) (“Although [the defendant] never explicitly
mentioned the Sixth Amendment, Apprendi, or
Blakely until his Rule 28(j) letter, we are satisfied
that his objeciton adequately apprised the district
court that he was raising a Sixth Amendment
objection . . . .”).
25 According to the government’s brief,
Freeman continued to receive biweekly salary
payments of $1,450 through January 17, 2002,
(continued...)
25(...continued)
and $9,000 was wired to co-conspirator Walter
Lauren at an account in Switzerland as late as
February 27, 2002. Mortgage payments on the
Poplarville property using funds from investors
were made until January 15, 2002. In addition,
lulling payments of $10,000, $2,000, and
$2,500 were made to investors Frank Gunn,
Kenneth Breaux and Sheran Frickey, respec-
tively, on December 12, 2001. In November
2001, Sudeen promised that he would give a
bank guarantee to investor Mattias Baumeler.
In February 2002 Baumeler met with Sudeen in
Switzerland, and Sudeen promised that he
would remit all overdue profits within two
weeks.
Moreover, Alice Celestin testified at trial and
sentencing that every 120 days she and her hus-
band “rolled over” their principal and purported
interest payments into a new contract. When
she met with Freeman on July 1, 2001, and
signed a fifth contract, she advised him that she
was going to need $54,000 back in November.
When she didn’t receive the money, she
telephoned Freeman frequently. In December
2001 Freeman called her and said that he had
both good news and bad news: she was getting
money, but it was only $10,000. They met the
next day and he gave her three separate checks
totaling $10,000. She testified that at that time
she still believed that she had funds invested in
insulin. She continued calling Freeman and
during their last conversation in February 2002
he said that her funds had “two more banks to
clear.” Freeman’s misrepresentations plainly
lulled Mrs. Celestin into the continued belief
that her funds were safely invested and that the
promises made at the time of her initial in-
vestment would be fulfilled.
(Record citations and footnote omitted.)

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11
2001. The flaw in the government’s position,
however, is that the procedure it correctly
recounts is the very essence of a Booker viola-
tion.
The jury was charged in relevant part as
follows:
It is not essential that the Government
proved that the conspiracy started and end-
ed on those specific dates [i.e., March 1997
through February 2002]. Indeed it is suffi-
cient if you find that in fact a conspiracy
was formed and that it existed for some
time within the period set forth in the In-
dictment and that at least one overt act was
committed to further the conspiracy within
that period of time.
Accordingly, the fact of conviction does not
necessarily establish that the jury found the
existence of any overt acts on or after Novem-
ber 1, 2001. It was only the district court, and
not the jury, that found that the conspiracy
continued beyond the trigger date for the post-
2000 guidelines.26 This is specifically what
Booker prohibits: The
actual sentence . . . was . . . longer than the
Guidelines range supported by the jury ver-
dict alone. To reach this sentence, the
judge found facts beyond those found by
the jury . . . . ‘[T]he jury’s verdict alone
does not authorize the sentence. The judge
acquires that authority only upon finding
some additional fact’ [quoting Blakely v.
Washington, 542 U.S. 296, 305 (2004)].
Booker, 125 S. Ct. at 751.
In short, the indictment charged no specific
acts after August 2001, and the jury was told
it could find defendants guilty without finding
any overt acts on or after November 1, 2001.
There is no basis on which, in the wake of
Booker, we can infer that any such acts indeed
occurred, i.e., that the jury, if asked, would
have found them beyond a reasonable doubt.27
c.
Because Sudeen’s sentence was infected
with Booker error, and he properly preserved
his objection, we must vacate the sentence and
remand for resentencing unless we determine
that the error was harmless under Federal Rule
of Civil Procedure 52(a). See Mares, 402 F.3d
at 520 n.9. “Harmless error is ‘any defect,
26 The government relies entirely on the fact that
the district court found that the conspiracy
continued past November 1, 2001. At no point
does the government even attempt to argue that we
may infer that the jury made any such finding,
much less that it did so beyond a reasonable doubt.
27 It is true that under the law of this circuit,
“[o]rdinarily, a defendant is presumed to continue
involvement in a conspiracy unless that defendant
makes a ‘substantial’ affirmative showing of with-
drawal, abandonment, or defeat of the conspira-
torial purpose.” United States v. Puig-Infante, 19
F.3d 929, 945 (5th Cir. 1994) (citation and internal
quotation marks omitted). Accord United States v.
Schorovsky, 202 F.3d 727, 729 (5th Cir. 2000).
These authorities, although sound, address a
situation entirely different from the one presented
here; they involve multi-person conspiracies in
which the defendant claims he tried to withdraw
from the conspiracy that was continued by his co-
conspirators. Here, there were no acts found by a
jury after the trigger date, so there is no jury-found
conspiracy at all that existed on or after that date.
In other words, those authorities demonstrate
that the absence of an overt withdrawal can extend
the operative dates of an alleged withdrawing de-
fendant’s vicarious liability to the end of the con-
spiracy. Those authorities do not suggest, how-
ever, that the absence of an overt withdrawal ex-
tends the length of the conspiracy itself.

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12
irregularity, or variance that does not affect
substantial rights of the defendant,’ and ‘arises
when the mistake fails to prejudice the
defendant.’”28 Under this standard the govern-
ment must demonstrate, beyond a reasonable
doubt, that the error did not contribute to the
sentence that the defendant received. See
United States v. Olano, 507 U.S. 725, 734
(1993).
The government does not meet this burden.
It points to nothing that would show beyond a
reasonable doubt that the court would have
imposed the same sentence under an advisory
guidelines regime. See Akpan, 407 F.3d
at 377.
2.
We do not reach Sudeen’s ex post facto
claim. Under Akpan, id. at 360 n.2, we have
the authority to leave to the district court the
discretion to consider this argument as long as
we have already determined there was a re-
versible Booker violation.
In summary, the judgment of conviction is
AFFIRMED. The judgment of sentence is
VACATED and REMANDED for resentenc-
ing.
28 Akpan, 407 F.3d at 376-77 (quoting rule
52(a); United States v. Munoz, 150 F.3d 401, 413
(5th Cir. 1998)).

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13
E. GRADY JOLLY, Circuit Judge, dissenting in part:
For the reasons stated in my dissent in the companion case,
United States v. Freeman, I respectfully dissent from the
majority’s finding of Booker error based on the district court’s
application of the 2002 version of the Guidelines.

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