United States of America v. United States, 315 U.S. 60, 80 1942 . We “have defined ‘substantial evidence,’ in…

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4857
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ROBERT LEE FOSTER,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Richard L. Williams, Senior
District Judge. (CR-03-141)
Submitted: August 31, 2005 Decided: September 23, 2005
Before MICHAEL, TRAXLER, and SHEDD, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
Christopher F. Cowan, COWAN & OWEN, P.C., Richmond, Virginia, for
Appellant. Paul J. McNulty, United States Attorney, Michael J.
Elston, Assistant United States Attorney, Alexandria, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
Rehearing granted and mooting motion for rehearing en banc, October 4, 2006

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PER CURIAM:
Robert Lee Foster appeals his conviction and sentence
entered on a jury verdict. Foster was convicted on all counts of
a five-count indictment, charging him with conspiracy to defraud
the United States, in violation of 18 U.S.C. § 286 (2000), false,
fictitious, and fraudulent claims, in violation of 18 U.S.C. § 287
(2000), and aiding and abetting, in violation of 18 U.S.C. § 2
(2000). Foster was sentenced to 156 months of imprisonment, 120
months on Count One and thirty-six months on Count Two, to be
served consecutively, and thirty-six months on the remaining three
counts, to be served concurrent to Count Two and consecutive to
Count One. The court further imposed three years of supervised
release and restitution, jointly and severally with codefendant
Crystal Foster, in the amount of $240,802.70.
On appeal, Foster challenges the sufficiency of the
evidence on all counts. “The verdict of a jury must be sustained
if there is substantial evidence, taking the view most favorable to
the Government, to support it.” Glasser v. United States, 315 U.S.
60, 80 (1942). We “have defined ‘substantial evidence,’ in the
context of a criminal action, as that evidence which ‘a reasonable
finder of fact could accept as adequate and sufficient to support
a conclusion of a defendant’s guilt beyond a reasonable doubt.’”
United States v. Newsome, 322 F.3d 328, 333 (4th Cir. 2003)
(quoting United States v. Burgos, 94 F.3d 849, 862-63 (4th Cir.

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1996) (en banc)). We review both direct and circumstantial
evidence and give the “[G]overnment the benefit of all reasonable
inferences from the facts proven to those sought to be
established.” United States v. Tresvant, 677 F.2d 1018, 1021 (4th
Cir. 1982).
We must uphold a conviction under 18 U.S.C. § 287 “if the
evidence shows the submission of a false claim and if the defendant
acted with knowledge that the claim was false and with a
consciousness that he was either doing something which was wrong,
or which violated the law.” United States v. Bolden, 325 F.3d 471,
494 (4th Cir. 2003) (internal quotations and citation omitted). To
prove the conspiracy under § 286, the Government must prove (1)
“that there was a conspiracy to defraud the United States; (2) that
the defendant knew of the conspiracy and intended to join it; and
(3) that the defendant voluntarily participated in the conspiracy.”
United States v. Upton, 91 F.3d 677, 681-82 (5th Cir. 1996)
(internal quotations omitted).
We conclude that the evidence was sufficient to satisfy
these statutes. Foster, a self-styled “reparations activist” who
conducted a business preparing tax returns from his home,
encouraged several other individuals to allow him to file their tax
returns claiming the right to a refund for many thousands of
dollars based on an asserted entitlement to reparations. He
admitted in a deposition, a portion of which was introduced at

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trial, that he had searched Internal Revenue Service (“IRS”)
publications but had found no basis for such a claim. Further,
Foster received one-fifth of the refund sent to his daughter,
Crystal Foster. We find this evidence sufficient to support
Foster’s convictions.
Foster challenges a clarifying instruction given in
response to a question from the jury during deliberations. This
court reviews a district court’s decision to respond to a jury’s
question, and the form of that response, for abuse of discretion.
United States v. Smith, 62 F.3d 641, 646 (4th Cir. 1995). “[I]n
responding to a jury’s request for clarification on a charge, the
district court’s duty is simply to respond to the jury’s apparent
source of confusion fairly and accurately without creating
prejudice.” Id. An error requires reversal only if it is
prejudicial in the context of the record as a whole. See United
States v. United Med. & Surgical Supply Corp., 989 F.2d 1390,
1406-07 (4th Cir. 1993). We conclude that the district court’s
response in this case was fair and accurate, and was certainly not
prejudicial when judged on the record as a whole.
Foster next challenges a comment by the prosecutor to the
effect that every taxpayer was a victim of Foster’s crime. As
Foster did not object to this statement at trial, we review for
plain error. Fed. R. Crim. P. 52(b); United States v. Olano, 507
U.S. 725, 731-32 (1993). In assessing whether an appellant is

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1Foster argues that, based on the information charged in the
indictment, he can be held responsible only for $1,508,000, rather
than the $5,098,400.91 cited in the presentence report. He also
challenges the enhancements imposed for violation of a prior,
specific judicial order, U.S. Sentencing Guidelines Manual
§ 2B1.1(b)(7)(C) (2002); aggravating role in the offense, USSG
§ 3B1.1(a), and obstruction of justice, USSG § 3C1.1, because they
were based on facts found by the judge.
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entitled to relief from alleged prosecutorial misconduct at trial,
the court “must assess (1) whether the prosecutor’s remarks or
conduct was improper, and (2) whether such remarks or conduct
prejudicially affected the defendant’s substantial rights so as to
deprive [him] of a fair trial.” United States v. Stockton, 349
F.3d 755, 762 (4th Cir. 2003)(internal quotation marks omitted).
Here, as the Government asserts, the challenged statement is both
obvious and true. Foster has not explained how his substantial
rights are implicated by the statement, and we conclude that he has
failed to establish plain error.
In a supplemental brief filed after the decision in
Blakely v. Washington, 542 U.S. 296 (2004), but before the decision
in United States v. Booker, 125 S. Ct. 738 (2005), Foster
challenges his sentence, arguing that the district court imposed
the sentence based on facts found by the judge on a preponderance
of the evidence standard. Foster’s sentence was enhanced eighteen
levels beyond the base offense level because of the amount of loss
as found by the judge. Three enhancements based on facts not
alleged in the indictment or found by the jury were also imposed.1

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As Foster raises this Sixth Amendment claim for the first time on
appeal, review is for plain error. See United States v. Hughes,
401 F.3d 540, 547 (4th Cir. 2005). The Supreme Court’s subsequent
decision in Booker applies to all cases pending on direct review at
the time it was decided. Id. at 769 (citing Griffith v. Kentucky,
479 U.S. 314, 328 (1987)). Thus, Booker applies to Foster’s direct
appeal.
In Booker, the Supreme Court held that the mandatory
manner in which the federal sentencing guidelines required courts
to impose sentencing enhancements based on facts found by the court
by a preponderance of the evidence violated the Sixth Amendment.
Id. at 746, 750 (Stevens, J., opinion of the Court). The Court
remedied the constitutional violation by severing two statutory
provisions, 18 U.S.C.A. § 3553(b)(1) (West Supp. 2005) (requiring
sentencing courts to impose a sentence within the applicable
guideline range), and 18 U.S.C.A. § 3742(e) (West 2000 & Supp.
2005) (setting forth appellate standards of review for guideline
issues), thereby making the guidelines advisory. Hughes, 401 F.3d
at 546 (citing Booker, 125 S. Ct. at 756-67 (Breyer, J., opinion of
the Court)).
After Booker, courts must calculate the appropriate
guideline range, consider the range in conjunction with other
relevant factors under the guidelines and 18 U.S.C.A. § 3553(a)
(West 2000 & Supp. 2005), and impose a sentence. If it imposes a

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2Just as we noted in Hughes, 401 F.3d at 545 n.4, “[w]e of
course offer no criticism of the district judge, who followed the
law and procedure in effect at the time” of Foster’s sentencing.
See generally Johnson v. United States, 520 U.S. 461, 468 (1997)
(stating that an error is “plain” if “the law at the time of trial
was settled and clearly contrary to the law at the time of
appeal”).
3In his original brief to the court, Foster challenged the
district court’s use of “intended loss” rather than “actual loss”
in determining the amount of loss for sentencing. We hold that the
district court correctly used “intended loss,” pursuant to USSG
§ 2B1.1. Under that provision, for purposes of determining the
offense level for property and financial crimes, loss is the
greater of actual or intended loss. Therefore, on remand, the
district court may continue to use intended loss.
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sentence outside the guideline range, the district court must state
its reasons for doing so. Hughes, 401 F.3d at 546.
Here, Foster’s offense level was increased by eighteen
levels based on an amount of loss calculation that considered loss
beyond that charged in the indictments. He also received three
enhancements based on facts found by the district court by a
preponderance of the evidence. Without any of these increases, his
total offense level would have been six. Considered with his
criminal history category III, this total offense level yields a
sentencing range of two to eight months rather than the range of
151 to 188 months that the district court used to compute his
sentence. We find that this sentencing constitutes plain error 2
that warrants reversal. Hughes, 401 F.3d at 555-56. 3
Finally, Foster challenges the district court’s
calculation of his criminal history category, contending that this

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issue must also be charged in the indictment and proved to a jury
beyond a reasonable doubt. Essentially, Foster argues that the
prior conviction exception laid out in Almendarez-Torres v. United
States, 523 U.S. 224 (1998), may no longer be good law. This
argument is foreclosed by the Supreme Court’s reaffirmation of the
Almendarez-Torres prior conviction exception in Booker. See
Booker, 125 S. Ct. at 756 (“Any fact (other than a prior
conviction) which is necessary to support a sentence exceeding the
maximum authorized by the facts established by a plea of guilty or
a jury verdict must be admitted by the defendant or proved to a
jury beyond a reasonable doubt.”). While Justice Thomas’s
concurrence in Shepard v. United States, 125 S. Ct. 1254, 1263-64
(2005), expressed doubt about the future viability of the
exception, it is still good law.
Nor does the application of the prior conviction
exception to Foster raise any of the problems outlined in Shepard.
In Shepard, the Supreme Court instructed that Sixth Amendment
protections apply to disputed facts about a prior conviction. Id.
at 1262-63. Because no facts related to Foster’s prior convictions
were disputed, the district judge’s determination of his criminal
history did not violate the Sixth Amendment. Cf. United States v.
Washington, 404 F.3d 834, 843 (4th Cir. 2005) (finding that
district court’s reliance on disputed facts about the defendant’s

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prior conviction violated the defendant’s Sixth Amendment right to
trial by jury).
We accordingly affirm Foster’s conviction, but vacate his
sentence and remand for resentencing. We dispense with oral
argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would not
aid the decisional process.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED

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