United States v. Hoops

* 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this opinion should not be published and is not precedent except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.
United States Court of Appeals
Fifth Circuit
F I L E D
May 18, 2005
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 04-10316
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
STEVEN EDWARD HOOPS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:02-CR-331-1-N
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Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Steven Edward Hoops appeals his guilty-plea convictions of
conspiracy to produce, use, and traffic in counterfeit and
unauthorized access devices; fraudulent use of an unauthorized
access device and aiding and abetting; and possession of device-
making equipment. He argues that the district court erred in
calculating the total amount of the loss to be between $1,000,000
and $2,500,000. He argues that the total number of unused access
devices was 453, which, when multiplied by $500, yields $226,500,

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which, when added to the actual loss amount, $732,618.84, yields
a total loss of $959,118.84. Hoops and the Government agree that
review of the district court’s factual findings is for clear
error.
Hoops does not dispute the district court’s finding that,
under two other methods of calculating the total loss, the total
loss figure would still be between $1,000,000 and $2,500,000.
Hoops has therefore waived any argument with regard to the two
other methods used by the district court. See Cinel v. Connick,
15 F.3d 1338, 1345 (5th Cir. 1994). Assuming without deciding
that clear error is the proper standard, see United States v.
Infante, __ F.3d __, No. 02-50665, 2005 WL 639619 at *12 n.14
(5th Cir. Mar. 21, 2005), Hoops has not shown that the district
court’s total loss calculation was clear error. See United
States v. Ismoila, 100 F.3d 380, 396 (5th Cir. 1996); U.S.S.G.
§ 2B1.1, comment. (n.3(C)).
Hoops also argues that the district court erred by finding
that the number of victims exceeded 50 because it was assumed
that each of the 52 pieces of stolen mail in his possession was
addressed to a different person. Hoops’s argument is factually
incorrect because the Government introduced evidence at
sentencing that the number of addressees was determined by
counting the number of different individuals who had their mail
stolen. Thus, Hoops’s argument fails, and there is no clear
error in the district court’s factual finding that there were 52

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additional victims. See United States v. Edwards, 65 F.3d 430,
432 (5th Cir. 1995).
Finally, Hoops argues, for the first time, that he was
deprived of his Sixth Amendment right to a jury trial because the
facts supporting his sentence were neither admitted by him nor
found by a jury. He argues that an opinion of the Supreme Court
applying Blakely v. Washington, 124 S. Ct. 2531 (2004), to the
federal Sentencing Guidelines would invalidate his sentence.
Because Hoops did not object in the district court on this
ground, our review is for plain error. See United States v.
Mares, 402 F.3d 511, 513 (5th Cir. 2005). Hoops has shown a
clear or obvious error under the Supreme Court’s recent decision
in United States v. Booker, 125 S. Ct. 738, 756 (2005). However,
because there is no indication in the record that indicates
whether the district court would have reached a different
conclusion, Hoops cannot meet his burden of showing that the
result likely would have been different had the district court
sentenced him under the Booker advisory scheme rather than the
pre-Booker mandatory regime. Id. at 521. Therefore, the plain
error standard has not been satisfied. See id. at 521-22. The
judgment of the district court is AFFIRMED.

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