USA vs. Keith, (5th Cir. 2003)

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* Pursuant to 5 TH C IR . R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR .

R. 47.5.4. United States Court of Appeals Fifth Circuit FILED August 8, 2003 Charles R. Fulbruge III Clerk UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-11244 Summary Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus LARRY DON KEITH, Defendant-Appellant.

Appeal from the United States District Court for the Northern District of Texas USDC No. 4:98-CR-109-16-Y Before BARKSDALE, EMILIO M. GARZA, and DENNIS, Circuit Judges.

PER CURIAM: * Larry Don Keith appeals his sentence of probation and restitution following his nolo contendere plea to one count of unlawful adulteration of milk. S ee 21 U.S.C. §§ 331(a), 333(a)(2).

Keith first contends, for the first time on appeal, that the district court incorrectly used the Sentencing Guidelines edition in effect at the time of his offense, rather than the one in effect at sentencing. The district court did not commit plain error in using the earlier edition, because the edition in effect at sentencing would have resulted in a h igher specific offense characteris tic enhancement than that required by the earlier edition; concerns use of the later edition would have caused ex post facto . C ompare U.S.S.G . § 2B1.1(b)(1)(E) (2001) w ith § 2F1.1(b)(1)(G)(1994); see United States v. Domino , 62 F.3d 716, 719-720 (5th Cir. 1995); U.S.S.G. § 1B1.11.

Keith asserts that his sentence was improperly enhanced based on an unreliable loss amount calculation. The PSR provides an § 2F1.1(b)(1)(G)(1994).

Keith maintains the district court clearly erred by increasing his offense level by two levels for abuse of a position of § 3B1.3. Even if determining Keith held a position of § 3B1.3 (1994); see United States v. Fisher , 7 F.3d 69, 70 (5th Cir. 1993); cf. United States v. Iloani , 143 F.3d 921, 922-23 (5th Cir. 1998).

Because Keith abused a position of private trust, we need not address whether he abused a position of public trust. See United States v. McSween , 53 F.3d 684, 687 n.3 (5th Cir.) (court may affirm on any ground supported by the record), cert. denied , 516 U.S. 874 (1995).

Next, Keith bases error on the district courtÂ’s req uiring restitution for the entire conspiracy, despite his plea to only a single instance of adulteration. We review only for plain error.

Because Keith§ 333(a)(2) (imposing additional penalties if adulteration committed § 2255. S ee Un ited States v. McIntosh , 280 F.3d 479, 481 (5th Cir. 2002).

AFFIRMED

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