No. 99-20383 -1-

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-20383 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RALPH BEN-SCHOTER; WILLIAM T. SCOTT; LINDA D. SCOTT,

Defendants-Appellants.

-------------------- Appeals from the United States District Court for the Southern District of Texas USDC No. H-95-CR-284-1 -------------------- April 3, 2000

Before DAVIS, EMILIO M. GARZA and DENNIS, Circuit Judges.

PER CURIAM:*

Ralph Ben-Schoter, William T. Scott, and Linda D. Scott

appeal the sentences imposed by the district court at their

resentencing. They argue that the district court erred in

calculating the amount of loss caused by their offenses. Ben-

Schoter and William Scott also argue that the district court

erred in refusing to reduce their offense levels by three points

pursuant to § 2X1.1(b)(1) of the United States Sentencing

Guidelines because some of the transactions were only partially

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 99-20383 -2-

completed. They have not shown that the district court clearly

erred in determining that the amount of the intended loss was at

least $80,000,000, requiring an 18-level increase in their

offense levels under § 2F1.1(b)(1)(S) of the Guidelines. Because

the defendants completed all of the documents that they believed

were necessary to transfer the false treasury notes to the

victims for use as collateral, Ben-Schoter and William Scott have

not shown that the district court erred in refusing to reduce

their offense levels under § 2X1.1. See § 2X1.1(b)(1).

William and Linda Scott argue that the district court erred

in ordering them to pay $3,078,000 in restitution without

considering their financial ability to pay the restitution.

William Scott also argues that the district court violated the

Ex Post Facto Clause by ordering restitution under the Mandatory

Victims Restitution Act of 1996 without consideration of his

ability to pay. Although the Scotts objected to the amount of

restitution in the district court, they did not object to the

restitution on the ground that the district court did not

consider their ability to pay or on the ground that the order

violated the Ex Post Facto Clause. Therefore, review is limited

to plain error. United States v. Calverley,

(5th Cir. 1994) (en banc). Under Fed. R. Crim. P. 52(b), this

court may correct forfeited errors only when the appellant shows

the following factors: (1) there is an error, (2) that is clear

or obvious, and (3) that affects his substantial rights.

Calverley,

-64 (citing United States v. Olano,

(1993)). If these factors are established, the No. 99-20383 -3-

decision to correct the forfeited error is within the sound

discretion of the court, and the court will not exercise that

discretion unless the error seriously affects the fairness,

integrity, or public reputation of judicial proceedings. Olano,

. The record indicates that the district court

ordered the restitution after considering and adopting the

Presentence Report (PSR) which included information concerning

the Scotts’ employment history and financial ability to pay

restitution. The district court’s adoption of the PSR is

considered sufficient evidence that the district court considered

the Scotts’ financial resources in ordering restitution. See

United States v. Richards, ___ F.3d ___ (5th Cir. Feb. 9, 2000,

No. _____),

; United States v. Greer,

(5th Cir.), cert. denied,

(1998).

Because William Scott has not shown that the district court

retroactively applied the Mandatory Victims Restitution Act, the

district court did not violate the Ex Post Facto Clause. See

Richards,

.

Linda Scott argues that the district court erred in

determining that she was not a minor participant pursuant to

§ 3B1.2(b) of the Guidelines. Because Linda Scott assisted in

the incorporation of the Delmarva-Nevada Trust, became the

CEO/President of the Trust, and signed all of the treasury

certificates and other documents necessary to carry out the

advance fee scheme, the district court did not err in determining

that she was not a minor participant under § 3B1.2(b). See

United States v. Posada-Rios,

(5th Cir. 1998). No. 99-20383 -4-

William Scott argues that the district court erred in

determining that he was a leader or organizer under § 3B1.1(a) of

the Guidelines. William Scott recruited Linda Scott, Patricia

Moran, and Joseph Vass to sign documents as officers of the

Delmarva-Nevada Trust, and the record indicates he exercised

decision-making authority in the Delmarva-Nevada Trust and the

advance fee scheme. William Scott did not present any evidence

at the resentencing hearing to rebut the facts in the PSR which

indicated that he was an organizer or leader. Therefore, the

district court did not clearly err in adopting the PSR and in

determining that William Scott was a leader or organizer under

§ 3B1.1(a). See United States v. Alford,

(5th

Cir.), cert. denied,

(1998).

AFFIRMED.