IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-30064 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DELY PASCAL VIL,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Louisiana USDC No. 97-CR-30024-1 -------------------- August 23, 2000

Before KING, Chief Judge, and POLITZ and WIENER, Circuit Judges.

PER CURIAM:*

Dely Pascal Vil has appealed the district court’s judgment

sentencing him to pay $50,000 in restitution following his

guilty-plea conviction for wire fraud.

Vil’s wire fraud scheme involved the use of modified

automatic tone dialers which enabled him and others to make long

distance phone calls without paying a toll charge to South

Central Bell. Vil asserts that he should be responsible to make

restitution only for those phone calls made directly by him.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-30064 -2-

The district court’s determination that $50,000 in unpaid

telephone charges was attributable to Vil is a factual finding

subject to the clear error standard. See United States v. Flucas,

(5th Cir. 1996). A factual finding is not

clearly erroneous as long as it is plausible in light of the

record read as a whole. United States v. Krenning,

(5th Cir. 1996).

As a basis for his plea agreement, Vil signed a factual

resume stating that he had sold the devices to some students and

that he had programmed devices purchased by others. The factual

resume also stated that based on “the number of calls made and

the devices attributable to [him] ...” the estimated loss to

South Central Bell was between $50,000 and $150,000. When Vil

sold and programmed the devices for other students, it was

foreseeable that those other students would use the devices to

make phone calls without paying for them. Therefore, Vil may

properly be sentenced to make restitution for phone calls made by

other students in this scheme. See U.S.S.G. § 1B1.3(a)(1)(B).

In light of the foregoing, the district court did not

clearly err in sentencing Vil to make restitution to South

Central Bell in the amount of $50,000. The judgment of the

district court is AFFIRMED.