United States Court of Appeals Fifth Circuit F I L E D UNITED STATES COURT OF APPEALS FIFTH CIRCUIT November 10, 2005

Charles R. Fulbruge III Clerk No. 04-10575 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

BECKIE BALLARD, also known as Becky Ballard,

Defendant-Appellant.

Appeal from the United States District Court for the Northern District of Texas (4:03-CR-292-ALL)

Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.

PER CURIAM:*

The opinion filed in this case on 12 January 2005 was

withdrawn in the light of the Supreme Court’s decision that same

day in United States v. Booker,

(2005), discussed

infra. Subsequently, Beckie Ballard was permitted to proceed pro

se. Ballard appeals her sentence, imposed following her guilty

plea to effecting fraudulent transactions with access devices

issued to another, in violation of

(a)(5). Ballard

challenges the computation of her criminal history points, the

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. enhancement to her base offense level for obstructing justice, the

denial of an adjustment for acceptance of responsibility, and the

district court’s upward departure from the Guidelines’ range of

imprisonment.

Ballard objected in district court to the Presentence Report’s

(PSR) assignment of criminal history points for a 1991 conviction

for acquiring a controlled substance by fraud, and its proposed

enhancement of her base offense level for obstructing justice and

denial of an adjustment for acceptance of responsibility. She also

objected to the upward departure.

At sentencing, however, Ballard withdrew her objections except

to the obstruction of justice enhancement. Therefore, she has

waived review of the criminal history points assigned for her 1991

conviction, the denial of acceptance of responsibility, and the

upward departure. United States v. Olano,

(1993)); see United States v. Musquiz,

(5th Cir.

1995).

With regard to the obstruction of justice enhancement, we

review the district court’s factual findings for clear error.

United States v. Villanueva,

, 203 n.9 (5th Cir.),

cert. denied,

(U.S. 3 Oct. 2005) (No. 05-5580). “A

factual finding is not clearly erroneous as long as it is plausible

in light of the record as a whole.” United States v. Holmes,

(5th Cir.), cert. denied,

(U.S. 3

2 Oct. 2005) (No. 05-38) (quoting United States v. Powers,

(5th Cir.), cert. denied,

(1999)). A two-

level enhancement is warranted if a “defendant willfully obstructed

or impeded ... the administration of justice during the course of

the investigation, prosecution, or sentencing of the instant

offense of conviction”. U.S. SENTENCING GUIDELINES MANUAL § 3C1.1

(2003). This Guideline applies where, inter alia, a defendant has

provided “materially false information to a probation officer in

respect to a presentence or other investigation for the court”.

Id. § 3C1.1 cmt. n.4(h).

The PSR recommended a two-level increase because Ballard

provided materially false information to the probation officer on

three separate occasions: she failed to report a former employer

from whom she had forged checks that caused losses of $50,000; she

reported that she had left another employer to be closer to her

husband, but she left when confronted about writing herself extra

payroll checks totaling $500; and she denied a prior conviction for

acquiring a controlled substance by fraud. Ballard maintains that

both of the employment-related failures were misunderstandings,

immaterial to the proceedings; and she denies the omitted prior

conviction.

Ballard’s assertion that she did not intend to deceive the

probation officer is implausible. See Holmes,

.

This omitted information was damaging to Ballard because it

3 involved prior incidents of theft by fraud against other employers.

Further, the omitted information was “material” under the

Guidelines because it provided additional justification for the

district court’s decision to grant an upward departure. See U.S.

SENTENCING GUIDELINES MANUAL § 3C1.1. Therefore, the district court did

not commit clear error when it imposed a two-level enhancement for

obstruction of justice.

Ballard’s claim that the district court plainly erred by

assigning three criminal history points for a 1 September 1987

conviction for theft of livestock does not amount to the requisite

“clear” or “obvious” error. See Olano,

(requiring that this error “affect substantial rights” and leaving

the “decision to correct the forfeited error within the sound

discretion of the court of appeals”); United States v. Robinson,

(5th Cir. 1999); U.S. SENTENCING GUIDELINES MANUAL §

4A1.2 cmt. n.3. Ballard also fails to show the district court

plainly erred by assigning a criminal history point for her October

2002 conviction for theft over $20 because she fails to show it

affected her substantial rights. See Olano,

.

The district court’s comments at sentencing, expressing

concern with Ballard’s continuing disregard for the law and her

likelihood of committing future crimes, foreclose Ballard’s

contention that her sentence constitutes clear or obvious error

under Booker, which affects her substantial rights. See United

4 States v. Mares,

(5th Cir.), cert. denied,

(U.S. 3 Oct. 2005) (No. 04-9517). Because there is

no Booker error, we need not review Ballard’s assertion that, if

her sentence were to be vacated and remanded under Booker, the Ex

Post Facto clause would be violated; in any event, this contention

is foreclosed. See United States v. Scroggins,

(5th Cir. 2005) (rejecting the Ex Post Facto challenge of a

defendant who was resentenced post-Booker).

Because Ballard’s ineffective assistance of counsel (IAC)

claims rely on unsupported allegations, the record is not

sufficiently developed to permit direct review of these claims.

See United States v. Brewster,

(5th Cir. 1998).

Our not addressing these IAC claims is without prejudice to her

raising them in a

motion. See Massaro v. United

States,

(2003).

AFFIRMED

5