UNPUBLISHED

                      UNITED STATES COURT OF APPEALS
                          FOR THE FOURTH CIRCUIT


                               No. 04-4322



UNITED STATES OF AMERICA,

                                                Plaintiff - Appellee,

             versus


FERRELL BENJAMIN GIBBS,

                                               Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Greenville. G. Ross Anderson, Jr., District
Judge. (CR-03-609)


Submitted:    April 29, 2005                   Decided:   June 3, 2005


Before NIEMEYER, LUTTIG, and SHEDD, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.


David B. Betts, Columbia, South Carolina, for Appellant. J. Strom
Thurmond, Jr., United States Attorney, Kevin F. McDonald, Assistant
United States Attorney, Greenville, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

              Following    a   jury     trial,    Ferrell    Benjamin   Gibbs   was

convicted of “knowingly and fraudulently endeavoring to obtain a

sum in excess of $1,000 in the public stocks of the United States

and to have a part thereof transferred, assigned, and conveyed by

virtue   of    false,     forged,      and    counterfeited    instruments,”    in

violation of 18 U.S.C. § 1003 (2000) (Count One), and mail fraud,

in violation of 18 U.S.C.A.            § 1341 (West 2000 & Supp. 2004) (Count

Two).    The     district      court    sentenced    Gibbs    under   the   federal

sentencing guidelines to seventy-eight months in prison.                     Gibbs

timely appealed.



                                             I.

              Gibbs’ counsel asserts on appeal that the district court

erred by denying his motion to dismiss Count Two on the ground that

the evidence was not sufficient to show that Gibbs had designed a

scheme to defraud anyone.         We review the district court’s decision

to deny a motion for judgment of acquittal de novo.                         United

States v. Gallimore, 

, 136 (4th Cir. 2001).                  Where, as

here, the motion was based on insufficient evidence, “[t]he verdict

of a jury must be sustained if there is substantial evidence,

taking the view most favorable to the Government, to support it.”

Glasser v. United States, 

, 80 (1942).                       This court

“ha[s] defined ‘substantial evidence,’ in the context of a criminal


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action, as that evidence which ‘a reasonable finder of fact could

accept as adequate and sufficient to support a conclusion of a

defendant’s guilt beyond a reasonable doubt.’”               United States v.

Newsome,   

,   333   (4th    Cir.   2003)   (quoting   United

States v. Burgos, 

, 862-63 (4th Cir. 1996) (en banc)).

In evaluating the sufficiency of the evidence, this court does not

review the credibility of the witnesses and assumes that the jury

resolved all contradictions in the testimony in favor of the

government.      United States v. Romer, 

, 364 (4th Cir.

1998).   In addition, the court considers circumstantial and direct

evidence, and allows the government the benefit of all reasonable

inferences from the facts proven to those sought to be established.

United States v. Tresvant, 

, 1021 (4th Cir. 1982).

           The elements of mail fraud under 18 U.S.C. § 1341 are:

(1) the existence of a scheme to defraud; (2) the use of the mails

in furtherance of the scheme; and (3) a material statement or

omission in furtherance of the scheme. Neder v. United States, 

, 25 (1999); United States v. Godwin, 

, 666 (4th

Cir. 2001).       To establish the scheme to defraud element, the

government must prove beyond a reasonable doubt that the defendant

acted with specific intent to defraud.           United States v. Ham, 

, 1254 (4th Cir. 1993).               “Fraudulent intent may be

inferred from the totality of the circumstances and need not be




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proven by direct evidence.”        Id. at 1254; see also Godwin, 272 F.3d

at 666.

             Gibbs’ counsel argues that the evidence failed to show

that   he   had   intent   to    defraud.     However,    after    Gibbs   first

attempted in 2002 to use bills of exchange to purchase cars and

real estate, the Federal Bureau of Investigation (“FBI”) informed

him these bills were fictitious and that the United States Treasury

accounts he purportedly believed existed in fact did not.              The FBI

also provided Gibbs with a list of websites where he could verify

the information they gave him.         Despite this warning from the FBI,

in 2003 Gibbs again attempted to make a real estate purchase using

a fictitious bill of exchange.              We find that the evidence was

sufficient to support Gibbs’ conviction on Count Two.



                                      II.

             Citing Blakely v. Washington, 

 (2004),

Gibbs’ counsel asserts for the first time on appeal that his

sentence is unconstitutional because it is based on facts that were

neither charged in the indictment nor proven beyond a reasonable

doubt.      In United States v. Booker, 

 (2005), the

Supreme Court held that the mandatory manner in which the federal

sentencing     guidelines       required    courts   to   impose    sentencing

enhancements based on facts found by the court by a preponderance

of the evidence violated the Sixth Amendment.               Id. at 746, 750


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(Stevens, J., opinion of the Court).       The Court remedied the

constitutional violation by severing two statutory provisions, 18

U.S.C.A. § 3553(b)(1) (West Supp. 2004) (requiring sentencing

courts to impose a sentence within the applicable guideline range),

and 18 U.S.C.A. § 3742(e) (West 2000 & Supp. 2004) (setting forth

appellate standards of review for guideline issues), thereby making

the guidelines advisory.    United States v. Hughes, 

,

546 (4th Cir. 1995) (citing Booker, 125 S. Ct. at 756-67 (Breyer,

J., opinion of the Court)).     Although Gibbs did not raise this

challenge at sentencing, this court has held that an enhancement

imposed under the mandatory guidelines scheme resulting in a

sentence exceeding the maximum sentence that could have been

imposed based solely on the jury’s findings constitutes plain error

warranting correction.1    Hughes, 401 F.3d at 546-48.

          In light of Booker and Hughes, we find that the district

court plainly erred in sentencing Gibbs and that the error warrants

correction.   Therefore, although we affirm Gibbs’ convictions, we

vacate his sentence and remand for proceedings consistent with




     1
      Just as we noted in Hughes, 401 F.3d at 545 n.4, “[w]e of
course offer no criticism of the district judge, who followed the
law and procedure in effect at the time” of Gibbs’ sentencing. See
generally Johnson v. United States, 

, 468 (1997)
(stating that an error is “plain” if the “law at the time of trial
was settled and clearly contrary to the law at the time of
appeal”).

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Hughes.2      We deny as moot Gibbs’ motion to remand and dispense with

oral       argument   because   the   facts    and   legal   contentions   are

adequately presented in the materials before the court and argument

would not aid the decisional process.

                                                          AFFIRMED IN PART,
                                              VACATED IN PART, AND REMANDED




       2
      In addition to the brief submitted by counsel, Gibbs filed a
motion to submit a pro se supplemental brief. We grant the motion.
Having reviewed the pro se supplemental brief, we find that all of
Gibbs’ challenges to his conviction are meritless. Because Gibbs’
sentence must be vacated and remanded in light of Booker and
Hughes, we express no opinion on the sentencing issue Gibbs raises
in his pro se supplemental brief.

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