United States v. Sternberg

* 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this opinion should not be published and is not precedent except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.
United States Court of Appeals
Fifth Circuit
F I L E D
July 13, 2007
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 06-41269
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FREDERICK STERNBERG,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-2280-1
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Before REAVLEY, BARKSDALE and STEWART, Circuit Judges.
PER CURIAM:*
Frederick Sternberg entered a guilty plea pursuant to a
written agreement to a superseding criminal information charging
him with misprision of a felony, in violation of 18 U.S.C. § 4.
The district court ordered him to serve one month in prison and
three months in home confinement as part of a one-year term of
supervised release and to pay a $250,000 fine.
Sternberg asserts that the district court reversibly erred
(1) by accepting his guilty plea in violation of FED. R. CRIM.
P. 11 because the factual basis for his plea did not establish

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his knowledge of a felony and that he took an affirmative step to
conceal a felony; (2) by using a tax loss total of approximately
$822,748 to calculate his base offense level; and (3) by imposing
a disparate term of confinement and fine as compared to that
imposed on his more culpable co-defendants.
Although Sternberg concedes that review of the first two
issues is for plain error only, he asserts that review of the
third issue is for an abuse of discretion. Sternberg, however,
did not raise in the district court the specific arguments that
he now raises concerning the disparity of his fine, and he did
not challenge in the district court, as disparate, his term of
confinement. Accordingly, our review is for plain error only.
See United States v. Valenzuela-Quevedo, 407 F.3d 728, 732 (5th
Cir. 2005); United States v. Villegas, 404 F.3d 355, 358 (5th
Cir. 2005). Plain error exists when there is an error that is
clear and obvious and that affects the defendant’s substantial
rights. Villegas, 404 F.3d at 358. If these criteria are met,
we may exercise discretion and notice a forfeited error but only
if the error “seriously affects the fairness, integrity, or
public reputation of judicial proceedings.” Id. at 358-59
(internal quotation marks and citation omitted).
A review of the record reveals no plain error in the
district court’s acceptance of Sternberg’s plea. See United
States v. Vonn, 535 U.S. 55, 58-59 (2002). The record as a whole
contains adequate factual support for all of the elements of the

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misprision offense. Sternberg has not shown that but for any
Rule 11 error concerning the factual basis for the plea, he would
not have entered a plea. See United States v. Dominguez Benitez,
542 U.S. 74, 83 (2004).
The amount of tax loss attributable to a defendant is a
finding of fact. United States v. McCord, 33 F.3d 1434, 1453
(5th Cir. 1994). Questions of fact capable of resolution by the
district court do not constitute plain error. United States v.
Chung, 261 F.3d 536, 539 (5th Cir. 2001); United States v. Lopez,
923 F.2d 47, 50 (5th Cir. 1991). Further, a review of the plea
agreement and Sternberg’s admissions during his plea colloquy
demonstrate that the error, if any, did not affect Sternberg’s
substantial rights. See Vonn, 535 U.S. at 58-59; Villegas, 404
F.3d at 358; U.S.S.G. §§ 2T3.1, 2T4.1, 2X4.1; Ch. 5 Pt. A,
Sentencing Table.
At sentencing, the district court explicitly recognized the
need, to the extent possible, to avoid disparities in sentencing.
Sternberg received a term of confinement at the bottom of the
advisory guidelines range. Section 3553(a), 18 U.S.C., requires
the district court to consider the need to promote respect for
the law, to afford adequate deterrence, and to protect the public
from further crimes by the defendant. The record demonstrates
that the district court considered these factors. Sternberg has
not shown error, much less plain error, concerning the disparity
in the term of confinement that the district court imposed on him

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as compared to his co-defendants. See Rodriguez, 15 F.3d at
414-15.
When determining the amount of a fine, the district court
should consider the burden that the fine places on the defendant
and his dependents. U.S.S.G. § 5E1.2(c)(3). The Sentencing
Commission envisions that most fines will be at least twice the
amount of loss resulting from the offense. § 5E1.2, comment.
(n.4). Sternberg has not shown that the fine imposed affected
his substantial rights. See Vonn, 535 U.S. at 58-59; Villegas,
404 F.3d at 358.
Accordingly, the judgment is AFFIRMED.

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