* 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this opinion should not be published and is not precedent except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

FILED

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.

--------------------

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 5:04-CR-2280-1

--------------------

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
No. 06-41269

-2-

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
No. 06-41269

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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
No. 06-41269

-4-

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.