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this opinion should not be published and is not precedent except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

January 8, 2007

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-20145

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JEROME J. HARRIS,

Defendant-Appellant.

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

Appeals from the United States District Court

for the Southern District of Texas

USDC No. 4:05-CR-119-1

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

Before SMITH, WIENER, and OWEN, Circuit Judges.

PER CURIAM:*

Jerome J. Harris appeals the total 57-month sentence imposed

following his jury trial conviction on 21 counts of aiding in the

preparation of a false tax return. See 26 U.S.C. § 7206(2). 

Harris argues that the district court violated United States v.

Booker, 543 U.S. 220 (2005), by enhancing his sentence on the

basis of facts not charged in the indictment or proved beyond a

reasonable doubt. Harris was sentenced post-Booker. The

district court did not commit error under Booker by finding the

facts relevant to the determination of Harris’s advisory
No. 06-20145

-2-

guidelines range. See United States v. Johnson, 445 F.3d 793,

797-98 (5th Cir.), cert. denied, 126 S. Ct. 2884 (2006). 

Harris argues that the amount of the tax loss for purposes

of the Guidelines should have been proved beyond a reasonable

doubt or by clear and convincing evidence. We have stated, in

dicta, that a higher standard of proof than preponderance of the

evidence may be appropriate when relevant conduct increases a

defendant’s sentence so greatly that it becomes the “‘tail that

wags the dog of the substantive offense.’” United States v.

Harper, 448 F.3d 732, 734 n.1 (5th Cir.) (citations omitted),

cert. denied, 127 S. Ct. 285 (2006). The magnitude of the

sentencing enhancement here is not sufficient for us to consider

imposing a higher standard of proof. See United States v.

Carreon, 11 F.3d 1225, 1240 (5th Cir. 1994); United States v.

Mergerson, 4 F.3d 337, 343-45 (5th Cir. 1993). 

Harris argues that the district court erred in attributing

to him a tax loss of $1,298,176 in calculating the guidelines

range. See U.S.S.G. §§ 2T1.4(a)(1), 2T4.1. We review the

district court’s application of the Guidelines de novo and review

factual findings for clear error. See United States v. Villegas,

404 F.3d 355, 359 (5th Cir. 2005); United States v. Villanueva,

408 F.3d 193, 203 & n.9 (5th Cir.), cert. denied, 126 S. Ct. 268

(2005). Because Harris did not present evidence to rebut the

presentence report (PSR) and because the facts had an adequate

evidentiary basis, the district court was free to adopt the facts
No. 06-20145

-3-

in the PSR regarding the tax loss. See United States v.

Caldwell, 448 F.3d 287, 290 (5th Cir. 2006). 

Harris challenges the district court’s enhancement of his

base offense level for obstruction of justice. See

§ 3C1.1. He has not demonstrated clear error with respect to the

enhancement for obstruction of justice. See Villanueva, 408 F.3d

at 203 & n.9; United States v. Gonzalez, 163 F.3d 255, 262-63

(5th Cir. 1998). 

AFFIRMED.