The HONORABLE RODNEY S. WEBB, Chief Judge of the United

1

States District Court for the District of North Dakota.

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No. 95-2225

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United States of America, *

 *

Appellee, *

 * Appeal from the United States

v. * District Court for the

 * District of North Dakota.

Clifford Scott Eaton, *

 * [UNPUBLISHED]

Appellant. *

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 Submitted: May 7, 1996

 Filed: May 21, 1996

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Before BEAM, LOKEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

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PER CURIAM.

Clifford Scott Eaton obtained a state identification card and a

duplicate social security card under the name of Bradley J. Tobias and used

both cards to open a bank account in Billings, Montana. He wrote numerous

bad checks against that account. When he passed two of those checks in

North Dakota, he was arrested, waived indictment, and pleaded guilty to one

count of falsely representing another person's social security number to

be his, in violation of 42 U.S.C. § 408(a)(7)(B). Eaton now appeals, his

counsel has filed a brief under Anders v. California, 386 U.S. 738 (1967),

and Eaton has filed a pro se supplemental brief raising additional issues.

We affirm.

Counsel first argues that the district court lacked jurisdiction to 1

accept Eaton's guilty plea because his crime was 
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committed in Montana. Because the indictment on its face properly alleged

jurisdiction and venue, this contention was waived by Eaton's guilty plea.

See United States v. Fitzhugh, 78 F.3d 1326, 1330 (8th Cir. 1996). 

Counsel next argues that the district court erred in failing to

depart downward under U.S.S.G. § 4A1.3, p.s. (adequacy of criminal history

category). The court refused to depart because Eaton's twenty-six criminal

history points were "off the chart." That exercise of discretion is

unreviewable . See United States v. Hall, 7 F.3d 1394, 1396 (8th Cir.

1993). 

Counsel argues for the first time on appeal that the district court

erred in imposing supervised release conditions requiring Eaton to abstain

from using alcohol and to obtain probation-office approval before opening

a line of credit or obtaining new credit-card charges. Given Eaton's prior

convictions for fraud, deceptive practice, obtaining property by worthless

checks, and possessing counterfeit and unauthorized access devices, and his

admission that chronic substance abuse has led to his criminal activity,

the challenged supervised release conditions were not error, much less

plain error. See United States v. Prendergast, 979 F.2d 1289, 1292-93 (8th

Cir. 1992) (standard of review; criteria for imposing supervised release

conditions). 

Eaton further argues that the two checks he passed in North Dakota

should not be included in the amount of loss attributable to his offense

for sentencing purposes because he was separately prosecuted and sentenced

for that conduct in state court. We conclude the district court did not

clearly err in counting this as relevant conduct, rather than as a past

sentence. See U.S.S.G. § 1B1.3(a)(2) & comment. (n.9); United States v.

Blumberg, 961 F.2d 787, 792 (8th Cir. 1992) (conduct that is part of

current offense is relevant conduct, not past sentence). Eaton is

responsible for the total value of the loss he attempted to inflict. See

United 
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States v. Smith, 62 F.3d 1073, 1079 (8th Cir. 1995), cert. denied, 116 S.

Ct. 826 (1996). We also reject his pro se double-counting and doublejeopardy arguments. See Witte v. United States, 115 S. Ct. 2199, 2207-08

(1995). 

Finally, Eaton argues pro se that the district court violated Fed.

R. Crim. P. 32 by failing to make written findings on Eaton's objections

to the presentence report (PSR). However, at sentencing the court

separately ruled on each objection or stated that it was immaterial to

sentencing. We instruct the court to append a copy of the sentencing

transcript and this opinion to the PSR. See Rule 32(c)(1); United States

v. Miller, 951 F.2d 164, 166 (8th Cir. 1991) (per curiam).

We have reviewed the record in accordance with Penson v. Ohio, 488

U.S. 75, 80 (1988), and conclude that no other nonfrivolous issues exist.

The judgment of the district court is affirmed.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.