The Honorable John B. Jones, United States District Judge for the District of 1 South Dakota. United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 97-2373

___________ United States of America, * * Appellee, * * Appeal from the United States
v. * District Court for the * District of South Dakota. Gregory Franklin Tauer, * * [UNPUBLISHED] Appellant. *

___________ Submitted: February 19, 1998 Filed: March 2, 1998

___________ Before FAGG, BEAM, and HANSEN, Circuit Judges.

___________ PER CURIAM. While he was an inmate at the South Dakota State Penitentiary, Gregory Fr anklin Tauer prepared and filed Internal Revenue Service 1040-EZ forms that reporte d fictitious wages and contai ned requests for an income-tax refund. Tauer later pleaded guilty to four counts of filing a false income tax return, in violation of 18 U.S.C. § 287. The district court sentenced Tauer to 24 months imprisonment and three year s 1 supervised release, and he appeals. We affirm.-2-

Tauer firs t argues that the district court erred in assessing a two-level increas e under U.S. Sentencing Guidelines Manual § 2F1.1(b)(2)(A) (1997) for more tha n minimal planning, because he did not engage in complicated pre-offense planning and the offenses were simplistic. Based upon the repetitive nature of Tauer’s conduct--he filed false tax returns at least four t imes over a four-month period in 1993--we conclude that the district court did not clearly err in applying the increase. See U.S. Sentencing Guidelines Manual § 1B1.1, comment. (n.1(f)) (1997) (more than minimal planning is deemed present in any case involving repeated acts ove r period of time, unless it is clear each instance was pur ely opportune); United States v. Sykes , 4 F.3d 697, 699 (8th Cir. 199 3) (per curiam) (noting repetitive nature of criminal conduct by itself may warran t ad justment; affirming enhancement as not clearly erroneous where defendant forge d name on and attempted to cash at lea st two checks, and was successful in cashing other stolen checks).
Next, Tauer contends that he should not have received one criminal history point for a pri or state petty-theft conviction, because it is similar to the offense o f “[i]nsufficient funds check,” which is included on an exclusionary list in U.S. Sentencing Guidelines Manual § 4A1.2(c)(1) (1997) (specified non-felony offenses and offense s similar to them are not counted for criminal history purposes unless resulting sentence
was at least one year probation or 30 days imprisonment, or unless non-felony offense was similar to instant offense) . We agree with the district court that Tauer’s petty-theft conviction does not qual ify for exclusion under section 4A1.2(c)(1). See United States v. Ziglin , 964 F.2 756, 758 (8th Cir. 1992).
We also reject Tauer’s argument that the conviction should not h ave been counted because it was uncounseled, given the lack of any evidence that his waiver of counsel was constitutionally unsound. See United States v. St range , 102 F.3d 356, 362 (8th Cir. 1996) ( defendant may challenge prior conviction in federal sentencing hearing wher e defendant claims prior conviction was obtained following constitutionally unsoun d waiver of counsel); United States v. Early , 77 F.3d 242, 245 (8th Cir. 1996)-3-

(per curiam) (for sent encing purposes, after government has carried its initial burden of proving fact of conviction, it is defendant & s burden to show prior conviction was no t constitutionally valid).
Finally, we reject Tauer & s argument that the district court engaged in double

counting when it assessed two criminal history points for committing the instant offense while he was incarcerated on another conviction, see U.S. Sentencing Guideli nes Manual § 4 A1.1(d) (1997), as well as an additional point under U.S. Sentencing Guideline s Manual § 4A1.1(e) (1997) (requiring addition of two points when defendant commit s instant offense less than two years after release from imprisonment on sentence counted under subsections (a) or (b) or while in imprison ment or escape status on such sentence; but providing for only one point when two points already have been added unde r § 4A1.1(d)). See United States v. Frieberger , 28 F.3d 916, 920 (8th Cir. 1994 ) (Guidelines take double-counting argument int o account by providing for only one point under § 4A1.1(e) when two points are added under subsection (d)), cert. denied , 51 3 U.S. 1097 (1995).
Accordingly, we affirm.
A true copy.

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