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* [UNPUBLISHED]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 Franklin

Tauer prepared and filed Internal Revenue Service 1040-EZ forms that reported

fictitious wages and contained 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 years

1

supervised release, and he appeals. We affirm.
-2-

Tauer first argues that the district court erred in assessing a two-level increase

under U.S. Sentencing Guidelines Manual § 2F1.1(b)(2)(A) (1997) for more than

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 times 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 over period of time, unless it is clear

each instance was purely opportune); United States v. Sykes, 4 F.3d 697, 699 (8th Cir.

1993) (per curiam) (noting repetitive nature of criminal conduct by itself may warrant

adjustment; affirming enhancement as not clearly erroneous where defendant forged

name on and attempted to cash at least 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 prior state petty-theft conviction, because it is similar to the offense of

“[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 offenses

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 qualify 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 have been counted

because it was uncounseled, given the lack of any evidence that his waiver of counsel

was constitutionally unsound. See United States v. Strange, 102 F.3d 356, 362 (8th Cir.

1996) (defendant may challenge prior conviction in federal sentencing hearing where

defendant claims prior conviction was obtained following constitutionally unsound

waiver of counsel); United States v. Early, 77 F.3d 242, 245 (8th Cir. 1996)
-3-

(per curiam) (for sentencing purposes, after government has carried its initial burden of

proving fact of conviction, it is defendant&s burden to show prior conviction was not

constitutionally valid).

Finally, we reject Tauer&s argument that the district court engaged in doublecounting when it assessed two criminal history points for committing the instant offense

while he was incarcerated on another conviction, see U.S. Sentencing Guidelines Manual

§ 4A1.1(d) (1997), as well as an additional point under U.S. Sentencing Guidelines

Manual § 4A1.1(e) (1997) (requiring addition of two points when defendant commits

instant offense less than two years after release from imprisonment on sentence counted

under subsections (a) or (b) or while in imprisonment or escape status on such sentence;

but providing for only one point when two points already have been added under

§ 4A1.1(d)). See United States v. Frieberger, 28 F.3d 916, 920 (8th Cir. 1994)

(Guidelines take double-counting argument into account by providing for only one point

under § 4A1.1(e) when two points are added under subsection (d)), cert. denied, 513

U.S. 1097 (1995).

Accordingly, we affirm.

A true copy.

Attest:

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