The H onorable Michael James Davis, United States District Judge for th e 1 District of Minnesota. Specifically, Castleberry was sentenced to 54 months imprisonment on the mail 2 fraud charge, a concurrent 54-month sentence on the embezzlement charge, and a concurrent 12-month sentence on the failure-to-file charge. United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 97-2972

___________ United States of America, * * Appellee, * * Appeal from the United States v. * District Court for the * District of Minnesota. James Dale Castleberry, * * [UNPUBLISHED] Appellant. *

___________ Submitted: January 7, 1998 Filed: January 12, 1998

___________ Before McMILLIAN, BEAM, an d MORRIS SHEPPARD ARNOLD, Circuit Judges.

___________ PER CURIAM.
James D ale Castleberry challenges the 54-month sentence imposed by th e di strict court after he pleaded guilty to one count of mail fraud, in violation of 1 8

1 U.S.C. § 1341; one count of embezzlement, in violation of 18 U.S.C. § 666(a)(1)(A) an d (B); and one count of submitting a false tax return, in violation of 26 U.S.C

. § 7206(1). We affirm.

2-2-

At sent encing the district court departed upward from the 24-to-30 month Guide lines imprisonment range to 60 months, crediting Castleberry with six month s served on a state sentence. For reversal, Castleberry first challenges the extent of the departure. We reject his challenge. Castleberry, who was the chief deputy of th e Carver County Sheriff & s Department (sheriff & s department), stipulated in his ple a agreement that he falsely solicited charitable donations from individuals and businesses who b elieved they were contributing to the sheriff & s department; Castleberry als o diverted funds from donations based on the sheriff & s department & s participation in the Drug Ab use Resistance and Education program, and from fees--which Castleberr y overstated--for security provided by the sheriff & s department at a golf tournament. Over a period of years, Castleberry diverted over $340,000 in such funds.
The district court concluded departure was appropriate because Castleberry & s acti ons had caused a loss of confidence in the sheriff & s department, significantl y disrupted the functioning of the sheri ff & s department, and endangered public safety. In the circumstances of this case, we bel ieve the district court did not abuse its discretion in departing to the extent it did. See Koon v. United States , 116 S. Ct. 2035, 2047-48 (1996) (standard of review); cf. United States v. Hart , 70 F.3d 854, 861-62 (6th Cir. 1995) ( upward departure from 63 months to 10 years imprisonment was reasonabl e ba sed on Detroit chief of police & s level of responsibility and trust, and conversion o f $2.3 million in department funds, which interfered wit h department & s ability to prevent, investigate, and prosecute crimes), cert. denied , 116 S. Ct. 1368 (1996). Next, Castleberry argues the district court erred in applying an enhancemen t pursuant to U.S. Sentencing Guidelines Manual § 2F1.1(b)(3)(A) (1997) whic h provides that two levels are added to a defendant & s base offense level if the offens e involved “a m isrepresentation that the defendant was acting on behalf of a . .

. government agency.” Castleberry argues that this Guideline is ambiguous because it-3-

is unclear whether it applies to conduct such as Castleberry & s; specifically, Castleberry maintains his conduct may not be covered bec ause he did not misrepresent that he was acting on behalf of the sheriff & s department but, instead, where the money was going. We believe section 2F1.1(b)(3)(A) clearly applies as Castleberry informed potentia l donors he was c ollecting funds on behalf of the sheriff & s department when he actually was collecting funds on behalf of himself. See United States v. Lilly , 37 F.3d 1222 , 1224-25, 1227-28 (7t

h Cir. 1994) (finding § 2F1.1(b)(3)(A) enhancement appropriate when pastor told investors funds would be used to finance church improvements and to build retirement complex, but took sig nificant portion of proceeds for personal use), cert. denied , 513 U.S. 1175 (1995).
We likewise reject Castleberry & s final argument that the district court violate d Federal Rule of Criminal Procedure 32(c) (3)(B) which mandates that, before imposing sentence, the court must give defe nse counsel an opportunity to speak on behalf of the defendant. S ee Fed. R. Crim. P. 32(c)(3)(B). A review of the sentencing transcrip t unequivoc ally shows the district court heard argument from defense counsel as to the govern ment & s departure request and then inquired whether counsel had any furthe r comment before it imposed sentence at which time defense counsel spoke again. Accordingly, the judgment is affirmed.

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