PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 95-5765

HENRY ACHIEKWELU,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

T. S. Ellis, III, District Judge.

(CR-94-376-A)

Argued: March 7, 1997

Decided: May 1, 1997

Before MURNAGHAN and LUTTIG, Circuit Judges, and

BLACK, Senior United States District Judge

for the District of Maryland, sitting by designation.

_________________________________________________________________

Affirmed by published opinion. Judge Murnaghan wrote the opinion,

in which Judge Luttig and Senior Judge Black joined.

_________________________________________________________________

COUNSEL

ARGUED: Amy Adelson, DERSHOWITZ & EIGER, P.C., New

York, New York, for Appellant. Nicole Miller Healy, Fraud Section,

Criminal Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON BRIEF: Nathan Z. Dershowitz, DERSHOWITZ & EIGER, P.C., New York, New York, for
Appellant. Patrick M. Donley, Fraud Section, Criminal Division,

UNITED STATES DEPARTMENT OF JUSTICE, Washington,

D.C., for Appellee.

_________________________________________________________________

OPINION

MURNAGHAN, Circuit Judge:

This case is interesting and somewhat unusual, involving, as it

does, the activities of someone who tried to defraud and was himself

successfully defrauded by someone else. The criminal proceedings

were only directed at the one whose plan produced, from his point of

view, favorable results.

A federal jury convicted Defendant-Appellant Henry Achiekwelu

on nine counts of wire fraud, in violation of 18 U.S.C.A. §§ 2, 1343

(West 1969 & Supp. 1996). Achiekwelu contends that the district

court erroneously excluded one of his exhibits because the government failed to object to its admission in a timely manner. Achiekwelu

also contends that the district court committed several sentencing

errors. For the reasons stated below, we affirm.

I.

In September 1992, Dr. Jai Gupta received a letter in Virginia on

behalf of his company, EER Systems, Inc. ("EER"), from a Nigerian

man who claimed to be Chief Johnny Okolie. Okolie claimed that he

had received Gupta's name from the Chamber of Commerce in

Lagos, Nigeria, and the letter attempted to solicit Gupta's participation in a business opportunity. Okolie claimed that he represented a

Nigerian company, Macbos Holdings ("Macbos"), that had installed

lighting at Maiduguri Airport in Nigeria for the Nigerian Ministry of

Civil Aviation (the "Aviation Ministry") in 1982. Okolie stated that

the Nigerian government had not paid the $28.5 million that it owed

on the lighting contract because it claimed that Macbos had overbilled

the Aviation Ministry. According to Okolie, the Nigerian government

had then changed its position and had agreed to pay $18.5 million

now and the remaining $10 million later. Okolie stated that he wanted

 2
to deposit the $28.5 million in a bank account outside Nigeria and that

he was looking for a "trustworthy" person with whom to deposit the

money. Thus, Okolie stated that Macbos wanted to deposit the money

in EER's bank account and that Macbos would pay Gupta a fifteen

percent commission on the $28.5 million, i.e. , $4,275,000.

Gupta and Okolie communicated by phone and by fax throughout

September and October 1992. At Okolie's request, Gupta attempted

to defraud the Nigerian government by sending Okolie an EER

invoice that falsely represented that EER had performed lighting work

for the Nigerian Aviation Ministry. EER had in fact done no such

work. Also at Okolie's request, Gupta travelled to Lagos, Nigeria on

October 18, 1992 to finalize the arrangements for the deposit of the

money into EER's account. In Lagos, Okolie introduced Gupta to

Fred Kachi, who stated that he was a deputy governor of the Central

Bank of Nigeria (the "Central Bank"), and Achiekwelu, who stated

that he was a consultant to a government agency, the Nigerian Ministry of Finance (the "Finance Ministry"). At that meeting, the three

Nigerians and Gupta discussed the proposed $28.5 million transfer to

EER.

The next day, Gupta met with Kachi and Okolie. Kachi showed

Gupta a document that purported to be from the Central Bank. The

document stated that the Nigerian government had authorized the

Central Bank to pay $28.5 million to EER. Okolie and Kachi told

Gupta, however, that EER had to pay a $712,500 "advance income

tax" on the $28.5 million to the Nigerian government before the Central Bank would transfer the money. At that point, the fraud against

Gupta began. Okolie and Achiekwelu later took Gupta to an office

building that they claimed was an office of the Central Bank. A man

who claimed to be a Central Bank official told Gupta that he had to

pay the advance tax. Gupta thereafter transferred $712,500 to a Lagos

bank for the tax payment.

After his return to Virginia, Gupta received numerous telephone

calls from Achiekwelu and Kachi. During one of those conversations,

Kachi and Achiekwelu told Gupta that they had paid the Nigerian

taxes with the money that Gupta had transferred. On October 27,

1992, Gupta received a fax, purportedly from the Central Bank, that

confirmed that the taxes had been paid to the Nigerian government.

 3
The fax stated that the Central Bank would transfer the full $28.5 million to EER's bank account as soon as the Bank received a "certificate

of completion." That same day, Achiekwelu and Kachi called Gupta

and told him that he would have to pay $1.1 million to certain unidentified subcontractors in order to obtain the "certificate of completion."

On November 2, 1992, Gupta transferred $1.1 million to a London

bank.

In November 1992, Achiekwelu and Kachi told Gupta that he had

to send $500,000 to Kachi's supervisor, the purported governor of the

Central Bank, in order to obtain a "release order" that would authorize

the transfer of the $28.5 million to EER. Gupta sent the $500,000 on

November 13, 1992. That same day, Gupta received a purported

receipt from the Nigerian government for the income tax payment and

a purported letter from the Central Bank that indicated that Gupta had

complied with all of the necessary conditions for the transfer of the

$28.5 million.

By December 1992, Achiekwelu and Kachi began to tell Gupta that

he would not receive the $28.5 million, or any of the money that he

had already sent, if he did not send the additional money that they

requested. In December 1992, Gupta made two transfers of $206,000

each to Achiekwelu's accounts in Lagos. He also transferred

$500,000 to Achiekwelu's bank account in London after he received

another letter from the Central Bank that promised to transfer the

$28.5 million in return for the payment. In January 1993, following

additional promises and reassurances from Achiekwelu and from a

man who claimed to be an officer of a London bank, Gupta sent an

additional $500,000 to an account in London. He sent an additional

$450,000 later that month to an account in California pursuant to a

fax signed by Achiekwelu and Kachi. Altogether, Gupta transferred

almost $4.2 million to accounts designated or controlled by Achiekwelu and his associates in Nigeria, England, and California. Neither

Gupta nor EER Systems ever received any of the $28.5 million. Thus,

instead of receiving the $4,275,000 commission that Okolie had originally promised, Gupta paid out almost $4.2 million.

On September 14, 1994, a grand jury in the Eastern District of Virginia indicted Achiekwelu, Okolie, and Kachi on nine counts of wire

fraud, in violation of 18 U.S.C.A. §§ 2, 1343 (West 1969 & Supp.

 4
1996). Achiekwelu was arrested in Switzerland shortly thereafter, and

the United States government commenced extradition proceedings.

On February 21, 1995, Achiekwelu waived extradition, and he then

travelled to Virginia for trial.1

A jury trial began on April 24, 1995. At the trial, the government

presented the testimony of Richard Hart, a California businessman,

pursuant to Federal Rule of Evidence 404(b).2 Hart testified that in

1994, Achiekwelu and others defrauded him and his company, Xenotech, Inc., of over $400,000 through promises and representations

similar to those made to Gupta.

During the trial, Achiekwelu claimed that he only received

$600,000 of the $4.2 million fraud proceeds. He argued that he

merely acted as a conduit, that he received the money as a fee for distributing Gupta's money, and that he did not knowingly participate in

the fraud. In support of that theory, Achiekwelu presented the testimony of a retired Federal Bureau of Investigation ("FBI") handwriting expert. The FBI expert testified that he had examined two sets of

exemplars: the faxed documents that Gupta had received and a set of

genuine documents that Achiekwelu provided. He further testified

that, in his opinion, the same person probably had not signed the two

sets of documents.

Achiekwelu also introduced Defense Exhibit 3 ("DX3"). DX3 displayed a contract between Achiekwelu, Kachi, and Okolie. The DX3

contract confirmed that Achiekwelu had received $2,012,000 in his

bank accounts from Gupta, and it provided that Achiekwelu would

receive a five percent fee for the use of his bank accounts. The district

_________________________________________________________________

1 Okolie and Kachi have not been apprehended.

2 Federal Rule of Evidence 404(b) provides in pertinent part:

 Evidence of other crimes, wrongs, or acts is not admissible to

prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation,

plan, knowledge, identity, or absence of mistake or accident

. . . .

Fed. R. Evid. 404(b).

 5
court conditionally admitted DX3, along with all of the other exhibits

submitted by both parties, at the beginning of the trial. Achiekwelu's

attorney referred to DX3 throughout the trial to support his contention

that Achiekwelu did not actively participate in the fraudulent scheme.

After the closing arguments, the government objected to the admission of DX3 for the first time on the ground that the exhibit lacked

foundation. The trial court sustained the government's objection and

excluded DX3. On April 25, 1995, the jury convicted Achiekwelu on

all nine counts of the indictment.

The government's Presentence Investigation Report ("PSR") calculated Achiekwelu's offense level pursuant to United States Sentencing

Guidelines Manual ("U.S.S.G.") § 2F1.1 (1994), the guideline that

covers fraud and deceit. Section 2F1.1 provides for a base offense

level of 6. The PSR added 13 levels for a loss of more than

$2,500,000 and 2 additional levels for "more than minimal planning."

See U.S.S.G. § 2F1.1(b)(1)(N), (b)(2)(A). The PSR thus calculated an

offense level of 21, a criminal history category of I, and a corresponding sentencing range of 37-46 months. However, at the sentencing

hearing on August 11, 1995, the district court sua sponte directed the

government to prepare a brief addressing whether an upward departure was warranted.

After the government responded, the district court held a second

sentencing hearing on August 28, 1995. The district court issued its

final sentencing memorandum on October 26, 1995. The district court

ultimately granted the government's motion for a two-level enhancement pursuant to U.S.S.G. § 2F1.1(b)(3)(A) on the ground that

Achiekwelu misrepresented that he was acting on behalf of a government agency. Alternatively, the district court imposed a two-level

upward departure pursuant to U.S.S.G. § 5K2.0 on the basis of the

exceptional complexity of the fraudulent scheme. Thus, the district

court calculated Achiekwelu's offense level at 23, either because he

misrepresented that he was acting as a government agent or because

of the complexity of the fraud.

The district court also departed upward to criminal history category

II pursuant to U.S.S.G. § 4A1.3(e) on the basis of Achiekwelu's similar unconvicted conduct in the fraud perpetrated on Hart. Therefore,

based on an offense level of 23 and a criminal history category of II,

 6
the district court concluded that the applicable sentencing range was

51 to 63 months imprisonment. The court ultimately sentenced

Achiekwelu to a 51 month term of imprisonment.

The district court also noted that the sentence was independently

supportable on the basis of either of the two grounds for an upward

departure. Specifically, the district court noted that if it had departed

only on the complexity of Achiekwelu's fraud, the court would have

calculated Achiekwelu's offense level at 23 and his criminal history

category at I, resulting in a sentencing range of 46 to 57 months. The

district court further stated that if it had departed only on the complexity of Achiekwelu's fraud, it still "would impose a sentence on

defendant of 51 months of incarceration."

II.

Achiekwelu has first contended that the district court erred when

it excluded DX3 after closing arguments because the government had

failed to object to its admission in a timely manner. We give "substantial deference" to a district court's decision to exclude evidence, and

we will not reverse the district court's decision"absent a clear abuse

of discretion." United States v. Moore, 27 F.3d 969, 974 (4th Cir.

1994). Furthermore, we will find that a district court abused its discretion regarding evidentiary rulings only if the district court "acted

`arbitrarily or irrationally.'" Id. (quoting United States v. Ham, 998

F.2d 1247, 1252 (4th Cir. 1993)).

Before the trial began in the instant case, Achiekwelu's attorney

filed an exhibit list and copies of its exhibits with the district court,

and he also provided copies to the government. The district court conditionally admitted DX3, along with all of the other exhibits submitted by both parties, at the beginning of the trial. In his opening

argument, Achiekwelu's attorney repeatedly referred to DX3. Before

the defense began its case, the government objected to one of Achiekwelu's exhibits, but it did not object to DX3. In accordance with a

procedure that both parties had agreed to, Achiekwelu's attorney

passed copies of all of its exhibits to the jury at the start of its case.

The government still did not object to DX3.

During his closing arguments, Achiekwelu's attorney relied extensively on DX3 and mentioned it four times. Each time, he referred to

 7
DX3 to support his contention that Achiekwelu was merely a conduit

to distribute the illegal proceeds to the other conspirators and that

Achiekwelu did not actively participate in the fraudulent scheme.

After the closing arguments, the government for the first time

objected to the admission of DX3 on the ground that it had not been

authenticated and lacked foundation. The government explained that

it had not previously objected because it thought that Achiekwelu

would testify and authenticate DX3. The government did not, however, explain why it did not object before closing arguments, after the

defense rested, when it knew that Achiekwelu would not testify.

Nonetheless, the district court excluded DX3 over Achiekwelu's

objection.

Achiekwelu essentially concedes that he failed to authenticate

DX3. However, his contention is that, regardless of whether the district court properly admitted the exhibit, it had no discretion to

exclude DX3 after closing arguments because the government had

failed to object to its admission in a timely manner. Achiekwelu

argues that, at the latest, the government should have objected when

the defense rested and the government knew that Achiekwelu would

not testify and authenticate the exhibit. Since the government failed

to object at that time, Achiekwelu argues that the government

"waived" its objection.

However, the cases and rules that Achiekwelu cites in support of

his position are inapposite. He first points to Federal Rule of Criminal

Procedure 51, which requires a party to "make[ ] known to the court

the action which that party desires the court to take or that party's

objection to the action of the court and the grounds therefor" "at the

time the ruling or order of the court is made or sought." Fed. R. Crim.

P. 51. He also points to Federal Rule of Evidence 103, which similarly provides that a party must make "a timely objection or motion

to strike." Fed. R. Evid. 103(a)(1).

The cases that Achiekwelu cites all construe Rule 103 and hold that

an appellate court will not review a district court's admission or

exclusion of evidence if the appellant failed to object below in a

timely manner. See United States v. Ruffin, 40 F.3d 1296, 1298-99

(D.C. Cir. 1994), cert. denied, 115 S.Ct. 1716 (1995) (holding that the

defendant waived his objection on appeal because he failed to renew

 8
his objection to testimony that the district court conditionally admitted); United States v. Benavente Gomez, 921 F.2d 378, 385-86 (1st

Cir. 1990) (holding that the defendant waived his objection on appeal

to the admission of hearsay evidence because he did not assert his

objection below until both sides had rested); United States v.

Dougherty, 895 F.2d 399, 403-04 (7th Cir. 1990) (holding that the

defendant waived his objection on appeal to evidence that the district

court conditionally admitted because he did not renew his objection

at the close of the evidence); United States v. Gibbs, 739 F.2d 838,

847-50 (3d Cir. 1984) (en banc) (refusing to review the defendant's

claim that the district court improperly admitted evidence because the

defendant did not raise his objection below until after the government

had rested). Thus, the rules and cases that Achiekwelu cites provide

that a party must object timely in order to preserve the issue for

appellate review.

Achiekwelu does not, however, contend, as those cases suggest,

that the Fourth Circuit lacks the power to review the district court's

original admission of DX3 because the government failed to object

below in a timely fashion. Rather, he contends that the district court

lacked any power to exclude the evidence, having admitted it, because

the government failed to object to its admission in a timely fashion.

The rules and cases that he has cited simply do not address that issue.

They only address the power of an appellate court to review the

admission or exclusion of evidence; they do not address the power of

a district court to exclude evidence in the first instance after a late

objection. Achiekwelu fails to cite any cases that address the issue at

hand.

Doubtless the government would have been well advised to have

objected earlier, at the close of the defendant's case. If the district

court had excluded the evidence earlier, then Achiekwelu's attorney

could not have relied so heavily on DX3 in his closing arguments. As

Achiekwelu argues, the district court's exclusion after closing arguments might have "left a hole" in his case. Nonetheless, as noted

above, we must afford "substantial deference" to the district court's

decision to exclude evidence. Moore, 27 F.3d at 974. Even when a

district court admits evidence without objection, the district court has

the discretion to grant a subsequent motion made after the close of the

evidence to exclude the evidence. See Belmont Indus., Inc. v. Bethle-

 9
hem Steel Corp., 512 F.2d 434, 437 (3d Cir. 1975). Although the district court did not follow the best procedural route in the instant case,

its action was not arbitrary or irrational. It, in the end, properly

excluded evidence that had not been authenticated and that the jury

therefore should not have seen. We therefore affirm Achiekwelu's

conviction.

III.

Achiekwelu next contended that the district court erred when it

granted the government's motion for a two-level enhancement pursuant to U.S.S.G. § 2F1.1(b)(3)(A) on the ground that Achiekwelu misrepresented that he was acting on behalf of a government agency.

Section 2F1.1(b)(3)(A) provides for a two-level increase "[i]f the

offense involved . . . a misrepresentation that the defendant was acting

on behalf of a charitable, educational, religious or political organization, or a government agency." U.S.S.G.§ 2F1.1(b)(3)(A) (emphasis

added). Achiekwelu's contention is that the sentencing provision does

not apply to those who represent that they act on behalf of a foreign

government; he attempts to restrict the language to domestic governments only. However, Achiekwelu's conduct falls within the plain

language of the provision.

Few courts have interpreted the sentencing provision at issue. The

courts that have interpreted it have applied it to defendants who misrepresented that they acted on behalf of a domestic federal or state

government agency. See, e.g., United States v. Echevarria, 33 F.3d

175, 179-80 (2d Cir. 1994) (holding that the district court correctly

applied the enhancement where the defendant misrepresented that he

was a "state doctor" able to approve applications for disability benefits); United States v. Hall, 996 F.2d 284, 286-87 (11th Cir. 1993)

(holding that the district court properly applied the enhancement

where the defendants in a telemarketing fraud scheme falsely represented that the victims had to pay taxes on a prize and thus implied

that they acted on behalf of the IRS); United States v. Bakhtiari, 913

F.2d 1053, 1063 (2d Cir. 1990) (holding that the district court properly applied the enhancement where the defendant claimed to be a

State Department official in order to facilitate the purchase of an

apartment). No court has considered whether the provision also

 10
applies to those who misrepresent that they act on behalf of a foreign

government.

We must follow the clear, unambiguous language of a particular

guideline unless there is a manifestation of contrary intent. See United

States v. Frazier, 53 F.3d 1105, 1111-12 (10th Cir. 1995). Achiekwelu's misrepresentation falls within the plain, unambiguous language of section 2F1.1(b)(3)(A). Gupta testified that Achiekwelu

falsely represented that he worked for the Nigerian Finance Ministry.

Thus, the offense "involved a misrepresentation that the defendant

was acting on behalf of . . . a government agency." U.S.S.G.

§ 2F1.1(b)(3)(A). The Nigerian Finance Ministry is "a government

agency." "Government" standing alone extends to all government

agencies, domestic and foreign. The provision's language does not

limit its application to domestic government agencies. The commentary in the guidelines does not address the issue and thus does not

manifest a contrary intent. Therefore, we hold that section

2F1.1(b)(3)(A) applies to those who falsely represent that they act on

behalf of either domestic or foreign government agencies. Accordingly, we hold that the district court did not err in enhancing Achiekwelu's offense level to 23 pursuant to section 2F1.1(b)(3)(A).

IV.

As an alternative to the two-level enhancement pursuant to

U.S.S.G. § 2F1.1(b)(3)(A), the district court imposed a two-level

upward departure pursuant to U.S.S.G. § 5K2.0 on the basis of the

exceptional complexity of the fraudulent scheme. Since the district

court issued its opinion, the appropriate departure analysis has been

clarified. In Koon v. United States, 116 S.Ct. 2035, 2046-48 (1996),

the Supreme Court held that an appellate court may review a district

court's ultimate decision to depart from the Sentencing Guidelines in

an "atypical" case only for abuse of discretion. In United States v.

Rybicki, 96 F.3d 754 (4th Cir. 1996), and United States v. Hairston,

96 F.3d 102 (4th Cir. 1996), cert. denied, 117 S.Ct. 956 (1997), the

Fourth Circuit subsequently has clarified the analysis that a district

court must follow in deciding whether to depart and the appropriate

standards of review of departure decisions.

In Rybicki, 96 F.3d at 757, we first noted that each guideline provision anticipates a broad range of typical cases--a"heartland"--that

 11
represents the circumstances and consequences of ordinary crimes to

which the guideline provision applies. We held that district courts

"must ordinarily impose sentences within the range specified by the

applicable guideline." Id. A district court may only exercise its discretion to depart from the specified sentencing range if it determines that

the circumstances and consequences of the particular case are "atypical" or "unusual" and therefore concludes that the case does not fall

within the guideline's heartland. Id. In examining whether a case

involves "atypical" or "unusual" circumstances or consequences capable of taking a case out of the applicable guideline's heartland, the

district court must consider the Sentencing Guidelines themselves, the

policy statements, and the official commentary. Id.

In deciding whether to depart, the district court must follow the

analysis that we set out in Rybicki and Hairston. First, the district

court must determine the circumstances and consequences of the

offense. See Rybicki, 96 F.3d at 757. We review the district court's

resulting factual determinations only for clear error. Id. The district

court then must decide whether any of the circumstances or consequences of the offense appear "atypical" enough potentially to take

the case out of the applicable guideline's heartland. Id. We do not

review the district court's identification of the potential factors. Id.

Once the district court identifies the factors that potentially may

remove a case from the applicable guideline's heartland, the court

must classify each factor as a factor that the Sentencing Guidelines:

1) "forbid" as a basis for departure; 2) "encourage" as a basis for

departure; 3) "discourage" as a basis for departure; or 4) do not mention as a basis for departure. See Rybicki, 96 F.3d at 757. We review

the district court's classification de novo in the context of our ultimate

review for abuse of discretion. Id.

A factor that the district court classifies as "forbidden" may never

provide a basis for departure. See Rybicki, 96 F.3d at 757. The district

court must conduct further analysis of factors that it classifies as "encouraged," "discouraged," or "unmentioned." Id. If the identified factor is an encouraged factor for departure, the district court can depart

on that basis if the applicable guideline does not already take that factor into account. See Hairston, 96 F.3d at 105; Rybicki, 96 F.3d at

757-58. We review the district court's determination of whether the

 12
guideline adequately takes the factor into account de novo to determine whether the district court abused its discretion. See Rybicki, 96

F.3d at 758.

If the identified factor is a discouraged factor or an encouraged factor that the applicable guideline already takes into account, the district

court can depart on that basis "`only if the factor is present to an

exceptional degree or in some other way makes the case different

from the ordinary case where the factor is present.'" Hairston, 96

F.3d at 106 (quoting Koon, 116 S.Ct. at 2045). When the determination as to whether a factor is present to an exceptional degree merely

amounts to an evaluation of a showing's adequacy, we review the district court's determination de novo to determine whether the district

court abused its discretion. See Rybicki, 96 F.3d at 758.

If the Sentencing Guidelines do not mention the identified factor

at all, the district court may depart on that basis only if the "`structure

and theory of both relevant individual guidelines and the Guidelines

taken as a whole'" indicate that the case falls out of the applicable

guideline's heartland. Rybicki, 96 F.3d at 758 (quoting Koon, 116

S.Ct. at 2045). However, "the Sentencing Commission expects departures based on `unmentioned' factors to be `highly infrequent.'" Id.

(quoting Koon, 116 S.Ct. at 2045). We review the district court's

interpretation of whether the Sentencing Guidelines' structure and

theory allow for a departure de novo to determine whether the district

court abused its discretion. Id.

Finally, the district court must consider whether the appropriately

classified factors take the case out of the applicable guideline's heartland and whether it should therefore depart from the guideline's specified sentencing range. We review this ultimate departure decision for

abuse of discretion. See Rybicki, 96 F.3d at 758. However, if the district court based its departure decision on a factual determination, we

review that underlying determination only for clear error. Id. If the

district court based its departure decision on a misinterpretation of the

Sentencing Guidelines, we review the underlying ruling de novo. Id.

In the instant case, the district court based its two-level upward

departure on the "exceptional complexity" of the fraudulent scheme.

The court noted:

 13
 The exceptional complexity of defendant's scheme to

defraud Gupta is evident. Defendant and his cohorts lured

their victim to Nigeria, introduced him to several others purporting to be government officials and took him to an office

building that they claimed to be the Central Bank of Nigeria.

They prepared false documents that appeared to be official

Nigerian government certificates and arranged for all money

to be sent to foreign countries where it would be more difficult for American law enforcement officials to locate.

 . . . [T]he intricate stratagems devised by defendant and

others in this case take it outside the realm of typical wire

fraud schemes.

Since the Koon, Rybicki, and Hairston opinions were not available

when the district court made its determination, the court did not consider whether the Sentencing Commission forbade, encouraged, discouraged, or failed to mention departure based on the complexity of

a defendant's fraud. Thus, we must consider that question in the first

instance. See Hairston, 96 F.3d at 107 (considering classification

question in the first instance because the district court "did not have

the benefit of the Koon decision when making[its] determination").

The Sentencing Guidelines do not expressly list the complexity of

a defendant's crime as a proscribed factor. Thus, the Commission did

not forbid departure on that basis. Nor did the Commission expressly

include complexity in the Sentencing Guidelines' lists of encouraged

or discouraged factors. Instead, the Guidelines list the complexity of

a defendant's fraud as a factor that supports an enhancement within

the applicable fraud guideline. See U.S.S.G.§ 2F1.1(b)(2)(A) (providing a two-level enhancement for "more than minimal planning").3

_________________________________________________________________

3 The background commentary to section 2F1.1 reveals that the Commission intended the "more than minimal planning" enhancement to

apply to complex cases. The commentary provides:

 Empirical analyses of pre-guidelines practice showed that the

most important factors that determined sentence length were the

amount of loss and whether the offense was an isolated crime of

opportunity or was sophisticated or repeated. Accordingly,

 14
In Hairston, 96 F.3d at 107, we held that when the Commission

designates a factor as a basis for reduction, or in this case, as a basis

for enhancement, the designation implies that the Commission discouraged the factor as a basis for departure, or alternatively, that the

Commission encouraged the factor as a basis for reduction or increase

but already took it into account. We further held that, "[i]n either case,

ordinarily a court should not depart based on such a factor." Id.

Thus, the complexity of a defendant's fraud can provide a basis for

a departure only if it is "present to such an exceptional degree that it

cannot be characterized as typical or `usual.'" Hairston, 96 F.3d at

108. We therefore caution that the complexity of a defendant's fraud

will rarely warrant an upward departure. However, the record reveals

that the fraudulent conduct in this case was very extensive and

involved extraordinary planning. Thus, since the factor is present to

an exceptional degree, we hold that it may form a basis for an upward

departure in extraordinary cases such as this one. See United States

v. Alpert, 28 F.2d 1104, 1108-09 (11th Cir. 1994) (reversing a district

court's upward departure based on the complexity of the defendant's

fraud because the fraud was not atypical, but noting that a departure

may be warranted in cases where the fraudulent conduct is more

extensive); United States v. Davidson, 984 F.2d 651, 655 (5th Cir.

1993) (affirming the district court's upward departure based on the

"extraordinary planning and meticulous execution involved" in the

defendant's fraudulent scheme); United States v. Palinkas, 938 F.2d

456, 462-63 (4th Cir. 1991) (affirming the district court's upward

_________________________________________________________________

although they are imperfect, these are the primary factors upon

which the guideline has been based.

 The extent to which an offense is planned or sophisticated is

important in assessing its potential harmfulness and the dangerousness of the offender, independent of the actual harm. A complex scheme or repeated incidents of fraud are indicative of an

intention and potential to do considerable harm. In preguidelines practice, this factor had a significant impact, especially in frauds involving small losses. Accordingly, the guideline specifies a 2-level enhancement when this factor is present.

U.S.S.G. § 2F1.1, background (emphasis added).

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departure based on the "sophistication" of the defendant's fraudulent

scheme).

We next must review the district court's ultimate decision to depart

on the ground that the complexity of Achiekwelu's fraud removed his

case from the "heartland" of typical fraud cases involving "more than

minimal planning." Since the district court based its ultimate departure decision in the instant case on factual determinations, we defer

to the district court's "`assessment of the many facts bearing on the

outcome, informed by its vantage point and day-to-day experience in

criminal sentencing' and the comparison of the case with other Guidelines cases." Rybicki, 96 F.3d at 758 (quoting Koon, 116 S.Ct. at

2046-47). Moreover, we agree with the district court that the intricacy

and sophistication of Achiekwelu's scheme were substantially in

excess of the typical fraud case that involves "more than minimal

planning." We therefore hold that the district court did not abuse its

discretion in departing on the basis of the complexity of Achiekwelu's

fraudulent scheme. Thus, either because of the two-level enhancement

pursuant to section 2F1.1(b)(3)(A) discussed above in Part III, or

because of the two-level upward departure discussed here, the district

court did not err in calculating Achiekwelu's offense level at 23.

V.

We do not consider Achiekwelu's final contention that the district

court erred when it departed upward to criminal history category II,

pursuant to U.S.S.G. § 4A1.3(e), on the basis of Achiekwelu's similar

unconvicted conduct in the fraud perpetrated on Hart. Even if we

found that the district court did err in departing pursuant to section

4A1.3(e), we would still affirm Achiekwelu's sentence. As noted

above, the district court stated that its decision was independently

supportable on the basis of either of the two grounds for an upward

departure. If the district court had departed only on the complexity of

Achiekwelu's fraud, Achiekwelu's offense level would have been 23

and his criminal history category would have been I, resulting in a

sentencing range of 46 to 57 months. The district court expressly

stated that in such a case, it still "would impose a sentence on defendant of 51 months of incarceration."

The Supreme Court has held that when an appellate court concludes that a district court departed on both valid and invalid factors,

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the reviewing court must remand unless it determines that the sentence imposed was reasonable and that the district court would have

imposed the same sentence absent reliance on the invalid factor. See

Williams v. United States, 503 U.S. 193, 203 (1992). Since we conclude that 51 months is a reasonable sentence, and the district court

clearly stated that it would have imposed the same 51 month sentence

even if it had relied only on the complexity of Achiekwelu's fraud,

we would not remand for resentencing even if the district court had

erred in departing to criminal history category II pursuant to section

4A1.3(e).

VI.

Accordingly, the judgment is

AFFIRMED.

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