*This order and judgment is not binding precedent except under the doctrines of

law of the case, res judicataand collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JUN 29 2004 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. DAVID RAND EDDY, a/k/a Randy Eddy, Defendant-Appellant. No. 03-1035 (D. Colo.) (D.Ct. No. 02-CR-104-N)

ORDER AND JUDGMENT *

Before TACHA , Chief Circuit Judge, and PORFILIO and BRORBY , Senior Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument.-2-

David Rand Eddy appeals his thirty-seven month sent ence, imposed after he pled guilty to one count each of wire fraud, money laundering, and bankruptcy fraud, in violation of 18 U.S.C. §§ 1343, 1956, and 152(3), respectively.

On appeal, Mr. Eddy argues the district court erred in grouping together his wire fraud and bankruptcy offenses in determining the base offense level for his money laundering conviction pursuant to §2S1.1(a)(1 ) of the United States Sentencing Guidelines, thereby resulting in a signi ficantly increased sentence. Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), we affirm.

Mr. Eddy began selling life insurance policies for Provident American Life and Health Insurance Company (“Provident”) in 1997 through his closely held Colorado corporation, A.A.V., Inc. Provident paid A.A.V., Inc. on a commission basis for policies Mr. Eddy sold. Provident would pay advanced commissions after Mr. Eddy submitted various documents establis hing he sold a new policy. Beginning in March 1998 and continuing through Janu ary 1999, Mr. Eddy made a series of false and fraudulent representations and statements to Provident in order to obtain commissions for nonexistent new policies.1 Mr. Eddy arranged virtually all aspects of the purchase and financing of the

home; the daughter acted only as a “strawman,” purchasing the home for Mr. Eddy. -3- After receiving the fraudulently obtained commissio ns, Mr. Eddy then transferred some of the commission money to his dau ghter’s bank account, which they used to purchase a home in her name in Pueblo West, Colorado. 1 Subsequently, Mr. Eddy assisted his daughter in obt aining a second mortgage on the new home. Thereafter, Mr. Eddy transferred the money from the second mortgage to A.A.V., Inc. as repayment for the fraud ulent funds used to purchase the home. In August 1999, Mr. Eddy filed for Chapt er 7 bankruptcy and concealed from the bankruptcy trustee, despite ques tioning, that A.A.V., Inc. contributed money to the purchase of the Pueblo Wes t home.

In February 2002, the government filed a forty-count indictment in the federal district court of Colorado, charging Mr. Ed dy with a number of wire fraud, money laundering, and bankruptcy fraud count s. Mr. Eddy subsequently pled guilty to three of those counts.

In determining Mr. Eddy’s offense level for his mon ey laundering count, the district court first found the base offense lev el to be 18. The district court arrived at an offense level of 18 because U.S.S.G. §2S1.1(a)(1) requires the2The district court used the money laundering offense level as Mr. Eddy’s total

offense level because the offense grouping rules required the district court to apply the offense level for the most serious of the counts in the group. U.S.S.G. §3D1.3 (2001). -4- offense level for money laundering be based on the offense level for the underlying offense, which in this case included the grouping together of both offenses of wire and bankruptcy fraud. For either or both of these two types of fraud, under §2B1.1(a), the base offense level is 6 . With respect to special characteristics, under §2B1.1(b)(1)(F), the distric t court increased the base offense level ten levels because the loss exceeded $120,000.00, and increased it another two levels under §2B1.1(b)(7)(B) because th e offense involved a misrepresentation or other fraudulent action during a bankruptcy proceeding, for a total offense level of 18 ( i.e. , 6+10+2=18).

Pursuant to U.S.S.G. §2S1.1(b)(2)(B), the court the n found Mr. Eddy’s offense level of 18 warranted a two-point upward ad justment because he was charged under § 1956(a)(1)(B)(i). The district cou rt made another two-point upward adjustment finding the offense involved soph isticated laundering pursuant to §2S1.1(b)(3). Finally, the district court found Mr. Eddy entitled to a threepoint downward adjustment for acceptance of respons ibility. Therefore, the district court found his offense level for money la undering and total offense level to be 19. 2 With Mr. Eddy’s criminal history category of I an d offense level of 19,-5-

his sentencing guideline range was thirty to thirty -seven months. The district court subsequently sentenced Mr. Eddy to thirty-sev en months. Mr. Eddy concedes he never objected to the district court’s offense level calculations.

Mr. Eddy now argues the district court erred in usi ng his unrelated bankruptcy fraud conduct to enhance the base offens e level of his money laundering count. Mr. Eddy contends the bankruptcyconduct should not be considered because the money laundering guideline, U.S.S.G. §2S1.1(a)(1) (2001), directs a sentencing court to consider onlythe offense from which the laundered funds were “derived,” and the misappropri ated funds were not “derived” from his misrepresentations at his bankruptcy proceeding.

Because Mr. Eddy did not object in the district cou rt to his sentence calculation, we review his sentence for plain error

. United States v. Ballard, 16 F.3d 1110, 1114 (10th Cir. 1994). Under this stand ard, “we will only reverse ... in an exceptional circumstance – one where the erro r was patently plainly erroneous and prejudicial and fundamental injustice would otherwise occur.” Barber v. T.D. Williamson, Inc. , 254 F.3d 1223, 1227 (10th Cir. 2001) (quotation marks and citation omitted).-6-

Mr. Eddy’s argument is without merit because arguab ly even if the bankruptcy offense was not considered as one of the underlying offenses, the result would be the same. First, in calculating th e base offense level for a money laundering count, U.S.S.G. §2S1.1(a)(1) directs a s entencing court to apply “[t]he offense level for the underlying offense from which the laundered funds were derived.” In Mr. Eddy’s case, one of the underlyin g offenses is wire fraud, governed by U.S.S.G. §2B1.1, which, when applied al one, would result in the same offense level as when grouped with the bankrup tcy fraud offense. See U.S.S.G. §2B1.1(a). This is because a criminal who has committed an offense under §2B1.1 automatically receives a minimum offen se level of 6. U.S.S.G. §2B1.1(a).

Next, in determining Mr. Eddy’s sentence, a sentenc ing court applies U.S.S.G. §2B1.1 in its entirety. See U.S.S.G. §1B1.5(a) (2001) (“A cross reference (an instruction to apply another offense guideline) refers to the entire offense guideline ( i.e. , the base offense level, specific offense characte ristics, cross references, and special instructions).” (emph asis added).) Thus, as pointed out in §1B1.5, the offense level can be raised base d on whether special offense characteristics, cross references, or special instr uctions are applicable for a particular crime. Specific offense characteristics are determined by relevant3 Even though, Mr. Eddy’s enhancements for a loss exceeding $120,000 and for

misrepresentation during a bankruptcy proceeding both fall under the special offense characteristics portion of U.S.S.G. §2B1.1, Mr. Eddy does not contend the monetary loss enhancement was in error. -7- conduct, defined as: all acts and omissions committed ... induced, procu red or wilfully caused by the defendant ... that occurred during th e commission of the offense for conviction ... or in the course of attempting to avoid detection or responsibility for that offense ... [a nd] solely with respect to offenses of a character for which §3D1.2 (d) would require grouping of multiple counts, all acts and omissions [as referenced] above that were part of the same course of conduct or common scheme or plan as the offense of conviction. U.S.S.G. §1B1.3(a)(1)(A) and (a)(2).

In Mr. Eddy’s case, under §2B1.1(b)(1)(F), as a spe cial offense characteristic, the district court properly added t en levels because Mr. Eddy’s crime resulted in a loss exceeding $120,000. In th e same vein, as a special offense characteristic, the district court also add ed an enhancement of two additional levels pursuant to §2B1.1(b)(7)(B), because Mr. Eddy’s crime involved “a misrepresentation or other fraudulent action dur ing the course of a bankruptcy proceeding,” specifically, his concealment of the f raudulently obtained wire transfer funds from the bankruptcy trustee during h is Chapter 7 bankruptcy proceeding. 3 Although the fraudulently obtained funds were notdirectly obtained via this bankruptcy proceeding, Mr. Eddy’s bankrupt cy misrepresentation directly-8-

related to his efforts in concealing these funds an d, therefore, constituted part of his wire fraud scheme, regardless of whether the bankruptcy offense is considered.

Thus, under our plain error review and the circumst ances of this case, we conclude the district court’s calculation of Mr. Ed dy’s total offense level was not patently or plainly erroneous, nor did the requisit e prejudicial or fundamental injustice result therefrom.

The judgment of the district court is AFFIRMED

.
Entered by the Court: WADE BRORBY United States Circuit Judge