* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

** After examining the briefs and appellate record, this panel has determined unanimously to honor the parties' reques t for decision on the briefs without oral argument. See Fed. R. App. P. 34(f). The case is therefore submi tted without oral argument. 

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

### JUL 18 2000 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT
UNITED STATES OF AMERICAN,

Plaintiff-Appellee, No. 99-4209
v. D. Utah RANDA FAY GARNER,

Defendant-Appellant. (D.C. No. 99-CR-8)

ORDER AND JUDGMENT *
Before BALDOCK , HENRY , and LUCERO , Circuit Judges. **

Randa Fay Garner pleaded guilty to one count of for ging endorsements on Treasury checks of the United States, a violation o f 18 U.S.C. § 510(a)(2)(C).-2-

Ms. Garner was sentenced to 60 months’ probation wi th home confinement of 180 days with electronic monitoring. This sentence inc orporated a two-point enhancement for more than minimal planning. Ms. Ga rner was also ordered to pay $32,219.00 in restitution to the Social Security Administration. Ms. Garner appeals the enhancement and the restitution order.

I. DISCUSSION A. Enhancement for more than minimal planning. Ms. Garner contends the district court erred in enh ancing her base offense level by two levels for “more than minimal planning ” pursuant to USSG §2F1.1(b)(2)(A). “[M]ore than minimal planning” is deemed to exist “in any case involving repeated acts over a period of time, unle ss it is clear that each instance was purely opportune.” USSG §1B1.1 comment. n.1(f); United States v. Ensminger , 174 F.3d 1143, 1147 (10th Cir. 1999). The questi on of whether an offense involved “more than minimal planning” is a factual determination we review for clear error. See United States v. Orr , 68 F.3d 1247, 1253 (10th Cir. 1995). Based upon the evidence in the record, we conclude the district court did not commit clear error in finding the charged offen ses involved more than-3-

minimal planning. Ms. Garner lived in St. George, Utah. From 1994 to 1998, on a monthly basis, Ms. Garner obtained more than fifty checks payable to her deceased father at a P.O. Box in LaVerkin, Utah. S he endorsed each check, sometimes using her own name, but more frequently f orging her father’s signature. She traveled to Washington, Utah to dep osit each check. Ms. Garner’s criminal conduct, considered as a whole, involved aseries of repeated acts of forgery over a period of four years. The record su fficiently supports the court’s finding that her actions constituted “more than min imal planning” for purposes of §2F1.1(b)(2)(A). See United States v. Hill , 197 F.3d 436, 445-46 (10th Cir. 1999). Accordingly, the court did not err in apply ing the enhancement. B. Ex Post Facto Claim Ms. Garner also contends on appeal that the distric t court violated her ex post facto rights by relying on the Mandatory Victi m’s Restitution Act. As she recognizes, however, this argument is foreclosed by our opinion in United States v. Nichols , 169 F.3d 1255,1279-80 (10th Cir.), cert. denied , 120 S. Ct. 336 (1999), and we will therefore not consider it furth er.-4- II. CONCLUSION For the reasons set forth above, we AFFIRM the judg ment of the district court.
Entered for the Court,
Robert H. Henry Circuit Judge