1

The Honorable Charles R. Wolle, Chief Judge, United States

District Court for the Southern District of Iowa.

___________

No. 95-2651

___________

United States of America, *

 *

Appellee, *

 * Appeal from the United States

v. * District Court for the

 * Southern District of Iowa.

Douglas Keith Cord, *

 * [UNPUBLISHED]

Appellant. *

___________

 Submitted: February 6, 1996

 Filed: February 12, 1996 ___________

Before FAGG, BOWMAN, and HANSEN, Circuit Judges. ___________

PER CURIAM.

Douglas Keith Cord challenges the 21-month sentence imposed by

the District Court1 after he pleaded guilty to conspiring to commit

wire fraud, in violation of 18 U.S.C. §§ 371, 1343 (1994). We

affirm.

In August 1994 Cord started a fraudulent telemarketing

business, Midwest Consultants Division (Midwest), in Davenport,

Iowa. Midwest telephoned its victims and told them they had won a

substantial prize, but would need to send a "redemption fee" before

the prize could be awarded. Midwest defrauded thirty-four victims,

most of whom were elderly women, of almost $61,000.
-2-

Cord's presentence report included a two-level increase under

U.S.S.G. § 2F1.1(b)(2) (1994) for more than minimal planning, and

a two-level aggravating-role increase under U.S.S.G. § 3B1.1(c)

(1994), because Cord organized, led, managed, or supervised

criminal activity involving less than five participants. Cord

objected, arguing that the aggravating-role enhancement double

counted his "organizational activities" in starting Midwest, which

were taken into account by the more-than-minimal planning

adjustment.

At sentencing, an FBI special agent testified about Cord's

activities in starting and operating Midwest. The government

argued that the evidence supported both increases, and that

applying both increases did not constitute double counting, because

they addressed different aspects of Cord's conduct. Cord responded

that "essentially the same acts" and the "same facet of conduct"

were being used to support both increases. The District Court

rejected Cord's argument, and sentenced him to 21 months

imprisonment and three years supervised release.

On appeal Cord maintains that, because "there [was]

indistinguishable factual overlap," the District Court double

counted the same conduct when it applied both increases, and thus

violated Cord's due process rights and the rule of lenity. Cord

relies on United States v. Chichy, 1 F.3d 1501, 1505-07 (6th Cir.),

cert. denied, 114 S. Ct. 620 (1993); United States v. Romano, 970

F.2d 164, 167 (6th Cir. 1992); and United States v. Werlinger, 894

F.2d 1015 (8th Cir. 1990).

We review de novo the District Court's application of the

guidelines. United States v. Reetz, 18 F.3d 595, 600 (8th Cir.

1994). We conclude that Cord's argument fails, based on our

decision in United States v. Willis, 997 F.2d 407, 418-19 (8th Cir.

1993), cert. denied, 114 S. Ct. 704 (1994), where we held that the

District Court's imposition of increases under sections 2F1.1(b)(2)
-3-

and 3B1.1(a) did not amount to impermissible double counting. See

also United States v. Stevenson, 68 F.3d 1292, 1294-95 (11th Cir.

1995) (rejecting double-counting challenge to application of

§§ 2F1.1(b)(2) and 3B1.1(b)); United States v. Smithson, 49 F.3d

138, 145 (5th Cir. 1995) (rejecting double-counting challenge to

application of §§ 2F1.1(b)(2) and 3B1.1(c)).

Although Romano and Chichy (which applied Romano) reached a

different conclusion, Cord's reliance on these decisions is

misplaced, as we explicitly rejected the Romano reasoning in

Willis, 997 F.2d at 418-19. Werlinger, 894 F.2d at 1017-19, is

inapposite, as it addressed the propriety of cumulative increases

for more than minimal planning and obstruction of justice.

Moreover, as Cord recognizes, the Sentencing Commission has since

added commentary to the Guidelines directing District Courts to

apply cumulatively the increases under sections 2F1.1(b)(2) and

3B1.1. See U.S.S.G. § 1B1.1, comment. (n.4) (effective November 1,

1993, see U.S.S.G. Apps. B & C Amend. No. 497); see also Stevenson,

68 F.3d at 1295 (application note 4 was Commission's response to

Romano); United States v. Harris, 41 F.3d 1121, 1123 (7th Cir.

1994) (application note 4 only clarified existing policy). Cord's

argument regarding "indistinguishable factual overlap," even if

true, is unavailing. See id. at 1124.

We also note that the District Court distinguished between the

different aspects of Cord's conduct in applying the two increases.

See Willis, 997 F.2d at 419 (noting that § 2F1.1(b)(2) applies when

crime evidenced planning and forethought, while § 3B1.1 addresses

additional culpability inherent in leading or organizing criminal

activity). We agree with the District Court that evidence in the

record supports both increases, including Cord's conduct in

personally calling a number of victims more than once, see U.S.S.G.

§ 1B1.1, comment. (n.1(f)) (more than minimal planning present in

case involving repeated acts over time), and his conduct in setting
-4-

up the business and claiming a larger share of the proceeds than

his associates, see U.S.S.G. § 3B1.1, comment. (n.4) & (backg'd.).

Accordingly, the judgment of the District Court is affirmed.

A true copy.

Attest:

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