The Honorable John A. Jarvey, Chief United States Magistrate 1

Judge for the Northern District of Iowa, presided over this

misdemeanor prosecution pursuant to 18 U.S.C. § 3401.

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No. 95-4110

___________

United States of America, *

 *

Appellee, *

 * Appeal from the United States

v. * District Court for the

 * Northern District of Iowa.

Howard Stephen Hoover, * [UNPUBLISHED]

 *

Appellant. *

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 Submitted: May 27, 1996

 Filed: June 6, 1996

___________

Before FAGG, BOWMAN, and HANSEN, Circuit Judges.

___________

PER CURIAM.

Howard Stephen Hoover pleaded guilty to knowingly making false

statements in writing, in violation of 18 U.S.C. § 1018. As a law

enforcement officer, he had falsified forms accounting for the disbursement

of drug task force funds. At sentencing, the government produced evidence

of an audit of task force expenditures showing a shortage of over $26,000

and no accounting of controlled substances for which Hoover had allegedly

expended those funds while acting in an undercover capacity. Considering

Hoover's conduct beyond the offense of conviction, the district court1

found that the amount of loss attributable to Hoover for purposes of

U.S.S.G. § 2F1.1 was $16,660; the court also found that Hoover
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abused a public trust under U.S.S.G. § 3B1.3. The district court sentenced

Hoover to 10 months imprisonment and one year of supervised release, and

ordered him to pay $16,660 in restitution. Hoover appeals, and we affirm.

We turn first to Hoover's arguments regarding relevant conduct and

amount of loss. The government proved by a preponderance of the evidence

that Hoover's uncharged conduct relating to the unaccounted-for funds was

"part of the same course of conduct or common scheme or plan as the offense

of conviction." U.S.S.G. § 1B1.3(a)(2); see also id. at comment. (n.9).

Accordingly, we conclude the district court did not clearly err by finding

that the uncharged conduct was relevant to the offense of conviction and

that the amount of loss was $16,660. See U.S.S.G. § 2F1.1, comment. (nn.6,

8) (cumulative loss from common scheme or plan is used in determining

offense level; district court need only make reasonable estimate of loss

given available information); United States v. Ballew, 40 F.3d 936, 943

(8th Cir. 1994) (standard of review for determining whether defendant's

acts constituted relevant conduct), cert. denied, 115 S. Ct. 1813 (1995);

United States v. Bender, 33 F.3d 21, 23 (8th Cir. 1994) (standard of review

for determining amount of loss under § 2F1.1); United States v. Galloway,

976 F.2d 414, 425 (8th Cir. 1992) (en banc) (under § 1B1.3, sentencing

court may consider conduct beyond count of conviction), cert. denied, 507

U.S. 974 (1993).

Hoover also challenges the abuse-of-trust enhancement. The

Guidelines provide that a defendant's offense level should be increased by

two levels "[i]f the defendant abused a position of public . . . trust .

. . in a manner that significantly facilitated the commission or

concealment of the offense." U.S.S.G. § 3B1.3. We conclude the record

supports that Hoover abused his position of public trust as a law

enforcement officer in a manner that facilitated both the commission and

the concealment of his offense. See United States v. Baker, No. 95-1525,

slip op. at 7 (8th Cir.
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Apr. 29, 1996) ("police officers clearly occupy positions of public trust);

United States v. Williamson, 53 F.3d 1500, 1525 (10th Cir.) ("commission

of crime by police officer constitutes abuse of public trust" (internal

quotation omitted); holding § 3B1.3 applicable where police officer "uses

special knowledge, access, or both, that has been obtained by virtue of his

or her status as an officer to facilitate substantially the offenses in

question"), cert. denied, 116 S. Ct. 218 (1995). Accordingly, we conclude

the district court did not clearly err by assessing an abuse-of-trust

enhancement. See United States v. Fitzhugh, 78 F.3d 1326, 1330 (8th Cir.

1996) (standard of review).

Contrary to Hoover's assertion, the district court did not err by

ordering him to pay restitution, see 18 U.S.C. § 3663(a)(1); see also

U.S.S.G. § 5E1.1(a)(1), because Hoover engaged in a broad scheme to defraud

beyond the offense of conviction, see United States v. Manzer, 69 F.3d 222,

229-30 (8th Cir. 1995). Nor did the district court abuse its discretion

in setting restitution at the figure the court determined to be the amount

of loss. See United States v. French, 46 F.3d 710, 716 (8th Cir. 1995)

(standard of review); see also Manzer, 69 F.3d at 229 (district court has

right to order restitution even though defendant is indigent at time

sentence is imposed).

Finally, we conclude the district court did not plainly err by

prohibiting Hoover from possessing a firearm while on supervised release.

See United States v. Ryan, 41 F.3d 361, 366-67 (8th Cir. 1994) (en banc)

(plain-error analysis), cert. denied, 115 S. Ct. 1793 (1995); United States

v. Prendergast, 979 F.2d 1289, 1292-93 (8th Cir. 1992) (standard of review

for condition of supervised release).

Accordingly, we affirm the judgment of the district court. 
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A true copy.

Attest:

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