### The Honorab le John A. Jarvey, Chief United States Magistrate 1 

### Judge for the Northern District of Iowa, presided over thi s misdemeanor prosecution pursuant to 18 U.S.C. § 3401. ___________ 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 Howard Stephen Hoover, * [UNPUBLISHED] * Appellant. *

___________ 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 fals e statements i n writing, in violation of 18 U.S.C. § 1018. As a la w enforcement officer, he had falsified forms accounting for the disbursemen t of drug task force funds. At sentencing, the go vernment produced evidence of an audit of task f orce 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 court 1 foun d that the amount of loss attributable to Hoover for purposes o f 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 sentence d Hoover to 10 months imprisonment and one year of supervised release, and ordered him to pay $16,660 in restitution. Hoov er appeals, and we affirm.

We turn first to Hoover's arguments regarding relevant conduct an d amount of loss. The government proved by a preponderance of the evidence that Hoover's uncharg ed conduct relating to the unaccounted-for funds was "part of the same course of conduct or common scheme or plan as the offens e 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) (cumula tive loss from common scheme or plan is used in determinin g offense level; district court need only make reasonable estimate of loss giv en available information); United States v. Ballew , 40 F.3d 936, 94 3 (8th C ir. 1994) (standard of review for determining whether defendant' s acts constituted rele vant conduct), cert. denied , 115 S. Ct. 1813 (1995); United States v. Bender , 33 F.3d 21, 23 (8th Cir. 1994) (standard of revie w for determining amoun t of loss under § 2F1.1); United States v. Galloway , 976 F.2d 414, 425 (8th Cir. 1992) (en banc) (under § 1B1.3, sentencin g court may consider co nduct beyond count of conviction), cert. denied , 507 U.S. 974 (1993).

Hoov er also challenges the abuse-of-trust enhancement. Th e Guidelines provide that a defendant's offense le vel should be increased by two levels "[i]f the defendant abused a position of public . . . trust .

. . in a manner that significantly facilitated the commission o r concealme nt of the offense." U.S.S.G. § 3B1.3. We conclude the recor d supports that Hoover abused his position of public trust as a la w enforcement officer in a manner that facilitated both the commission and the concealment of hi s 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" (interna l quotation omitted); h olding § 3B1.3 applicable where police officer "uses special knowledge, access, or both, that has been obtained by virtue of hi s
or her status as an officer to facilitate substantially the offenses i n question"), cert. denied , 116 S. Ct. 218 (1995). Accordingly, we conclude the dis trict court did not clearly err by assessing an abuse-of-trus t enhancement. See Uni ted States v. Fitzhugh , 78 F.3d 1326, 1330 (8th Cir. 1996) (standard of review).

Contr ary to Hoover's assertion, the district court did not err b y ordering h im to pay restitution, see 18 U.S.C. § 3663(a)(1); see als o U.S.S.G. § 5E1.1(a)(1), because Hoover engaged in a broad scheme to defrau d 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 d etermined to be the amount of lo ss. 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 righ t to order restitution even though defendant is indigent at tim e sentence is imposed).

Finall y, we conclude the district court did not plainly err b y prohibiting Hoover fr om 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 State s 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.

### -4- A true copy.

Attest:

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