1

The Honorable Richard E. Dorr, United States District Judge for the Western

District of Missouri.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 03-3876 

___________

United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* Western District of Missouri.

Glenn Benton Finck, also known as * 

Beau Lee DuBois, *

* 

Appellant. *

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Submitted: September 14, 2004

 Filed: May 11, 2005

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Before BYE, BOWMAN, and MELLOY, Circuit Judges.

___________

BYE, Circuit Judge.

Defendant-Appellant Glenn Benton Finck appeals his 63-month sentence for

crimes arising from a scheme to fraudulently acquire motor vehicles. Finck argues

that the district court1

 improperly enhanced his sentence for obstruction of justice and

use of sophisticated means, and he challenges his sentence under United States v.

Booker, 125 S. Ct. 738 (2005), for plain error. He also argues that the district court’s
2

The facts are based on those provided in the Presentence Investigation Report

(PSR). Finck did not object to any facts in the PSR that are relevant to sentencing.

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use of the name “Glenn Benton Finck” in the judgment rather than “Beau Lee

DuBois,” which he contends is his true name, amounts to a due process violation.

The district court had jurisdiction to hear this case under 18 U.S.C. § 3231.

This court has jurisdiction over the appeal under 28 U.S.C. § 1291. We affirm in all

respects.

I.

On April 4, 2003, Finck was charged in a seven-count indictment with crimes

arising from a scheme to fraudulently acquire motor vehicles. Count 1 alleged

violation of 18 U.S.C. § 2312 (interstate transportation of stolen vehicles); counts 2,

4, and 6 alleged violation of 18 U.S.C. § 2314 (causing an individual to travel in

interstate commerce in furtherance of a scheme to defraud); count 3 alleged violation

of 18 U.S.C. § 1343 (wire fraud); count 4 alleged violation of 18 U.S.C. § 1341 (mail

fraud); and count 7 alleged violation of 18 U.S.C. § 2314 (causing a forged

counterfeit security to travel in interstate commerce). He pled guilty to all counts of

the indictment.

At sentencing, the district court found, over Finck’s objections, that sentence

enhancements for obstruction of justice, U.S.S.G. § 3C1.1, and use of sophisticated

means, U.S.S.G. § 2B1.1(b)(1)(8)©), were warranted.

The relevant facts are as follows.2

 Finck obtained several vehicles from

Reliable Imports and RV (“Reliable”) in Springfield, Missouri. He told the Reliable

salesperson that he owned stock in a California wine company and would pay for the

vehicles by arranging for wire transfers to Reliable’s Bank of America account.
3

Finck returned the Rage’n trailer to Reliable in exchange for the Coachmen

RV.

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Before each purchase, Reliable received a fax showing that money had been wired

to its Bank of America account. Sometimes, Reliable also received a phone call from

someone claiming to be from Bank of America confirming that the wire transfer funds

had been deposited. Of course, no money was ever wired to Reliable’s account.

In all, Finck obtained seven vehicles from Reliable: a Rage’n trailer, a

Coachmen RV, a Mazda 6, a Mazda Miata, a Hyundai Tiburon, a Mercedez Benz

C230, and a Ford Thunderbird.3

 Some vehicles were picked up from Reliable, and

some were delivered to him at an address in Round Rock, Texas. After fraudulently

obtaining these vehicles, he sold two of them. He sold the Coachmen RV to North

Bay Ford/Lincoln/Mercury car dealership (“North Bay”) in Santa Cruz, California for

$100,000, and he sold the Mazda Miata to Roger Beasley Mazda (“Beasley”) in

Austin, Texas for $16,500. He used the proceeds from the sale of these fraudulently

obtained vehicles to purchase a Ford Harley Davidson truck, a motorcycle trailer, and

a Lexus SUV.

After Reliable received a fax indicating that payment had been received for the

transaction involving the Hyundai Tiburon, the Mercedez Benz C230, and the Ford

Thunderbird, a Reliable employee contacted Bank of America to confirm that the

funds had been received and learned that they had not. When Reliable expressed

concern, Finck arranged to pay for the vehicles with a cashier’s check. He presented

Reliable with a COMCHECK from DuBois Winery in Lodi, California. After

Reliable determined that the COMCHECK was fraudulent, it contacted Bank of

America and learned that all of Finck’s previous wire transfers were also fraudulent.

Law enforcement arranged to have the titles to the Mercedez Benz and the Ford

Thunderbird mailed to him at a prearranged location in Texas. Texas law
4

Law enforcement was able to seize the Lexus SUV and the motorcycle trailer

without incident. 

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enforcement officers set up surveillance at this location, but Finck changed the

delivery destination while the package was in transit.

Finck was arrested in Austin, Texas while he was attempting to trade in the

Mercedez Benz. During an interview with a Secret Service agent, he provided a

written statement outlining his fraudulent activity. When questioned about the

Coachmen RV, he denied selling the vehicle and told the agent that he drove the

Coachmen RV to Lodi, California in December 2002 and left it at an address on

Kettleman Lane. As a result of his statement, the Secret Service contacted California

authorities to request that they locate the vehicle. After eight days of investigation

involving California and Arizona authorities, the Secret Service learned that Finck

actually sold the Coachmen RV to North Bay and that North Bay then sold the

vehicle to RV Trailer Land in Reno, Nevada.

Also during the interview, Finck stated that he purchased two of his nonReliable vehicles—the Ford Harley Davidson truck and the motorcycle trailer—with

cash that he had saved. A review of documents obtained during a consensual search

of his residence revealed, however, Finck did not pay for the Harley Davidson truck

and the motorcycle trailer with his savings. Rather, he paid for them (as well as the

Lexus SUV) with proceeds from the sale of the fraudulently obtained Coachmen RV.

Authorities then attempted to seize these vehicles. In the meantime, however,

Finck sold the Harley Davidson truck to Thomas Bonding for $21,000 to post bond

on local Missouri fraud charges.4

 Because bond was set at $10,000, the bondsman

secured a bank loan with the Harley Davidson truck, and he remitted the remaining

$11,000 to Finck’s former attorney. As a result, the bondsman no longer had title to

the truck, which made it complicated for law enforcement to seize.
5

In a Supplemental Brief filed on January 9, 2004, Finck argues that the district

court erred in failing to consider his ability to pay restitution. However, 18 U.S.C.

§ 3664(f)(1)(A) states that “the court shall order restitution to each victim in the full

amount of each victim’s losses as determined by the court and without consideration

of the economic circumstances of the defendant.

6

We note that other panels have reviewed district courts’ finding of whether a

fraudulent scheme qualifies as “sophisticated” for clear error. See United States v.

Anderson, 349 F.3d 568, 570 (8th Cir. 2003); United States v. Brooks, 174 F. 3d 950,

958 (8th Cir. 1999) (“We review the factual finding of whether a [fraud] scheme

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After adjustments for obstruction of justice and use of sophisticated means,

Finck was sentenced at offense level 19 and criminal history category VI. The

sentencing range was 63 to 78 months for counts 1, 2, 5, 6, and 7, and 60 months for

counts 3 and 4. The district court sentenced him to 63 months custody on counts 1,

2, 5, 6, and 7, and 60 months custody for counts 3 and 4, to be served concurrently

for a total of 63 months. The district court also imposed a 3-year term of supervised

release and ordered him to pay $148,572.40 in restitution.5

 He appeals his sentence

and the form of the judgment.

II.

The district court’s factual findings at sentencing are reviewed for clear error,

and the district court’s application of the sentencing guidelines to the facts is

reviewed de novo. United States v. Hart, 324 F.3d 575, 579 (8th Cir. 2003). Finck

does not challenge any of the facts underlying the obstruction of justice enhancement.

As a result, our review is limited to the district court’s application of sentencing

guideline section 3C1.1 to undisputed facts. United States v. Thompson, 367 F.3d

1045, 1047 (8th Cir. 2004). He also does not challenge any of the facts underlying

the sophisticated means enhancement. We therefore review de novo “whether the

district court correctly applied the guidelines when it determined those facts

constituted sophisticated means.”6

 Hart, 324 F.3d at 579.
qualifies as ‘sophisticated’ for clear error.”).

We believe the precedent in our circuit to be clear that the application of the

guidelines to the facts is reviewed de novo, and we cannot see how whether a scheme

was sophisticated is “‘essentially a question of fact.’” Anderson, 349 F.3d at 570 n.1

(quoting United States v. Hunt, 25 F.3d 1092, 1097 (D.C. Cir. 1994)). We therefore

follow the panel decision in Hart and conduct a de novo review of the guidelines to

the facts. We note that our analysis would not differ were we conducting a review for

clear error.

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A. Obstruction of Justice

Sentencing guideline section 3C1.1 provides for a two-level sentence

enhancement if the defendant “willfully obstructed or impeded, or attempted to

obstruct or impede, the administration of justice during the course of the investigation

. . . of the instant offense.” Application note 4(g) states that a defendant obstructs

justice if he provides “a materially false statement to a law enforcement officer that

significantly obstructed or impeded the official investigation or prosecution of the

instant offense.”

During the investigation, Finck made two materially false statements to law

enforcement officials: (1) he stated that he left the Coachmen RV in Lodi, California

when he actually sold the vehicle to North Bay, and (2) he stated that he paid for a

Harley Davidson truck and a motorcycle trailer with his savings when he actually

paid for them with proceeds from the sale of the Coachmen RV. These statements led

law enforcement astray and allowed him to further his fraudulent scheme during the

investigation.

Finck believes that the eight-day delay and resources expended in multiple

jurisdictions to locate the Coachmen RV were not a result of his false statement, but

of law enforcement’s inability to quickly determine that his statement was false.

Because he confessed to stealing the Coachmen RV and law enforcement officials
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almost simultaneously discovered a receipt for a wire transfer from North Bay to

Finck for $99,000 during a consensual search of his house, he believes that law

enforcement officials should have been able to deduce that he sold the Coachmen RV

to North Bay despite his statement to the contrary. Regardless of what law

enforcement may have been capable of deducing, however, they did not find the

physical evidence to immediately contradict his statement, and they expended

significant time and resources to locate the Coachmen RV.

We have previously found error in obstruction of justice enhancements where

the government failed to provide evidence that the false statement actually impeded

the investigation. United States v. Banks, 347 F.3d 1266, 1271 (8th Cir. 2003);

United States v. Williams, 288 F.3d 1079, 1081 (8th Cir. 2002). Here, however, the

government provided testimony during sentencing to establish how Finck’s false

statement regarding the location of the Coachmen RV caused law enforcement to

expend unnecessary resources. See Sentencing Tr. at 12. We believe that the eightday delay materially and significantly impeded the investigation. See United States

v. Thomas, 86 F.3d 263, 263-64 (1st Cir. 1996) (finding a significant hindrance where

government provided evidence that defendant’s false statement caused prosecution

to shift its resources and attention from federal adult to state juvenile proceedings).

Finck’s second false statement, that he paid for a Harley Davidson truck and

a motorcycle trailer with cash that he had saved, also materially and significantly

impeded the investigation. By the time law enforcement officials determined he had

in fact purchased the Harley Davidson truck and the motorcycle trailer with proceeds

from the Coachmen RV sale, making those vehicles seizable, he had sold the Harley

Davidson truck to his bail bondsman. The bondsman took out a bank loan to remit

the surplus money to his former attorney and thus did not have title to the vehicle,

making it more difficult to seize. The false statement about the source of payment for

the Harley Davidson truck by itself, and more so when combined with the false

statement about the sale of the Coachmen RV, bought him additional time to further
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his fraudulent scheme, thus significantly impeding the investigation and prosecution

of this case. See United States v. Luca, 183 F.3d 1018, 1023 (9th Cir. 1999) (finding

obstruction where defendant submitted false documents to state agency to forestall

fraud investigation, thus securing additional time to find other victims). The district

court did nor err in finding his false statements to warrant a two-level enhancement

for obstruction of justice.

Finck also challenges the sufficiency of the district court’s findings relating to

the obstruction adjustment. “[B]efore imposing an enhancement under § 3C1.1, a

district court ‘must review the evidence and make independent factual findings

necessary to establish a willful impediment to, or obstruction of, justice.’” United

States v. Brooks, 174 F.3d 950, 958 (8th Cir. 1999) (quoting United States v.

Dunnigan, 507 U.S. 87, 95 (1993)). We believe that the district court’s reference to

his false statements and the “result with the[e] truck,” Sentencing Tr. at 20, are

“sufficiently specific to provide this court with a basis for meaningful appellate

review.” United States v. Molina, 172 F.3d 1048, 1058 (8th Cir. 1999).

B. Sophisticated Means

Sentencing guideline section 2B1.1(b)(1)(8) provides for a two-level sentence

enhancement if the offense involved “sophisticated means.” Application note 7(B)

gives some guidance: “‘[S]ophisticated means’ means especially complex or

especially intricate offense conduct pertaining to the execution or concealment of an

offense. For example, in a telemarketing scheme, locating the main office of the

scheme in one jurisdiction but soliciting operations in another jurisdiction ordinarily

indicates sophisticated means. Conduct such as hiding assets or transactions, or both,

through the use of fictitious entities, corporate shells, or offshore financial accounts

also ordinarily indicates sophisticated means.”
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Finck argues that his scheme was successful not because it was particularly

sophisticated, but because the victim, Reliable, had poor bookkeeping techniques and

was thus unsophisticated. He also believes that any fraudulent scheme involves an

inherent level of complexity, and he used means no more sophisticated than what is

expected of a scheme to defraud. Finally, he points out that during the execution of

his scheme, he always used the name Beau Lee DuBois, which made it relatively easy

for law enforcement to locate him at his home in Texas.

While Finck did not use sophisticated means to conceal his criminal activity,

we find that he used sophisticated means to execute his scheme. Repetitive and

coordinated conduct, though no one step is particularly complicated, can be a

sophisticated scheme. See United States v. Jackson, 346 F.3d 22, 25 (2d Cir. 2003)

(finding an identity theft scheme to be sophisticated although each step of obtaining

information about the victim was relatively simple because “the total scheme was

sophisticated in the way all the steps were linked together so that [the defendant]

could perceive and exploit different vulnerabilities in different systems in a

coordinated way”), vacated on other grounds sub nom., Lauersen v. United States,

125 S. Ct. 1109 (2005); United States v. Rettenberger, 344 F.3d 702, 709 (7th Cir.

2003) (finding that husband and wife’s faking of husband’s disability to collect

insurance money, though consisting of simple lies, was sophisticated because

“[c]areful execution and coordination over an extended period enabled the

[defendants] to bilk more insurers and reduce the risk of detection”). He caused

Reliable to receive fax and telephone confirmations that money had been wired to its

Bank of America account; he had mail re-routed to make interception difficult; and

he transacted business in multiple states. Additionally, he created a story about

owning stock in the DuBois winery, which caused Reliable to later accept a

COMCHECK from the winery when it realized that the wire transfers had not gone

through. 
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While fraud does involve some level of inherent sophistication, Finck pled

guilty to more than simply fraud. He pled guilty to transportation of a stolen vehicle

in interstate commerce—an offense that can be as simple as stealing a car and driving

it across state lines. He engaged in a repetitive and coordinated scheme to obtain

vehicles from Reliable. The district court did not err in finding his offense conduct

to be sophisticated.

III.

Because Finck was sentenced under the sentencing guidelines before the

Supreme Court deemed them advisory, he challenges his sentence under United States

v. Booker, 125 S. Ct. 738 (2005). Because he did not preserve this objection before

the district court, we review his sentence for plain error. United States v. Olano, 507

U.S. 725, 731 (1993). “The plain error principle applies even when, as here, the error

results from a change in the law that occurred while the case was pending on appeal.”

United States v. Pirani, No. 03-287, slip op. at 6 (8th Cir. Apr. 29, 2005). He has the

burden of proving plain error. Olano, 527 U.S. at 389.

Plain error review is subject to a four-part test. “[T]here must be (1) error, (2)

that is plain, and (3) that affects substantial rights. If all three conditions are met, an

appellate court may then exercise its discretion to notice a forfeited error, but only if

(4) the error seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” Johnson v. United States, 520 U.S. 461, 466-67 (1997). As in our en

banc Pirani decision, it is obvious the first two plain error factors are met here. The

district court committed Booker error by applying the guidelines as mandatory, and

such error is clear and obvious at this time. See Pirani, No. 03-287, slip op. at 8. He

however, fails to satisfy the third plain error factor because he has not shown “a

‘reasonable probability,’ based on the record as a whole, that but for the error he

would have received a more favorable sentence.” Id. at 11.
7

In his Supplemental Brief regarding plain error, Finck challenges the district

court’s ability to calculate the amount of loss. We note that he did not object to the

amount of loss at sentencing.

8

The PSR indicates that Finck has used fifty-three aliases.

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Finck has pointed to nothing in the record to suggest a reasonable probability

that the district court would have imposed a lesser sentence absent Booker error.7

Therefore, he has not carried his burden of demonstrating plain error under Olano,

and we do not need to evaluate the fourth plain error factor. Contrary to the argument

in his Supplemental Brief regarding plain error, the sentence itself is not illegal under

the advisory guideline regime mandated by Booker. See Pirani, No. 03-287, slip op.

at 13.

IV.

Finally, Finck argues that the district court’s use of the name “Glenn Benton

Finck” in the judgment rather than “Beau Lee DuBois” is a due process violation.

Whether his due process rights have been violated is a constitutional question that we

review de novo. Flores v. Ashcroft, 354 F.3d 727, 729-30 (8th Cir. 2003).

Finck was charged under the name “Glenn Benton Finck”; however, at all

times during the commission of these crimes, he claimed to be “Beau Lee DuBois.”8

The district court agreed to add “also known as Beau Lee DuBois” to the caption.

Finck asserts that he has endured hardship amounting to a due process violation

as a result of the district court entering judgment against him as “Glenn Benton

Finck” because the Bureau of Prisons now refuses to recognize the name “Beau Lee

DuBois,” under which he has previously served time in federal custody. Thus, for

example, he has been required to retake a training course that he has already taken

under the name “Beau Lee DuBois.”
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We find the caption’s mention of “Beau Lee DuBois” as an alias sufficient to

inform the Bureau of Prisons that Finck and DuBois are the same person. Cf. United

States v. Bealey, 978 F.2d 696, 699 (Fed. Cir. 1992) (finding that changing the name

on a judgment does not enlarge the time for filing an appeal because “the addition of

Bealey’s other name did not alter Bealey’s rights or obligations under the prior

judgment . . . . The result of the judgment is the same, the rationale supporting the

judgment is the same, and the actual parties to the judgment are the same, although

one party’s pseudonyms have now been added.”).

V.

For the reasons provided above, we affirm the decision of the district court in

all respects.

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