United States v. Hoppe

46 F. App'x 888

Opinions

MEMORANDUM

*

While posing as a United States Postal Inspector, Eugene Hoppe (“Hoppe”) conned Ms. Wagner and Mr. Thomas (“Victims”) out of several thousand dollars by offering to sell property which he claimed had been seized by the United States Postal Service. Hoppe pleaded guilty to two counts of demanding or obtaining money while impersonating a federal officer, in violation of 18 U.S.C. § 912 (2001). At sentencing, Hoppe received a four-level enhancement under U.S.S.G. § 2Bl.l(b)(7)(A) (2001) for misrepresenting that he acted “on behalf of a ... government agency.” He appeals the resulting sixteen-month prison sentence.

We have jurisdiction over this timely appeal pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, and we affirm Hoppe’s sentence.

I Standard of Review

“We review for clear error a district court’s findings of fact underlying a sentencing decision.” United States v. Novak, 284 F.3d 986, 988 (9th Cir.2002). “The district court’s application of the Sentencing Guidelines to the facts is reviewed for an abuse of discretion.” United States v. Gutierrez-Hernandez, 94 F.3d 582, 584 (9th Cir.1996).

II Discussion

Hoppe admits that he “undoubtedly presented himself” as a Postal Inspector for the United States government and “undoubtedly told Ms. Wagner and Mr. Thomas that he had access to property seized by the government and could sell it cheaply to non-governmental employees.” Using the alias “Gene Juarez,” Hoppe told the Victims that “Eugene Hoppe” was his supervisor at the Postal Inspector’s office. Moreover, when Wagner drew up a sales contract for the non-existent goods, Hoppe signed it “Gene Juarez for Eugene Hoppe.”

These facts communicated the idea that Hoppe, as a supposed Postal Inspector employed by the United States government, could sell property seized by the Postal Service — but only to non-government employees — and was authorized to do so on behalf of his supposed government supervisor. A fair inference from this representation was that Hoppe could not have purchased it himself and that he was selling the property for his purported government employer. Given this record, the district court did not clearly err in finding that Hoppe’s offense involved “a misrepresentation that the defendant was acting on behalf of ... a governmental agency.” U.S.S.G. § 2Bl.l(b)(7)(A) (emphasis added).

Relying on recently added commentary to the Guidelines, Hoppe argues that the enhancement was wrongly applied to him because no evidence shows that he represented that he was selling property for the benefit of the Postal Service:

Subsection (b)(7)(A) applies in any case in which the defendant represented [he] was acting to obtain a benefit on behalf of ... a government agency (regardless of whether the defendant actually was associated with the ... agency) when, in fact, the defendant intended to divert all or part of that benefit (e.g., for the defendant’s personal gain).

U.S.S.G. § 2B1.1, cmt. n. 5(B) (emphasis added). Hoppe’s argument fails because his misrepresentation that he was selling property on behalf of the Postal Service necessarily conveyed that he was doing so for Postal Service’s and, by extension, the government’s benefit.

Having determined that Hoppe misrepresented that he was acting on behalf of the Postal Service, the district court was obligated to impose a four-level enhancement under U.S.S.G. § 2Bl.l(b)(7)(A).¹ Consequently, the district court did not abuse its discretion by doing so.

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.

1 . Where the "on behalf of” enhancement applies, the Guidelines require that the district court increase the defendant’s offense level by two levels, but "if the resulting offense level is less than level 10, increase to level 10.” U.S.S.G. § 2B1.1(b)(7)(A). Because Hoppe’s base offense level was six, the district court was required to impose a four-level enhancement.