UNITED STATES of America, Plaintiff-Appellee, v. Charles R. MICHALEK, Defendant-Appellant.
No. 94-1450.
United States Court of Appeals, Seventh Circuit.
Decided April 26, 1995.
Rehearing and Suggestion for Rehearing En Banc Denied May 31, 1995.
325
Argued Sept. 22, 1994. * The Honorable Warren J. Ferguson voted to grant rehearing.
Patrick J. Calihan (argued), Chicago, IL, for defendant-appellant.
Before FERGUSON,** RIPPLE and ROVNER, Circuit Judges.
RIPPLE, Circuit Judge.
Charles Michalek pled guilty to one count of bankruptcy fraud,
I
BACKGROUND
A. Facts
Charles Michalek owned and operated a video store. During the early 1980s, the
In addition, Mr. Michalek lied to the bankruptcy trustee about one of his disclosed assets, a Tiffany-style lamp. This lamp was among the contents of the Michalek home. The bankruptcy trustee sold the house and its contents in July 1989. However, Mr. Michalek removed the lamp prior to closing, pursuant to an arrangement with the new owners. The trustee sought the bankruptcy court‘s approval of this compromise. In doing so, the trustee relied upon two false documents that Mr. Michalek had given him. The first was a statement that Barbara Kadlec had drafted at Mr. Michalek‘s request. In that statement, Ms. Kadlec falsely claimed that the lamp had been in her family for generations. The second statement was a fake appraisal of the lamp. The appraisal appeared on an appraisal company‘s stationery, but had been signed by one of Mr. Michalek‘s former employees at Mr. Michalek‘s request. The appraisal incorrectly valued the lamp at less than $500.
During the bankruptcy period, Mr. Michalek also instructed Ms. Kadlec to use money from the video store operation to pay the couple‘s personal bills. Thereafter, Ms. Kadlec regularly deposited portions of the video store‘s daily cash receipts into the Michaleks’ personal accounts. At times, Mr. Michalek ordered additional transfers when he believed the video store‘s books indicated that the business possessed too much money. When Ms. Kadlec questioned these bookkeeping practices, Mr. Michalek told her that they were permissible. Mr. Michalek failed to report any of the income he earned through these transfers on his 1988, 1989, and 1990 federal income tax returns.
In April 1991, the government learned that Mr. Michalek was selling the artwork that he had concealed from the bankruptcy trustee. Government agents obtained a warrant to search Mr. Michalek‘s residence. They discovered an additional $57,000 in artwork and furniture. Mr. Michalek owned all of this property. Shortly after the search, however, Mr. Michalek called Lester Kadlec, his wife‘s father, and asked him to claim falsely that he owned some of Michalek‘s art. Mr. Kadlec initially agreed, but eventually told federal agents the truth. Following these events, the government charged Mr. Michalek with one count of bankruptcy fraud,
Mr. Michalek pled guilty to all counts, and the district court proceeded to sentence him pursuant to U.S.S.G. § 2F1.1. This broad guideline assigns a base offense level of six to a wide variety of crimes involving fraud, deceit, forgery, and counterfeiting. The court enhanced Mr. Michalek‘s sentence seven levels to reflect the amount of loss involved in his fraudulent scheme. See U.S.S.G. § 2F1.1(b)(1)(H) (providing for seven-level enhancement when the value of property unlawfully taken exceeds $120,000).3 Next, it added the four additional enhancements at issue in this appeal.
First, the district court determined that a two-point enhancement was justified for “more than minimal planning.” See U.S.S.G. § 2F1.1(b)(2).4 The court found that Mr. Michalek‘s crime was “complex” and required “more than the typical planning that was necessary for such a crime.” R. 45 at 2-3. It noted that Mr. Michalek had concealed assets, and then, to cover up the initial fraud, had concealed the sale of these assets as well as his receipt and use of the sale proceeds. The district court also found the enhancement appropriate on the alternative ground that Mr. Michalek‘s crime involved multiple victims. Second, the court determined that Mr. Michalek merited a two-point enhancement for violating a judicial order, injunction, decree, or process. See U.S.S.G. § 2F1.1(b)(3)(B).5 The court commented that bankruptcy fraud typically involves violation of a judicial order. It also remarked that such an enhancement was “appropriate in all bankruptcy fraud cases ... because it is not a typical fraud ... it is a fraud on the judicial process that Mr. Michalek availed himself of and then defiled.” R. 45 at 3. Third, the court ruled that Mr. Michalek should receive a two-point enhancement for his aggravating role in the offense. See U.S.S.G. § 3B1.1(c).6 The court noted that Mr. Michalek had planned and organized the operation. It further noted that he had “directed others in connection with [the fraud]” and had “even directed others to violate the law.” R. 45 at 4. Finally, the court found that Mr. Michalek merited a two-point enhancement for obstruction of justice. See U.S.S.G. § 3C1.1.7 The court commented that Mr. Michalek had made false statements to F.B.I. agents. Additionally, it emphasized that Mr. Michalek had suborned perjury by asking Mr. Kadlec to claim falsely that he owned some of Mr. Michalek‘s art.
The court then reduced Mr. Michalek‘s total offense level by three levels to reflect his acceptance of responsibility. See U.S.S.G. §§ 3E1.1(a), (b).8 Mr. Michalek‘s
II
DISCUSSION
A. Enhancement Under U.S.S.G. § 2F1.1(b)(2)
Mr. Michalek argues that the district court erred in enhancing his sentence for more than minimal planning because he did not engage in more planning than is typical for the commission of this crime. Similarly, he contends that the “multiple victim” enhancement was inappropriate because bankruptcy fraud typically involves multiple victims. Therefore, he concludes, this aspect of the offense already must be accounted for in § 2F1.1‘s base offense level. The government responds that the enhancement was appropriate in light of Mr. Michalek‘s complex scheme which defrauded multiple victims.
1.
We review a district court‘s enhancement for more than minimal planning only for clear error. United States v. Mau, 45 F.3d 212, 214 (7th Cir. 1995); United States v. Harrison, 42 F.3d 427, 430 (7th Cir. 1994). Guideline § 2F1.1(b)(2)(A) authorizes a two-level enhancement if the defendant‘s fraud involved “more than minimal planning.” The Sentencing Commission noted that more than minimal planning may exist: (1) when there has been more planning “than is typical for commission of the offense in a simple form“; (2) when “significant affirmative steps were taken to conceal the offense, other than conduct to which § 3C1.1 ... applies“; or (3) when there have been “repeated acts over a period of time, unless it is clear that each instance was purely opportune.” U.S.S.G. § 1B1.1, comment. (n. 1(f)); see also U.S.S.G. § 2F1.1, comment. (n. 2) (referencing the definition). The transcript of the sentencing hearing indicates that the district court focused upon the first factor to justify the enhancement. It also commented on Mr. Michalek‘s steps to conceal the crime. The court described the fraudulent scheme as “complex” and specifically noted that Mr. Michalek‘s concealment of artwork, sales of artwork, and receipt and use of the sales proceeds involved “more than the typical planning that was necessary for such a crime.” R. 45 at 2-3.
After reviewing the record, we cannot say that the district court‘s finding is clearly erroneous. Mr. Michalek engaged in a protracted course of conduct which served to conceal assets from both the bankruptcy trustee and his creditors for over four years. Cf. United States v. Brown, 47 F.3d 198, 205 (7th Cir. 1995) (indicating that “duration and nature” of fraudulent scheme were factors relevant to determination that it involved careful planning); United States v. Lindholm, 24 F.3d 1078, 1086 (9th Cir. 1994) (noting, in bankruptcy fraud case, that “[t]he fact that defendant‘s behavior was repeated and involved an extended period of time implicates appellant‘s scheme as involving more than minimal planning“); United States v. Loscalzo, 18 F.3d 374, 388 (7th Cir. 1994)
2.
Moreover, even if the district court erred in ordering the more than minimal planning enhancement under § 2F1.1(b)(2)(A), the § 2F1.1(b)(2)(B) enhancement nevertheless was proper under § 2F1.1(b)(2)(B) because Mr. Michalek engaged in a “scheme to defraud more than one victim.” The guideline commentary provides that a “‘scheme to defraud more than one victim’ ... refers to a design or plan to obtain something of value from more than one person. In this context, ‘victim’ refers to the person or entity from which the funds are to come directly.” U.S.S.G. § 2F1.1, comment. (n. 3). When assessed in the context of this commentary, the record, considered as a whole, supports the district court‘s finding. Mr. Michalek deceived the bankruptcy trustee by failing to report his ownership of artwork and other assets. He also failed to report his subsequent sales of certain artwork, and he concealed the sales proceeds. These actions harmed not only the trustee, but also each of Mr. Michalek‘s creditors. Mr. Michalek‘s scheme
was intended to result in an undervaluation of the estate in bankruptcy and the availability of less money to satisfy the demands of the creditors. Thus, [Michalek] would have obtained something of value from more than one person, that being whatever portion of the estate to which they as creditors were entitled but which was hidden[.]
United States v. Nazifpour, 944 F.2d 472, 474 (9th Cir. 1991) (per curiam) (quotation omitted); see also United States v. Walker, 29 F.3d 908, 913 n. 3 (4th Cir. 1994) (noting, in bankruptcy fraud case, that defendant‘s challenge to multiple victim enhancement was “patently without merit“). Thus, the district court did not err in ordering Mr. Michalek‘s sentence enhancement on this alternate basis.9
B. Violation of Judicial Process
Next, Mr. Michalek argues that the district court erred in ordering the two-level enhancement for violation of a judicial process. He claims that the district court‘s reasoning would apply to all cases of bankruptcy fraud. This result, Mr. Michalek submits, is inconsistent with the Guidelines’ focus on offender conduct. In response, the government contends that Mr. Michalek‘s position is contrary to the existing case law. To resolve this issue, we must determine whether the
The two circuits that have confronted this issue have held that § 2F1.1(b)(3)(B) applies to violations of
At the threshold of our analysis, it is useful to note that the applicable guideline, § 2F1.1, is a dragnet guideline that sweeps within its ambit a great number of offenses involving dishonesty found in the federal criminal code and elsewhere in federal statutes. It covers many offenses that impact our society in a variety of ways.10 Consequently, the guideline is structured to require the district court to tailor the imposed sentence to the actual crime committed by the particular defendant before the court. The district court must make the punishment fit the crime or, to be more precise, to reflect accurately the intent of the Congress with respect to the seriousness of each of the many proscribed acts. The base offense level of this guideline, standing alone, is not reflective of any of the offenses to which it must be applied. The district court necessarily must take into account the specific offense characteristics applicable to the defendant‘s conduct. These specific offense characteristics expand drastically the permissible punishment depending on the amount of the monetary loss. Additional increases in punishment are mandated if the offense involved more than minimal planning, involved multiple victims, or if the defendant, in the course of the fraud or deceit, held himself out as the representative of a charitable, educational, religious, or governmental entity. Increasing the risk of serious bodily harm or of harm to a financial institution will also increase the permissible punishment, as will the concealment of the fraud through the use of foreign banks. Finally, additional punishment is permitted when the defendant violates “any judicial or administrative order, injunction, decree, or process.” See U.S.S.G. § 2F1.1(b)(3)(B).
The offense committed by Mr. Michalek, bankruptcy fraud in violation of
We cannot accept the argument that the enhancement ought not apply because the defendant did not violate an identifiable order, injunction, decree or process. Such a contention overlooks an essential difference between bankruptcy proceedings and other types of litigation. Although expressing its views in an abbreviated per curiam opinion, the Court of Appeals for the Eighth Circuit put its collective finger on this essential concept when it pointed out that the defendant had “sought protection from his creditors under the shelter of bankruptcy” and then had “abused the bankruptcy process and hindered the orderly administration of the bankruptcy estate by concealing assets.” Lloyd, 947 F.2d at 340. A bankruptcy proceeding is not just another transitory cause of action that serves to adjudicate the rights and obligations of individuals. It is a special procedure by which the debtor seeks the protection of federal law from his creditors. In order to gain that protection, he must submit his property to the jurisdiction and active supervision of the bankruptcy court which acts through its trustee. As our colleague Judge Selya of the First Circuit has noted, the broad grant of jurisdictional authority, combined with the operation of the automatic stay provision,
For the Eighth Circuit in Lloyd, the gravamen of bankruptcy fraud was that the defendant had abused the process of the bankruptcy court. In United States v. Linville, 10 F.3d 630, 632-33 (9th Cir. 1993), the Court of Appeals for the Ninth Circuit set forth an analysis that indicated its agreement with the approach of the Eighth Circuit. Linville did not involve a bankruptcy matter but rather an administrative warning issued by the Department of Agriculture. Although rejecting the imposition of the enhancement in that context, our colleagues on the Ninth Circuit contrasted the situation before them with that before the Eighth Circuit in Lloyd. In analyzing § 2F1.1(b)(3)(B), the Ninth Circuit noted:
Courts interpreting this enhancement provision have upheld its application to violations of formal judicial orders which resulted from adversarial proceedings. For example, in United States v. Lloyd, 947 F.2d 339, 340 (8th Cir. 1991), the court approved the imposition of an offense level increase under the section based on defendant‘s abuse of the judicial bankruptcy process by concealing assets in a Chapter 11 proceeding. The court reasoned that even though defendant had not violated a specific court
order, he had violated a specific adjudicatory process.
Id. at 632. By citing the bankruptcy proceedings in Lloyd as an “example” of an “adversarial” proceeding, and by paraphrasing Lloyd‘s determination that such proceedings constitute “judicial process,” see Lloyd, 947 F.2d at 340, the Ninth Circuit indicated its agreement with the Eighth Circuit that bankruptcy proceedings involved “the kind of formalities that undergird orders, injunctions and decrees.” Linville, 10 F.3d at 633.
The Eighth Circuit‘s view that fraudulent representations to the bankruptcy court and its trustee violate the judicial “process” of the court is consistent with the realities of bankruptcy practice. Even if we were to depart from that view, however, the imposition of the enhancement would still be appropriate. The falsehoods submitted by the defendant to the court were, as the Court of Appeals for the Eleventh Circuit has pointed out in United States v. Bellew, 35 F.3d 518, 520 (11th Cir. 1994), in direct violation of the requirements of the rules and forms of the Bankruptcy Rules to declare truthfully all assets and liabilities. In a bankruptcy adjudication, this requirement is, as the Eleventh Circuit pointed out, “in the context of formal, adversary court proceedings.” Id. at 521.
In any event, we cannot overlook the fact that the defendant‘s conduct violated the automatic stay provision,
Accordingly, we conclude that the district court committed no error when it imposed this enhancement.
C. Aggravating Role
Mr. Michalek also challenges the district court‘s imposition of a two-point enhancement for his aggravating role in the offense. He notes that a defendant must supervise at least one other criminally responsible person to qualify for this enhancement. He then argues that there were no other criminally responsible individuals involved in his bankruptcy fraud. He emphasizes that Ms. Kadlec did not sign his bankruptcy petitions and that, although she pled guilty to tax evasion, she did not plead guilty to bankruptcy fraud. The government characterizes the bankruptcy fraud as a continuing offense and argues that Mr. Michalek was its leader-organizer. It notes that he specifically recruited Ms. Kadlec into the scheme and that he directed Ms. Kadlec‘s efforts to conceal assets from the trustee.
We review a district court‘s finding that a defendant played an aggravating role in the offense for clear error. United States v. Young, 34 F.3d 500, 507 (7th Cir. 1994). The aggravating role enhancement is outlined in U.S.S.G. § 3B1.1. In part, that provision authorizes a two-level enhancement to the base offense level of any defendant who “was an organizer, leader, manager, or supervisor in any criminal activity.” U.S.S.G. § 3B1.1(c). Application note 2 of this guideline indicates that “[t]o qualify for an adjustment under this section, the defendant must have been the organizer, leader, manager, or supervisor of one or more other participants.” U.S.S.G. § 3B1.1, comment. (n. 2). Another note defines “participant” as a “person who is criminally responsible for the commission of the offense, but [who] need not have been convicted.” Id., comment. (n. 1). Thus, the application notes make clear that Ms. Kadlec can qualify as a criminally responsible individual even though
D. Obstruction of Justice
Finally, Mr. Michalek contends that the district court erred in ordering the two-point enhancement for obstruction of justice. He argues that the false statements he made to FBI agents did not obstruct significantly their investigation. Similarly, he claims that his attempt to suborn perjury does not warrant the enhancement because the false testimony he hoped to elicit would not have impeded the government‘s investigation. The government focuses exclusively on the perjury question. It notes that the commentary to guideline § 3C1.1 indicates that an obstruction enhancement is appropriate in such circumstances.
We review the district court‘s finding that Mr. Michalek obstructed justice for clear error. See United States v. Harrison, 42 F.3d 427, 430 (7th Cir. 1994). We must reject Mr. Michalek‘s argument in light of application note 3 to guideline § 3C1.1, which provides “a non-exhaustive list of examples of the types of conduct to which [the obstruction enhancement] applies.” U.S.S.G. § 3C1.1, comment. (n. 3). Among the conduct the
Conclusion
For the foregoing reasons, Mr. Michalek‘s sentence is affirmed.
AFFIRMED
FERGUSON, Circuit Judge, concurring in part and dissenting in part:
I agree with the majority that the district court did not err in applying three two-point sentencing enhancements for more than minimal planning, aggravating role, and obstruction of justice. In applying these three enhancements, the district court correctly considered the particular facts of the crime committed and determined that those facts warranted the enhancements. However, I disagree with the majority in its interpretation in Part IIB of the fourth sentencing enhancement for violation of a judicial order, injunction, decree, or process. See U.S.S.G. § 2F1.1(b)(3)(B). The majority ignore the common meaning of the word “process” as it applies to legal activities. They also violate fundamental rules which apply to the interpretation of statutes.
The defendant was convicted of bankruptcy fraud in violation of
But then the district court imposed another two-point enhancement solely because the core offense was bankruptcy fraud. The district court stated:
I believe it is appropriate in all bankruptcy fraud cases to have such an enhancement because it is not a typical fraud, it is not an ordinary fraud, it is not a common fraud, it is a fraud upon the judicial process.
In other words, the district court believes that the base level of six is not sufficient when the fraud is bankruptcy fraud.
The majority reasons that the district court had authority to add the two-point enhancement because U.S.S.G. § 2F1.1(b)(3)(B) permits such an enhancement when an offense of fraud or deceit involves the violation of any judicial order, injunction, decree, or process. All agree that no specific order, injunction, or decree was violated. The majority, by upholding the district court, have in effect substituted the word “system” for “process.” As used in § 2F1.1 “process” is not a generic term that encompasses bankruptcy procedures in general. Rather, “process must be construed to be a directive based upon the kind of formalities that undergird orders, injunctions, and decrees.” United States v. Linville, 10 F.3d 630, 633 (9th Cir. 1993). “Process” must be interpreted to be a specific judicial mechanism such as a subpoena or summons.
It is a fundamental rule of statutory interpretation that all words in a statute must be given equal meaning and must be interpreted in light of the others. “Under accepted canons of statutory interpretation, we must interpret statutes as a whole, giving effect to each word and making every effort not to interpret a provision in a manner that ren-
The error of the majority is particularly clear in this case, where the defendant‘s only violation was the core violation—bankruptcy fraud—upon which his base offense level was calculated. The defendant did not violate a bankruptcy “process” in addition to or while committing bankruptcy fraud. He did not do any act except the commission of bankruptcy fraud to trigger application of the enhancement. The district court‘s use of this enhancement derogated the very structure of the Sentencing Guidelines, whereby the core crime corresponds to the base offense level and the enhancements correspond to the particular facts of the crime as it was committed by the defendant. See United States v. Bridges, 50 F.3d 789, 791 (10th Cir. 1994).
The fact that the applicable guideline, § 2F1.1, is a “dragnet” guideline does not change this basic structure.
But we need not engage in rules of statutory construction to understand what the word “process” means. While it may have the meaning of “system” in describing business activities such as the “process” of meat packing, it has a different meaning in the law. In Black‘s Law Dictionary at 1370, the word “process” as commonly understood signifies those formal instruments called “writs which may be issued during the process of an action such as ‘writ of execution.‘”
Therefore, I respectfully dissent from the § 2F1.1(b)(3)(B) enhancement portion of the majority opinion.
Notes
knowingly and fraudulently conceals from a custodian, trustee, marshal, or other officer of the court charged with the control or custody of property, or from creditors in any case under title 11, any property belonging to the estate of a debtor ... [s]hall be fined not more than $5,000 or imprisoned not more than five years, or both.
[w]illfully makes and subscribes any return, statement, or other document, which contains or is verified by a written declaration that is made under the penalties of perjury, and which he does not believe to be true and correct as to every material matter ... shall be guilty of a felony and, upon conviction thereof, shall be fined not more than $100,000 ($500,000 in the case of a corporation), or imprisoned not more than 3 years, or both, together with the costs of prosecution.
If the offense involved (A) more than minimal planning, or (B) a scheme to defraud more than one victim, increase by 2 levels.
U.S.S.G. § 2F1.1(b)(2).If the offense involved (A) a misrepresentation that the defendant was acting on behalf of a charitable, educational, religious or political organization, or a government agency, or (B) violation of any judicial or administrative order, injunction, decree, or process not addressed elsewhere in the guidelines, increase by 2 levels. If the resulting offense level is less than level 10, increase to level 10.
U.S.S.G. § 2F1.1(b)(3).If the defendant was an organizer, leader, manager, or supervisor in any criminal activity other than described in (a) or (b) [which apply to activities that involve five or more participants or are otherwise extensive], increase by 2 levels.
U.S.S.G. § 3B1.1(c).If the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice during the investigation, prosecution, or sentencing of the instant offense, increase the offense level by 2 levels.
U.S.S.G. § 3C1.1.(a) If the defendant clearly demonstrates acceptance of responsibility for his offense, decrease the offense level by 2 levels.
(b) If the defendant qualifies for a decrease under subsection (a), the offense level determined prior to the operation of subsection (a) is level 16 or greater, and the defendant has assisted authorities in the investigation or prosecution of his own misconduct by taking one or more of the following steps: (1) timely providing complete information to the government concerning his own involvement in the offense; or (2) timely notifying the authorities of his intention to enter a plea of guilty, thereby permitting the government to avoid preparing for trial and permitting the court to allocate its resources efficiently, decrease the offense level by 1 additional level.
U.S.S.G. § 3E1.1.The commentary to this guideline states that the enhancement typically will not apply in cases involving defendants who have received an enhancement for obstruction of justice, U.S.S.G. § 3C1.1. See U.S.S.G. § 3E1.1, comment. (n. 4). However, the government has not argued that the district court erred in reducing Mr. Michalek‘s offense level for acceptance of responsibility.
In any event, the applicable version of the Guidelines indicates that the two enhancements should be applied cumulatively. See U.S.S.G. § 1B1.1, comment. (n. 4) (“[T]he adjustments from § 2F1.1(b)(2) (more than minimal planning) and § 3B1.1 (aggravating role) are applied cumulatively.“); cf. United States v. Harris, 41 F.3d 1121, 1123 (7th Cir. 1994) (noting that amendment adding the application note to the 1993 guidelines does not demonstrate that previous versions of the guidelines were more lenient). Moreover, we note that the district court‘s alternative finding that the enhancement under guideline § 2F1.1(b)(2) was appropriate because Mr. Michalek had defrauded multiple victims also eliminated any double counting problem. See United States v. Boula, 932 F.2d 651, 655 (7th Cir. 1991) (noting that there could be no double counting problem if the § 2F1.1(b)(2) enhancement were given for defrauding multiple victims); accord United States v. Aideyan, 11 F.3d 74, 76 (6th Cir. 1993).
Mr. Michalek‘s reliance upon United States v. Romano, 970 F.2d 164, 167 (6th Cir. 1992) is infirm for another reason. We, along with a substantial majority of the other Circuits, have rejected this position. See United States v. Harris, 41 F.3d 1121, 1123 (7th Cir. 1994) (finding no double counting where defendant received enhancements under guideline §§ 2B1.1 and 3B1.1); United States v. Boula, 932 F.2d 651, 655 (7th Cir. 1991) (finding no double counting problem and noting that §§ 2F1.1(b)(2) and 3B1.1 are not mutually exclusive); United States v. Godfrey, 25 F.3d 263, 264 (5th Cir.) (noting that Fifth Circuit does not prohibit double counting unless guidelines themselves do so and that §§ 2F1.1(b)(2) and 3B1.1 do not), cert. denied, U.S. -, 115 S.Ct. 429, 130 L.Ed.2d 342 (1994); United States v. Smith, 13 F.3d 1421, 1429 (10th Cir.) (finding no double counting problem), cert. denied, U.S. -, 115 S.Ct. 209, 130 L.Ed.2d 138 (1994); United States v. Wong, 3 F.3d 667, 671-72 (3d Cir. 1993) (noting that there was no double counting problem involved in applying more than minimal planning enhancement available under § 2B1.1(b)(5) and aggravating role enhancement under § 3B1.1(c)); United States v. Rappaport, 999 F.2d 57, 60-61 (2d Cir. 1993) (finding no double counting problem); United States v. Willis, 997 F.2d 407, 419 (8th Cir. 1993) (indicating that court may order both enhancements), cert. denied, U.S. -, 114 S.Ct. 704, 126 L.Ed.2d 670 (1994); United States v. Kelly, 993 F.2d 702, 705 (9th Cir. 1993) (noting that more than minimal planning describes “complexity of scheme” while leadership enhancement addresses “a somewhat different concern,” one‘s “role within the group of coconspirators“); United States v. Balogun, 989 F.2d 20, 23-24 (1st Cir. 1993) (suggesting that double counting could exist if same conduct were used for both enhancements, but finding that district court had ordered § 3B1.1(c) enhancement because defendant had recruited others and § 2F1.1(b)(2) enhancement due to complexity of the scheme); United States v. Curtis, 934 F.2d 553, 556 (4th Cir. 1991) (noting that the guidelines themselves do not prohibit double counting).