United States v. Lambert

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 07-30060

Plaintiff-Appellee,

v.  D.C. No.

CR-06-00063-SEH

BERNARD JOHN LAMBERT, JR.,

OPINION

Defendant-Appellant.



Appeal from the United States District Court

for the District of Montana

Sam E. Haddon, District Judge, Presiding

Submitted July 13, 2007*

Seattle, Washington

Filed August 16, 2007

Before: Arthur L. Alarcón, Michael Daly Hawkins, and

Kim McLane Wardlaw, Circuit Judges.

Opinion by Judge Hawkins

*This panel unanimously finds this case suitable for decision without

oral argument. See Fed. R. App. P. 34(a)(2).

9921

9924 UNITED STATES v. LAMBERT

COUNSEL

Helge Naber, Naber PC, Great Falls, Montana, for the

defendant-appellant.

Carl E. Rostad, Assistant United States Attorney, Great Falls,

Montana, for the plaintiff-appellee.

OPINION

HAWKINS, Circuit Judge:

Bernard J. Lambert appeals the sentence imposed following

his guilty plea to conspiracy to defraud the United States, in

violation of 18 U.S.C. § 286, arising from his submission of,

and payment for, invoices to the Fort Peck Indian Tribes Edu-

cation Department (“Education Department”) for educational

grant-writing services Lambert never performed. Specifically,

Lambert challenges the district court’s application of a two-

level enhancement under United States Sentencing Guideline

(“U.S.S.G.”) § 2B1.1(b)(8)(A) after it concluded that Lam-

bert’s offense “involved . . . a misrepresentation that [he] was

acting on behalf of a[n] . . . educational organization . . . or

a governmental agency.”

We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C.

§ 3742(a)(2), and we affirm.

FACTUAL AND PROCEDURAL HISTORY

The Indian Self-Determination Act (“the Act”) requires the

federal government, at the request of a tribe, to provide fund-

UNITED STATES v. LAMBERT 9925

ing for certain tribal services traditionally the direct responsi-

bility of the federal government. 25 U.S.C. § 450f. Under the

Act, the Fort Peck Tribes (“the Tribes”)1 entered into a so-

called “638 Contract,”2 whereby the United States agreed to

provide $787,733 for the Tribes’ Education Department from

October 1, 2001 to September 30, 2002, followed by an addi-

tional $360,127 the next year.

Lambert’s wife, Desiree, was the Director of the Tribes’

Education Department and, as such, responsible for managing

funds provided under the Tribes’ 638 contract. Over a 13-

month period, she and Lambert conspired to submit fraudu-

lent invoices, and receive payment from 638 contract funds,

for writing grant applications for the Education Department.

Although Lambert received $12,000 for ostensibly writing ten

grant applications on the Education Department’s behalf, the

applications were never received—or funded—by the various

corporations and agencies to which Lambert purported to

have applied. Lambert admitted that a portion of the $12,000

was used to pay his daughter’s college tuition, but claimed

that he actually wrote all ten applications and provided them

to Desiree on a diskette. The diskette has never surfaced.

Lambert pled guilty to conspiracy to defraud the United

States, in violation of 18 U.S.C. § 286. His presentence report

recommended a six-to-twelve month sentence based on a total

offense level of ten and Lambert’s Criminal History Category

I. The total offense level was calculated based on the base

offense level of six for violation of 18 U.S.C. § 286, a four-

level increase based on the amount of loss under U.S.S.G.

§ 2B1.1(b)(1)(C), a two-level decrease for acceptance of

responsibility, and a two-level increase because the offense

involved a misrepresentation that Lambert was acting on

1

The Tribes include members of the Assiniboine and Sioux tribes of the

Fort Peck Indian Reservation in Montana.

2

“638” refers to the Act’s public law number. See Pub. L. No. 93-638,

88 Stat. 2203 (1975) (codified at 25 U.S.C. §§ 450 et seq.).

9926 UNITED STATES v. LAMBERT

behalf of an educational organization under U.S.S.G.

§ 2B1.1(b)(8)(A).

At sentencing, Lambert objected to the two-level increase

under § 2B1.1(b)(8)(A), contending that, “because he submit-

ted the invoices under his own name, [he] did not act on

behalf of an educational institution or as a representative of

the [Education Department].” The district court received sen-

tencing memoranda from both parties addressing Lambert’s

objection, heard argument, and concluded that the enhance-

ment applied because “the gravamen of the offense of convic-

tion . . . is that [Lambert] wrote and indeed got paid for

writing some ten grant applications on behalf of the [T]ribe’s

education department . . . . He was acting or purporting to act

on behalf of the [T]ribe . . . . [And] that clearly fits within the

parameters of Guideline 2B1.1(b)(8) . . . .” The court then

heard additional argument concerning the appropriate sen-

tence, including Lambert’s allocution in which he “apolo-

gize[d] to the . . . Tribes,” stating: “They had faith in me and

I wronged them.”

The district court sentenced Lambert to twelve months in

prison. In this appeal, Lambert challenges only the two-level

enhancement under § 2B1.1(b)(8)(A). Without the enhance-

ment, Lambert’s offense level would be eight and his Guide-

line range zero-to-six months, though the statutory maximum

for conviction under 18 U.S.C. § 286 remains ten years.

STANDARD OF REVIEW

We review “the district court’s interpretation of the Sen-

tencing Guidelines de novo, the district court’s application of

the Sentencing Guidelines to the facts of th[e] case for abuse

of discretion, and the district court’s factual findings for clear

error.” United States v. Kimbrew, 406 F.3d 1149, 1151 (9th

Cir. 2005). “The Guidelines, including enhancements, are

ordinarily applied in light of available commentary, including

application notes.” United States v. Staten, 466 F.3d 708, 715

UNITED STATES v. LAMBERT 9927

(9th Cir. 2006) (citing Stinson v. United States, 508 U.S. 36,

38 (1993)). Such commentary is generally authoritative “un-

less it violates the Constitution or a federal statute, or is

inconsistent with, or a plainly erroneous reading of, that

guideline.” Stinson, 508 U.S. at 38.

DISCUSSION

Lambert raises two objections to the district court’s appli-

cation of § 2B1.1(b)(8)(A). Relying on § 2B1.1’s application

notes and United States v. Frazier, 53 F.3d 1105 (10th Cir.

1995), he first argues that the enhancement does not apply to

him because he did not exploit the generosity, charitable

motives, or trusting impulses of his victim by misrepresenting

his authority to act on behalf of a statutorily-designated entity.

He also argues that—even if § 2B1.1(b)(8)(A) can be

applied regardless of the defendant’s appeal to the victim’s

charitable impulses (as several circuits have concluded)—it

still requires a misrepresentation by the defendant as to his

capacity to act on behalf of the qualifying entity and, because

he submitted the invoices under his own name and only to his

co-conspirator wife, no such misrepresentation occurred here.

We conclude that the district court did not err in determin-

ing that Lambert’s conduct triggered the enhancement.

I. Background: U.S.S.G. § 2B1.1(b)(8)(A)

A) Current Version

Guideline § 2B1.1(b)(8)(A) states, in pertinent part:

If the offense involved . . . a misrepresentation that

the defendant was acting on behalf of a charitable,

educational, religious, or political organization, or a

government agency . . . , increase by 2 levels.

9928 UNITED STATES v. LAMBERT

The Guideline’s application notes clarify that:

Subsection (b)(8)(A) applies in any case in which the

defendant represented that the defendant was acting

to obtain a benefit on behalf of a charitable, educa-

tional, religious, or political organization, or a gov-

ernment agency (regardless of whether the defendant

actually was associated with the organization or gov-

ernment agency) when, in fact the defendant

intended to divert all or part of that benefit (e.g., for

the defendant’s personal gain).

Subsection (b)(8)(A) applies, for example, to the fol-

lowing:

(i) A defendant who solicited contributions

for a non-existent famine relief organiza-

tion.

(ii) A defendant who solicited donations

from church members by falsely claiming

to be a fundraiser for a religiously affiliated

school.

(iii) A defendant, chief of a local fire

department, who conducted a public fund-

raiser representing that the purpose of th[e]

fundraiser was to procure sufficient funds

for a new fire engine when, in fact, the

defendant intended to divert some of the

funds for the defendant’s personal benefit.

U.S.S.G. § 2B1.1 cmt. n.7 (2006) (emphasis added). The

Guideline’s Background Note further explains that:

Use of false pretenses involving charitable causes

and government agencies enhances the sentences of

defendants who take advantage of victims’ trust in

UNITED STATES v. LAMBERT 9929

government or law enforcement agencies or the gen-

erosity and charitable motives of victims. Taking

advantage of a victim’s self-interest does not miti-

gate the seriousness of fraudulent conduct; rather,

defendants who exploit victims’ charitable impulses

or trust in government create particular social harm.

Id. cmt. background.

B) Previous Versions

Because relevant precedent from our sister circuits analyzes

prior versions of § 2B1.1(b)(8)(A), it is useful to compare the

various versions of the Guideline. In November 2001,

U.S.S.G. § 2F1.1 was consolidated into § 2B1.1, resulting in

the addition of current subsection (b)(8)(A) to § 2B1.1. Prior

to this consolidation, the two-level enhancement for “misrep-

resentation that the defendant was acting on behalf of a chari-

table, educational, religious or political organization, or a

government agency” was located at § 2F1.1(b)(4)(A).3

Although, the Guideline language is identical in both ver-

sions, the commentary differs slightly.

The application notes to former § 2F1.1 stated:

Subsection (b)(4)(A) provides an adjustment for a

misrepresentation that the defendant was acting on

behalf of a charitable, educational, religious or

political organization, or a government agency.

Examples of conduct to which this factor applies

would include a group of defendants who solicit con-

3

Subsection 2F1.1(b)(3) was renumbered § 2F1.1(b)(4) in 1998 to make

room for an enhancement for an offense committed through mass market-

ing. Thus, in pre-November 1, 1998 sentences, the relevant predecessor

Guideline is § 2F1.1(b)(3)(A), while in sentences entered after November

1, 1998, the relevant predecessor Guideline is § 2F1.1(b)(4)(A). The com-

mentary to the Guideline did not change in this transition.

9930 UNITED STATES v. LAMBERT

tributions to a non-existent famine relief organiza-

tion by mail, a defendant who diverts donations for

a religiously affiliated school by telephone solicita-

tions to church members in which the defendant

falsely claims to be a fund-raiser for the school, or

a defendant who poses as a federal collection agent

in order to collect a delinquent student loan.

U.S.S.G. § 2F1.1 cmt. n.5 (2000) (emphasis added).

There are three primary differences between this note and

the current version: (1) the current version specifies that a

defendant must have been “acting to obtain a benefit on

behalf of” an enumerated entity, while the previous version

stated only that the defendant must have been “acting on

behalf of” such an entity; (2) the current version specifies the

subsection “applies, for example, to” the hypothetical scenar-

ios provided, whereas the prior version stated only that the

subsection “would include” the hypothetical conduct; and (3)

the previous version does not admonish that the enhancement

applies “regardless of whether the defendant actually was

associated with the organization or government agency.”

Compare U.S.S.G. § 2F1.1 cmt. n.5 (2000), with U.S.S.G.

§ 2B1.1 cmt. n.7 (2006) (emphasis added).

Former § 2F1.1’s background note also differs slightly

from the current version, insofar as it begins by noting that the

Guideline was “designed to apply to a wide variety of fraud

cases,” whereas the current version simply states the specific

types of cases the Guideline covers without reference to the

breadth of conduct reached. Compare U.S.S.G. § 2F1.1 cmt.

background (2000), with U.S.S.G. § 2B1.1 cmt. background

(2006).

II. Appeal to Charitable Impulses

Lambert contends § 2B1.1(b)(8)(A) is inapplicable because

it applies only where a defendant’s misrepresentation exploits

UNITED STATES v. LAMBERT 9931

the generosity, charitable motives, or trusting impulses of the

victim and that his crime employed no such exploitation.

Although Lambert’s narrow reading of the statute seemingly

finds support in the Tenth Circuit, see Frazier, 53 F.3d at

1113, it has been rejected (at least implicitly) by the Third,

Fourth, Sixth, and Seventh Circuits, see United States v. Ben-

nett, 161 F.3d 171, 191-92 (3d Cir. 1998); United States v.

Aramony, 166 F.3d 655, 664 (4th Cir. 1999); United States v.

Wiant, 314 F.3d 826, 829 (6th Cir. 2003); United States v.

Ferrera, 107 F.3d 537, 542 (7th Cir. 1997).4

A) The Tenth Circuit Approach

In Frazier, the Tenth Circuit reviewed the application of

§ 2B1.1(b)(8)(A)’s predecessor to a defendant’s sentence for

misapplying property and making false statements to a gov-

ernment agency. Frazier was president of a nonprofit corpora-

tion providing technical support and social services to Native

Americans. As president, Frazier misappropriated government

funds intended for training services to purchase new comput-

ers for the corporation. 53 F.3d at 1108-09. A divided panel

reversed the district court’s application of the enhancement,

concluding that the “conduct intended to fall within the scope

of the guideline is exploitative conduct which induces victims

to act upon their charitable or trusting impulses due to the

4

Lambert also contends United States v. Berger, 224 F.3d 107 (2d Cir.

2000), implicitly adopted Frazier’s narrow interpretation, but a review of

Berger belies any such contention. Although the Berger court noted that

“the Background Notes suggest the enhancement is meant to punish

‘defendants who exploit victims’ charitable impulses or trust in govern-

ment,’ ” it ultimately concluded the enhancement applied to the defen-

dants’ student loan fraud on the federal government, holding: “We see no

persuasive reason to look beyond [the Guideline’s] plain meaning, nor do

we think the [Guideline’s] supporting materials . . . counsel a different

result.” Id. at 120-21. The court specifically rejected the argument that the

Guideline “appl[ies] only where a defendant exploits the altruism of pri-

vate individuals, not where he simply defrauds government agencies.” Id.

at 120. As such, if anything, Berger seemingly supports broader applica-

tion of the enhancement.

9932 UNITED STATES v. LAMBERT

defendant’s misrepresentation that he has the authority to act

on behalf of a charitable, educational, religious or political

organization or government agency.” Id. at 1113 (emphasis

added).

Because Frazier was president of the nonprofit corporation,

the court concluded that he in fact had authority to act on its

behalf and therefore did not “exploit[ ] his victim by claiming

to have authority which in fact does not exist,” thus rendering

the enhancement inapplicable. Id. In so holding, the Tenth

Circuit noted that the hypothetical examples contained in the

Guideline commentary each “involve[d] conduct that

induce[d] the victim to contribute funds because the defendant

ha[d] falsely led the victim to believe that he ha[d] the capac-

ity to act as an agent or employee for the charitable, educa-

tional, or political organization or government agency.” Id.

The court rejected United States v. Marcum, 16 F.3d 599 (4th

Cir. 1994), in which the Fourth Circuit “applied the guideline

to conduct which did not involve a false representation of the

defendant’s authority to act on behalf of the charitable organi-

zation,” concluding that “the Fourth Circuit expanded the

scope of the guideline beyond that which was contemplated

by the Sentencing Commission.” Frazier, 53 F.3d at 1114 &

n.8.

Alternatively, the Frazier court concluded that, even if the

Guideline applied where a defendant does not misrepresent

his authority, it did not apply to Frazier because he “did not

exploit the ‘generosity’ and ‘charitable motives’ of his vic-

tim” and “did not gain personally from his misapplication of

[government monies].” Id. at 1114.

[1] Although Lambert contends Frazier stands for the prop-

osition that the enhancement applies only where a defendant

appeals to a victim’s trust or charitable motive, the holding of

Frazier is limited to its conclusion that the enhancement

applies only where a defendant has misrepresented his author-

ity to act. The court’s discussion of charitable motive and per-

UNITED STATES v. LAMBERT 9933

sonal gain is dicta and thus provides little support for

Lambert’s claims. See Ferrera, 107 F.3d at 542. In any event,

as discussed below, every other circuit to reach the issue has

rejected the notion that the enhancement applies only where

the defendant intended to exploit the generosity, trust, or char-

itable motives of his victim.

B) The Majority Approach

All other circuits to reach the question have declined to

adopt Frazier’s narrow construction of the enhancement. In

Ferrera, the Seventh Circuit distinguished Frazier by noting

that its holding rested on the absence of a misrepresentation

of authority to act, whereas Ferrera had clearly misrepre-

sented such authority. 107 F.3d at 541. In addition, the court

noted that the hypothetical examples contained in the com-

mentary to § 2B1.1(b)(8)(A)’s predecessor “could not be

exhaustive, as the devious mind would easily escape that lim-

ited net.” Id. (also noting that commentary states “[e]xamples

. . . would include”). Finally, the court refused to read Frazier

as imposing a requirement that defendants “exploit their vic-

tims’ charitable impulses to be eligible for the enhancement.”

Id. at 543.

In Bennett, the Third Circuit similarly rejected a narrow

interpretation of the enhancement as applying “only when a

defendant falsely claims to be soliciting on behalf of a genu-

ine charity with which the defendant has no connection, solic-

its on behalf of a fictitious charity, or uses a position as the

actual representative of genuine charitable organization to

embezzle money.” 161 F.3d at 191. The court concluded that

the application note examples were “illustrative, not exhaus-

tive,” thereby parting company with the Frazier court. Id. The

court further noted that the enhancement applied “[r]egardless

of [the victims’] motivation in giving money,” suggesting that

exploitation of charitable impulses is unnecessary.5 Id.

5

It should be noted that the Bennett court also distinguished Frazier in

part because Bennett had exploited his victims’ charitable impulses. Id. at

9934 UNITED STATES v. LAMBERT

In Aramony, the Fourth Circuit reaffirmed its holding in

Marcum, 16 F.3d 599, concluding that the enhancement

applies “even if the defendant did not misrepresent his author-

ity to act on behalf of a particular organization.” 166 F.3d at

664. The court also rejected Aramony’s argument that the

enhancement did not apply because he did not “exploit the

generosity and charitable motives of any party.” Id.

[2] Finally, in Wiant, the Sixth Circuit noted that “the

majority of circuits . . . have rejected a narrow[ ] reading of

the enhancement” and dismissed Wiant’s contention that the

Guideline’s commentary limits the enhancement to solicita-

tion of funds by misrepresentation. 314 F.2d at 829 (collect-

ing cases). Discussing the commentary’s focus on exploiting

charitable impulses, the court concluded that “the plain lan-

guage of the rule . . . contains no textual support” for such a

limitation and that “[t]he examples listed in the application

notes are obviously illustrative not exhaustive, and thus pro-

vide no mandate for limiting the scope of the enhancement’s

actual language.” Id.

C) Changes in the Guideline Commentary

As discussed above, although the Guideline text has

remained the same over the years, the Guideline commentary

has evolved slightly. At least two of these changes lend sup-

port to the majority view rejecting a narrow interpretation of

the Guideline’s reach. First, the current commentary even

more clearly indicates that the hypothetical examples are not

intended to be an exhaustive list. Compare U.S.S.G. § 2F1.1

cmt. n.5 (2000) (“Examples of conduct to which this factor

applies would include . . . .” (emphasis added)), with U.S.S.G.

§ 2B1.1 cmt. n.7 (2006) (“Subsection (b)(8)(A) applies, for

example, to the following . . . .” (emphasis added)).

192. The Bennett court therefore did not need to decide whether the

Guideline contains an exploitation requirement in order to reach its deci-

sion.

UNITED STATES v. LAMBERT 9935

[3] Second, the application note now clearly states that the

enhancement applies “regardless of whether the defendant

actually was associated with the organization.” U.S.S.G.

§ 2B1.1cmt. n.7. This change indicates that Congress, in

enacting the current iteration, intended the enhancement to

apply where the defendant misrepresents his intentions,

regardless of whether he also misrepresents his authority to

act, effectively abrogating the decision in Frazier.6

D) Analysis

[4] There is little if any support in the Guideline text or

commentary for Lambert’s contention that the enhancement

applies only where a defendant exploits charitable motives or

trust. As the majority of circuits to reach the issue has held,

the examples provided in the application notes suggesting that

exploitation of a charitable impulse is required are just that—

examples. They are not intended as an exhaustive list of cov-

6

The remaining changes to the Guideline commentary have no impact

on our analysis. Though the current commentary’s specification that the

Guideline apply only where a defendant is acting “to obtain a benefit on

behalf of” an enumerated entity arguably narrows the Guideline’s reach,

see U.S.S.G. § 2B1.1 cmt. n.7 (emphasis added), the change is of no

import in this case because if Lambert is deemed to have acted “on behalf

of” a specified entity, see infra, he also acted “to obtain a benefit” for it.

Similarly, the replacement of the former background note’s preface that

the Guideline “is designed to apply in a wide variety of fraud cases” with

the current background note’s statement that the Guideline “covers

offenses involving theft, stolen property, property damage or destruction,

fraud, forgery, and counterfeiting . . . .” was undoubtedly motivated by the

2001 consolidation of § 2F1.1 with § 2B1.1, resulting in a combined

Guideline that covers more than just fraud cases, and cannot be interpreted

to indicate that Congress intended a narrower reach for the Guideline.

Compare U.S.S.G. § 2F1.1 cmt. background (2000) (emphasis added),

with U.S.S.G. § 2B1.1 cmt. background (2006).

Nonetheless, to the extent prior cases expressly relied on the former

note’s now-omitted language in rejecting a narrow interpretation of the

Guideline’s reach—see, e.g., Bennett, 161 F.3d at 191; Ferrera, 107 F.3d

at 541—we cannot rely on this aspect of their reasoning.

9936 UNITED STATES v. LAMBERT

ered conduct and do not preclude application of the enhance-

ment in other situations. Though generally sufficient to trigger

the enhancement, a defendant’s exploitation of his victim’s

charitable impulses is not required. This conclusion is all the

more apparent when we consider that the background note

specifically contemplates applying the enhancement where

the victim acts purely out of self-interest. U.S.S.G. § 2B1.1

cmt. background (“Taking advantage of a victim’s self-

interest does not mitigate the seriousness of fraudulent con-

duct . . . .”).

[5] Finally, to the extent the commentary can be read to

establish an exploitative requirement, it is inconsistent with

the plain language of the Guideline itself and need not be fol-

lowed. See Stinson, 508 U.S. at 38; United States v. Sarbia,

367 F.3d 1079, 1084 (9th Cir. 2004). The Guideline’s plain

language requires only that the offense involve a misrepresen-

tation that the defendant was acting on behalf of a specified

type of organization. As the majority of circuits has found,

support for narrowing it further simply cannot be found in the

Guideline text.7 Accordingly, Lambert’s claim that

§ 2B1.1(b)(8)(A) applies only where a defendant exploits

charitable impulses fails.

III. Application of § 2B1.1(b)(8)(A)

Lambert further argues that § 2B1.1(b)(8)(A)—even if

applicable regardless of the defendant’s appeal to the victim’s

charitable impulses—nonetheless does not apply to him

because he did not represent that he was acting on behalf of

a specified entity. Rather, Lambert contends, he submitted the

7

Even if we were to conclude that the Guideline contains an exploitative

requirement, Lambert’s conduct would likely qualify insofar as his mis-

representation to the Education Department—that he had submitted grants

on its behalf for education funding—“took advantage of the government’s

generosity” in providing 638 contract funds to the Tribes. See Berger, 224

F.3d at 121.

UNITED STATES v. LAMBERT 9937

grant application invoices under his own name, received pay-

ment under his own name, and at no time misrepresented his

affiliation with, or capacity to act on behalf of, the Education

Department.

[6] Lambert’s argument misses the mark. Lambert con-

spired to defraud the United States by specifically asserting

that he had done work on behalf of the Tribes’ Education

Department—i.e., he purported to have submitted ten grant

applications for its benefit. He received payment from the

Tribes (drawn from its 638 contract funds) because they

believed he had done work on their behalf. Lambert musters

no authority to support his argument that submitting the

invoices under his own name somehow absolves him of any

misrepresentation, and we can find none. Although the facts

of his case may be somewhat unique, as the district court

noted, “the gravamen of the offense of conviction” was Lam-

bert’s misrepresentation of work done on the Education

Department’s behalf.

Furthermore, because Lambert was convicted of conspir-

acy, he can properly be held accountable for the reasonably

foreseeable acts of his co-conspirator wife. U.S.S.G.

§ 1B1.3(a)(1)(B). As such, even if his own actions did not

constitute a misrepresentation that he was acting (or had

acted) on behalf of the Education Department, then surely his

wife’s actions—in authorizing payment and issuing the

checks—did, and the enhancement can properly be applied.

[7] In addition, Lambert’s contention that he made no “di-

rect statements toward the ultimate victims of his offense con-

cerning his affiliation or capacity as a representative of the

[Education Department]” is irrelevant. Lambert was not con-

victed of actually defrauding the United States; he was con-

victed of conspiracy to defraud the United States. Lambert’s

misrepresentation to the Education Department was the first

overt step in this conspiracy, which in turn led to the foresee-

9938 UNITED STATES v. LAMBERT

able consequence that the Tribes would pay Lambert from

638 contract funds, and the United States would be defrauded.8

[8] In sum, the district court did not abuse its discretion in

applying a two-level enhancement under § 2B1.1(b)(8)(A)

because Lambert’s conduct fits within the parameters of

§ 2B1.1(b)(8)(A).9

CONCLUSION

Neither the Guideline text nor commentary supports Lam-

bert’s argument that § 2B1.1(b)(8)(A) applies only where a

defendant exploits the charitable impulses of his victim, and

the Tenth Circuit’s decision to the contrary can be distin-

guished in light of subsequent Guideline changes. Accord-

ingly, Lambert’s conduct—misrepresenting that he had

submitted grant applications on the Education Department’s

behalf and receiving payment—falls within the plain language

of § 2B1.1(b)(8)(A), and the district court did not abuse its

discretion in applying the enhancement.

AFFIRMED.

8

Lambert’s lack of communication with potential grantors is of no

import. Indeed, it would be exceedingly odd if the very reason Lambert’s

conduct was fraudulent—i.e., because he did not submit the applications

to potential grantors—somehow shielded him from enhanced liability for

his misrepresentation. In any event, the potential grantors were not the vic-

tims of Lambert’s crime, and Lambert’s statements to the Education

Department (as well as his wife’s additional actions) clearly constitute a

misrepresentation that he was acting on the Education Department’s

behalf.

9

The parties do not dispute that the Education Department is a qualify-

ing entity under § 2B1.1(b)(8)(A). It would seemingly qualify as both an

“educational organization” and a “government agency” (by virtue of the

Tribes’ sovereignty).