                                                           [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT           FILED
                        ________________________ U.S. COURT OF APPEALS
                                                           ELEVENTH CIRCUIT
                               No. 07-15997                  AUGUST 1, 2008
                           Non-Argument Calendar            THOMAS K. KAHN
                         ________________________               CLERK


                    D. C. Docket No. 07-00061-CR-TWT-1

UNITED STATES OF AMERICA,

                                                             Plaintiff-Appellee,

                                    versus

ANTHONY MICHAEL RAMUNNO, JR.,
a.k.a. Mick Ramunno,

                                                          Defendant-Appellant.

                         ________________________

                  Appeal from the United States District Court
                     for the Northern District of Georgia
                       _________________________

                               (August 1, 2008)

Before BIRCH, DUBINA and MARCUS, Circuit Judges.

PER CURIAM:

      Anthony Ramunno appeals from his sentence of 235 months’ imprisonment for

mail and wire fraud, in violation of 18 U.S.C. §§ 1341 and 1343. On appeal, he
contends that the district court, in calculating his guideline sentencing range, erred

by applying a four-level enhancement for violation of commodities laws, pursuant to

U.S.S.G. § 2B1.1(b)(15)(B). After thorough review, we affirm.

      We review a district court’s factual findings for clear error and its application

of the Sentencing Guidelines de novo. United States v. Lozano, 490 F.3d 1317, 1321

(11th Cir. 2007). Clear error exists where we are “left with a definite and firm

conviction that a mistake has been committed.” United States v. Crawford, 407 F.3d

1174, 1177 (11th Cir. 2005) (citation omitted).

      Section 2B1.1(b)(15) of the Sentencing Guidelines provides for a four-level

increase in a defendant’s offense under the following circumstances:

      If the offense involved -- [. . .]

             (B) a violation of commodities law and, at the time of the offense,
             the defendant was (i) an officer or a director of a futures
             commission merchant or an introducing broker; (ii) a
             commodities trading advisor; or (iii) a commodity pool operator
             [. . .]

U.S.S.G. § 2B1.1(b)(15). Comment 14 notes that “commodities trading advisor” and

“commodity pool operator” have the meanings given to those terms by the

Commodities Exchange Act, 7 U.S.C. § 1a. U.S.S.G. § 2B1.1 cmt. n.14. That statute

defines the terms as follows:

      (5)    Commodity pool operator. The term “commodity pool operator”

                                           2
      means any person engaged in a business that is of the nature of an
      investment trust, syndicate, or similar form of enterprise, and
      who, in connection therewith, solicits, accepts, or receives from
      others, funds, securities, or property, either directly or through
      capital contributions, the sale of stock or other forms of securities,
      or otherwise, for the purpose of trading in any commodity for
      future delivery on or subject to the rules of any contract market or
      derivatives transaction execution facility, except that the term
      does not include such persons not within the intent of the
      definition of the term as the Commission may specify by rule,
      regulation, or order.

(6) Commodity trading advisor.

      (A)    In general. Except as otherwise provided in this paragraph,
             the term “commodity trading advisor” means any person
             who --

             (i)   for compensation or profit, engages in the business
                   of advising others, either directly or through
                   publications, writings, or electronic media, as to the
                   value of or the advisability of trading in --

                   (I) any contract of sale of a commodity for future
                   delivery made or to be made on or subject to the
                   rules of a contract market or derivatives transaction
                   execution facility;

                   (II) any commodity option authorized under section
                   6c [7 USCS § 6c]; or

                   (III) any leverage transaction authorized under
                   section 23 [7 USCS § 23]; or

      (ii)   for compensation or profit, and as part of a regular
             business, issues or promulgates analyses or reports
             concerning any of the activities referred to in clause (i).

                                 3
7 U.S.C. § 1a(5) and (6).

      We find no merit to Ramunno’s argument. As an initial matter, the definitions

of commodity pool operator and commodity trading advisor do not require that a

person who qualifies as one be registered or licensed as one. See 7 U.S.C. § 1a(5)

and (6). Thus, Ramunno’s assertion that he was not registered as either entity has no

bearing on whether the district court correctly applied the enhancement.

      Moreover, the district court found that Ramunno was both a commodity pool

operator and a commodity trading advisor based on its uncontested factual findings

that Ramunno (a) solicited money from investors by holding himself out as a

successful commodities trader, (b) accepted money from investors, (c) advised

investors in the merits of trading in commodities, and (d) issued earning reports to

investors. Because Ramunno did not contest any of these underlying facts, which

plainly support the district court’s finding that Ramunno was a commodity pool

operator and a commodity trading advisor, the district court did not err by finding that

he was eligible for the commodities law enhancement in § 2B1.1(b)(15)(B).

Accordingly, we affirm Ramunno’s sentence.

      AFFIRMED.




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