                    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).
