PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                   No. 95-5765

HENRY ACHIEKWELU,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
T. S. Ellis, III, District Judge.
(CR-94-376-A)

Argued: March 7, 1997

Decided: May 1, 1997

Before MURNAGHAN and LUTTIG, Circuit Judges, and
BLACK, Senior United States District Judge
for the District of Maryland, sitting by designation.

_________________________________________________________________

Affirmed by published opinion. Judge Murnaghan wrote the opinion,
in which Judge Luttig and Senior Judge Black joined.

_________________________________________________________________

COUNSEL

ARGUED: Amy Adelson, DERSHOWITZ & EIGER, P.C., New
York, New York, for Appellant. Nicole Miller Healy, Fraud Section,
Criminal Division, UNITED STATES DEPARTMENT OF JUS-
TICE, Washington, D.C., for Appellee. ON BRIEF: Nathan Z. Der-
showitz, DERSHOWITZ & EIGER, P.C., New York, New York, for
Appellant. Patrick M. Donley, Fraud Section, Criminal Division,
UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Appellee.

_________________________________________________________________

OPINION

MURNAGHAN, Circuit Judge:

This case is interesting and somewhat unusual, involving, as it
does, the activities of someone who tried to defraud and was himself
successfully defrauded by someone else. The criminal proceedings
were only directed at the one whose plan produced, from his point of
view, favorable results.

A federal jury convicted Defendant-Appellant Henry Achiekwelu
on nine counts of wire fraud, in violation of 18 U.S.C.A. §§ 2, 1343
(West 1969 & Supp. 1996). Achiekwelu contends that the district
court erroneously excluded one of his exhibits because the govern-
ment failed to object to its admission in a timely manner. Achiekwelu
also contends that the district court committed several sentencing
errors. For the reasons stated below, we affirm.

I.

In September 1992, Dr. Jai Gupta received a letter in Virginia on
behalf of his company, EER Systems, Inc. ("EER"), from a Nigerian
man who claimed to be Chief Johnny Okolie. Okolie claimed that he
had received Gupta's name from the Chamber of Commerce in
Lagos, Nigeria, and the letter attempted to solicit Gupta's participa-
tion in a business opportunity. Okolie claimed that he represented a
Nigerian company, Macbos Holdings ("Macbos"), that had installed
lighting at Maiduguri Airport in Nigeria for the Nigerian Ministry of
Civil Aviation (the "Aviation Ministry") in 1982. Okolie stated that
the Nigerian government had not paid the $28.5 million that it owed
on the lighting contract because it claimed that Macbos had overbilled
the Aviation Ministry. According to Okolie, the Nigerian government
had then changed its position and had agreed to pay $18.5 million
now and the remaining $10 million later. Okolie stated that he wanted

                    2
to deposit the $28.5 million in a bank account outside Nigeria and that
he was looking for a "trustworthy" person with whom to deposit the
money. Thus, Okolie stated that Macbos wanted to deposit the money
in EER's bank account and that Macbos would pay Gupta a fifteen
percent commission on the $28.5 million, i.e. , $4,275,000.

Gupta and Okolie communicated by phone and by fax throughout
September and October 1992. At Okolie's request, Gupta attempted
to defraud the Nigerian government by sending Okolie an EER
invoice that falsely represented that EER had performed lighting work
for the Nigerian Aviation Ministry. EER had in fact done no such
work. Also at Okolie's request, Gupta travelled to Lagos, Nigeria on
October 18, 1992 to finalize the arrangements for the deposit of the
money into EER's account. In Lagos, Okolie introduced Gupta to
Fred Kachi, who stated that he was a deputy governor of the Central
Bank of Nigeria (the "Central Bank"), and Achiekwelu, who stated
that he was a consultant to a government agency, the Nigerian Minis-
try of Finance (the "Finance Ministry"). At that meeting, the three
Nigerians and Gupta discussed the proposed $28.5 million transfer to
EER.

The next day, Gupta met with Kachi and Okolie. Kachi showed
Gupta a document that purported to be from the Central Bank. The
document stated that the Nigerian government had authorized the
Central Bank to pay $28.5 million to EER. Okolie and Kachi told
Gupta, however, that EER had to pay a $712,500 "advance income
tax" on the $28.5 million to the Nigerian government before the Cen-
tral Bank would transfer the money. At that point, the fraud against
Gupta began. Okolie and Achiekwelu later took Gupta to an office
building that they claimed was an office of the Central Bank. A man
who claimed to be a Central Bank official told Gupta that he had to
pay the advance tax. Gupta thereafter transferred $712,500 to a Lagos
bank for the tax payment.

After his return to Virginia, Gupta received numerous telephone
calls from Achiekwelu and Kachi. During one of those conversations,
Kachi and Achiekwelu told Gupta that they had paid the Nigerian
taxes with the money that Gupta had transferred. On October 27,
1992, Gupta received a fax, purportedly from the Central Bank, that
confirmed that the taxes had been paid to the Nigerian government.

                    3
The fax stated that the Central Bank would transfer the full $28.5 mil-
lion to EER's bank account as soon as the Bank received a "certificate
of completion." That same day, Achiekwelu and Kachi called Gupta
and told him that he would have to pay $1.1 million to certain uniden-
tified subcontractors in order to obtain the "certificate of completion."
On November 2, 1992, Gupta transferred $1.1 million to a London
bank.

In November 1992, Achiekwelu and Kachi told Gupta that he had
to send $500,000 to Kachi's supervisor, the purported governor of the
Central Bank, in order to obtain a "release order" that would authorize
the transfer of the $28.5 million to EER. Gupta sent the $500,000 on
November 13, 1992. That same day, Gupta received a purported
receipt from the Nigerian government for the income tax payment and
a purported letter from the Central Bank that indicated that Gupta had
complied with all of the necessary conditions for the transfer of the
$28.5 million.

By December 1992, Achiekwelu and Kachi began to tell Gupta that
he would not receive the $28.5 million, or any of the money that he
had already sent, if he did not send the additional money that they
requested. In December 1992, Gupta made two transfers of $206,000
each to Achiekwelu's accounts in Lagos. He also transferred
$500,000 to Achiekwelu's bank account in London after he received
another letter from the Central Bank that promised to transfer the
$28.5 million in return for the payment. In January 1993, following
additional promises and reassurances from Achiekwelu and from a
man who claimed to be an officer of a London bank, Gupta sent an
additional $500,000 to an account in London. He sent an additional
$450,000 later that month to an account in California pursuant to a
fax signed by Achiekwelu and Kachi. Altogether, Gupta transferred
almost $4.2 million to accounts designated or controlled by Achiek-
welu and his associates in Nigeria, England, and California. Neither
Gupta nor EER Systems ever received any of the $28.5 million. Thus,
instead of receiving the $4,275,000 commission that Okolie had origi-
nally promised, Gupta paid out almost $4.2 million.

On September 14, 1994, a grand jury in the Eastern District of Vir-
ginia indicted Achiekwelu, Okolie, and Kachi on nine counts of wire
fraud, in violation of 18 U.S.C.A. §§ 2, 1343 (West 1969 & Supp.

                    4
1996). Achiekwelu was arrested in Switzerland shortly thereafter, and
the United States government commenced extradition proceedings.
On February 21, 1995, Achiekwelu waived extradition, and he then
travelled to Virginia for trial.1

A jury trial began on April 24, 1995. At the trial, the government
presented the testimony of Richard Hart, a California businessman,
pursuant to Federal Rule of Evidence 404(b).2 Hart testified that in
1994, Achiekwelu and others defrauded him and his company, Xeno-
tech, Inc., of over $400,000 through promises and representations
similar to those made to Gupta.

During the trial, Achiekwelu claimed that he only received
$600,000 of the $4.2 million fraud proceeds. He argued that he
merely acted as a conduit, that he received the money as a fee for dis-
tributing Gupta's money, and that he did not knowingly participate in
the fraud. In support of that theory, Achiekwelu presented the testi-
mony of a retired Federal Bureau of Investigation ("FBI") handwrit-
ing expert. The FBI expert testified that he had examined two sets of
exemplars: the faxed documents that Gupta had received and a set of
genuine documents that Achiekwelu provided. He further testified
that, in his opinion, the same person probably had not signed the two
sets of documents.

Achiekwelu also introduced Defense Exhibit 3 ("DX3"). DX3 dis-
played a contract between Achiekwelu, Kachi, and Okolie. The DX3
contract confirmed that Achiekwelu had received $2,012,000 in his
bank accounts from Gupta, and it provided that Achiekwelu would
receive a five percent fee for the use of his bank accounts. The district
_________________________________________________________________
1 Okolie and Kachi have not been apprehended.
2 Federal Rule of Evidence 404(b) provides in pertinent part:

           Evidence of other crimes, wrongs, or acts is not admissible to
          prove the character of a person in order to show action in confor-
          mity therewith. It may, however, be admissible for other pur-
          poses, such as proof of motive, opportunity, intent, preparation,
          plan, knowledge, identity, or absence of mistake or accident
          ....

Fed. R. Evid. 404(b).

                    5
court conditionally admitted DX3, along with all of the other exhibits
submitted by both parties, at the beginning of the trial. Achiekwelu's
attorney referred to DX3 throughout the trial to support his contention
that Achiekwelu did not actively participate in the fraudulent scheme.
After the closing arguments, the government objected to the admis-
sion of DX3 for the first time on the ground that the exhibit lacked
foundation. The trial court sustained the government's objection and
excluded DX3. On April 25, 1995, the jury convicted Achiekwelu on
all nine counts of the indictment.

The government's Presentence Investigation Report ("PSR") calcu-
lated Achiekwelu's offense level pursuant to United States Sentencing
Guidelines Manual ("U.S.S.G.") § 2F1.1 (1994), the guideline that
covers fraud and deceit. Section 2F1.1 provides for a base offense
level of 6. The PSR added 13 levels for a loss of more than
$2,500,000 and 2 additional levels for "more than minimal planning."
See U.S.S.G. § 2F1.1(b)(1)(N), (b)(2)(A). The PSR thus calculated an
offense level of 21, a criminal history category of I, and a correspond-
ing sentencing range of 37-46 months. However, at the sentencing
hearing on August 11, 1995, the district court sua sponte directed the
government to prepare a brief addressing whether an upward depar-
ture was warranted.

After the government responded, the district court held a second
sentencing hearing on August 28, 1995. The district court issued its
final sentencing memorandum on October 26, 1995. The district court
ultimately granted the government's motion for a two-level enhance-
ment pursuant to U.S.S.G. § 2F1.1(b)(3)(A) on the ground that
Achiekwelu misrepresented that he was acting on behalf of a govern-
ment agency. Alternatively, the district court imposed a two-level
upward departure pursuant to U.S.S.G. § 5K2.0 on the basis of the
exceptional complexity of the fraudulent scheme. Thus, the district
court calculated Achiekwelu's offense level at 23, either because he
misrepresented that he was acting as a government agent or because
of the complexity of the fraud.

The district court also departed upward to criminal history category
II pursuant to U.S.S.G. § 4A1.3(e) on the basis of Achiekwelu's simi-
lar unconvicted conduct in the fraud perpetrated on Hart. Therefore,
based on an offense level of 23 and a criminal history category of II,

                    6
the district court concluded that the applicable sentencing range was
51 to 63 months imprisonment. The court ultimately sentenced
Achiekwelu to a 51 month term of imprisonment.

The district court also noted that the sentence was independently
supportable on the basis of either of the two grounds for an upward
departure. Specifically, the district court noted that if it had departed
only on the complexity of Achiekwelu's fraud, the court would have
calculated Achiekwelu's offense level at 23 and his criminal history
category at I, resulting in a sentencing range of 46 to 57 months. The
district court further stated that if it had departed only on the com-
plexity of Achiekwelu's fraud, it still "would impose a sentence on
defendant of 51 months of incarceration."

II.

Achiekwelu has first contended that the district court erred when
it excluded DX3 after closing arguments because the government had
failed to object to its admission in a timely manner. We give "substan-
tial deference" to a district court's decision to exclude evidence, and
we will not reverse the district court's decision"absent a clear abuse
of discretion." United States v. Moore, 27 F.3d 969, 974 (4th Cir.
1994). Furthermore, we will find that a district court abused its discre-
tion regarding evidentiary rulings only if the district court "acted
`arbitrarily or irrationally.'" Id. (quoting United States v. Ham, 998
F.2d 1247, 1252 (4th Cir. 1993)).

Before the trial began in the instant case, Achiekwelu's attorney
filed an exhibit list and copies of its exhibits with the district court,
and he also provided copies to the government. The district court con-
ditionally admitted DX3, along with all of the other exhibits submit-
ted by both parties, at the beginning of the trial. In his opening
argument, Achiekwelu's attorney repeatedly referred to DX3. Before
the defense began its case, the government objected to one of Achiek-
welu's exhibits, but it did not object to DX3. In accordance with a
procedure that both parties had agreed to, Achiekwelu's attorney
passed copies of all of its exhibits to the jury at the start of its case.
The government still did not object to DX3.

During his closing arguments, Achiekwelu's attorney relied exten-
sively on DX3 and mentioned it four times. Each time, he referred to

                     7
DX3 to support his contention that Achiekwelu was merely a conduit
to distribute the illegal proceeds to the other conspirators and that
Achiekwelu did not actively participate in the fraudulent scheme.
After the closing arguments, the government for the first time
objected to the admission of DX3 on the ground that it had not been
authenticated and lacked foundation. The government explained that
it had not previously objected because it thought that Achiekwelu
would testify and authenticate DX3. The government did not, how-
ever, explain why it did not object before closing arguments, after the
defense rested, when it knew that Achiekwelu would not testify.
Nonetheless, the district court excluded DX3 over Achiekwelu's
objection.

Achiekwelu essentially concedes that he failed to authenticate
DX3. However, his contention is that, regardless of whether the dis-
trict court properly admitted the exhibit, it had no discretion to
exclude DX3 after closing arguments because the government had
failed to object to its admission in a timely manner. Achiekwelu
argues that, at the latest, the government should have objected when
the defense rested and the government knew that Achiekwelu would
not testify and authenticate the exhibit. Since the government failed
to object at that time, Achiekwelu argues that the government
"waived" its objection.

However, the cases and rules that Achiekwelu cites in support of
his position are inapposite. He first points to Federal Rule of Criminal
Procedure 51, which requires a party to "make[ ] known to the court
the action which that party desires the court to take or that party's
objection to the action of the court and the grounds therefor" "at the
time the ruling or order of the court is made or sought." Fed. R. Crim.
P. 51. He also points to Federal Rule of Evidence 103, which simi-
larly provides that a party must make "a timely objection or motion
to strike." Fed. R. Evid. 103(a)(1).

The cases that Achiekwelu cites all construe Rule 103 and hold that
an appellate court will not review a district court's admission or
exclusion of evidence if the appellant failed to object below in a
timely manner. See United States v. Ruffin, 40 F.3d 1296, 1298-99
(D.C. Cir. 1994), cert. denied, 115 S.Ct. 1716 (1995) (holding that the
defendant waived his objection on appeal because he failed to renew

                    8
his objection to testimony that the district court conditionally admit-
ted); United States v. Benavente Gomez, 921 F.2d 378, 385-86 (1st
Cir. 1990) (holding that the defendant waived his objection on appeal
to the admission of hearsay evidence because he did not assert his
objection below until both sides had rested); United States v.
Dougherty, 895 F.2d 399, 403-04 (7th Cir. 1990) (holding that the
defendant waived his objection on appeal to evidence that the district
court conditionally admitted because he did not renew his objection
at the close of the evidence); United States v. Gibbs, 739 F.2d 838,
847-50 (3d Cir. 1984) (en banc) (refusing to review the defendant's
claim that the district court improperly admitted evidence because the
defendant did not raise his objection below until after the government
had rested). Thus, the rules and cases that Achiekwelu cites provide
that a party must object timely in order to preserve the issue for
appellate review.

Achiekwelu does not, however, contend, as those cases suggest,
that the Fourth Circuit lacks the power to review the district court's
original admission of DX3 because the government failed to object
below in a timely fashion. Rather, he contends that the district court
lacked any power to exclude the evidence, having admitted it, because
the government failed to object to its admission in a timely fashion.
The rules and cases that he has cited simply do not address that issue.
They only address the power of an appellate court to review the
admission or exclusion of evidence; they do not address the power of
a district court to exclude evidence in the first instance after a late
objection. Achiekwelu fails to cite any cases that address the issue at
hand.

Doubtless the government would have been well advised to have
objected earlier, at the close of the defendant's case. If the district
court had excluded the evidence earlier, then Achiekwelu's attorney
could not have relied so heavily on DX3 in his closing arguments. As
Achiekwelu argues, the district court's exclusion after closing argu-
ments might have "left a hole" in his case. Nonetheless, as noted
above, we must afford "substantial deference" to the district court's
decision to exclude evidence. Moore, 27 F.3d at 974. Even when a
district court admits evidence without objection, the district court has
the discretion to grant a subsequent motion made after the close of the
evidence to exclude the evidence. See Belmont Indus., Inc. v. Bethle-

                    9
hem Steel Corp., 512 F.2d 434, 437 (3d Cir. 1975). Although the dis-
trict court did not follow the best procedural route in the instant case,
its action was not arbitrary or irrational. It, in the end, properly
excluded evidence that had not been authenticated and that the jury
therefore should not have seen. We therefore affirm Achiekwelu's
conviction.

III.

Achiekwelu next contended that the district court erred when it
granted the government's motion for a two-level enhancement pursu-
ant to U.S.S.G. § 2F1.1(b)(3)(A) on the ground that Achiekwelu mis-
represented that he was acting on behalf of a government agency.
Section 2F1.1(b)(3)(A) provides for a two-level increase "[i]f the
offense involved . . . a misrepresentation that the defendant was acting
on behalf of a charitable, educational, religious or political organiza-
tion, or a government agency." U.S.S.G.§ 2F1.1(b)(3)(A) (emphasis
added). Achiekwelu's contention is that the sentencing provision does
not apply to those who represent that they act on behalf of a foreign
government; he attempts to restrict the language to domestic govern-
ments only. However, Achiekwelu's conduct falls within the plain
language of the provision.

Few courts have interpreted the sentencing provision at issue. The
courts that have interpreted it have applied it to defendants who mis-
represented that they acted on behalf of a domestic federal or state
government agency. See, e.g., United States v. Echevarria, 33 F.3d
175, 179-80 (2d Cir. 1994) (holding that the district court correctly
applied the enhancement where the defendant misrepresented that he
was a "state doctor" able to approve applications for disability bene-
fits); United States v. Hall, 996 F.2d 284, 286-87 (11th Cir. 1993)
(holding that the district court properly applied the enhancement
where the defendants in a telemarketing fraud scheme falsely repre-
sented that the victims had to pay taxes on a prize and thus implied
that they acted on behalf of the IRS); United States v. Bakhtiari, 913
F.2d 1053, 1063 (2d Cir. 1990) (holding that the district court prop-
erly applied the enhancement where the defendant claimed to be a
State Department official in order to facilitate the purchase of an
apartment). No court has considered whether the provision also

                     10
applies to those who misrepresent that they act on behalf of a foreign
government.

We must follow the clear, unambiguous language of a particular
guideline unless there is a manifestation of contrary intent. See United
States v. Frazier, 53 F.3d 1105, 1111-12 (10th Cir. 1995). Achiek-
welu's misrepresentation falls within the plain, unambiguous lan-
guage of section 2F1.1(b)(3)(A). Gupta testified that Achiekwelu
falsely represented that he worked for the Nigerian Finance Ministry.
Thus, the offense "involved a misrepresentation that the defendant
was acting on behalf of . . . a government agency." U.S.S.G.
§ 2F1.1(b)(3)(A). The Nigerian Finance Ministry is "a government
agency." "Government" standing alone extends to all government
agencies, domestic and foreign. The provision's language does not
limit its application to domestic government agencies. The commen-
tary in the guidelines does not address the issue and thus does not
manifest a contrary intent. Therefore, we hold that section
2F1.1(b)(3)(A) applies to those who falsely represent that they act on
behalf of either domestic or foreign government agencies. Accord-
ingly, we hold that the district court did not err in enhancing Achiek-
welu's offense level to 23 pursuant to section 2F1.1(b)(3)(A).

IV.

As an alternative to the two-level enhancement pursuant to
U.S.S.G. § 2F1.1(b)(3)(A), the district court imposed a two-level
upward departure pursuant to U.S.S.G. § 5K2.0 on the basis of the
exceptional complexity of the fraudulent scheme. Since the district
court issued its opinion, the appropriate departure analysis has been
clarified. In Koon v. United States, 116 S.Ct. 2035, 2046-48 (1996),
the Supreme Court held that an appellate court may review a district
court's ultimate decision to depart from the Sentencing Guidelines in
an "atypical" case only for abuse of discretion. In United States v.
Rybicki, 96 F.3d 754 (4th Cir. 1996), and United States v. Hairston,
96 F.3d 102 (4th Cir. 1996), cert. denied, 117 S.Ct. 956 (1997), the
Fourth Circuit subsequently has clarified the analysis that a district
court must follow in deciding whether to depart and the appropriate
standards of review of departure decisions.

In Rybicki, 96 F.3d at 757, we first noted that each guideline provi-
sion anticipates a broad range of typical cases--a"heartland"--that

                    11
represents the circumstances and consequences of ordinary crimes to
which the guideline provision applies. We held that district courts
"must ordinarily impose sentences within the range specified by the
applicable guideline." Id. A district court may only exercise its discre-
tion to depart from the specified sentencing range if it determines that
the circumstances and consequences of the particular case are "atypi-
cal" or "unusual" and therefore concludes that the case does not fall
within the guideline's heartland. Id. In examining whether a case
involves "atypical" or "unusual" circumstances or consequences capa-
ble of taking a case out of the applicable guideline's heartland, the
district court must consider the Sentencing Guidelines themselves, the
policy statements, and the official commentary. Id.

In deciding whether to depart, the district court must follow the
analysis that we set out in Rybicki and Hairston. First, the district
court must determine the circumstances and consequences of the
offense. See Rybicki, 96 F.3d at 757. We review the district court's
resulting factual determinations only for clear error. Id. The district
court then must decide whether any of the circumstances or conse-
quences of the offense appear "atypical" enough potentially to take
the case out of the applicable guideline's heartland. Id. We do not
review the district court's identification of the potential factors. Id.

Once the district court identifies the factors that potentially may
remove a case from the applicable guideline's heartland, the court
must classify each factor as a factor that the Sentencing Guidelines:
1) "forbid" as a basis for departure; 2) "encourage" as a basis for
departure; 3) "discourage" as a basis for departure; or 4) do not men-
tion as a basis for departure. See Rybicki, 96 F.3d at 757. We review
the district court's classification de novo in the context of our ultimate
review for abuse of discretion. Id.

A factor that the district court classifies as "forbidden" may never
provide a basis for departure. See Rybicki, 96 F.3d at 757. The district
court must conduct further analysis of factors that it classifies as "en-
couraged," "discouraged," or "unmentioned." Id. If the identified fac-
tor is an encouraged factor for departure, the district court can depart
on that basis if the applicable guideline does not already take that fac-
tor into account. See Hairston, 96 F.3d at 105; Rybicki, 96 F.3d at
757-58. We review the district court's determination of whether the

                     12
guideline adequately takes the factor into account de novo to deter-
mine whether the district court abused its discretion. See Rybicki, 96
F.3d at 758.

If the identified factor is a discouraged factor or an encouraged fac-
tor that the applicable guideline already takes into account, the district
court can depart on that basis "`only if the factor is present to an
exceptional degree or in some other way makes the case different
from the ordinary case where the factor is present.'" Hairston, 96
F.3d at 106 (quoting Koon, 116 S.Ct. at 2045). When the determina-
tion as to whether a factor is present to an exceptional degree merely
amounts to an evaluation of a showing's adequacy, we review the dis-
trict court's determination de novo to determine whether the district
court abused its discretion. See Rybicki, 96 F.3d at 758.

If the Sentencing Guidelines do not mention the identified factor
at all, the district court may depart on that basis only if the "`structure
and theory of both relevant individual guidelines and the Guidelines
taken as a whole'" indicate that the case falls out of the applicable
guideline's heartland. Rybicki, 96 F.3d at 758 (quoting Koon, 116
S.Ct. at 2045). However, "the Sentencing Commission expects depar-
tures based on `unmentioned' factors to be `highly infrequent.'" Id.
(quoting Koon, 116 S.Ct. at 2045). We review the district court's
interpretation of whether the Sentencing Guidelines' structure and
theory allow for a departure de novo to determine whether the district
court abused its discretion. Id.

Finally, the district court must consider whether the appropriately
classified factors take the case out of the applicable guideline's heart-
land and whether it should therefore depart from the guideline's spec-
ified sentencing range. We review this ultimate departure decision for
abuse of discretion. See Rybicki, 96 F.3d at 758. However, if the dis-
trict court based its departure decision on a factual determination, we
review that underlying determination only for clear error. Id. If the
district court based its departure decision on a misinterpretation of the
Sentencing Guidelines, we review the underlying ruling de novo. Id.

In the instant case, the district court based its two-level upward
departure on the "exceptional complexity" of the fraudulent scheme.
The court noted:

                     13
           The exceptional complexity of defendant's scheme to
          defraud Gupta is evident. Defendant and his cohorts lured
          their victim to Nigeria, introduced him to several others pur-
          porting to be government officials and took him to an office
          building that they claimed to be the Central Bank of Nigeria.
          They prepared false documents that appeared to be official
          Nigerian government certificates and arranged for all money
          to be sent to foreign countries where it would be more diffi-
          cult for American law enforcement officials to locate.

           . . . [T]he intricate stratagems devised by defendant and
          others in this case take it outside the realm of typical wire
          fraud schemes.

Since the Koon, Rybicki, and Hairston opinions were not available
when the district court made its determination, the court did not con-
sider whether the Sentencing Commission forbade, encouraged, dis-
couraged, or failed to mention departure based on the complexity of
a defendant's fraud. Thus, we must consider that question in the first
instance. See Hairston, 96 F.3d at 107 (considering classification
question in the first instance because the district court "did not have
the benefit of the Koon decision when making[its] determination").

The Sentencing Guidelines do not expressly list the complexity of
a defendant's crime as a proscribed factor. Thus, the Commission did
not forbid departure on that basis. Nor did the Commission expressly
include complexity in the Sentencing Guidelines' lists of encouraged
or discouraged factors. Instead, the Guidelines list the complexity of
a defendant's fraud as a factor that supports an enhancement within
the applicable fraud guideline. See U.S.S.G.§ 2F1.1(b)(2)(A) (provid-
ing a two-level enhancement for "more than minimal planning").3
_________________________________________________________________
3 The background commentary to section 2F1.1 reveals that the Com-
mission intended the "more than minimal planning" enhancement to
apply to complex cases. The commentary provides:

           Empirical analyses of pre-guidelines practice showed that the
          most important factors that determined sentence length were the
          amount of loss and whether the offense was an isolated crime of
          opportunity or was sophisticated or repeated. Accordingly,

                    14
In Hairston, 96 F.3d at 107, we held that when the Commission
designates a factor as a basis for reduction, or in this case, as a basis
for enhancement, the designation implies that the Commission dis-
couraged the factor as a basis for departure, or alternatively, that the
Commission encouraged the factor as a basis for reduction or increase
but already took it into account. We further held that, "[i]n either case,
ordinarily a court should not depart based on such a factor." Id.

Thus, the complexity of a defendant's fraud can provide a basis for
a departure only if it is "present to such an exceptional degree that it
cannot be characterized as typical or `usual.'" Hairston, 96 F.3d at
108. We therefore caution that the complexity of a defendant's fraud
will rarely warrant an upward departure. However, the record reveals
that the fraudulent conduct in this case was very extensive and
involved extraordinary planning. Thus, since the factor is present to
an exceptional degree, we hold that it may form a basis for an upward
departure in extraordinary cases such as this one. See United States
v. Alpert, 28 F.2d 1104, 1108-09 (11th Cir. 1994) (reversing a district
court's upward departure based on the complexity of the defendant's
fraud because the fraud was not atypical, but noting that a departure
may be warranted in cases where the fraudulent conduct is more
extensive); United States v. Davidson, 984 F.2d 651, 655 (5th Cir.
1993) (affirming the district court's upward departure based on the
"extraordinary planning and meticulous execution involved" in the
defendant's fraudulent scheme); United States v. Palinkas, 938 F.2d
456, 462-63 (4th Cir. 1991) (affirming the district court's upward
_________________________________________________________________

          although they are imperfect, these are the primary factors upon
          which the guideline has been based.

           The extent to which an offense is planned or sophisticated is
          important in assessing its potential harmfulness and the danger-
          ousness of the offender, independent of the actual harm. A com-
          plex scheme or repeated incidents of fraud are indicative of an
          intention and potential to do considerable harm. In pre-
          guidelines practice, this factor had a significant impact, espe-
          cially in frauds involving small losses. Accordingly, the guide-
          line specifies a 2-level enhancement when this factor is present.

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

                     15
departure based on the "sophistication" of the defendant's fraudulent
scheme).

We next must review the district court's ultimate decision to depart
on the ground that the complexity of Achiekwelu's fraud removed his
case from the "heartland" of typical fraud cases involving "more than
minimal planning." Since the district court based its ultimate depar-
ture decision in the instant case on factual determinations, we defer
to the district court's "`assessment of the many facts bearing on the
outcome, informed by its vantage point and day-to-day experience in
criminal sentencing' and the comparison of the case with other Guide-
lines cases." Rybicki, 96 F.3d at 758 (quoting Koon, 116 S.Ct. at
2046-47). Moreover, we agree with the district court that the intricacy
and sophistication of Achiekwelu's scheme were substantially in
excess of the typical fraud case that involves "more than minimal
planning." We therefore hold that the district court did not abuse its
discretion in departing on the basis of the complexity of Achiekwelu's
fraudulent scheme. Thus, either because of the two-level enhancement
pursuant to section 2F1.1(b)(3)(A) discussed above in Part III, or
because of the two-level upward departure discussed here, the district
court did not err in calculating Achiekwelu's offense level at 23.

V.

We do not consider Achiekwelu's final contention that the district
court erred when it departed upward to criminal history category II,
pursuant to U.S.S.G. § 4A1.3(e), on the basis of Achiekwelu's similar
unconvicted conduct in the fraud perpetrated on Hart. Even if we
found that the district court did err in departing pursuant to section
4A1.3(e), we would still affirm Achiekwelu's sentence. As noted
above, the district court stated that its decision was independently
supportable on the basis of either of the two grounds for an upward
departure. If the district court had departed only on the complexity of
Achiekwelu's fraud, Achiekwelu's offense level would have been 23
and his criminal history category would have been I, resulting in a
sentencing range of 46 to 57 months. The district court expressly
stated that in such a case, it still "would impose a sentence on defen-
dant of 51 months of incarceration."

The Supreme Court has held that when an appellate court con-
cludes that a district court departed on both valid and invalid factors,

                     16
the reviewing court must remand unless it determines that the sen-
tence imposed was reasonable and that the district court would have
imposed the same sentence absent reliance on the invalid factor. See
Williams v. United States, 503 U.S. 193, 203 (1992). Since we con-
clude that 51 months is a reasonable sentence, and the district court
clearly stated that it would have imposed the same 51 month sentence
even if it had relied only on the complexity of Achiekwelu's fraud,
we would not remand for resentencing even if the district court had
erred in departing to criminal history category II pursuant to section
4A1.3(e).

VI.

Accordingly, the judgment is

AFFIRMED.

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