UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 97-4749

RITA R. GARZAREK,
Defendant-Appellant.

Appeal from the United States District Court
for the Northern District of West Virginia, at Clarksburg.
Irene M. Keeley, District Judge.
(CR-97-8)

Submitted: August 18, 1998

Decided: September 9, 1998

Before WILKINS and MOTZ, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Brent E. Beveridge, Fairmont, West Virginia, for Appellant. William
D. Wilmoth, United States Attorney, Sharon L. Potter, Assistant
United States Attorney, Wheeling, West Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION

PER CURIAM:

Rita R. Garzarek pled guilty to an information charging her with
making false statements on a loan application, 18 U.S.C.A. § 1014
(West Supp. 1998), and misprision of a felony, 18 U.S.C. § 4 (1994).
She received a sentence of four months imprisonment in a halfway
house followed by three years of supervised release, with the first four
months to be served in home detention. Garzarek appeals her sen-
tence, contending that the district court abused its discretion when it
refused to depart downward under USSG § 5K2.0, p.s.,1 and erred in
applying two-level enhancements under USSG § 2S1.2(b)(1)(B) (for
knowing use of funds that were proceeds of a "specified unlawful
activity" as defined in 18 U.S.C.A. § 1956(c)(7) (West Supp. 1998)),
and USSG § 2S1.2(b)(2) (because the value of the funds exceeded
$100,000).2 We affirm.

Between 1992 and 1995, Garzarek's husband was involved in a
fraudulent investment scheme. Garzarek was not active in the scheme,
but packages containing money orders and cash from duped investors
were received at her home and her parents' home. Garzarek and her
relatives benefited from the scheme, living lavishly for a few years.
In May 1992, Garzarek falsely stated on a Visa/Mastercard applica-
tion that she was employed by Monster Motors in Decatur, Georgia,
and earned $1400 a month. She received the cards and used them to
make purchases worth $123,078; payments were made with money
from investors. Although initially Garzarek's husband assured her
that the money was honestly earned, he told her in March 1994 that
he was being investigated and divorced her to insulate her from the
potential consequences of the investigation. In May 1994, when a
search warrant was executed at Garzarek's home, investigating agents
_________________________________________________________________
1 U.S. Sentencing Guidelines Manual (1995).
2 The guideline applicable to a violation of 18 U.S.C. § 4, USSG
§ 2X4.1, provides for a base offense level 9 levels lower than the base
offense level for the underlying offense. In this case, the underlying
offense was Engaging in Monetary Transactions in Property Derived
from Specified Unlawful Activity, 18 U.S.C. § 1957 (1994), and the
applicable guideline was USSG § 2S1.2.

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explained to Garzarek the illegal nature of her former husband's
activities. However, she revealed nothing that she knew to them and
continued to spend money she received from her former husband. In
her plea agreement, Garzarek stipulated that she knew of fraudulently
obtained investments totaling between $200,000 and $350,000.

We first find that we lack jurisdiction to review the district court's
decision not to depart downward. See United States v. Bayerle, 898
F.2d 28, 31 (4th Cir. 1990). In Koon v. United States, 518 U.S. 81
(1996), on which Garzarek relies, the Supreme Court set out the test
to be applied by an appeals court when the sentencing court has
departed. Here, the district court considered Garzarek's request for a
departure but decided that departure was not appropriate in her case.

Second, we find no error in the district court's application of the
two-level enhancements in USSG § 2S1.2(b)(1)(B) and (b)(2).3 The
subsection (b)(1)(B) enhancement applies if "the defendant knew that
the funds were the proceeds of any other specified unlawful activity
[i.e., one not involving controlled substances] (see 18 U.S.C.
§ 1956(c)(7))." In this case, the specified unlawful activity was fraud.
Garzarek argues that the enhancement should be applied only if the
value of the funds the defendant knowingly used totaled at least
$100,000, that she became aware of the specified unlawful activity on
May 1994, and that after that date she used property worth only
$59,993. Her argument fails because USSG § 2S1.2(b)(1)(B) contains
no limitation on amount, although subsection (b)(2) provides for an
increase in offense level if the value of the funds used exceeded
$100,000. At sentencing, Garzarek did not challenge the two-level
enhancement she received under subsection (b)(2). When there is no
objection to a finding recommended in the presentence report, the dis-
trict court is free to adopt the recommendation without further
inquiry. See United States v. Williams, ___ F.3d ___ (4th Cir. July 30,
1998) (No. 96-4162). Our review of the court's decision is limited to
plain error. See United States v. Olano, 507 U.S. 725, 732 (1993). We
find no plain error. Even if we assume that Garzarek was entirely
unaware of the nature of her husband's illegal activity until May
1994, subsection (b)(2) does not require that the defendant have
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3 Appellant appears to conflate the two subsections in her argument.
We have, therefore, assumed that she wishes to contest both of them.

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knowledge that the funds involved in the offense were the proceeds
of a specified unlawful activity. See USSG§ 2S1.2, comment. (n.1).

The sentence is accordingly affirmed. We dispense with oral argu-
ment because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the deci-
sional process.

AFFIRMED

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