                                                              [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                         ________________________                    FILED
                                                            U.S. COURT OF APPEALS
                                No. 10-11626                  ELEVENTH CIRCUIT
                            Non-Argument Calendar                AUGUST 31, 2010
                          ________________________                 JOHN LEY
                                                                    CLERK
                  D.C. Docket No. 4:09-cr-00166-WTM-GRS-1

UNITED STATES OF AMERICA,

                                                 lllllllllllllllllllllPlaintiff-Appellee,

                                     versus

BENJAMIN SHEFTALL EICHHOLZ,

                                              lllllllllllllllllllllDefendant-Appellant.

                          ________________________

                   Appeal from the United States District Court
                      for the Southern District of Georgia
                         ________________________

                               (August 31, 2010)

Before BLACK, HULL and PRYOR, Circuit Judges.

PER CURIAM:

      After pleading guilty, Benjamin Eichholz appeals his 21-month sentence for

obstruction of a Department of Labor (“DOL”) investigation, in violation of 18
U.S.C. § 1505. Eichholz argues that the district court erred when it imposed a

sentencing enhancement pursuant to U.S.S.G. § 3B1.3 for abuse of a position of

trust. After review, we affirm.

                                  I. BACKGROUND

A.    Eichholz’s Employee Benefits Plans

      Eichholz, an attorney, owned a law firm most recently known as The

Eichholz Law Firm. In 1991, Eichholz established two benefits plans to provide

retirement and pension benefits for long-time employees of the law firm (“the

plans”). The plans were subject to the requirements of Title I of the Employee

Retirement Security Act of 1974 (“ERISA”). The plans had nineteen participants,

including Eichholz and his mother, but the participants’ interest in the plans

varied. The plans were funded by employer contributions from the firm, for which

Eichholz was allowed a tax deduction.

      Eichholz served as the sole fiduciary of the plans. Erskine and Associates

was the plans’ third-party administrator and provided consultive, administrative

and record-keeping services. As the plans’ fiduciary, Eichholz was required to file

Form 5500 with the DOL providing information about the plans’ assets, liabilities

and kinds of investments. Sherrie Erskine of Erskine and Associates prepared the

Form 5500s for Eichholz using information Eichholz and his employees provided.

                                          2
        The plans’ rules prohibited Eichholz from issuing loans to participants and

also discouraged a large number of loans because they were not considered safe

investments. Nonetheless, a significant portion of the plans’ assets were

outstanding loans.

B.      DOL’s April 18, 2007 Interview

        In February 2007, based on Form 5500s filed by Eichholz, the DOL began a

civil investigation into Eichholz’s management of the plans. The DOL suspected

that the plans’ assets may have been used for personal gain because of (1) the

small number of plan participants, only a few of which held an interest in a large

percentage of the assets, and (2) the large number of loans listed as the plans’

assets. In March 2007, the DOL notified Eichholz of its investigation and

requested an interview.

        During an April 18, 2007 interview with a DOL investigator, Eichholz said

that he purchased Flora Danica china as an investment for the plans. However, the

investigator later learned that the china was displayed in a cabinet in Eichholz’s

home.

        The investigator asked Eichholz about the plans’ loans. Eichholz said that a

$50,000 loan to James Cole was repaid the week before the interview. However,

when the DOL investigator interviewed Cole, he denied receiving or paying back

                                          3
a loan from the plans. The DOL investigator then determined that the $50,000

check representing the purported Cole loan was deposited into an account

controlled by Eichholz.

      Eichholz told the DOL investigator that the plans issued a loan to an

individual identified only as “Eubanks.” The DOL investigator could not locate

Eubanks, but determined that the check representing the loan proceeds was

deposited into an account held by Eichholz.

      Finally, during the interview, Eichholz told the DOL investigator that he did

not have an ownership interest in Delta Building Systems, a company that received

several loans from the plans. The DOL investigator later learned that Eichholz

owned 100 percent of the company and that a few days before the interview

Eichholz had filed documents with the Georgia Secretary of State’s office

removing his name as the chief executive officer.

C.    DOL’s Subsequent Interviews

      On June 22, 2007, Eichholz sent the DOL a document that purported to

detail the plans’ outstanding loans. The list included loans to Eubanks, Delta

Building Systems, Greg Hirsch and Richard Crose. In subsequent DOL

interviews, Hirsch and Crose denied receiving loans from the plans. Yet, in a

second interview on August 2, 2007, Eichholz reiterated that Eubanks, Hirsch,

                                         4
Crose and Cole had received loans from the plans and that Cole had repaid his

loan. Eichholz also stated that Hirsch had repaid his loan by transferring stock to

the plans.

      On December 10, 2007, DOL investigators interviewed Eichholz a third

time and asked about plan checks issued to Crose, Joseph Benefield and

Endermology Associations, a company owned by Eichholz’s wife. Eichholz told

DOL investigators the checks represented loans. However, the endorsements

revealed that the checks were deposited into accounts controlled by Eichholz. In a

fourth interview on January 8, 2008, Eichholz again denied any interest in Delta

Building Systems and claimed that another plan check to Delta Building Systems

represented a loan. However, this check was also deposited into an account

controlled by Eichholz.

D.    Grand Jury Indictment

      In subsequent federal grand jury proceedings, Sherrie Erskine testified that

she repeatedly warned Eichholz about the number of loans Eichholz issued with

plan funds and that he might be engaging in prohibited transactions. Erskine

instructed Eichholz on the rules of the plans and provided him with documentation

supporting her assertions. Once the DOL investigation began, Eichholz asked

Erskine about closing the plans. In addition, James Cole, James Benefield, Greg

                                         5
Hirsch and Richard Crose testified that they had not received any loans from the

plans.

         On August 5, 2009, the grand jury returned a 77-count indictment against

Eichholz, including thirty counts of embezzlement from the plans, 18 U.S.C.

§ 664; four counts of money laundering, in violation of 18 U.S.C. § 1957; ten

counts of mail fraud, in violation of 18 U.S.C. § 1341; ten counts of false

statements and concealment of facts in employee benefit plan records and reports,

in violation of 18 U.S.C. § 1027; twenty-two counts of false statements, in

violation of 18 U.S.C. § 1001; and one count (Count 55) of obstruction of a DOL

investigation, in violation of 18 U.S.C. § 1505. Count 55 listed numerous

allegedly false and misleading statements Eichholz made to DOL investigators

during their investigation about the plans’ assets, liabilities and investments.

E.       Guilty Plea

         Pursuant to a written plea agreement, Eichholz pled guilty to Count 55. In

addition to pleading guilty, Eichholz agreed to the entry of an order of restitution

for the losses to his identifiable victims, excluding himself and his mother. In

exchange for Eichholz’s guilty plea, the government agreed, among other things,

that it would recommend that the district court not apply a sentencing

enhancement pursuant to U.S.S.G. § 3B1.3 for abuse of a position of trust.

                                           6
However, the government retained the right to bring all sentencing facts to the

court’s attention.

      As the factual basis for Eichholz’s plea, the plea agreement stated that: (1)

during a January 8, 2008 interview, a DOL investigator asked Eichholz about

Eichholz’s interest in Delta Building Systems, which had received substantial

loans from the plans; and (2) in response, in order to obstruct, influence and

impede the DOL investigation, Eichholz falsely stated that he was not a Delta

Building Systems shareholder when in fact he knew he owned 100 percent of the

company.

      At Eichholz’s plea hearing, Eichholz stated that he was pleading guilty to

Count 55 based on the facts related to Delta Building Systems. The government’s

proffer and Eichholz’s allocution identified his false statement concerning his

interest in Delta Building Systems, which received $227,000 in loans from the

plans, as the factual basis for his guilty plea.

F.    Presentence Investigation Report

      Eichholz’s Presentence Investigation Report (“PSI”) recounted the DOL’s

investigation and Eichholz’s responses to it, as discussed above. In all, the PSI

listed thirty checks that were improperly issued by Eichholz from the plans.

Sixteen of those checks had not been repaid, totaling $294,807.99 in losses. These

                                            7
checks were reportedly repaid via Eichholz’s transfer of Newsgrade stock to the

plans. However, the stock had little, if any, value, and Eichholz agreed to repay

the plans for those checks.

      The PSI identified the plan participants, other than Eichholz and his mother,

as the “victims of the instant offense.” These seventeen plan participants

cumulatively held a 17.57 percent interest in the plans. Accordingly, the plans

were due $50,117.36 in restitution.

      The PSI calculated a base offense level of 14, pursuant to U.S.S.G. § 2J1.2

and gave a two-level reduction for acceptance of responsibility, pursuant to

U.S.S.G. § 3E1.1(a). With a total offense level of 12 and a criminal history

category of I, the PSI recommended an advisory guidelines range of 10 to 16

months’ imprisonment. The probation officer noted that while Eichholz had

admitted obstructing the DOL investigation by lying only about his ownership

interest in Delta Building Systems, his obstructive conduct was much more

extensive. Nevertheless, the probation officer recommended a 10-month sentence.

Eichholz did not file any objections to the PSI.

      Prior to sentencing, the district court gave Eichholz notice by letter that it

was considering applying a § 3B1.3 enhancement for abuse of a position of trust.

In response, the government noted its obligation in the plea agreement to

recommend that the court not apply a § 3B1.3 enhancement. However, in

                                          8
addressing the various 18 U.S.C. § 3553(a) factors, the government argued that

although Eichholz admitted during his plea colloquy only one obstructive act

(lying about his ownership of Delta Building Systems), Eichholz had lied about

other things as well (such as the purported loans to Cole, Eubanks, Hirsch and

Crose) and had engaged in other acts of obstruction (such as submitting false

documents to the DOL and refusing to provide other information to DOL

investigators) during the almost year-long investigation. The government asked

for a sentence “at the top of the advisory guidelines as found by the Court.”

      In a sentencing memorandum, Eichholz reiterated that he had no objection

to the contents of the PSI. Eichholz opposed a § 3B1.3 enhancement for an abuse

of a position of trust. Eichholz argued that § 3B1.3 did not apply because the

embezzlement charges were dismissed and the PSI reflected that no embezzlement

occurred given that he either had already repaid the loans or had agreed to repay

the loans. Eichholz asked for a downward variance based on his age and the fact

that he had already lost his business and his law license.

E.    Sentencing Hearing

      At the sentencing hearing, Eichholz confirmed that he had no objections to

the facts in the PSI. The district court then adopted the PSI’s facts as its findings

of fact. However, the district court declined to adopt the PSI’s conclusions

regarding the applicable guidelines.

                                           9
       During discussions with counsel about § 3B1.3’s abuse-of-trust

enhancement, the district court noted that Eichholz was the sole fiduciary for the

plans and that the DOL went to question Eichholz only because he was the plans’

sole fiduciary. Eichholz restated his argument that the PSI revealed no

embezzlement had occurred because all the loans were repaid. Eichholz stressed

that (1) the offense of conviction was obstruction of a DOL investigation, (2) the

government, and not the plans’ participants, was the victim of that offense and (3)

Eichholz did not have a fiduciary duty to the government.

       The district court applied the abuse of trust enhancement.1 The district court

noted that (1) the purpose of the DOL investigation was to determine how

Eichholz, as the plans’ sole fiduciary, was managing them and (2) Eichholz pled

guilty to obstruction of that DOL investigation. The district court found that

Eichholz, as the fiduciary, did not properly manage and administer the plans. The

district court determined that (1) the PSI identified the plan participants as victims

of the offense, (2) Eichholz’s position as fiduciary of the plans was “a position of

trust with respect to the plans’ participants,” (3) under ERISA, a benefit plan

fiduciary exercises discretionary authority and control over the management of the

plan and the management and disposition of its assets and has the discretionary


       1
        The district court considered, but ultimately declined to apply, an enhancement for
substantial interference with the administration of justice, pursuant to U.S.S.G. § 2J1.2(b)(2).

                                              10
authority in the administration of the plan, (4) “[a]s sole fiduciary of the plans, Mr.

Eichholz occupied a unique and very discretionary position with respect to the

plans, and this position clearly contributed significantly to his commission and

concealment of the offense,” and (5) “the facts as admitted to in the PSI and the

plea that Mr. Eichholz made clearly indicate that on numerous occasions Mr.

Eichholz gave false information and made false statements to the labor department

investigator, and refused to furnish documentation to the labor department

investigator during the course of the investigation, and by doing so interfered with

the investigation being conducted by the labor department . . . .”

      After applying the two-level abuse-of-trust enhancement, the district court

calculated a total offense level of 14, which, combined with a criminal history

category of I, yielded an advisory guidelines range of 15 to 21 months. Eichholz

requested a 10-month sentence. Emphasizing, inter alia, that Eichholz repeatedly

lied to the DOL during the investigation, the government recommended a 21-

month sentence. Eichholz took exception to the government’s statements that he

repeatedly lied, arguing that he would have defended against those allegations had

he gone to trial. The district court advised Eichholz that he could withdraw his

guilty plea before the court pronounced his sentence and reminded Eichholz that

he was told during his plea hearing that the court could consider all relevant

conduct not just the count of conviction. Eichholz stated that he did not want to

                                          11
withdraw his guilty plea.

       The district court then imposed a 21-month sentence. The district court

ordered Eichholz to pay restitution in the amount of $50,117.36 to the plans. The

district court directed Eichholz to pay the restitution to the district court clerk “for

disbursement to the victims.” Eichholz filed this appeal challenging only the

abuse-of-trust enhancement.

                                      II. DISCUSSION

A.     Abuse-of-Trust Enhancement

       A defendant’s offense level is increased by two levels if the defendant

abused of a position of public or private trust “in a manner that significantly

facilitated the commission or concealment of the offense.” U.S.S.G. § 3B1.3. For

the enhancement to apply, the government must show: “(1) that the defendant held

a place of public or private trust; and (2) that the defendant abused that position in

a way that significantly facilitated the commission or concealment of the offense.”

United States v. Ward, 222 F.3d 909, 911 (11th Cir. 2000). The enhancement

applies only when the victim of the offense conferred the trust. United States v.

Walker, 490 F.3d 1282, 1300 (11th Cir. 2007).2


       2
        We review for clear error a district court’s factual determination that the defendant abused
a position of trust and review de novo the district court’s legal conclusion that the defendant’s
conduct justifies application of the abuse-of-trust enhancement. United States v. Garrison, 133 F.3d
831, 837 (11th Cir. 1998).

                                                12
      Eichholz does not dispute that he held a position of private trust as the

fiduciary of the plans. Instead, Eichholz argues that the victim of his offense of

conviction was the DOL and that he did not hold or abuse a position of trust as to

the DOL. Although the DOL may be a victim of Eichholz’s offense, the PSI, to

which Eichholz did not object, listed the plans’ participants as victims.

      Specifically, the PSI contained these facts: (1) the victims of Eichholz’s

offense were the participants of the plans, with the exception of Eichholz and his

mother; (2) Eichholz had not repaid $294,807.99 in checks improperly issued from

the plans; and (3) Eichholz had agreed to pay back those outstanding improperly

issued checks. The PSI recommended that restitution be awarded to the plans in

the amount of $50,117.36, which represented the 17.75 percent interest held by the

plan-participant victims. Eichholz accepted the PSI’s victim restitution

recommendation and has not objected to repaying restitution in the amount of

$50,117.36.

      More importantly, the district court adopted the PSI’s facts without

objection. To the extent Eichholz now argues that the evidence was insufficient to

support a finding that the plan participants were victims of his offense, this

argument has been waived. See United States v. Beckles, 565 F.3d 832, 844 (11th

Cir. 2009) (“It is the law of this circuit that a failure to object to allegations of fact

in a PSI admits those facts for sentencing purposes and precludes the argument

                                            13
that there was error in them.” (quotation marks omitted)); United States v. Hedges,

175 F.3d 1312, 1315 (11th Cir. 1999) (concluding that district court properly may

rely on undisputed conclusory statements in PSI “despite the absence of

supporting evidence”).

      In a similar case, this Court concluded that when the defendant failed to

object to the PSI’s identification of the victim, the district court could rely upon

that victim in imposing an abuse-of-trust enhancement. See United States v.

Harness, 180 F.3d 1232, 1236 (11th Cir. 1999) (upholding abuse-of-trust

enhancement where defendant, an accountant employed by non-profit

organization, did not object to PSI’s identification of non-profit organization,

rather than government, as the victim of the defendant’s illegal diversion to

himself of federal funds intended for the non-profit); cf. United States v. Williams,

527 F.3d 1235, 1251 & n.13 (11th Cir. 2008) (rejecting abuse-of-trust

enhancement where government did not object to PSI’s identification of

government, rather than employer, as the victim of the defendant’s theft of federal

funds, but acknowledging that district court could have considered additional

victims). Accordingly, Eichholz’s failure to object to the PSI’s identification of

the plans’ participants as the victims of his offense permitted the district court to

rely upon that fact in imposing the abuse-of-trust enhancement.

      Alternatively, Eichholz argues that his abuse of his position of trust as the

                                          14
plans’ fiduciary did not facilitate the offense of obstructing the DOL investigation.

To satisfy U.S.S.G. § 3B1.3’s significant facilitation requirement, the abuse of the

trust must be tied to the offense of conviction. United States v. Barakat, 130 F.3d

1448, 1455 (11th Cir. 1997). There is significant facilitation when “the person in

the position of trust has an advantage in committing the crime because of the trust

and uses that advantage in order to commit the crime.” Id.

      As the district court pointed out, the DOL approached Eichholz during its

investigation precisely because he was the plans’ fiduciary. Eichholz’s

cooperation with the DOL investigation (or lack thereof) was as the plans’

fiduciary. It was Eichholz’s position as the plans’ fiduciary that provided him the

opportunity and ability to commit the offense of conviction. Thus, Eichholz had

an advantage by virtue of his fiduciary position and used it to obstruct the DOL

investigation.

      Furthermore, Eichholz’s argument limits his abuse of his position of trust to

his mismanagement of the plans’ assets, when in fact Eichholz’s actions during the

DOL investigation continued to abuse his position of trust. ERISA requires a

fiduciary to “discharge his duties with respect to a plan solely in the interest of the

participants and beneficiaries,” 29 U.S.C. § 1104(a)(1), and “with the care, skill,

prudence, and diligence” of a prudent person in similar circumstances. 29 U.S.C.

§ 1104(a)(1), (a)(1)(B). The DOL investigators were investigating the possibility

                                          15
that the plans’ assets were being used for personal gain and were particularly

concerned about the large percentage of plan assets that were loans. Eichholz’s

lying about the circumstances of those loans (i.e., to whom the plans had extended

loans and whether Eichholz had an interest in the plans’ debtors) was not an act

“solely in the interest of the participants and beneficiaries” of the plans.3 Rather, it

was an act solely in the interest of Eichholz. Furthermore, Eichholz did not

respond to the DOL investigators’ investigation with the care, skill or diligence of

a prudent plan fiduciary. By making false statements as to the plans’ assets,

Eichholz further abused his fiduciary duties to the plans’ participants and at the

same time “significantly facilitated” his obstruction of the DOL’s investigation

into his suspected plan mismanagement.

B.      Double Counting

        We also reject Eichholz’s claim that the abuse-of-trust enhancement is

impermissible double counting.4 Eichholz’s base offense level of 14 was derived

       3
        In applying the abuse-of-trust enhancement, the district court was permitted to consider all
relevant conduct related to the offense of conviction. See Barakat, 130 F.3d at 1455; see also
U.S.S.G. § 1B1.3(a) (authorizing the sentencing court to consider as relevant conduct all acts or
omissions by the defendant that occurred in preparation for, during the commission of, or in
attempting to avoid detection or responsibility for the offense of conviction). Thus, the district court
was not limited to Eichholz’s false statements about his ownership interest in Delta Building
Systems, but could also consider his false statements to DOL investigators about the purported loans
to individuals such as Cole, Hirsch and Crose and his attempt to close the plans once the
investigation began.
       4
        We ordinarily review de novo a claim of double counting. United States v. De La Cruz
Suarez, 601 F.3d 1202, 1220 (11th Cir.), cert. denied sub nom., Vazquez v. United States, 130 S. Ct.

                                                  16
from U.S.S.G. § 2J1.2, which covers various offenses qualifying as a form of

obstruction of justice, not just those involving an abuse of a position of trust or the

breach of a fiduciary duty. See U.S.S.G. § 2J1.2 cmt. background (listing the

variety of offenses that constitute obstruction of justice covered by § 2J2.2). Thus,

Eichholz’s base offense level did not take into account Eichholz’s abuse of his

position of private trust vis-a-vis the plans’ participants. See United States v.

Bracciale, 374 F.3d 998, 1005, 1010 (11th Cir. 2004) (concluding that application

of the abuse-of-trust enhancement is not impermissible double counting where the

defendant’s base-offense-level guideline covers a wide variety of crimes and its

application is “not dependent on any abuse of trust or breach of fiduciary duty”).

We find no error, plain or otherwise, with regard to the double-counting issue.

       For these reasons, the district court did not err in applying the two-level

abuse-of-trust enhancement in calculating Eichholz’s advisory guidelines range.5

We affirm Eichholz’s 21-month sentence.



3532 (2010). However, because Eichholz did not raise his double-counting argument in the district
court, our review is for plain error. See United States v. Neely, 979 F.2d 1522, 1523 (11th Cir. 1992)
(explaining that objections to a sentence raised for the first time on appeal are subject to the plain
error doctrine).
       5
        We reject Eichholz’s argument that the government breached the plea agreement by
defending the district court’s imposition of the abuse-of-trust enhancement on appeal. Eichholz’s
plea agreement required the government to recommend that the sentencing court “not apply” the
abuse-of-trust enhancement. Once the sentencing court imposed the enhancement over the
government’s recommendation, nothing in the plea agreement prohibited the government from
responding in opposition to Eichholz’s appeal.

                                                 17
AFFIRMED.




            18
