                                                        [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS
                                                                 FILED
                   FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
                     ________________________ ELEVENTH CIRCUIT
                                                              MAY 11, 2010
                            No. 09-11780                       JOHN LEY
                        Non-Argument Calendar                    CLERK
                      ________________________

                D. C. Docket No. 08-00320-CR-01-RWS-1

UNITED STATES OF AMERICA,


                                                              Plaintiff-Appellee,

                                 versus

MANYU OGALE,

                                                        Defendant-Appellant.


                      ________________________

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

                             (May 11, 2010)

Before CARNES, BARKETT and ANDERSON, Circuit Judges.

PER CURIAM:
       Manyu Ogale appeals his 120-month sentence for wire fraud. He contends

that the district court erred by applying a four-level investment adviser

enhancement pursuant to U.S.S.G. § 2B1.1(b)(16)(A)(iii).1

                                              I.

       “We review a district court’s application of the [sentencing] guidelines to the

facts de novo and all factual findings for clear error.” United States v. Faris, 583

F.3d 756, 759 (11th Cir. 2009) (quotation marks omitted). The sentencing

guidelines provide a four-level enhancement if the offense involved “a violation of

securities law, and at the time of the offense, the defendant was . . . (iii) an

investment adviser . . . .” U.S.S.G. § 2B1.1(b)(16)(A)(iii). Ogale contends that the

district court erred by applying that enhancement to him. He concedes that his

offense violated securities law but argues that he was not an “investment adviser.”

For purposes of the investment adviser enhancement, the term “investment

adviser” carries the same meaning as in the Investment Advisers Act of 1940. See

U.S.S.G. § 2B1.1 comment. (n.14(A)). The Investment Advisers Act defines an

“investment adviser” as “any person who, for compensation, engages in the

business of advising others, either directly or through publications or writings, as

to the value of securities or as to the advisability of investing in, purchasing, or


       1
        In the 2009 Sentencing Guidelines Manual, the investor adviser enhancement is located
in § 2B1.1(b)(17).

                                              2
selling securities . . . .” See 15 U.S.C. § 80b-2(a)(11). Ogale argues that he was

not “in the business of advising others” “for compensation” and thus did not

qualify as an investment adviser under the sentencing guidelines. See id.

      Ogale contends that he was not “in the business of advising others” because

he did not have clients who came to him for investment advice. He argues that he

merely sold shares of stock in his hedge fund, Den Haag Capital, LLC, to

investors. We find Ogale’s argument to be unpersuasive. According to his

presentence investigation report, Ogale told investors that their investment would

be used to trade foreign currency futures and options based on an algorithm that he

had developed. The exercise of control over what purchases and sales are made

with investors’ funds is considered to be investment advice for purposes of the

Investment Adviser’s Act and hence the investment adviser enhancement. See

United States v. Elliot, 62 F.3d 1304, 1310 (11th Cir. 1996) (concluding that

defendants provided investment advice by controlling which investment vehicles

their customers invested in); Abrahamson v. Fleschner, 568 F.2d 862, 871 (2d Cir.

1977) (stating that “many investment advisers ‘advise’ their customers by

exercising control over what purchases and sales are made with their clients’

funds”). Although Ogale never actually used investors’ money to trade foreign

currencies, his scheme involved “advising others.” Because he regularly advised



                                          3
others about trading in foreign currency, he was “in the business” of providing

investment advice. See Elliot, 62 F.3d at 1310 (“A person [is] ‘in the business’ of

providing advice if the person . . . on anything other than rare, isolated and

nonperiodic instances, provides specific investment advice”) (quoting SEC Release

notes for 15 U.S.C. § 80b-2(a)(11)).

      Ogale also contends that he was not compensated for providing investment

advice. He argues that the only money he received was investors’ misappropriated

funds. He asserts that ill-gotten gains are not compensation. We disagree. The

receipt of any economic benefit qualifies as compensation under the Investment

Adviser’s Act and thus the investment adviser enhancement. See id. at 1311

(“Th[e] compensation element is satisfied by the receipt of any economic benefit,

whether in the form of an advisory fee or some other fee relating to the total

services rendered, commissions, or some combination of the foregoing.”) (quoting

SEC Release notes for 15 U.S.C. § 80b-2(a)(11)); see also id. (concluding that

defendant received compensation for providing investment advice where defendant

commingled investors funds with personal funds). Ogale compensated himself by

using investors’ money to pay his personal expenses.

      Because Ogale qualified as an investment adviser, the district court did not

err by applying the four-level investment adviser enhancement. Accordingly, we



                                           4
affirm his sentence.

      AFFIRMED.




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