214 F.3d 908 (7th Cir. 2000)
United States of America,     Plaintiff-Appellee,v.Salvador A. Vivit,    Defendant-Appellant.
No. 99-3773
In the  United States Court of Appeals  For the Seventh Circuit
Argued April 10, 2000
Decided June 6, 2000

Appeal from the United States District Court  for the Northern District of Illinois, Eastern Division.  No. 98 CR 157 01--James B. Zagel, Judge. [Copyrighted Material Omitted][Copyrighted Material Omitted]
Before Easterbrook, Kanne and Rovner, Circuit Judges.
Kanne, Circuit Judge.


1
A jury found Salvador  Vivit, a medical doctor, guilty of sixteen counts  of mail fraud based on a scheme in which he and  his patients submitted false claims to insurance  companies that grossly overstated the amount of  care he had provided. The district court  sentenced Vivit to seventy-two months  imprisonment for these offenses. On appeal, Vivit  does not contest the convictions, but he claims  that the district court committed numerous errors  in determining the appropriate sentence. Finding  no errors in Vivit's sentence, we affirm the  decision of the district court.

I.  History

2
Salvador Vivit operated the Family Medical  Center, a one-doctor clinic located in Elmwood  Park, Illinois. At the Family Medical Center,  Vivit employed only two other individuals,  Estrella Del Moral, who worked as a receptionist,  did filing and sometimes provided physical  therapy to Vivit's patients, and Adriano "Andy"  Apostol, his partner, who processed and filed  insurance claims for Vivit.


3
Vivit and Apostol had founded the clinic  together in 1993, with Apostol providing about  $7,000 in start-up money and equipment. However,  because Vivit was the only licensed doctor, he  ran the clinic as a sole practitioner. Vivit  recruited patients and performed medical  treatment, while Apostol processed and filed  insurance claims for him and used the office as  a base for other shady business ventures. In  September 1994, Vivit and Apostol had a  disagreement. Apostol then quit and removed many  items from the clinic, including the clinic's  computer, a television, a chair and 134 boxes of  patient files documenting the clinic's accident  victims. These patient files were given by  Apostol to the Elmwood Park Police department,  who investigated and eventually arrested Vivit.  Shortly after removing this equipment from the  clinic, Apostol departed for the Philippines,  where he remains.


4
Between 1993 and 1996, Vivit involved as many  as 130 patients in a complicated scheme to  defraud insurance companies by charging for  services that he did not provide. Vivit engaged  in five principal types of fraudulent conduct:  (1) billing insurers for patient visits that did  not occur; (2) billing for physical therapy that  was not performed; (3) creating false medical  records and reports to submit to insurance  companies; (4) allowing his unlicensed assistant,  Del Moral, to perform physical therapy without  Vivit's supervision while he charged for therapy  performed by a licensed therapist; (5) ordering  unnecessary allergy tests for patients with no  allergy symptoms.


5
Based on the information in Vivit's files  obtained from Apostol, interviews conducted with  Vivit's patients and claims filed by Vivit or his  patients to their insurers, the government  obtained enough evidence to secure a four-count  indictment in July 1998. In December 1998, a new  grand jury returned a seventeen-count superseding  indictment charging Vivit with devising and  executing a scheme to defraud. The indictment  alleged that Vivit engaged in fraudulent use of  the mails on seventeen separate instances between  1993 and 1996, and the final count of the indictment claimed that one check was mailed in  furtherance of the conspiracy as late as August  6, 1996. On June 29, 1999, the district court  conducted a jury trial to consider the charges  against Vivit.


6
At trial, the government produced the testimony  of twenty-six former Vivit patients and entered  into evidence false bills and medical reports  created for forty-nine patients. Each of the  testifying patients had in some way been involved  in Vivit's scheme to defraud their insurers.  Some, including Roy, Myla and Lauro Sansano,  merely filled out false attendance sheets at  Vivit's request. However, the Sansanos testified  that they back-dated many of the signatures to  conceal a considerable lapse of time between when  the accident from which they claimed injuries  occurred and their initial visit to Vivit,  belying Vivit's claim that the attendance sheets  were used to make future appointments. In  addition, Roy Sansano testified that they visited  Vivit because a friend told him that to receive  a favorable insurance settlement, they should see  Vivit, a doctor who would produce false medical  documentation to support their claim.


7
Other patients testified about more extensive  fraudulent conduct. For example, Veronica  Leighton testified that she received $53,000 as  a result of filing a false disability insurance  claim. Leighton, who pleaded guilty to tax  evasion and mail fraud for her crimes, first  submitted a false medical bill to her insurer  based, in part, on twenty-nine fictitious visits  to Vivit's clinic for which Vivit created a  record. Leighton decided that she also should  seek disability benefits, and she testified that  Vivit told her how to prepare a fraudulent claim  for her disability insurer. In conjunction with  this fraud, Vivit filled out a certificate of  disability swearing that in his medical opinion  Leighton was disabled.


8
Many other patients testified that, in addition  to overbilling by creating a false attendance  record, Vivit exaggerated the amount of treatment  that he performed. Vivit's records showed that he  had performed ultrasound therapy on numerous  patients in 1993, but the government produced the  supplier of Vivit's ultrasound machine, who  testified that the machine was not delivered  until the spring of 1994. In addition, Vivit's  files show that he performed an examination and  two follow-up examinations on Sharlon Silvestre,  but Silvestre testified that Vivit never examined  him. Vivit also included a diagnosis of whiplash  and migraines in his medical record, but  Silvestre testified that he did not have  headaches and that Vivit never informed him that  he suffered from whiplash. Vivit's files also  show that he performed therapy on Jennifer  Cailles's back and neck. Cailles, who was sixteen  at the time when she was treated by Vivit,  testified that this therapy was never performed.  In addition, many other patients added testimony  to the record similar to that offered by  Silvestre and Cailles.


9
Other patients testified that Vivit failed to  provide adequate medical services in the course  of his care. Avelina De La Rosa testified that  she had extremely high blood pressure following  an automobile accident, but Vivit failed to test  her blood pressure during the course of his  diagnostic examination. Melandro Lubguban  testified that he visited Vivit in pain following  an automobile accident, but Vivit failed to  examine him at all. Phina Garcia testified that  she was covered with bruises when she visited  Vivit, but Vivit did not examine her and instead  approved hydro collator treatments for her, a  treatment plan that medical experts advised  against.


10
Del Moral also testified for the government,  stating that she had performed "microphone"  (ultrasound) therapy, hydro collator therapy and  electrical muscle stimulation therapy on numerous  patients without Vivit's supervision. She  testified that the unsupervised therapy occurred  largely because Vivit arrived at the clinic in  the afternoon, and Del Moral performed one or two  therapy sessions each morning. Although she  lacked a license to perform physical therapy, she  claimed that Vivit had trained her and that she was taking courses on therapy. Del Moral also  testified that Vivit told her to make his  patients falsify attendance sheets to inflate the  amount of therapy they supposedly received. Del  Moral testified that Vivit prepared patient  bills, sometimes with the aid of Apostol, and  gave them to her to file and mail.


11
The government also presented the testimony of  two experts, Drs. Daniel Samo and Gregory  Mulford. Both doctors testified that the therapy  that Vivit prescribed would be useless without an  additional prescription of a course of exercise.  They also testified that Vivit's failure to  examine patients constituted a "hideous"  dereliction of duty and that the prescription of  hydro collator or electrical muscle stimulation  therapy to patients with bruising was  contraindicated. Finally, the doctors provided  expert analysis about the amount which Vivit's  fraudulent claims of treatment cost various  insurers. Both experts testified that because all  the treatment prescribed by Vivit was  unnecessary, the entire amount of his bills  should be considered fraudulent.


12
On the basis of this evidence, the jury  returned a guilty verdict against Vivit on  sixteen of the seventeen counts of the  indictment. The district court sentenced Vivit in  October 1999. Because it found that the  convictions all involved substantially the same  harm, the court chose to group all the  convictions, pursuant to United States Sentencing  Guidelines sec. 3D1.2. The total offense level of  the combined counts started at level six as  directed by sec. 2F1.1(a), but the court  increased the total offense level to thirteen  because it found that the government had proved  that, in aggregate, Vivit had defrauded insurers  of between $120,000 and $200,000.


13
The government originally argued that Vivit had  defrauded insurers of $265,618.80, of which about  $60,000 should have been removed for legitimate  pain and suffering of Vivit's patients. However,  Vivit argued that the actual loss was much less  because of the medical services that he provided.  The parties argued extensively over the  computation of loss, and the government, in  support of its position, presented the court with  a "Vivit loss chart" that listed all the costs  associated with fraudulent billing by Vivit. This  chart showed that Vivit had submitted bills  containing fraudulent information valued at about  $149,000, to which insurers paid out nearly  $130,000, but the chart did not subtract the  value of legitimate medical services performed by  Vivit. The court found this chart persuasive and  eventually attached the chart to its ultimate  judgment. After listening to the parties'  extended discussion on the calculation of amount  of loss, the court concluded, "I think it is  quite clear from the papers before me and from  the trial and from the testimony, that a loss of  at least $100,000 was proved. I am inclined to  believe that more than $200,000 was proved, but  relying on what I believe is most appropriate for  this case, and that which cannot be questioned,  I find that we have to add seven points rather  than eight to the total offense level."


14
From a total offense level of thirteen, the  court ultimately enhanced Vivit's total offense  level to twenty-seven. The court initially raised  the total offense level two levels pursuant to  sec. 2F1.1(b)(6)(A) because the court found that  Vivit's treatment recklessly placed his patients  at serious risk of bodily injury. The court  explained that "what [Vivit]'s position in this  court is 'you know, I really didn't do very much.  I used the most conservative treatment.' . . .  But the fact of the matter is that the most  conservative treatment is not always best. . . .  [H]e was, given his medical examination  practices, a very lucky man that he did not miss  something more serious, and for all we know maybe  he did."


15
The court enhanced four levels pursuant to sec.  3B1.1(a) for Vivit's role as an organizer or  leader, basing its decision that Vivit led five  other participants on the facts set out in the  Pre-Sentencing Investigation and Report ("PSR"),  and two additional levels because Vivit abused  his position of trust relative to insurers,  pursuant to sec. 3B1.3. In relation to the latter  enhancement, the court noted that it enhanced  Vivit's sentence not because of his use of a  special skill, which the court felt would  constitute double-counting in relation to its  vulnerable victim enhancement, but because "it is  fair to say that he counted upon that the  insurance companies would extend trust to him,  and certainly after a period of time doing this  it is quite clear that he understood that they  did trust him; so that he did abuse his trust  relative to the insurance companies."


16
In addition, the court enhanced Vivit's sentence  by two levels pursuant to sec. 3A1.1(b) because  many of his patients constituted vulnerable  victims and an additional two levels according to  sec. 3B1.4 for using minors to commit an offense.  Finally, the court enhanced two more levels  because Vivit's scheme intended to defraud more  than one victim, pursuant to sec. 2F1.1(b)(2).  Adding all these enhancements, Vivit's total  offense level reached twenty-seven. Because  Vivit's criminal history category was I, this  total offense level created a sentencing range of  70 to 87 months. The district court sentenced  Vivit to 72 months imprisonment, followed by  three years supervised release. Vivit also was  ordered to pay $149,877 in restitution.

II.  Analysis

17
On appeal, Vivit challenges his sentence on  five grounds. First, Vivit claims that the  district court erred in calculating the loss  amount caused by his scheme. Second, Vivit finds  error in the court's determination that he used  minors in his scheme and in its application of  this enhancement in light of potential ex post  facto concerns. Third, Vivit claims that the  court erred in determining that his treatment  recklessly subjected his patients to a risk of  serious bodily injury. Fourth, Vivit challenges  the district court's attribution of a leadership  role to him for his conduct in the scheme. Fifth,  Vivit challenges the district court's enhancement  to his sentence for abuse of a "position of  trust" in relation to the insurance companies  that he defrauded.

A.  Calculation of Loss

18
At sentencing, the government and the probation  office provided a "loss assessment" for the harm  caused by Vivit as totalling $265,618.80.  However, the district court found that the  government was able to prove a loss of only  $120,000 to $200,000. On this basis, the court  enhanced Vivit's sentence seven levels, pursuant  to United States Sentencing Guidelines sec.  2F1.1(b)(1)(H). On appeal, Vivit claims that the  district court erred in its calculation of loss  because the court failed to subtract the value of  the legitimate medical services rendered from the  loss incurred by the insurance companies and  because the court's calculation of loss included  evidence of fraud of which there was no testimony  at trial or sentencing. The definition of loss is  a question of law, reviewed de novo. See United  States v. Holiusa, 13 F.3d 1043, 1045 (7th Cir.  1994). The amount of loss calculated by the  district court is a finding of fact, which we  review for clear error. See United States v.  Craig, 178 F.3d 891, 899 (7th Cir. 1999). We find  clear error only when we are "left with the  definite and firm conviction that a mistake has  been made." United States v. Strache, 202 F.3d  980, 984-85 (7th Cir. 2000) (citation omitted).


19
Guidelines sec. 2F1.1(b)(1) directs sentencing  courts to increase the defendant's total offense  level according to the total amount of loss  created by a defendant's actions, if that loss  exceeds $2,000. U.S.S.G. sec. 2F1.1(b)(1).  Application note 8 to sec. 2F1.1 indicates that  the valuation of loss for the purposes of sec.  2F1.1 will be determined in the same fashion as  for sec. 2B1.1 (theft). U.S.S.G. sec. 2F1.1  application note 8. Application note 2 to sec.  2B1.1 defines loss as "the value of property  taken, damaged, or destroyed." U.S.S.G. sec.  2B1.1 application note 2. However, application  note 8(a) to sec. 2F1.1 provides that when a  fraud is committed by misrepresenting the value  of an item that has some value, courts should  value the loss at the amount by which the item  was overvalued, that is, the difference between  the represented value and the actual value.  U.S.S.G. sec. 2F1.1 application note 8(a).


20
The valuation of loss "need not be determined  with precision. The court need only make a  reasonable estimate of the loss, given the  available information." U.S.S.G. sec. 2F1.1  application note 9. Guidelines sec. 2F1.1(b)(1)  provides that courts should enhance the  defendant's total offense level by at least eight  points if a loss greater than $200,000 is proved,  by only seven points if the total loss lies  between $120,000 and $200,000, and by six or less  points when the loss is less than $120,000.  U.S.S.G. sec. 2F1.1(b)(1)(A)-(I). At sentencing,  the parties engaged in an extended discussion  about the proper valuation of loss to attribute  to Vivit's scheme, in which the government  claimed a loss valuation of greater than $200,000  and Vivit claimed a loss of less than $120,000.  At the close of this discussion, the district  court determined that "I think it is quite clear  from the papers before me and from the trial and  from the testimony, that a loss of at least  $100,000 was proved. I am inclined to believe  that more than $200,000 was proved, but relying  on what I believe is most appropriate for this  case, and that which cannot be questioned, I find  that we have to add seven points rather than  eight to the total offense level."


21
The parties disagree whether any of Vivit's  services should be netted against the bills that  he provided to insurers for his services. Vivit  notes that we measure the amount of net detriment  to the victim in calculating the amount of loss,  rather than the total amount of money  transferred. See United States v. Mount, 966 F.2d  262, 265 (7th Cir. 1992). However, the government  contends that none of the services performed by  Vivit was medically necessary, and the great  majority of the services billed were not even  performed, making those services performed the  type of action made only to give the appearance  of legitimacy. In support of its contention, the  government cites the case law of another circuit  which provides that "if the 'value' to the victim  is merely a part of the fraudulent scheme, the  defendant is not entitled to a credit." United  States v. Sayakhom, 186 F.3d 928, 947 (9th Cir.  1999). However, the court in Sayakhom also noted  that "in calculating loss, the district court  should give credit for any legitimate services  rendered to the victims." Id. at 946.


22
Application note 8(a) to sec. 2F1.1 reminds  courts that in frauds where the item  misrepresented has some value, the value of this  item should be netted against the price offered  to determine the amount of loss. While we have  traditionally applied this netting theory in the  fraudulent sale of goods, see United States v.  Schneider, 930 F.2d 555, 558 (7th Cir. 1991), we  have also applied this theory to the fraudulent  misrepresentation of other items of value, when  some value has actually been transferred. See  United States v. Jackson, 95 F.3d 500, 505-06  (7th Cir. 1996). Despite the government's  contention that the overwhelming majority of  Vivit's billing was based on unperformed or  unnecessary services, the evidence presented  demonstrates that Vivit did perform some  legitimate medical services. For this reason, we  calculate the amount of loss suffered by the  insurers by netting the total costs submitted by  Vivit, minus the legitimate medical services that  he provided.


23
However, we find no evidence in the record for  Vivit's main contention on appeal, that the  district court failed to perform this cost-  netting in calculating the amount of loss caused  by Vivit's fraud. The government urged the court  to adopt an amount of loss that the government  conservatively placed at greater than $200,000,  based on the $265,000 paid out by insurers less  the legitimate claims of Vivit's patients. The  court felt that a loss greater than $200,000 had  probably been proved but decided to sentence  Vivit conservatively, finding that the government had not clearly established a loss of $200,000.  As a benchmark, the court used the "Vivit loss  chart," which calculated Vivit's fraudulent  billing at approximately $150,000, of which  insurers paid nearly $130,000. The court seems to  have determined that the Vivit loss chart  accurately reflected the amount of loss  established by the government for the purpose of  determining the sec. 2K1.1(b)(1) enhancement.


24
Unsatisfied by the court's decision, Vivit  claims that the Vivit loss chart lacks any basis  in fact, because the chart fails to net out the  legitimate services provided by Vivit. However,  Vivit fails to recognize that the chart was  composed only of those bills in which fraudulent  information was submitted. In addition to showing  the total amount of loss, the chart shows the  ratio of legitimate services provided to  fraudulent services claimed, by showing for each  bill what fraudulent activity Vivit had  performed. The chart provides data on which to  determine the amount of loss claimed, because it  provides a basis from which to discount the value  of legitimate services provided by Vivit from the  fraudulent billing that he submitted. In  addition, the court was provided with evidence  about the amount Vivit charged for the  performance of legitimate services.


25
Armed with an accurate cost of fraudulent  services provided by Vivit and the ratio of  fraudulent to legitimate services provided, as  well as the rates that Vivit charged, we find  that the district court made a reasonable  approximation of the loss given the factual  complexity of Vivit's scheme. Because the amount  of loss need not be calculated with precision and  because we believe that the loss chart and other  facts in the record relied on by the district  court to formulate a loss calculation support the  amount of loss found by the district court, we  find no clear error in the calculation of loss  made by the district court.


26
Vivit also argues that the district court's  calculation of loss must be overturned because it  is based on testimony of witnesses who did not  testify at trial or at sentencing. While we  appreciate that the government bears the burden  of proof in demonstrating the amount of loss, see  United States v. Bahhur, 200 F.3d 917, 924 (6th  Cir. 2000), the sentencing court is not bound by  the Federal Rules of Evidence at sentencing and  "may take any information into account in passing  sentence so long as it has sufficient indicia of  reliability to support its probable accuracy."  United States v. Carmack, 100 F.3d 1271, 1276  (7th Cir. 1996). The information on which the  district court based its loss calculation had  been presented into evidence at trial without  objection before the court considered it, and  given the cumulative and reinforcing nature of  this evidence, we find no clear error in  determining that this evidence was supported by  sufficient indicia of reliability in support of  its accuracy, a finding that Vivit does not  dispute. Additional testimony at sentencing is  unnecessary to support a finding of reliability.  See United States v. Morrison, 207 F.3d 962, 968  (7th Cir. 2000). "A court can consider whatever  evidence is before it in arriving at the amount  of loss." United States v. Brown, 136 F.3d 1176,  1184 (7th Cir. 1998). Therefore, we find no clear  error in the district court's reliance on  evidence in the record that was not supported by  witness testimony in its calculation of loss  amount.

B.  Use of Minors

27
Next, Vivit contends that the district court  committed error in increasing his total offense  level by two points for using minors in the  commission of his offenses, pursuant to U.S.S.G.  sec. 3B1.4. Vivit argues that the court committed  error in finding that minors had in fact  participated in Vivit's scheme. Vivit also argues  that because all the fraudulent mailings  involving minors were completed before the  enactment of sec. 3B1.4, enhancement under this  Guidelines section violates the Ex Post Facto  Clause of the Constitution. We review de novo the  district court's interpretation of sec. 3B1.4,  see United States v. Brack, 188 F.3d 748, 765  (7th Cir. 1999), and the question whether the Ex  Post Facto Clause was violated by the enhancement  pursuant to sec. 3B1.4.

1.  Ex Post Facto Clause

28
Guidelines sec. 3B1.4, the "use of minors"  enhancement, was enacted with an effective date  November 1, 1995. U.S.S.G. sec. 3B1.4 historical  note. Vivit admits that he filed false records  for many minor patients, but he asserts that this  conduct all occurred before November 1, 1995, and  that application of the sec. 3B1.4 enhancement  violates the Ex Post Facto Clause of the United  States Constitution, U.S. Const. Art. I, sec. 9,  because that clause generally prohibits the  retroactive application of the Sentencing  Guidelines if it results in a more onerous  penalty. See United States v. Shorter, 54 F.3d  1248, 1261 (7th Cir. 1995).


29
The one-book rule, the policy statement guiding  the use of multiple guidelines, found in  Guidelines sec. 1B1.11(b)(1), provides that  "[t]he court shall use the Guidelines Manual in  effect on the date that the defendant is  sentenced." The one-book rule expresses the  intent of the Sentencing Commission that the  Guidelines reflect a cohesive whole and the  Commission's resistance to application of various  Guidelines in a piecemeal fashion. See United  States v. Bousa, 997 F.2d 263, 266 (7th Cir.  1992). When faced with the possibility of an ex  post facto violation, the court is normally  directed to "use the Guidelines Manual in effect  on the date that the offense of conviction was  committed." U.S.S.G. sec. 1B1.11(b)(1).


30
However, the Guidelines also indicate that "[i]f  the defendant is convicted of two offenses, the  first committed before, and the second after, a  revised edition of the Guidelines Manual became  effective, the revised edition of the Guidelines  Manual is to be applied to both offenses."  U.S.S.G. sec. 1B1.11(b)(3). In this case, Vivit  was convicted on count 17, the final count of his  indictment for conduct that was committed in  August 1996, well after November 1, 1995.  Therefore, on its face, sec. 1B1.11(b)(3) should  apply, and absent ex post facto concerns we would  find no error in the application of sec. 3B1.4. Vivit contests the application of sec.  1B1.11(b)(3) on two bases: (1) the only post-  revision count, count 17, does not involve the  use of a minor, so sec. 1B1.11(b)(3) is  inapplicable; and (2) sec. 1B1.11(b)(3) violates  the Ex Post Facto Clause. The former argument  ignores the plain language of sec. 1B1.11(b)(3),  which requires only that two crimes be committed  on different dates, before and after the  enactment of the Guidelines revision in question.  The one-book rule does not require that both  these crimes involve the same course of conduct,  or that both involve conduct giving rise to the  same sentencing enhancement. Therefore, it is  immaterial whether the conduct predicate to  Vivit's conviction on count 17 involved the use  of a minor.    However, if we find application of sec.  1B1.11(b)(3) violates the Ex Post Facto Clause,  sec. 1B1.11(b)(1) requires that we instead apply  the 1994 Sentencing Guidelines to all Vivit's  convictions, which would preclude a sec. 3B1.4  enhancement. See United States v. Ortland, 109  F.3d 539, 547 (9th Cir. 1997) (finding that mail  fraud is not a continuing offense, so the  defendant may properly be sentenced under  multiple sets of guidelines); United States v.  Bertoli, 40 F.3d 1384, 1404 (3d Cir. 1994). But  see United States v. Kimler, 167 F.3d 889, 893  (5th Cir. 1999); United States v. Santopietro,  166 F.3d 88, 95-96 (2d Cir. 1999). The settled  law of this circuit is that when a defendant  commits crimes that straddle the date of  promulgation of new guidelines provisions, the  defendant can be punished under a guideline  effective after the beginning of the straddle  period. See, e.g., United States v. Boyd, 208  F.3d 638, 648 (7th Cir. 2000); United States v.  Korando, 29 F.3d 1114, 1119-20 (7th Cir. 1994).  The rationale for this rule is that "a statute  increasing the penalty for [an offense] beginning  before the date of enactment but continuing  afterwards does not offend the Constitution."  United States v. Baresh, 790 F.2d 392, 404 (5th  Cir. 1986).


31
The government contends that because the  district court found the conduct committed by  Vivit similar enough for sec. 3D1.2(d) grouping  to apply, Vivit's actions constituted a  continuing offense which straddled the  promulgation of sec. 3B1.4, quieting any  potential ex post facto concerns about the use of  the 1995 Guidelines. However, the government's  position is controversial. In United States v.  Ortland, 109 F.3d at 547, the Ninth Circuit found  that because the predicate conduct constituting  mail fraud was completed on mailing, a mail fraud  scheme constituted a series of completed  offenses, rather than a continuing course of  conduct. On this basis, the court felt that  applying the grouping rules and the one-book rule  to a series of mail fraud crimes constituted a  violation of the Ex Post Facto Clause on offenses  completed before a revision of the Guidelines.  See id.; see also Bertoli, 40 F.3d at 1404-07  (finding error in the district court's failure to  analyze offenses independently for ex post facto  problems). However, in United States v. Kimler,  167 F.3d at 895, the Fifth Circuit reached the  opposite conclusion, relying on the Eleventh  Circuit's reasoning in United States v. Bailey,  123 F.3d 1381, 1403-07 (11th Cir. 1997), that the  adoption of the one-book rule and the grouping  rules put criminals on notice that "the version  of the sentencing guidelines in effect at the  time he committed the last of a series of grouped  offenses will apply to the entire group," Kimler,  167 F.3d at 895, to determine that there was no  ex post facto violation in using a revised  guideline to sentence grouped mail fraud  convictions. In that case, the court noted that  although mail fraud offenses were completed  offenses, rather than continuing offenses like  conspiracies, because the grouping rules were in  effect at the time a defendant committed acts of  mail fraud, "a defendant has notice that if he  continues to commit offenses that are grouped  together, the revised guidelines will apply to  the group." Id. at 894 n.6; see also Bailey, 123  F.3d at 1406-07; United States v. Cooper, 35 F.3d  1248, 1252 (8th Cir. 1994).


32
In this circuit, the question whether to apply  sec. 1B1.11(b)(3) depends on whether we perceive  a defendant's course of conduct to straddle the  enactment of revisions to the Sentencing  Guidelines. See Boyd, 208 F.3d at 648-49. With  continuing offenses, such as conspiracies, we  have never questioned the applicability of ex  post facto principles to this practice, because  by agreeing to engage in a conspiracy, a  defendant becomes culpable for all subsequent  acts committed by the conspiracy. See Korando, 29  F.3d at 1119. However, we have held that mail  fraud is a completed offense, implying that "the  crime of mail fraud is completed, for sentencing  purposes, at the time of the mailing. The actual  duration of the scheme is of no import." United  States v. Barger, 178 F.3d 844, 847 (7th Cir.  1999). For this reason, we have determined that  mail fraud is not a straddle offense, in which  case sec. 1B1.11 (b)(3) might not apply. See id.  at 848.


33
However, in Barger, we were not confronted with  a situation in which mail fraud convictions were  grouped together according to sec. 3D1.2, because  the criminal conduct committed in that case  occurred before the enactment of the Guidelines.  According to the rationale of the Eleventh  Circuit in Bailey, the enactment of the grouping  Guidelines places criminals on notice that  committing additional criminal acts that are  subject to grouping after a revision of the  Guidelines makes all the defendant's conduct  susceptible to the one-book rule. Bailey, 143  F.3d at 1406-07. On this basis, a series of mail  fraud convictions that are grouped may be  considered to straddle a revision without a  presumptive ex post facto violation because of  the criminal's prior notice of the grouping  rules. Because the grouping rules were not  available to provide notice when the defendants  in Barger committed the predicate offenses that  formed the basis for their convictions, we find  that the result in Barger, that a series of mail  fraud offenses do not straddle the enactment of  the Guidelines, does not require us to conclude  that applying a revised Guidelines Manual to a  series of grouped mail fraud convictions  constitutes an ex post facto violation.


34
By banning ex post facto application of new  criminal laws, "the Framers sought to assure that  legislative Acts give fair warning of their  effect and permit individuals to rely on their  meaning until explicitly changed." Weaver v.  Graham, 450 U.S. 24, 28-29 (1981); see also  Miller v. Florida, 482 U.S. 423, 430 (1987);  Dobbert v. Florida, 432 U.S. 282, 293 (1977). The  clause was also intended to check governmental  power "by restraining arbitrary and potentially  vindictive legislation." Weaver, 450 U.S. at 29.  "Critical to relief under the Ex Post Facto  Clause is not an individual's right to less  punishment, but the lack of fair notice and  governmental restraint when the legislature  increases punishment beyond what was prescribed  when the crime was consummated." Id. at 30.


35
Viewed in this context, the relevant inquiry  becomes whether the grouping rules give the  defendant fair notice at the time a crime is  consummated that the commission of further crimes  subject to grouping would subject the defendant  to sentencing under revised Guidelines. The  grouping rules, enacted in 1987, provide warning  to criminals that completing another criminal  offense similar to one committed previously  places them in peril of sentencing under a  revised version of the Guidelines. The  introductory commentary to the grouping rules  explains that because the offense guideline for  fraud, sec. 2F1.1, "deal[s] with repetitive or  ongoing behavior," multiple fraud convictions are  appropriately grouped when the convictions  involve substantially the same harm. See U.S.S.G.  sec. 3D introductory commentary. We believe that  this conclusion reflects the intent of the  Sentencing Commission to provide notice to  criminals that engaging in ongoing fraudulent  behavior involving the same type of harm risks  grouping of convictions, which because of the  one-book rule, will all be sentenced according to  the Guidelines in effect when the latest conduct  occurred.


36
For this reason, we believe that the enactment  of the grouping rules provides fair notice such  that the application of sec.sec. 1B1.11(b)(3) and  3D1.2 does not violate the Ex Post Facto Clause.  To violate the Ex Post Facto Clause, the  application of amended Guidelines must  disadvantage the defendant without providing the  defendant with prior notice. See Miller, 482 U.S.  at 430. Because the grouping rules provide such  prior notice, we favor the position advanced by  the Eighth Circuit in Cooper that "it was not the  amendments to the Sentencing Guidelines that  disadvantaged [the defendant], it was his  election to continue his criminal activity." 35  F.3d at 1250.


37
Vivit does not argue that his conduct did not  involve "substantially the same harm," in which  case the grouping rules should not have been  applied. Nor does he provide any other reason  that the enactment of the grouping rules should  not be construed to place him on notice that the  commission of further fraudulent mailings would  subject him to sentencing under amended  Guidelines. For this reason, we find no Ex Post  Facto Clause violation in the district court's  determination to apply the "use of minors"  enhancement to all of the grouped offenses  committed by Vivit.

2.  Findings of Fact

38
Vivit also argues that the district court  committed clear error in finding that minors  participated in his scheme. Vivit was convicted  on two counts in which the predicate conduct  involved false insurance claims filed on behalf  of a minor, and Vivit admits that he treated many  minors in the course of his operation of the  clinic. However, he contends that the role of the  minor patients in his scheme was too minimal or  unintentional for the finding that he used minors  to commit the fraud offenses.


39
Application note 1 to sec. 3B1.4 includes  within the definition of use "directing,  commanding, encouraging, intimidating,  counseling, training, procuring, recruiting, or  soliciting." In United States v. Benjamin, 116  F.3d 1204, 1206 (7th Cir. 1997), we initially  reviewed the "use" requirement of sec. 3B1.4 and  found it met when the defendant took some  affirmative action to involve a minor. See also  United States v. Butler, 207 F.3d 839, 848 (6th  Cir. 2000) ("[B]y deeming age relevant, Congress  likely imagined an offender who actually  exercised some control or took some affirmative  role in involving the minor."). In United States  v. Brack, 188 F.3d at 765, we found that the fact  bases for an enhancement under sec. 3B1.4 had  been met when the defendant performed affirmative  acts to involve a minor in her crimes. Therefore,  Vivit "used minors in the commission of his  crimes" if his affirmative actions involved  minors in his criminal activities.


40
Vivit treated Jennifer Cailles for injuries  suffered in an automobile accident. At that time,  she was sixteen years old. As a part of the  treatment, Vivit directed Cailles to sign the  attendance sheet fraudulently to inflate the  number of visits she paid Vivit. Vivit eventually  submitted a bill to Cailles's insurer that showed  forty-nine visits made, when Cailles actually  made only eight or ten visits. Vivit also treated  nine-year-old Laquita Barnett and her seven-year-  old sister Johnetta Johnson for injuries suffered  in an automobile accident. Laquita visited Vivit  twice, and was given hot pad therapy. However,  Vivit submitted a bill claiming that she had been  given a comprehensive examination and had made  two follow-up visits and twelve visits for  therapy. Johnetta only visited Vivit once, but  Vivit filed a bill with her insurer indicating  twelve visits had occurred. Vivit directed both  these girls to falsify an attendance sheet eleven  times.


41
The facts presented about Jennifer Cailles,  Laquita Barnett and Johnetta Johnson support the  district court's finding that Vivit directed  these minors to create a false attendance record.  Therefore, Vivit's direction to falsify  attendance records involved these minors in his  crime and fell within the definition of "use" of  minors contemplated by sec. 3B1.4.

C.  Risk of Serious Bodily Injury

42
Vivit also challenges the district court's  determination that the medical treatment Vivit  provided, or failed to provide, placed some of  his patients at risk of serious bodily injury, on  which basis the court increased Vivit's total  offense level two levels, according to U.S.S.G.  sec. 2F1.1(b)(6)(A). Vivit claims that this  finding of fact was clearly erroneous because it  was based on speculation as to potential injury.  The determination that Vivit's conduct posed a  conscious or reckless risk of serious bodily  injury to his patients is a finding of fact, and  we review for clear error. See United States v.  Turner, 102 F.3d 1350, 1357 (4th Cir. 1996).  However, to the extent that we review whether a  sentencing enhancement is appropriate under this  type of offense conduct, we face a question of  law that we review de novo. See id.


43
Guidelines sec. 2F1.1(b)(6) directs courts to  enhance a defendant's total offense level by two  levels if the fraud perpetrated by the defendant  involves "the conscious or reckless risk of  serious bodily injury." U.S.S.G. sec. 2F1.1(b)  (6)(A). "Serious bodily injury" is a phrase of  general applicability used frequently throughout  the Guidelines, and the phrase has been explained  to mean "injury involving extreme physical pain  or the protracted impairment of a function of a  bodily member, organ, or mental faculty; or  requiring medical intervention such as surgery,  hospitalization, or physical rehabilitation."  U.S.S.G. sec. 1B1.1 application note 1(j).  Guidelines sec. 2F1.1 does not provide any  insight into the type of conduct that should be  considered reckless, but application note 1 to  sec. 2A1.4 describes recklessness as "a situation  in which the defendant was aware of the risk  created by his conduct and the risk was of such  a nature and degree that to disregard that risk  constituted a gross deviation from the standard  of care that a reasonable person would exercise  in such a situation." U.S.S.G. sec. 2A1.4  application note 1 (involuntary manslaughter).


44
On appeal, Vivit contends that because no  patient was injured, any risk of serious injury  was purely conjectural, and for this reason, the  district court lacked any evidentiary basis on  which to base its enhancement. See United States  v. Greene, 71 F.3d 232, 236 (6th Cir. 1995)  (requiring district courts to base reckless risk  enhancement on evidence of risk). Improper  medical procedures, such as unnecessary surgery,  performed for fraudulent purposes obviously may  pose a risk of serious bodily injury. See, e.g.,  United States v. Laughlin, 26 F.3d 1523, 1531  (10th Cir. 1994) (finding that unnecessary  surgery creates a risk of serious bodily injury).  However, as the Eighth Circuit noted in United  States v. McCord, Inc., "for most frauds, risk of  serious bodily injury is less direct and less  obvious." McCord, 143 F.3d at 1098. In cases of  fraud, where sec. 2F1.1(6)(A) applies, we are not  concerned with whether actual injury occurred,  but whether the defendant's fraudulent course of  conduct created a risk that others would suffer  serious bodily injury. In addition, Guidelines  sec. 2F1.1(6)(A) demands that such a risk be  undertaken recklessly. See id. Whether improper  medical treatment may form the basis for an  enhancement under sec. 2F1.1 (6)(A) is a question  of first impression for this circuit.


45
The government provided three bases on which  Vivit's sentence might have been enhanced: (1)  his failure to supervise an unlicensed individual  performing potentially dangerous physical  therapy; (2) his direction to apply heat therapy  to bruised areas, increasing the risk of injury;  (3) his failure to examine physically certain  patients he knew to have been injured in  automobile accidents. The district court enhanced  Vivit's sentence for reckless risk of serious  bodily injury, but the court did not state  directly on which of these theories it based the  enhancement. The court did note its  dissatisfaction with Vivit's diagnostic  techniques by saying, "what [Vivit]'s position in  this court is 'you know, I really didn't do very  much. I used the most conservative treatment.' .  . . But the fact of the matter is that the most  conservative treatment is not always best. . . .  [H]e was, given his medical examination  practices, a very lucky man that he did not miss  something more serious, and for all we know maybe  he did."


46
Vivit contends that the government failed to  prove either that Vivit ignored a known risk of  serious injury or that any of the treatments that  he employed could have caused serious bodily  injury. The rehabilitative techniques employed by  Vivit, which included ultrasound therapy,  electric muscle stimulation and using heat pads,  are much less intrusive or inherently dangerous  than surgical procedures. The experts provided by  the government at trial testified that it was  possible to cause injury using electric muscle  stimulation if the electrodes used in the therapy  are improperly applied or placed close to the  heart. These experts also indicated that  providing heat or ultrasound therapy to bruised  areas was contraindicated. In addition, these  experts also testified that these therapies  provided no health benefits.


47
None of the government's twenty-six patient  witnesses testified that electrical muscle  stimulation was used in the chest area, and given  the purpose of this therapy, we find the risk of  injury from that type of treatment to be slight,  even if the therapist who performed the therapy  lacked a license. In addition, although applying  heat to bruised areas may increase the internal  bleeding from this bruising, this type of  treatment does not rise to the level of "extreme  physical pain or protracted function" required by  the serious bodily injury standard. In fact, the  risk of increased injury created by the  treatments that Vivit actually performed or  ordered performed seems quite slight, certainly  too slight to justify an enhancement for reckless  risk of serious bodily injury.


48
The medical procedures that Vivit failed to  perform raise more troubling questions. To  conceal his ongoing fraud from insurers, Vivit  engaged in rudimentary examination procedures  better designed to generate additional visits in  his attendance log than to diagnose injury. On  multiple occasions, Vivit failed to perform  physical examinations on patients who visited him  following automobile accidents. In addition,  Vivit failed to perform certain basic diagnostic  tests, such as taking blood pressure, on certain  patients such as Avelina De La Rosa who later  proved to be at risk. While we do not believe  that Vivit created a risk by failing to treat  patients such as the Sansanos who visited him to  inflate their own insurance settlements knowing  that he would not provide adequate care, patients  such as De La Rosa relied on Vivit's medical  opinion and treatment to ensure that they had not  suffered serious injury. By failing to examine  such patients properly, Vivit created a risk  that, had these patients suffered serious  injuries, their injuries would remain untreated.  Moreover, by presenting evidence that certain of  his patients were at risk of serious bodily  injury without treatment, for example by virtue  of their high blood pressure, the government has  presented sufficient evidence to show that the  risk here was actual, not conjectural. The facts  also clearly demonstrate that Vivit acted  recklessly in ignoring the risk that his failure  to treat created. Therefore, we conclude that the  district court did not err in enhancing Vivit's  sentence under sec. 2F1.1(6)(A) for reckless risk  of serious bodily injury.

D.  Leadership Role

49
Vivit contends that the district court erred in  increasing his total offense level four points  based on his leadership role in the scheme. He  argues that the record does not support such a  finding of fact, and the court failed to make  express findings as to which of his patients  constituted members of the scheme for purposes of  establishing a leadership role under U.S.S.G.  sec. 3B1.1(a). The court's determination that  Vivit played a leadership role in the scheme is  a finding of fact, and we review for clear error.  See United States v. Lewis, 79 F.3d 688, 690 (7th  Cir. 1996).


50
Guidelines sec. 3B1.1 directs the sentencing  court to enhance a defendant's offense level four  levels "[i]f the defendant was an organizer or  leader of a criminal activity that involved five  or more participants or was otherwise extensive."  U.S.S.G. sec. 3B1.1(a). A "participant" is "a  person who is criminally responsible for the  commission of the offense." U.S.S.G. sec. 3B1.1  application note 1. To determine whether a  defendant is an organizer or leader, we consider  "the defendant's exercise of decision-making  authority, the nature of his participation in  committing the crime, his recruitment of  accomplices, his claimed right to a larger share  of the criminal proceeds, the extent of his  participation in planning or organizing the  crime, the nature and scope of the illegal  activity, and the degree of control and authority  exercised over others." United States v. Sierra,  188 F.3d 798, 803-04 (7th Cir. 1999); see also  U.S.S.G. sec. 3B1.1 application note 4. These  factors are not exhaustive, nor must all be  present in order to enhance the defendant's  sentence. See United States v. Mankiewicz, 122  F.3d 399, 406 (7th Cir. 1997). Instead, we weigh  these factors "in light of the Guidelines' intent  to punish with greater severity leaders and  organizers of criminal activity." Sierra, 188  F.3d at 804.


51
The district court adopted the statements in  the PSR that Vivit's scheme involved at least  five other participants: Estrella Del Moral, his  receptionist; the Sansano family, Roy, Myla and  Lauro; and Veronica Leighton. Even though four of  these named participants were Vivit's patients,  the district court felt that the four-level  enhancement was especially appropriate because  Vivit "in a moral sense and maybe in a legal  sense, made criminals out of some of his  patients." Vivit instructed Del Moral to create  false records and order patients to file false  claims and allowed her to perform therapy without  a license, which he billed to insurers. Vivit  taught Leighton how to obtain disability payments  fraudulently and convinced her to create false  records inflating her insurance claim. Vivit also  instructed each of the Sansanos to create false  medical records to inflate their insurance  claims.


52
The argument that the sentencing court failed  to identify five participants on which to base  the enhancement lacks merit. In this case, the  district court adopted the findings of fact in  the PSR, which isolated five individuals who were  deemed to be participants, and a sentencing court  may adopt the conclusions in the PSR as its own.  See United States v. Spears, 965 F.2d 262, 273  (7th Cir. 1992); United States v. Musa, 946 F.2d  1297, 1308 (7th Cir. 1991). By adopting the  conclusions of the PSR, the sentencing court  adopted by reference the individuals isolated  therein as participants.


53
Vivit's argument that those patients of his who  were deemed participants lacked criminal intent  proves equally unavailing. To count as a  "participant" in Vivit's scheme, his patients  must have been criminally responsible. See  U.S.S.G. sec. 3B1.1 application note 1. This  responsibility requires criminal intent, which  belies these patients' status as victims. To this  extent, Vivit raises a valid objection; none of  those patients who were victimized by Vivit's  poor treatment necessarily shared Vivit's  criminal intent to defraud their insurers.  However, Vivit treated more than 130 patients,  and although many of these patients may have been  innocent victims, some of these patients  performed acts that suggest criminal  responsibility.


54
Vivit does not contest that Del Moral and  Leighton were participants in his scheme.  Instead, he focuses on the criminal  responsibility of the Sansanos. Vivit presented  each of the Sansanos with an attendance sheet and  asked them to sign and date it, which they each  did twenty-seven times. Vivit contends that this  procedure was done to set up future appointments,  and the Sansanos testified that they "pretty much  followed instructions," in signing the sheets.  However, the Sansanos back-dated many of these  "appointments" to cover up the lapse of time  between their automobile accident and their first  consultation with Vivit. Roy Sansano also  testified that his family visited Vivit because  a friend told him that Vivit would create a large  medical bill for him and his family to be used in  their insurance claim.


55
In reference to their claim, the Sansanos  signed false documents misrepresenting the extent  of treatment that they received from Vivit. The  facts presented at Vivit's trial suggest that the  Sansanos filed these documents intending to  defraud their insurer. They also demonstrate that  Vivit directed them on how to create a false  record of treatment, and this false record of  treatment constituted the basis on which the  Sansanos filed false insurance claims. Therefore,  the Sansanos were all participants in Vivit's  scheme within the meaning of sec. 3B1.1.  Considering Vivit's activities within the rubric  of sec. 3B1.1, the evidence presented at trial  demonstrates that he was the principal organizer  of numerous fraudulent insurance claims, that he  recruited patients to file these false claims and  that the primary financial benefit from these  activities accrued to him. For this reason, we  find no error in the sentencing court's  enhancement of Vivit's total offense level as a  leader and organizer.

E.  Position of Trust

56
Finally, Vivit claims error in the district  court's determination that Vivit abused his  position of trust relative to the insurance  companies he defrauded, on which basis the court  increased his total offense level an additional  two levels according to U.S.S.G. sec. 3B1.3.  Vivit argues that he did not occupy a position of  trust in relation to the insurance companies that  he defrauded, and he contends that this  enhancement actually constitutes impermissible  double counting. Interpretation of the term  "position of trust" is a legal question that we  review de novo. See United States v. Hathcoat, 30  F.3d 913, 919 (7th Cir. 1994). However, the  determination that Vivit occupied a position of  trust is a finding of fact, which we review only  for clear error. See United States v. Boyle, 10  F.3d 485, 489 (7th Cir. 1993). The determination  whether a court has engaged in impermissible  double counting is a question of law, which we  review de novo. See United States v. Compton, 82  F.3d 179, 183 (7th Cir. 1996) (citation omitted).


57
Guidelines sec. 3B1.3 requires courts to  increase the total offense level of a defendant  by two levels "[i]f the defendant abused a  position of public or private trust . . . in a  manner that significantly facilitated the  commission or concealment of the offense."  U.S.S.G. sec. 3B1.3. The district court felt that  the insurance companies to whom Vivit submitted  claims trusted the doctor, and increased  accordingly on this ground. However, Vivit claims  that because his relationship with these  insurance companies was commercial rather than  fiduciary, the enhancement is not applicable.    We recently disposed of this argument in United  States v. Hoogenboom, 209 F.3d 665, 671 (7th Cir.  2000), when we noted that "[m]edical service  providers occupy positions of trust with respect  to private or public insurers (such as Medicare)  within the meaning of guideline sec. 3B1.3." Id.  (citations omitted). We explained that "[m]edical  providers . . . enjoy significant discretion and  consequently a lack of supervision in determining  the type and quality of services that are  necessary and appropriate for their patients.  This forces [the insurer] to depend, to a  significant extent, on a presumption of honesty  when dealing with statements received from  medical professionals." Id. Although in  Hoogenboom, we were faced with fraud committed  against a public insurer, Medicare, rather than  against private insurers, we made no distinction  between the two in determining whether the  enhancement was applicable, and we believe that  no distinction exists. For this reason, the facts  presented by Vivit cannot be distinguished from  those presented in Hoogenboom, and we find the  logic in that case controlling.


58
Vivit also claims that enhancement under sec.  3B1.3 constitutes impermissible double counting,  because it punished him for both acting as a  leader and abusing a "special skill." Guidelines  sec. 3B1.3 prohibits the enhancement under sec.  3B1.3 for use of a "special skill" in addition to  enhancement under sec. 3B1.1 for a leadership  role in the offense, but permits the enhancement  for an "abuse of trust" in addition to a sec.  3B1.1 enhancement. U.S.S.G. sec. 3B1.3. The  district court enhanced Vivit's sentence under  both sec.sec. 3B1.1 and 3B1.3, but the court's  articulated basis for the sec. 3B1.3 enhancement  was that "it is fair to say that he counted upon  that the insurance companies would extend trust  to him, and certainly after a period of time  doing this it is quite clear that he understood  that they did trust him; so that he did abuse his  trust relative to the insurance companies."  Therefore, the court based its enhancement on  "abuse of trust," not on "use of a special  skill." There is no impermissible double counting  to enhance under both sec.sec. 3B1.1 and 3B1.3 in  these circumstances.

III.  Conclusion

59
For all the foregoing reasons, we find no error  in the district court's computation of Vivit's  sentence. Therefore, the decision of the district  court is Affirmed.


60
Easterbrook, Circuit Judge, concurring.


61
I join  the court's opinion but add one thought. The  gymnastics performed in Part II.B.1 to show that  a two-level increase in Vivit's offense level is  compatible with the ex post facto clause are  unnecessary, because the sentencing guidelines  are not "laws" within the scope of that clause.  See United States v. Seacott, 15 F.3d 1380, 1391-  93 (7th Cir. 1994) (concurring opinion); cf.  Prater v. U.S. Parole Commission, 802 F.2d 948,  951-52 (7th Cir. 1986) (en banc) (parole release  guidelines are not "laws" for ex post facto  purposes). Many cases say, and a few hold, that  changes in the guidelines must be treated like  changes in statutory punishments for purposes of  the ex post facto clause, and the parties to this  case accept that view, but these decisions are  unconvincing. The only "law" at issue is the  Sentencing Reform Act of 1984, enacted long  before Vivit's crimes. Nothing that has occurred  since Vivit committed his acts changed the  definition of the offense, its maximum  punishment, or the evidence that may be used to  support conviction. See Carmell v. Texas, 68  U.S.L.W. 4325, 4328-29 (U.S. May 1, 2000). When  open-ended discretion prevailed before the  guidelines, no one would have doubted that  Presidents could appoint hard-nosed judges who  handed out steep penalties, provided they did not  exceed the statutory maximum at the time of the  defendant's deeds. Large swings in effective  punishment occurred because of changes in the  composition of the bench and prevailing views  about the seriousness of particular offenses.


62
What judges used to do without offending the ex  post facto clause, the Sentencing Commission may  do. The Sentencing Reform Act moves discretion  from the individual judge to the Commission.  Because the ex post facto clause does not apply  to the judicial branch, see Marks v. United  States, 430 U.S. 188, 191 (1977), and the  Commission is in the judicial branch, see  Mistretta v. United States, 488 U.S. 361, 384-97  (1989), the effective constraint is the due  process clause, which requires judges to refrain  from adopting startling interpretations of  existing rules. E.g., Bouie v. Columbia, 378 U.S.  347 (1964); Prater, 802 F.2d at 952. Vivit does  not contend that the increase in his sentence is  so surprising that it violates the due process  clause, and given the history of variability in  sentencing practices over time (and across  judges) such an argument would be untenable.  "Changing the guidelines after the commission of  a crime does not deprive the criminal of notice  of the elements of the offense or the statutory  limits of punishment. It may upset the  expectations of the few would-be wrongdoers who  study sentencing practices to determine their  risks--though even a small change in the  probability of arrest or prosecution will have a  much greater effect on the anticipated punishment  than does a change in the guidelines, and no one  believes that pouring extra resources into the  detection and prosecution of crime violates the  ex post facto or due process clause." Seacott, 15  F.3d at 1392-93. So although my colleagues  faithfully implement the complex rules that have  sprouted up to limit the damage caused by  applying the ex post facto clause to a subject  outside its proper domain, I would prefer a  shorter path to affirmance. Congress has told  courts to use the guidelines in force at the time  of sentencing. 18 U.S.C. sec.3553(a)(4). That  command is constitutional, and I would follow it  notwithstanding the United States Attorney's  failure to defend (or even cite) the governing  statute.

