UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                  No. 96-4760

HAN SOO KOO,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Andre M. Davis, District Judge.
(CR-96-129-AMD)

Submitted: October 31, 1997

Decided: January 13, 1998

Before WILKINS and HAMILTON, Circuit Judges, and
BUTZNER, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Michael F. Grossman, James S. Yoh, New York, New York, for
Appellant. Lynne A. Battaglia, United States Attorney, Joseph L.
Evans, Assistant United States Attorney, Baltimore, Maryland, for
Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

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OPINION

PER CURIAM:

Han Soo Koo appeals from his conviction and sentence for conspir-
acy to both steal goods from interstate shipments and to receive goods
stolen from interstate shipments in violation of 18 U.S.C. § 371
(1994). On appeal, Koo assigns as error two jury instructions; one
involving instruction on conscious avoidance and the other involving
the Pinkerton doctrine.* Koo also alleges that the district court erred
in determining the dollar value of the loss and in assessing an adjust-
ment for more than minimal planning. Finding no error, we affirm.

Koo was involved in a scheme with Tony Clemens, among others,
to steal and buy interstate shipments of Lever soap. On March 19,
1996, FBI agents discovered Clemens in the process of stealing a
trailer of Lever soap products. Clemens agreed to take the agents to
his delivery appointment with Koo. He told the agents that Koo would
be carrying a gun and should have $3000 cash to pay for the ship-
ment. Clemens and Koo met and Koo had the cash and gun predicted
by Clemens. Clemens implicated Koo in five separate occasions of
buying shipments he had stolen from Lever carriers. The jury found
Koo guilty of the conspiracy charge and acquitted him of two sub-
stantive counts of receiving goods knowing them to be stolen from an
interstate shipment. At sentencing, the district court found that the
total loss associated with the conspiracy was approximately $266,000
and that more than minimal planning was involved.

Koo alleges that the district court erred by giving a conscious
avoidance instruction regarding the two substantive counts and by
giving an instruction on the Pinkerton theory of liability for the sub-
stantive counts. The conscious avoidance instruction directed:
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*See United States v. Pinkerton, 328 U.S. 640 (1946).

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          [i]n addition, the element of knowledge may be satisfied by
          proof that the Defendant deliberately closed his eyes to what
          otherwise would have been obvious to a reasonable person.
          A finding beyond a reasonable doubt of a conscious purpose
          to avoid learning the source of the property in question
          therefore will satisfy the requirement that the Defendant had
          knowledge that the property was stolen.

(J.A. 65). As to the Pinkerton instruction, the court informed the jury
that if they found that the substantive crimes were committed as part
of the conspiracy and were reasonably foreseeable to the Defendant,
then he could be held responsible for such offenses. Both these jury
instructions relate to the substantive charges.

Koo did not object to either jury instruction at trial and therefore
we review for plain error. See United States v. Olano, 507 U.S. 725,
730-37 (1993). The jury acquitted Koo of the substantive counts.
Even if the error is reviewable under the plain error standard, any
error would be harmless because Koo was not prejudiced by the
instruction due to the resulting acquittal.

Koo raises two issues regarding sentencing. First, he argues that the
district court erred in imposing a ten-level upward adjustment to
reflect a loss of more than $200,000 but less than $350,000 dollars.
See U.S. Sentencing Guidelines Manual § 2B1.1(b)(1)(K) (1996).
Second, Koo argues that the court should not have found a two-level
upward adjustment appropriate for more than minimal planning. See
U.S. Sentencing Guidelines Manual § 2B1.1(b)(4)(A) (1996).

The propriety of adjustments to the guideline offense level con-
cerning the amount of the loss and the adjustment for more than mini-
mal planning are factual determinations that we review for clear error.
See United States v. Daughtrey, 874 F.2d 213, 217-18 (4th Cir. 1989).
At sentencing, the trial court found that the total loss associated with
the conspiracy was approximately $266,000. The calculation included
transactions involving five separate incidents including the $19,000
related to the attempted March 19, 1996, transaction, $63,000 for the
transactions on January 25, and March 6, 1996, associated with the
two substantive counts for which Koo was acquitted, and $188,000
for the transactions on January 2 and 27, 1996, with which Koo had

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not been charged. A sentencing court may consider uncharged con-
duct and conduct associated with acquitted charges. See USSG
§ 1B1.3; United States v. Jones, 31 F.3d 1304, 1316 (4th Cir. 1994).
The court must establish the relevant conduct for sentencing purposes
by a preponderance of the evidence. See United States v. Irvin, 2 F.3d
72, 75 (4th Cir. 1993).

Tony Clemens implicated Koo in all five transactions. Clemens tes-
tified to each transaction, was subjected to rigorous cross-
examination, and found to be believable by the district court. His tes-
timony in itself would be sufficient to find the conduct by a prepon-
derance of the evidence. See United States v. Manbeck, 744 F.2d 360,
392 (4th Cir. 1984). Clemens's testimony was corroborated by several
other witnesses. We therefore find that the district court did not err
in this finding.

We find that the district court did not commit clear error in giving
Koo a two-level increase for more than minimal planning. Such an
increase is appropriate when a defendant's offense involves "repeated
acts over a period of time, unless it is clear that each instance was
purely opportune." USSG § 1B1.1, comment. (n.1(f)). All of the trial
court's factual findings made in the context of the amount of loss
demonstrate that Koo had an on-going relationship with Clemens over
time and was involved in a total of at least five transactions to pur-
chase stolen property. We find that the more than minimal planning
finding is supported by the record.

We therefore affirm the judgment. We deny Koo's motion for
leave to expedite the calendaring of argument. We dispense with oral
argument because the facts and legal contentions are adequately pres-
ented in the materials before the court and argument would not aid the
decisional process.

AFFIRMED

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