                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                  ___________

                              Nos. 05-3797/05-4030
                                  ___________

United States of America,             *
                                      *
      Appellee/Cross-Appellant,       *
                                      * Appeals from the United States
      v.                              * District Court for the District
                                      * of North Dakota.
Duane Huber, Duane Huber, doing       *
business as Huber Farms General       *
Partnership; Huber Farms, Inc.,       *
                                      *
      Appellants/Cross-Appellees.     *
                                 ___________

                             Submitted: May 17, 2006
                                Filed: September 12, 2006
                                 ___________

Before MURPHY, BEAM, and BENTON, Circuit Judges.
                           ___________

BEAM, Circuit Judge.

      In this fraud action, we revisit Duane Huber's direct appeal, and the
government's cross-appeal, of Huber's conviction and sentence.1 We affirm.




      1
       The Honorable Rodney S. Webb, United States District Judge for the District
of North Dakota.
I.    BACKGROUND

       We recounted the underlying facts in great detail in our prior opinion, United
States v. Huber, 404 F.3d 1047 (8th Cir. 2005) (Huber I), and decline to do so again.
Briefly, Huber and his corporate farming entities were convicted of making fraudulent
statements to the government, committing tax fraud, and laundering money, acts
designed to obtain more farm program benefits than were warranted by Huber's
farming operations. Huber was sentenced to sixty-months' imprisonment, and the
corporate farming entities were given probation. In addition, Huber was ordered to
forfeit approximately $5.9 million in the form of a money judgment under the money-
laundering charge. In Huber I, we affirmed the conviction, but remanded to the
district court to recalculate the forfeiture amount2 and for re-sentencing in light of the
recently decided United States v. Booker, 543 U.S. 220 (2005). 404 F.3d at 1060-63.
Upon remand, the district court reduced the forfeiture judgment to approximately $3.9
million, re-sentenced Huber to sixty-months' imprisonment and the corporations to
probation, and again refused to order a fine or restitution. Both parties appeal, raising
numerous claims of error.




      2
        At trial, the jury found, by a preponderance of the evidence, the corpus of the
money-laundering conspiracy to be approximately $5.9 million. In Huber I, we held
that for purposes of the forfeiture issue, certain sums (uncollected insurance subsidies
and premiums) needed to be subtracted from the jury's $5.9 million finding. These
subsidies and premiums were paid directly from the government to insurers and never
collected by the participants in the money-laundering scheme; therefore these sums
could not be "laundered." 404 F.3d at 1061.

                                           -2-
II.   DISCUSSION

      A.     Huber's Appeal

       Huber's primary complaint is that he received the same sentence upon remand.
He contends that the district court disregarded the Booker mandate by simply
imposing the same sentence. Huber also argues that his Sixth Amendment rights were
violated because the jury found facts used for sentencing enhancements by only a
preponderance of the evidence. Notably, Huber does not contend that the district
court erroneously applied the guidelines. To the contrary, he admits that his is a
"guideline sentence." E.g., United States v. Haack, 403 F.3d 997, 1003 (8th Cir.),
cert. denied, 126 S. Ct. 276 (2005).

      First, contrary to Huber's argument, facts used to enhance a sentence, post-
Booker, do not need to be found beyond a reasonable doubt. The Booker court
remedied the Sixth Amendment problem by making the guidelines advisory, rather
than mandatory. 543 U.S. at 246. Accordingly, Huber's Sixth Amendment arguments
are without merit.

       Essentially, Huber argues that his sentence is unreasonable because it is a
guidelines sentence, and more specifically, the same guidelines sentence he was given
before Blakely3 and Booker threw the federal sentencing scheme into a state of
upheaval. We reject this reasoning. First, Huber's argument does not withstand our
circuit's overwhelming post-Booker precedent that a sentence within the guidelines
range is presumptively reasonable. E.g., United States v. Gatewood, 438 F.3d 894,
896 (8th Cir. 2006). Second, Huber's description of the district court's actions upon
re-sentencing is a textbook example of post-Booker sentencing procedure.



      3
       Blakely v. Washington, 542 U.S. 296 (2004).

                                         -3-
       Upon remand, the district court first noted that the guidelines were now
advisory under Booker. Citing Haack, the court acknowledged that the Eighth Circuit
has directed the district courts to consult the guidelines during sentencing, and then
"individualiz[e]" the sentence by consulting the factors set forth in 18 U.S.C. §
3553(a). The district court then proceeded to do just that, and thus performed its
duties to the letter on re-sentencing. The sentence is not invalid simply because the
district court came to the same conclusions both pre- and post-Booker. We reject
Huber's arguments that the district court erred by reimposing his sixty-month
sentence.

       We also reject Huber's argument that he was entitled to have the forfeiture
amount decided by the jury beyond a reasonable doubt, citing both Apprendi v. New
Jersey, 530 U.S. 466, 490 (2000) ("Other than the fact of a prior conviction, any fact
that increases the penalty for a crime beyond the prescribed statutory maximum must
be submitted to a jury, and proved beyond a reasonable doubt."), and Booker. At trial,
the court instructed the jury to find the forfeiture amount by a preponderance of the
evidence, and the jury decided that amount would be approximately $5.9 million.
Criminal forfeiture is an indeterminate sentencing scheme and accordingly, Huber was
not entitled to a reasonable doubt forfeiture instruction under the Apprendi line of
reasoning. In United States v. Hively, 437 F.3d 752, 763 (8th Cir. 2006), we found
that criminal forfeiture proceedings were unaffected by Booker, noting that the
Booker Court expressly found that the forfeiture provision of the sentencing statute,
18 U.S.C. § 3554, was still "perfectly valid." 543 U.S. at 258.

       We affirm the district court in its entirety with respect to Huber's direct appeal
of his sentence.




                                          -4-
      B.     Government's Cross-Appeal

                                      1. Sentence

       The government assigns eight errors, and almost forty pages of briefing, to the
district court's application of the sentencing guidelines to Huber's case. We distill
those alleged errors down to three primary claims–that the district court miscalculated
and misapplied the guidelines when determining the base offense level; that the
district court erred in refusing to enhance or adjust Huber's sentence upward; and that
the district court erred in departing downward. We review the district court’s
interpretation and application of the sentencing guidelines de novo. United States v.
Vasquez-Garcia, 449 F.3d 870, 872 (8th Cir. 2006). We review the district court's
factual findings for clear error. Id. A critical starting point in our review is whether
the district court correctly calculated the advisory guideline range. An incorrect
application of the guidelines can require remand, regardless of whether the resulting
sentence was reasonable. United States v. Mashek, 406 F.3d 1012, 1017-18 (8th Cir.
2005).

       The government's primary complaint with the district court's base offense
calculation involves the determination of the loss to the government. Key issues
pervading trial, sentencing, and the forfeiture proceedings were the amount of the
laundered funds and the total value of the government's loss. There is a distinction
between these two concepts–the value of the laundered funds refers to the amount of
money that Huber funneled into and out of the farming operations while obtaining
farm program benefits. The total amount of loss to the government is a much more
illusory figure referring to all loss to the government, on all twenty charged counts,
as a result of the illicit farm program scheme. The difficulty with this latter figure is
that while Huber was convicted of maintaining illegal farming operations in order to
obtain farm program benefits to which he was not entitled, it is clear that he also
conducted a legitimate farming operation. The funds involved in both the legitimate

                                          -5-
and illegitimate farming operations were continually co-mingled. So it is not easy to
determine which funds in the entire Huber farms enterprise were wrongly obtained.
Further complicating matters, the loss to the government amount and the sentencing
guidelines calculation are inextricably intertwined.

       The guideline for determining the base offense level in this money-laundering
case is 2S1.1. Guideline 2S1.1 provides alternative methods for determining a
defendant's base offense level. Section 2S1.1(a)(1) describes the first method of
determining the base offense level: if both of two specified conditions are met, the
offense level is the same as that "for the underlying offense from which the laundered
funds were derived." U.S.S.G. § 2S1.1(a). The two conditions which must be satisfied
are that the defendant actually committed the underlying offense, and that the offense
level for that offense "can be determined." Id. If either of these two conditions are
not met, the alternative method, found in section 2S1.1(a)(2), provides that the base
offense level is eight plus a number of offense levels from a designated table
"corresponding to the value of the laundered funds." Id. § 2S1.1(a)(2).

       Huber clearly committed the underlying fraud offense, satisfying the first
condition of 2S1.1(a)(1). However, the only way that the base offense level for this
underlying fraud count can be determined is if the total amount of loss to the
government can be determined. The district court decided that it could not do this,
finding that because a calculation of the total amount of loss to the government was
impracticable, if not impossible to make, section 2S1.1(a)(2) should be used to set
Huber's offense level. The government argues that section 2S1.1(a)(1) should have
been used instead. It argues that the total amount of loss was determinable, and sets
the figure at approximately $19 million.

      The district court rejected this position because of the co-mingling problem
described above. Instead, the district court used subsection (a)(2) to calculate the
guideline. The first thing the district court had to do under the (a)(2) analysis was to

                                          -6-
assign a value to the laundered funds. This calculation was based on the following:
during the forfeiture proceedings, the jury was given Government Exhibit 1, which
contained totals of grain sales, crop insurance, and farm payments for various years,
ranging from 1994 through 1999, received by (1) four of the farmers Huber "used" to
obtain extra farm program benefits, (2) Huber General Partnership, and (3) Duane
Huber. The "Grand Total" on Exhibit 1, which accounted for the total proceeds from
grain sales, crop insurance, and farm program payments from these three groups (the
four farmers, the partnership, and Huber) was $14,106,213. The grand total attributed
to the four farmers was $5,876,970–the same amount that the jury determined should
be forfeited by Huber. This is also the amount that the district court chose as the value
of the laundered funds for purposes of the base offense calculation in section
2S1.1(a)(2). The district court, noting that the government argued the value was
approximately $19 million and that Huber argued it was zero, compromised these
positions, and, using the jury's forfeiture decision as a guide, set the value of the
laundered funds at $5,876,970.

        After the value of the laundered funds was determined, pursuant to section
2S1.1(a)(2), the district court referred to a table in section 2B1.1 to assign a number
to this value. Because the value of the laundered funds fell into a range of $2.5 to $7
million, the district court added eighteen points to the eight already directed by section
2S1.1(a)(2) to set Huber's base offense level at twenty-six. The court also added two
mandatory points because Huber's offense was a violation of 18 U.S.C. § 1956,
arriving at a final base offense level of twenty-eight.

       While we review the district court's application of the guidelines de novo, the
district court's decision about whether the total amount of loss in the case was
practicable to determine was a factual issue for the district court–in this case, a court
that painstakingly presided over this lengthy trial, numerous hearings, and two
sentencing proceedings. In light of this, we cannot say that the district court clearly
erred in its factual determination that the total amount of loss to the government was

                                           -7-
impracticable, if not impossible, to determine. Indeed, while discussing restitution,
the government acknowledged "the court was interested in knowing how much loss
there would have been, but for the fraud committed . . . by Mr. Huber and the entities.
We were unable to fully establish that or answer all of the court's questions, but we
believe the amount of loss was in the neighborhood of $8 million." In light of this
admission, our own review of the voluminous record, and the unique circumstances
of this case, the district court did not clearly err in using 2S1.1(a)(2) to determine
Huber's offense level or in setting the offense level at twenty-eight.4

       The government next argues that the district court erred in not enhancing
Huber's sentence for a plethora of reasons: for using sophisticated means to launder
the money, for deriving more than $1 million in gross receipts, for abuse of trust, for
being an organizer or leader, and for obstruction of justice. We review the district
court's factual findings regarding enhancements for clear error, but we apply a de novo
review to the application of the enhancements to the facts found by the district court.
United States v. Sitting Bear, 436 F.3d 929, 933 (8th Cir. 2006).

       At the original sentencing hearing in June 2003, the district court rejected the
government's entreaties for enhancements. With regard to obstruction, the court stated
that there was nothing that would justify that enhancement. For the remaining
suggested enhancements, the district court agreed with the probation officer who
drafted the Presentence Investigation Report that the evidence at trial did not support
the remaining enhancements. With regard to the sophisticated means enhancement,


      4
       The government also briefly argues that the district court erred by not
calculating offense levels for the conspiracy to defraud and other fraud-related counts.
The district court analyzed this grouping issue in a Sentencing Memorandum dated
March 28, 2003, and decided that (based on the government's recommendation),
because the money-laundering conspiracy had the highest offense level, it need not
calculate offense levels for the remaining counts. We affirm the district court's
decision on this issue.

                                          -8-
the probation officer found that since Huber did not use shell corporations, offshore
accounts, or "layer" transactions, the "sophisticated" enhancement should not apply.
With regard to the remaining suggested enhancements, the probation officer found
that they were not justified by the evidence presented at trial. The district court was
not persuaded that the facts of the case warranted the enhancements, and we cannot
say it clearly erred in so deciding. Accordingly, we affirm the district court's decision
not to enhance Huber's sentence.

       The government also argues the district court erred in departing downward.
Applying its reasoning regarding the base offense level calculation, the district court
determined that because Huber's legitimate farming funds were inextricably co-
mingled with funds obtained illegally in the farm program scheme, the seriousness of
the offense was substantially overstated. The district court also found that Huber's
past record of providing for his community supported a minimal departure. Thus, the
district court departed downward three levels pursuant to U.S.S.G. § 5K2.0. We
review the district court's decision to depart downward for an abuse of discretion,
United States v. Bueno, 443 F.3d 1017, 1023 (8th Cir. 2006), and find none here.

       The district court did not clearly err in its factual determination that the high
value of the laundered funds led to a base offense level that substantially overstated
the seriousness of the offense. Despite the government's strong protestations to the
contrary, we agree with the district court that the inextricable co-mingling of funds,
as well as the relatively small net profit Huber actually realized, take this money-
laundering scheme out of the garden variety. Thus, the district court did not abuse its
discretion in deciding to depart downward on this basis.

      Nor did the district court err in finding that Huber's lifetime contributions to his
community warranted a minimal departure. A defendant's charitable conduct is not
an appropriate basis for a downward departure unless it is exceptional. United States
v. Woods, 159 F.3d 1132, 1136 (8th Cir. 1998). The district court noted that Huber

                                           -9-
had loaned money to neighbors and fellow farmers in need, over a number of years,
and that this generosity had saved farms from foreclosure and helped finance the start-
up and continuation of businesses in the local community. The district court decided
that this conduct compared favorably to that described in Woods, 159 F.3d at 1136-37
(affirming downward departure on this basis where the defendant took two troubled
young women into her home and paid for their schooling, and also helped the elderly).
We cannot disagree, and like the Woods court, note that the district court found
Huber's contributions exceptional, and we "have no basis for holding that they were
not." Id.


                                    2. Restitution


       The government next argues that the district court erred when it did not order
restitution during re-sentencing. In Huber I, we noted that the delay associated with
the complex task of calculating the loss to the government was "a permissible ground
for refusing to award restitution." 404 F.3d at 1063. The picture had not become any
clearer at re-sentencing, where, as previously discussed, the government
acknowledged that it was "unable to fully establish" the amount of loss in the case.
We affirm the district court's refusal to award restitution in this case.


                                       3. Fine


       Likewise, the government argues the district court erred in refusing to fine the
defendants at re-sentencing. In Huber I, we noted that "[w]hile we find no error in the
district court's observation that the $5.9 million forfeiture judgment adequately
covered the ground a fine would cover," we left the matter open on remand since the
amount of forfeiture would change. Id. At re-sentencing, the district court found that



                                         -10-
the $3.9 million forfeiture award still adequately covered the ground that a fine would
cover. We again find no error.


                                4. Forfeiture Amount


       The government next argues that the district court improperly reduced the
forfeiture award. More to the point, at re-sentencing and now on appeal, the
government attempts to relitigate the entire forfeiture amount, instead of just focusing
on the amount of premium subsidy and offset amounts, as directed by our opinion in
Huber I. In Huber I, we directed the district court to subtract from the total forfeiture
amount, decided by the jury to be approximately $5.9 million, uncollected insurance
subsidies. Notwithstanding, the government argues that the total corpus should be $19
million, and that the insurance subsidies should be subtracted from that amount. The
government asserts that in Huber I, the court did "not fully appreciate facts related to
the forfeiture issue." Though the government disagreed with our conclusion in the
prior opinion that the corpus totaled $5.9 million, "[g]iven the court's conclusions and
breadth of the remand, the United States opted to address the issue at re-sentencing,
and (if needed) in a second appeal, rather than request rehearing at the circuit court
level." This approach was error, because the law of the case precludes it from arguing
for a different total in this appeal.


        The law-of-the-case doctrine requires a trial court to follow the decision of an
appellate court with respect to all issues addressed by that opinion. United States v.
Bartsh, 69 F.3d 864, 866 (8th Cir. 1995). In Huber I, we directed the district court to
"reduce its forfeiture judgment." At re-sentencing, the district court wisely noted that
"I am directed to reduce the forfeiture judgment, not add to it. I am directed to reduce
it in some fashion. . . . I will reduce it." The government informed the district court
that approximately $1.9 million of insurance premium charges and subsidies were
never paid to the participants in the money-laundering conspiracy. The district court

                                          -11-
appropriately reduced the forfeiture judgment by that amount.          We reject the
government's attempts to litigate this issue further.


                            5. Joint and Several Liability


       Finally, the government argues that the district court erred at re-sentencing by
refusing to order a joint and several forfeiture judgment among all defendants
convicted of the money-laundering conspiracy. The issue of whether the forfeiture
should be joint and several between Huber and the corporate entities was submitted
to the jury, which declined to impose such liability. The district court declined to
disturb the jury's verdict on this issue, as do we.


III.   CONCLUSION


     We commend the district court for the four years of work it has done on this
complicated case, and affirm.
                       ______________________________




                                         -12-
