                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   _____________

                                    No. 98-2016SI
                                   _____________

United States of America,                *
                                         *
                    Appellee,            * Appeal from the United States
                                         * District Court for the Southern
      v.                                 * District of Iowa.
                                         *
Mark Stephen Shaner,                     *     [UNPUBLISHED]
                                         *
                    Appellant.           *
                                   _____________

                            Submitted: October 22, 1998
                                Filed: October 28, 1998
                                  _____________

Before FAGG, ROSS, and WOLLMAN, Circuit Judges.
                           _____________

PER CURIAM.

        Mark Stephen Shaner, a commodity broker registered with the Commodity
Futures Trading Commission, pleaded guilty to one count of converting a commodity
fund’s property. See 7 U.S.C. § 13(a) (1994). Shaner pledged a commodity fund’s
certificate of deposit (CD) as collateral for Shaner’s personal loans, withdrew $100,000
from the CD to pay for the construction of his home, and ultimately cashed in the CD
and used the money to discharge his personal and business loans. In sentencing Shaner,
the district court increased Shaner’s offense level twelve levels for a loss of more than
$500,000 but less than $800,000. See U.S. Sentencing Guidelines Manual §
2B1.1(b)(1) (1997) (U.S.S.G.). Although Shaner agrees the loss associated with his
unlawful conduct “is the greater of the intended loss or the actual loss,” United States
v. Wells, 127 F.3d 739, 745 (8th Cir. 1997), he disagrees with the result of the district
court’s calculation. The district court also increased Shaner’s offense level two levels
for more than minimal planning. See U.S.S.G. § 2B1.1(b)(4)(A). Shaner appeals his
sentence. We review the district court’s factual findings at sentencing for clear error
and the district court’s application and construction of the Sentencing Guidelines de
novo. See Wells, 127 F.3d at 744-45.

       Shaner first contends the district court committed error by failing to reduce the
amount of intended loss by the amount Shaner intended to repay. We disagree. The
district court found Shaner intended to convert approximately $621,000 of the
commodity fund’s money to his personal use and at that time Shaner had nothing more
than abstract hopes and expectations he might be able to repay the commodity fund and
its investors at some point in the future. See id. at 747-48. After carefully reviewing
the record and the parties’ briefs, we conclude the district court’s determination of the
amount of Shaner’s intended loss is not clearly erroneous.

       Shaner also contends the district court committed error in increasing his sentence
by two levels for more than minimal planning. We conclude the district court’s finding
of more than minimal planning is not clearly erroneous given Shaner’s affirmative and
separate decisions to pledge the commodity fund’s CD as collateral for his home, to
sign various documents authorizing the use of the fund’s money as collateral for
Shaner’s personal loans, to take $100,000 from the CD for his personal use, and then
to withdraw the bulk of the CD and to use it to discharge his business and construction
loans with the bank. See U.S.S.G. § 2B1.1 background (explaining more than minimal
planning “includes most offense behavior involving affirmative acts on multiple
occasions”); United States v. Olson, 22 F.3d 783, 786 (8th Cir. 1994)(per curiam)
(holding crime involving pattern of activity over a long period of time implicates more
than minimal planning).


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Thus, we affirm Shaner’s sentence.

A true copy.

      Attest:

               CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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