                                                      [DO NOT PUBLISH]




           IN THE UNITED STATES COURT OF APPEALS
                                                     FILED
                 FOR THE ELEVENTH CIRCUIT   U.S. COURT OF APPEALS
                   ________________________   ELEVENTH CIRCUIT
                                               FEBRUARY 8, 2008
                                               THOMAS K. KAHN
                         No. 06-15564
                                                    CLERK
                      Non-Argument Calendar
                    ________________________

                 D. C. Docket No. 03-80075-CR-JIC

UNITED STATES OF AMERICA,


                                                Plaintiff-Appellee,

                               versus

MICHAEL KLOPF,

                                                Defendant-Appellant.


                    ________________________

             Appeal from the United States District Court
                 for the Southern District of Florida
                   _________________________


                         (February 8, 2008)
Before BIRCH, CARNES and BARKETT, Circuit Judges.

PER CURIAM:

      Michael Klopf, proceeding pro se, appeals his 30-month sentence for

possession with intent to use five or more false identification documents (“I.D.s”)

unlawfully, in violation of 18 U.S.C. § 1028(a)(3), and his consecutive 120-month

sentence for use of unauthorized access devices, in violation of 18 U.S.C.

§ 1029(a)(2). Based on a review of the record and the parties’ briefs, we discern

no reversible error, and AFFIRM Klopf’s sentences.

                                I. BACKGROUND

      Our prior opinion has detailed the relevant facts in this case. See U.S. v.

Klopf, 423 F.3d 1228, 1232-35 (11th Cir. 2005). While Klopf’s case was on direct

appeal, the Supreme Court decided U.S. v. Booker, 543 U.S. 220, 125 S. Ct. 738

(2005). In light of that decision, we vacated the district court’s original sentencing

order and remanded the case to allow the court to “reconsider the sentence as a

complete sentencing package post-Booker.” Klopf, 423 F.3d at 1246. The district

court re-sentenced Klopf on 3 October 2006, and this appeal followed.

                                 II. DISCUSSION

      Klopf argues that the district court should not have applied Booker to his

case and that the district court erred by enhancing his offense level by 20-points.



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A. Application of Booker

      Klopf contends that the remedial majority opinion in Booker, which held the

sentencing guidelines advisory, is unconstitutional and deprives the district court of

authority to impose extra-verdict enhancements. Klopf also claims that the Booker

remedy is unconstitutional as retroactively applied to him because he relied upon

Apprendi1 when he “handpicked the laws he violated based on the punishment he

faced if later arrested and convicted of the crimes.” Appellant’s Br. at 27.

      We may not overrule Booker because it is binding Supreme Court precedent.

Barbour v. Haley, 471 F.3d 1222, 1228 (11th Cir. 2006). Klopf notes that he is

preserving the issue to argue to the Supreme Court, and he has preserved the issue.

Klopf’s argument that the district court did not have jurisdiction to impose extra-

verdict enhancements also fails because we have held that district courts do have

such authority. United States v. Chau, 426 F.3d 1318, 1322-24 (11th Cir. 2005)

(per curiam).

      The retroactive application of an unforeseeable judicial enlargement of a

criminal statute violates the Due Process Clause because it is similar to an ex post

facto law. Bouie v. City of Columbia, 378 U.S. 347, 353, 84 S. Ct. 1697, 1702

(1964); see United States v. Duncan, 400 F.3d 1297, 1306-07 (11th Cir. 2005).



      1
          Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000).

                                                3
However, we have held that the retroactive application of Booker is permissible

because: (1) the U.S. Code specified the statutory maximum sentence; (2) our

precedent recognized that the statutory maximum was the maximum specified in

the U.S. Code; and (3) the Guidelines informed the defendant that the sentencing

judge could engage in factfinding and could impose a sentence up to the statutory

maximum. Duncan, 400 F.3d at 1307-08. The retroactive application of the

Booker decision to Klopf does not act as an ex post facto law. Indeed, we were

required to apply Booker “to all cases on direct review.” Booker, 543 U.S. at 268,

125 S. Ct. at 769. We disagree with Klopf’s claims that he was prejudiced by his

reliance on Apprendi both when he decided to commit his crimes and when he

decided to proceed to trial, because Apprendi explicitly stated that it did not

address the Federal Sentencing Guidelines. Apprendi, 530 U.S. at 497 n.21, 120 S.

Ct. at 2366 n.21; Duncan, 400 F.3d at 1308 (“[B]efore Blakely 2 was decided, every

federal court of appeals had held that Apprendi did not apply to guideline

calculations made within the statutory maximum.”).

B.    The District Court’s Guidelines Calculations

      We review the district court’s factual findings for clear error, and its

application of the Sentencing Guidelines de novo. United States v. Ndiaye, 434



      2
          Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004).

                                                4
F.3d 1270, 1280 (11th Cir. 2006). We will only recognize clear error if “we are

left with a definite and firm conviction that a mistake has been committed.”

United States v. Crawford, 407 F.3d 1174, 1177 (11th Cir. 2005) (quotation

omitted). “The Government has the burden of proving the applicability of

guidelines that enhance a defendant’s offense level. Similarly, when a defendant

challenges a factual basis of his sentence, the government has the burden of

establishing the disputed fact by a preponderance of the evidence.” Ndiaye, 434

F.3d at 1300 (citation omitted). The district court may base the defendant’s

sentence on “evidence heard during trial, facts admitted by a defendant’s plea of

guilty, undisputed statements in the presentence report, or evidence presented at

the sentencing hearing.” U.S. v. Saunders, 318 F.3d 1257, 1271 n.22 (11th Cir.

2003) (citation omitted). Klopf believes that the district court erred by enhancing

his sentence for: (1) the monetary loss of the offense; (2) the sophisticated means

used in the offense; (3) the possession of five or more unlawfully produced means

of identification; (4) obstruction of justice; and (5) his aggravating role in the

offense.

      1. Monetary Loss Enhancement

      Klopf argues that the district court erred by increasing his offense level by

10 levels for the intended monetary loss of the offense. Under the applicable



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guideline, a defendant’s offense level is to be increased by 10 points if there was a

loss of more than $120,000. U.S.S.G. § 2B1.1(b)(1)(F) (2003). In addition, when

resolving disputed factors, the sentencing court may consider any information that

“has sufficient indicia of reliability to support its probable accuracy.” Id. at

§ 6A1.3. When dealing with an offense where the offense level is determined

largely on the basis of the total amount of loss, relevant conduct includes, among

other things, any acts and omissions that “were part of the same course of conduct

or common scheme or plan as the offense of conviction.” Id. at § 1B1.3(a)(2); see

§ 3D1.2(d). We have stated that we will evaluate the “similarity, regularity, and

temporal proximity between the offense of conviction and the uncharged conduct”

when determining whether the uncharged conduct is relevant conduct under

§ 1B1.3. United States v. Maxwell, 34 F.3d 1006, 1011 (11th Cir. 1994)

(quotation omitted).

      A significant amount of evidence at Klopf’s original sentencing hearing

indicated that he was responsible for over $160,000 in total loss. Therefore, the

district court did not clearly err in finding that over $120,000 in loss resulted from

the offenses.

      2. Use of Sophisticated Means Enhancement

      Klopf asserts that his offense level at sentencing should not have been



                                            6
enhanced for the sophisticated means. Under the Guidelines, the defendant’s

offense level is to be increased by two levels if the offense involved sophisticated

means. U.S.S.G. § 2B1.1(b)(8)(C). Sophisticated means involves “especially

complex or especially intricate offense conduct pertaining to the execution or

concealment of an offense.” Id., cmt. n.7(B). As an example, the Guidelines

mention “[c]onduct such as hiding assets or transactions . . . through the use of

fictitious entities [or] corporate shells . . . ordinarily indicates sophisticated

means.” Id.

       The district court did not err by finding that Klopf used sophisticated means

to commit the offense. There was evidence that Klopf (1) obtained supporting

documents for the false I.D.s, including Social Security cards, voter registration

cards, and utility bills; (2) had another individual create approximately 30 sets of

false I.D.s; (3) obtained background reports and ran credit checks as a part of his

identity theft offenses; and (4) had the fraudulent credit cards mailed to sham

businesses and paid the minimum payments in order to keep the victims from

discovering that any fraudulent credit cards had been issued. Therefore, the district

court did not err in finding that Klopf used sophisticated means to commit his

offense.




                                             7
      3. Possession of Five or More Unlawfully Produced Means of
         Identification Enhancement

      Klopf urges that the enhancement for possession of five or more unlawfully

produced means of identification constituted double counting because the facts

underlying the enhancement were also the basis for the underlying conviction. We

review allegations of impermissible double counting under the Guidelines de novo.

United States v. Dudley, 463 F.3d 1221, 1226 (11th Cir. 2006). Under U.S.S.G.

§ 2B1.1(a), a defendant who is convicted of, among other things, violating 18

U.S.C. § 1028(a)(2) shall have a base offense level of 6 if the offense of conviction

does not have a statutory maximum sentence of over 20 years. See U.S.S.G. App.

A. Under U.S.S.G. § 2B1.1(b)(9)(C)(ii), a defendant’s offense level is to be

increased by 2 levels if the offense involved “the possession of 5 or more means of

identification that unlawfully were produced from, or obtained by the use of,

another means of identification.”

      “Impermissible double counting occurs only when one part of the Guidelines

is applied to increase a defendant’s punishment on account of a kind of harm that

has already been fully accounted for by application of another part of the

Guidelines.” United States v. Bracciale, 374 F.3d 998, 1009 (11th Cir. 2004)

(quotation omitted). Furthermore, we have held that the Sentencing Commission

may increase a defendant’s offense level based on a specific offense characteristic

                                          8
that is an element of the offense the defendant was convicted of committing.

United States v. Naves, 252 F.3d 1166, 1168-69 (11th Cir. 2001) (affirming the

application a two-level increase to the offense level based on the offense involving

a carjacking to a defendant who was convicted of carjacking).

      Because there is nothing in § 2B1.1(a) to indicate that the base offense level

of six accounts for “the possession of 5 or more means of identification that

unlawfully were produced from, or obtained by the use of, another means of

identification,” it does not constitute double counting for the offense level to be

increased on such grounds. See U.S.S.G. § 2B1.1(a) and (b)(9)(C)(ii); Naves, 252

F.3d at 1168-69. Accordingly, the district court did not err by applying the

§ 2B1.1(b)(9)(C)(ii) enhancement.

      4. Obstruction of Justice Enhancement

      Klopf asserts that the district court erred in enhancing his sentence 2 levels

for obstruction of justice. Under the Guidelines,

      If (A) the defendant willfully obstructed or impeded, or attempted to
      obstruct or impede, the administration of justice during the course of
      the investigation, prosecution, or sentencing of the instant offense of
      conviction, and (B) the obstructive conduct related to (i) the
      defendant’s offense of conviction and any relevant conduct; or (ii) a
      closely related offense, increase the offense level by 2 levels.

U.S.S.G. § 3C1.1. One example of the type of conduct to which this enhancement

applies is “destroying or concealing or directing or procuring another person to

                                           9
destroy or conceal evidence that is material to an official investigation or judicial

proceeding . . . .” Id., cmt. n.4(d).

       The district court did not clearly err in finding that Klopf attempted to have

his parents and a family friend remove evidence from his apartment. Klopf’s

parents pled guilty to obstruction of justice and Klopf does not dispute that his

mother attempted to enter the apartment through the window. Such a finding

shows that the application of the guidelines enhancement for obstruction of justice

was not error.

       5. Aggravating Role Enhancement

       Klopf maintains that he should not have received the aggravating-role

enhancement because he was the sole defendant charged and convicted of these

crimes and there were no other participants in the crimes. We review a district

court’s upward adjustment due to the defendant’s status as a leader or organizer

under U.S.S.G. § 3B1.1 for clear error. United States v. Phillips, 287 F.3d 1053,

1055 (11th Cir. 2002). Under the Guidelines, the defendant’s offense level should

be increased by 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.” § 3B1.1(a). “A ‘participant’ is a person who is criminally responsible

for the commission of the offense, but need not have been convicted.” Id., cmt.



                                           10
n.1.

       The district court did not clearly err when it found that Klopf was an

organizer or leader of a criminal activity involving five or more participants or was

otherwise extensive because there was evidence showing that there were five other

participants. Accordingly, the district court did not clearly err in applying the

§ 3B1.1(a) enhancement.

                                III. CONCLUSION

       Klopf appeals his 150 month total sentence by insisting that the district court

should not have retroactively applied Booker to his case and that the district court

erred by enhancing his offense level by 20-points. As we have explained, the

district court did not err in applying Booker to Klopf, and it did not err in

enhancing his sentence. Accordingly, we AFFIRM.




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