184 F.3d 1138 (10th Cir. 1999)
UNITED STATES OF AMERICA ,   Plaintiff - Appellee ,v.MICHAEL L. LINDSAY ,   Defendant - Appellant .
No. 98-3218
UNITED STATES COURT OF APPEALS TENTH CIRCUIT
July 1, 1999

Appeal from the United States District Court for the District of Kansas (D.C. No. 97-CR-10158-WEB ) Timothy J. Henry, Assistant Federal Public Defender (David J. Phillips, Federal  Public Defender, with him on the briefs), Wichita, Kansas, for the Defendant -  Appellant.
Alan G. Metzger, Assistant United States Attorney (Jackie N. Williams, United States Attorney, with him on the brief), Wichita, Kansas, for the Plaintiff -  Appellee.
Before BALDOCK, EBEL and LUCERO, Circuit  Judges.
LUCERO, Circuit Judge.


1
We must determine whether a district court commits reversible error  when  it instructs a jury that a defendant's opinion that the tax laws are unconstitutional  cannot constitute a "good faith" defense to tax charges.  Exercising jurisdiction  pursuant to 28 U.S.C. § 1291, we conclude it does not, but nevertheless reverse  Lindsay's bank fraud convictions because of insufficient evidence.  We affirm  the sentence imposed below.


2
* Michael L. Lindsay is a tax protester from Kansas.  Beginning in 1991,  Lindsay ceased to file income tax returns and pay income taxes.  In 1992,  Lindsay began affirmatively to conceal his income by taking actions such as  closing his personal checking account, depositing his earnings in various trust  accounts, and destroying his business records.  When the Kansas Department of  Revenue confronted him with a demand for payment of $138,221.38 in overdue  taxes, Lindsay responded by mailing the agency a fraudulent "certified bankers  check" in the amount of $276,000.  The check was an apparent effort not only to  discharge his state tax debt, but also fraudulently to obtain nearly $138,000 from  the State.  Lindsay also presented worthless certified money orders to Mid-Continent Federal Savings Bank and Central National Bank Marion County.


3
Lindsay's conduct resulted in indictments charging three counts of tax  evasion, 26 U.S.C. § 7201; one count of failure to file a tax return, 26 U.S.C. § 7203; two counts of bank fraud, 18 U.S.C. § 1344(1); and one count of mail  fraud, 18 U.S.C. § 1341.  Lindsay represented himself at trial and was  convicted  on all counts charged.  The district court then sentenced him to twenty-four  months in prison.


4
Lindsay asserts four errors.  First, he argues that the district court erred  when it instructed the jury that an opinion that the tax laws are unconstitutional  cannot constitute a "good faith" defense to a tax charge.  Second, he claims that  his convictions for bank fraud must be vacated because the government presented  insufficient evidence to sustain those convictions.  Third, he asserts that the  district court erred when it applied a multi-count analysis in determining his  sentence.  Finally, he argues that the district court erroneously failed to grant him  a sentence reduction for acceptance of responsibility.

II

5
We first consider Lindsay's argument based on the district court's good  faith jury instruction.  Because Lindsay failed to raise a timely objection to the  jury instruction, we review the instruction only for plain error.1  See United  States v. Sides, 944 F.2d 1554, 1562 (10th Cir. 1991).  We apply this standard of  review with somewhat less rigidity given that Lindsay's claim alleges  constitutional error.  See United States v. Jefferson, 925 F.2d 1242, 1254 (10th  Cir. 1991).


6
A defendant charged with a specific-intent, federal criminal tax offense can  negate the element of wilfulness necessary to prove the violation, thereby  providing a defense to the conduct charged, if the defendant establishes that he or  she sought in good faith to comply with the relevant law.  See Cheek v. United  States, 498 U.S. 192, 201 (1991).  In the current action the district court  instructed the jury that "good faith," which "means, among other things, an  honest belief, a lack of malice, and the intent to perform all lawful obligations,"  is a defense to conduct otherwise punishable under the tax laws, I R. Doc. 40,  Instruction No. 30, and that "a person's opinion that the tax laws violate his  constitutional rights does not constitute a good faith misunderstanding of the law. Furthermore, a person's disagreement with the government's tax collection  system and policies does not constitute a good faith misunderstanding of the  law."  Id.


7
Lindsay argues that the referenced instruction conflicts with our decision  in United States v. Ratchford, 942 F.2d 702 (10th Cir. 1991).  In Ratchford, a  bank fraud case, the defendant-appellant challenged the district court's failure to  include, in its jury instruction on good faith, language indicating that a  "[d]efendant's belief that he was acting in good faith need not be rational nor  reasonable if [d]efendant's belief [was] truly held."  Id. at 706.  We rejected this  argument, concluding the district court's good faith instruction adequately stated  the law and was "sufficiently broad to include beliefs not rationally or reasonably  held."  Id. at 707 (citations omitted).  Lindsay apparently incorrectly interprets Ratchford to hold that a good faith belief that is irrationally or unreasonably held  can always provide a defense to a charge that requires proof of intent.


8
The Supreme Court's decision in Cheek, 498 U.S. at 204-07, forecloses  Lindsay's interpretation.  Cheek, who had been charged with tax fraud and tax  evasion, appealed his sentence based on an allegedly erroneous good faith jury  instruction.  Cheek's determination that the tax laws are unconstitutional, the  Court concluded, constituted a "studied conclusion" rather than an innocent  mistake of the type encompassed by the good faith defense.2  Id. at 205. Accordingly, the Court held that


9
a defendant's views about the validity of the tax statutes are  irrelevant to the issue of willfulness and need not be heard by the  jury, and if they are, an instruction to disregard them would be  proper.  For this purpose it makes no difference whether the claims  of invalidity are frivolous or have substance.  It was therefore not  error in this case for the District Judge to instruct the jury not to  consider Cheek's claims that the tax laws were unconstitutional.


10
Cheek, 498 U.S. at 206.  Cheek compels our conclusion that the district court's  good faith instruction was not plainly erroneous.

III

11
Lindsay argues, and the government concedes, that the evidence of his  bank fraud convictions is insufficient because the government failed to produce  evidence that the financial institutions at issue are insured by the Federal Deposit  Insurance Corporation.  Such proof is an essential element of bank fraud.  SeeUnited States v. Rackley, 986 F.2d 1357, 1361 (10th Cir. 1993).  The  government's concession, our independent review of the record, and the mandate  of Rackley, require that Lindsay's bank fraud convictions be reversed.3

IV

12
Lindsay's next claim--that the district court violated U.S.S.G. § 3D1.2  when it applied a multi-count analysis to his sentence--lacks suasion.  When, as  is presently the case, a defendant fails to object to the district court's application  of the Sentencing Guidelines at sentencing, we review a subsequent legal  challenge to a sentence for plain error.4 See United States v. Gilkey, 118 F.3d  702, 704 (10th Cir. 1997); United States v. Farnsworth, 92 F.3d 1001, 1007-08  (10th Cir. 1996).


13
The grouping provisions contained in U.S.S.G. Chapter 3, Part D are  intended to "limit the significance of the formal charging decision and to prevent  multiple punishment for substantially identical offense conduct."  U.S.S.G. Ch. 3,  Pt. D, intro. comment.  Adopting the approach of the presentencing report  ("PSR"), the district court in this case concluded that Lindsay's tax and fraud  convictions involve unrelated conduct and should be separately grouped under §  3D1.2(d).  Lindsay insists the proper procedure required the grouping of these  counts, thereby reducing his offense level by two points by invalidating the  sentence enhancement he received pursuant to § 3D1.4.  We disagree.


14
"[T]he difference in the nature and measure of harm resulting from  [multiple] offenses" precludes the grouping of Lindsay's surviving convictions:  his tax and mail fraud convictions under § 3D1.2(d).5  United States v. Kunzman,  54 F.3d 1522, 1531 (10th Cir. 1995) (citing United States v. Johnson, 971 F.2d  562, 576 (10th Cir. 1992)).  The convictions at issue involve different harms. Lindsay's tax offenses deprived the federal government of revenue to which it  was entitled from him under the tax code.  Lindsay's mail fraud constituted an  attempt to obtain funds fraudulently from Kansas.  The measure of harm  attributable to Lindsay's offenses could also be seen as distinct.  Under U.S.S.G.  § 2T1.1(c)(2)-(3), which concerns failure to file a tax return or pay taxes, the  harm attributable to an offense is based on the amount of tax that is actually  owed and remains unpaid.  So too, the loss attributable to an act of tax evasion is  the amount that a defendant owes and seeks to avoid.  See U.S.S.G. § 2T1.1(c)(1).  By contrast, the harm attributable to an act of mail fraud is the  amount of loss a perpetrator creates or seeks to create if that amount is  determinable and is greater than the actual loss caused.6  See U.S.S.G. § 2F1.1,  comment. (n.8).  In addition, the determination of loss in the mail fraud context,  as opposed to the tax context, does not necessarily relate to a pre-existing  obligation.  Under Johnson and Kunzman, the district court did not commit  plain  error when it declined to group Lindsay's tax and mail fraud convictions for  sentencing purposes.


15
Furthermore, because the victims and mischief at issue in Lindsay's tax  and mail fraud convictions differ, the convictions need not be grouped as part of  a criminal plan that is "ongoing or continuous in nature" under § 3D1.2(d).  We  reject Lindsay's argument that example three in § 3D1.2, comment. (n.6) requires  the grouping of these convictions.  That guideline example involves the offenses  of wire fraud and mail fraud, not mail fraud and tax evasion.  The analogy that  Lindsay seeks to draw is not apt.


16
For these reasons, we conclude that the district court's application of a  multi-count sentencing analysis did not constitute plain error.  Accordingly,  Lindsay's sentence enhancement under § 3D1.4 remains valid.

V

17
The final issue brought to us for consideration is the assertion that the  district court erred when it refused to reduce Lindsay's sentence for acceptance  of responsibility.   Determination of acceptance of responsibility is a question of  fact reviewed under a clear error standard.  See United States v. Mitchell, 113  F.3d 1528, 1533 (10th Cir. 1997).  "The sentencing judge is in a unique position  to evaluate a defendant's acceptance of responsibility.  For this reason, the  determination of the sentencing judge is entitled to great deference on review." U.S.S.G. § 3E1.1, comment. (n.5).  A district court's determination concerning  whether a defendant has accepted responsibility should not be disturbed "unless  it is without foundation."  United States v. Amos, 984 F.2d 1067, 1071-72 (10th  Cir. 1993).


18
Based on our review of the record, we conclude that Lindsay's numerous  efforts to obstruct justice are inconsistent with acceptance of responsibility and  provide ample foundation for the court's denial of this downward adjustment. See United States v. Tovar, 27 F.3d 497, 499 (10th Cir. 1994); see also United  States v. Hopper, 27 F.3d 378, 383 (9th Cir. 1994) (noting that appellate courts  consider whether the defendant's obstructive conduct is inconsistent with the  defendant's claim of acceptance of responsibility).  The record reveals that  Lindsay behaved in an unruly manner during prior proceedings.  For example,  Lindsay persistently resisted the court's request that he either swear or affirm that  he would testify truthfully.  He refused to comply with court security procedures,  failed to review court correspondence on which his name appeared in all capital  letters, and was non-responsive to questions posed by the court.  Lindsay also  engaged in an apparent effort to undermine the administration of justice by filing  numerous frivolous documents with the district court.  Even though Lindsay  lessened the prosecution's trial burden by admitting his failure to file or pay  taxes, by failing to object to the government's exhibits, and by refraining from  witness cross-examination, for the reasons discussed above, the record  nonetheless supports the district court's determination that Lindsay's behavior is  inconsistent with acceptance of responsibility.  The district court's refusal to  award Lindsay a sentence reduction for acceptance of responsibility does not  constitute clear error.

VI

19
We AFFIRM all of Lindsay's convictions except for his bank fraud  convictions, which we REVERSE and REMAND to the  district court with  directions to VACATE.7 Because we conclude that Lindsay's sentence remains  valid, we AFFIRM the district court's sentence determination.



Notes:


1
  The fact that Lindsay proceeded pro se  before the district court does not  immunize him from resulting prejudice to his case.  The right of self-representation is not  a license to violate relevant rules of procedural law.  See Faretta v. California,  422 U.S.  806, 834-35 (1975).


2
 The Court also noted a distinction between a  good faith, irrationally or  unreasonably held belief that a provision of the tax code is inapplicable to oneself, which  could constitute a good faith defense by precluding a finding of willfulness, and a  studied conclusion, like Lindsay's, that the tax code is unconstitutional, which could not  constitute such a defense.  Cheek, 498 U.S. at 205-07.


3
 We conclude that despite our decision to  reverse Lindsay's bank fraud  convictions, the offense level calculated pursuant to U.S.S.G. § 2F1.1(b)(1)(I) for the  mail fraud conviction, with which the bank fraud convictions were previously grouped,  remains the same.  We agree with the government that Lindsay's mail fraud offense  caused sufficient loss to render him eligible for the sentence level he received.  In  sentencing Lindsay, the district court found a total loss of $342,352.02, and enhanced his  sentence level by eight points in accordance with § 2F1.1(b)(1)(I), which applies to  losses of between $200,000 and $350,000 arising from offenses involving fraud or  deceit.  Even without the losses attributable to his bank fraud, Lindsay's mail fraud still  implicates approximately $276,000 of intended loss and therefore still qualifies Lindsay  for the eight-point sentence enhancement.  Our decision to reverse the bank fraud  convictions thus does not affect this offense level determination.
Nor does our reversal affect Lindsay's sentence enhancement under § 2F1.1(b)(2)(B) for perpetrating a scheme to defraud more than one victim.  Section  1B1.3(a) of the Sentencing Guidelines recognizes that a defendant can be held  accountable for "relevant conduct" for which he has not been convicted.  See United  States v. Watts, 519 U.S. 148, 152-54 (1997).  A specific offense characteristic, such as  that encompassed by § 2F1.1(b)(2)(B), which is used to determine a sentence  enhancement, can be based on relevant conduct.  See U.S.S.G. § 1B1.3; see  also United  States v. Fox, 999 F.2d 483, 485-86 (10th Cir. 1993) (upholding use of relevant conduct  in determining specific offense characteristic of monetary loss for purposes of §  2F1.1(b)(1)).  In analogous circumstances, in which a defendant pled guilty to one count  of defrauding one bank but had actually defrauded three banks in similar schemes, the  Second Circuit has held that "the district court erred when it failed to apply the two-level  adjustment [under U.S.S.G. § 2F1.1(b)(2)(B)] for defrauding more than one victim,"  given the relevant conduct of defendant's additional fraudulent activities.  United States  v. Shumard, 120 F.3d 339, 340 (2d Cir. 1997).
For an offense to be included within the scope of § 1B1.3(a)(2), the conduct  must  satisfy a three-pronged standard.
First, there must be a finding that the offense in question involved conduct  described in §§ 1B1.3(a)(1)(A) and (B).  Second, the offense must be the  type of offense that, if the defendant had been convicted of both offenses,  would require grouping with the offense of conviction for sentencing  purposes under U.S.S.G. § 3D1.2(d).  Third, the offense must have been  "part of the same course of conduct or common scheme or plan."  U.S.S.G.  § 1B1.3(a)(2).
United States v. Taylor, 97 F.3d 1360, 1363 (10th Cir. 1996).  Because Lindsay had  originally been convicted of bank fraud, the district court did not need to find that the  instances of bank fraud constitute relevant conduct.  Nonetheless, we may and do  conclude that the record contains sufficient evidence to support such an enhancement  based on relevant conduct.  See Taylor, 97 F.3d at 1364.  First, Lindsay's jury  concluded  that he sought to obtain funds fraudulently from the two banks at issue here. Second, § 2F1.1(b)(2)(B) and the conclusion of the presentencing report demonstrate that  Lindsay's bank fraud convictions, were they valid, would be grouped with his mail fraud  convictions.  Finally, the district court made sufficient findings that Lindsay's attempts to  obtain money fraudulently from Mid-Continent Federal Savings Bank, Central National  Bank Marion County, and the State of Kansas, were part of a common scheme or plan. See § 1B1.3. comment. (n.9(a)).  Accordingly, Lindsay's bank fraud is relevant  conduct  for the purpose of determining Lindsay's eligibility for a sentence enhancement under  § 2F1.1, and we affirm the two-point enhancement he received.


4
 Although Lindsay could not have been  expected to anticipate our decision to  reverse his bank fraud convictions, he should have raised an objection to application of  the multi-count sentencing analysis below.


5
  Section 3D1.2(d) requires that courts shall  group together counts
[w]hen the offense level is determined largely on the basis of the total  amount of harm or loss, . . . or some other measure of aggregate harm, or if  the offense behavior is ongoing or continuous in nature and the offense  guideline is written to cover such behavior.


6
 Moreover, while the district court did not do  so here, a court may adjust  downward the amount of loss attributed to an act of fraud if the unadjusted loss valuation  overstates the seriousness of the offense.  See U.S.S.G. § 2F1.1, comment. (n.11). No  comparable provision exists with respect to the valuation of loss attributable to tax  offenses under § 2T1.1.  Because the amount of loss attributable to a tax offense is the  amount of money actually owed and withheld by a perpetrator, the loss valuation cannot  logically be deemed to overstate the seriousness of an offense.


7
 We also reverse and remand with  instructions to vacate the accompanying  imposition of the special assessments associated with Lindsay's bank fraud  convictions.


