IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-10344
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOHN JOSEPH MIOTKE,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:97-CR-119-1
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December 9, 1998
Before DAVIS, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
John Joseph Miotke appeals the district court’s application
of U.S.S.G. § 2B5.1(b)(2), to enhance his base offense level.
Miotke contends that the enhancement does not apply to his case
because he produced the counterfeit currency by photocopying, and
Application Note 4 to § 2B5.1(b)(2), by its plain language,
precludes application of the enhancement to persons who merely
photocopy notes. Alternatively, Miotke contends that the
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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commentary to the Sentencing Guideline is ambiguous and should be
interpreted in his favor.
We review “the district court’s application of the
Sentencing Guidelines de novo and its findings for clear error.”
United States v. Wyjack, 141 F.3d 181, 183 (5th Cir. 1998)
(citation omitted). Miotke’s argument is foreclosed by the
interpretation of § 2B5.1(b)(2) and Application Note 4 advanced
in Wyjack, 141 F.3d at 183. There, we concluded that “the
enhancement contemplated by § 2B5.1(b)(2) applies to
counterfeiters who produce instruments by photocopying, unless
the instruments produced are so obviously counterfeit that they
are unlikely to be accepted after only minimal scrutiny.” Id.
The district court’s determination on the quality of
counterfeit notes, made by examination or based on witness’
testimony, in determining whether to apply the § 2B5.1(b)(2)
enhancement, is a factual finding, which is subject to the
clearly erroneous standard of review. United States v. Bollman,
141 F.3d 184, 186-87 (5th Cir. 1998). A finding is not clearly
erroneous “as long as the determination is plausible in light of
the record as a whole.” United States v. Ismoila, 100 F.3d 380,
396 (5th Cir. 1996)(citation omitted), cert. denied, 117 S. Ct.
1712, 1858 (1997).
The district court determined by examination and based on
credible testimony that the counterfeit instruments produced by
Miotke were not so obviously counterfeit that they were unlikely
to be accepted after only minimal scrutiny. Miotke has not shown
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that the district court’s finding was clearly erroneous.
Accordingly, Miotke’s conviction and sentence are AFFIRMED.
AFFIRMED.