United States v. Smith, Arnett

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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 20, 2004 Decided July 20, 2004

No. 03-3087

UNITED STATES OF AMERICA,
APPELLEE

v.

ARNETT C. SMITH,
APPELLANT

Appeal from the United States District Court
for the District of Columbia
(No. 99cr00370-01)

Charles B. Klein argued the cause and filed the briefs for
appellant.
David B. Goodhand, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Roscoe C.
Howard, Jr., U.S. Attorney, John R. Fisher, Barbara J.
Valliere, and Mark H. Dubester, Assistant U.S. Attorneys.

Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
 2

Before: ROGERS, GARLAND, and ROBERTS, Circuit Judges.
Opinion for the Court filed by Circuit Judge ROBERTS.
ROBERTS, Circuit Judge: In this case, which is before this
court for a second time, appellant Arnett C. Smith raises
several challenges to the district court’s recalculation of his
sentence for conspiracy and conflict of interest. The district
court enhanced Smith’s offense level by six levels under the
Sentencing Guidelines, finding that Smith committed perjury
during the trial, that his offense involved vulnerable victims,
and that he had played a leadership role in the offense. The
court also departed upward an additional two levels, relying
on the fact that Smith’s conduct included loan fraud for which
he was not charged. Smith challenges all the enhancements
and the upward departure. We affirm the sentence.

I.
The facts are set forth in detail in United States v. Smith,
267 F.3d 1154 (D.C. Cir. 2001) (Smith I); we recount only
those pertinent to this appeal. Smith was the chief of the
Day Programs Branch of the District of Columbia’s Mental
Retardation and Developmentally Disabled Administration
(MRDDA). His job included referring patients to treatment
centers; one of the centers that regularly received such
referrals was known as Better Treatment Centers (BTC).
BTC’s parent company, Psychological Development Associ-
ates, Inc. (PDA), was owned by Denise Braxtonbrown–Smith
(no relation to appellant). The conflicts of interest for which
Smith was convicted arise from several financial transactions
among Smith, Braxtonbrown–Smith, and PDA.
First, in the fall of 1994, Smith set about purchasing a
house on Columbia Road in the District of Columbia. Brax-
tonbrown–Smith rented the house from its elderly owner,
Earnestine Keaton, and had an option to buy it. Braxton-
brown–Smith told Keaton that she could not afford to buy the
house, but that her friend Smith could buy it at the current
price of $85,000. Smith and Keaton signed a contract in
October 1994 under which Smith was obligated to pay a total
of $65,000; Braxtonbrown–Smith told Keaton (who was not
 3

represented by a lawyer; Braxtonbrown–Smith had assured
her that no lawyer was necessary because they were friends)
that she would pay the remaining $20,000.
Smith, however, had no intention of being the record owner
of the property. Even prior to his contract with Keaton, he
arranged for his childhood friend Terry Reid to purchase the
house. Reid submitted a mortgage application in September
1994; to facilitate the approval of the loan, he stated on the
application that he would be occupying the house on Columbia
Road as his principal residence. To make that statement
more plausible, Smith drew up a fake lease that provided for
Smith’s mother, Florence Ricks, to move into Reid’s current
home in Upper Marlboro, Maryland. The mortgage was
approved and Reid bought the house on Columbia Road from
Smith in December 1994 for $102,000 — providing substantial
profit to Smith, who at that time had paid only $10,000 toward
the $65,000 that he owed to Keaton. The following month,
Smith paid Keaton another $10,000; he paid the remaining
$45,000 in April 1995, but only after Keaton contacted him
when she learned from a newspaper about the sale of the
property to Reid.
Braxtonbrown–Smith was now nominally Reid’s tenant, but
Smith retained a significant role in the affairs relating to the
house. He oversaw the preparation of a lease that Braxton-
brown–Smith and Reid signed, under which Braxtonbrown–
Smith agreed to pay roughly $1,300 per month in rent. He
and Reid also entered into their own agreement — again
prepared at Smith’s direction — which provided that Reid
would record the deed to the property solely in his name.
The same agreement, however, established that Smith and
Reid would in fact own the property as tenants in common,
each with a fifty percent share. Reid and Smith thus execut-
ed a new deed reflecting their tenancy in common; by the
express terms of the agreement, this new deed was to remain
unrecorded. Smith and Reid took equal shares of the prof-
it — roughly $200 per month — that was earned from renting
the home to Braxtonbrown–Smith.
The second series of transactions involved in this case were
short-term loans from Smith to PDA. In January 1995,
 4

Smith lent $14,900 to PDA and received, just one week later,
a repayment of $18,500. Two additional loans from Smith to
PDA, in late January and March 1995, totaled $28,000, for
which Smith received a repayment of $39,000 from PDA in
early April 1995.
Smith was charged with three counts of receiving illegal
gratuities under 18 U.S.C. § 201(c)(1)(B), two counts of con-
flict of interest under 18 U.S.C. § 208(a), and one count of
conspiracy under 18 U.S.C. § 371. The conspiracy charge
identified three possible predicate offenses: payment of ille-
gal gratuities (a violation of 18 U.S.C. § 201(c)(1)(A)), receipt
of illegal gratuities, and conflict of interest. The jury dead-
locked on the first three counts — the charges of receipt of
illegal gratuities — but convicted Smith on the conflict of
interest and conspiracy counts. The verdict left one issue,
which would be relevant at Smith’s sentencing, unresolved: it
failed to identify which of the three possible predicate of-
fenses identified in the indictment was the offense underlying
the conspiracy conviction. At sentencing, the district court
resolved the issue, determining that ‘‘the evidence proven by
a preponderance at trial amply demonstrate[d] that [Smith]
conspired to commit the offense of Receipt of Illegal Gratui-
ties and/or Payment of Illegal Gratuities.’’ United States v.
Smith, No. 99-CR-370, mem. op. at 4 (D.D.C. Nov. 6, 2000)
(Initial Sentencing Op.). The court added several enhance-
ments to the base sentencing level for that assumed predicate
offense, relying on the number and value of the gratuities and
the fact that the conspiracy involved a vulnerable victim. See
2002 U.S.S.G. §§ 2C1.2(b)(1) (multiple gratuities),
2C1.2(b)(2)(A) (value of gratuities), 3A1.1(b)(1) (vulnerable
victim). Further enhancements were warranted, the court
found, because Smith was the organizer of the conspiracy and
had committed perjury at his trial. See id. §§ 3B1.1(c)
(aggravating role), 3C1.1 (obstruction of justice).
After adding these enhancements, the court turned its
attention to a government motion for an upward departure
under Section 5K2.0 of the Guidelines. The government
emphasized that certain conduct related to Smith’s conspiracy
offense — ‘‘efforts to evade income taxes, commit bank fraud
 5

and defraud Mrs. Keaton’’ — were not accounted for in the
sentencing guidelines applicable to the conspiracy charge.
Initial Sentencing Op. at 20–21. The court adopted the
government’s reasoning and departed upward. Id. at 24. In
exercising its discretion as to the extent of this departure, the
court examined how many levels would be added to Smith’s
sentence — under the grouping rules of Section 3D of the
Guidelines — if he had actually been convicted of all three
additional offenses (tax evasion, bank fraud, and fraud on
Mrs. Keaton). Concluding that a hypothetical conviction on
these offenses, with certain enhancements — including an
enhancement for perjury relating to the bank fraud — would
warrant a three-level increase in Smith’s offense level, the
court chose to depart upward to that extent. Id. at 24–25.
The foregoing calculations yielded a guideline range of 41 to
51 months’ imprisonment, and the court sentenced Smith to a
46-month prison term.
Smith appealed, and we affirmed his conviction but vacated
his sentence and remanded for resentencing. Smith I, 267
F.3d at 1163. As an initial matter, we concluded that the
court had erred by using a preponderance-of-the-evidence
standard, instead of requiring proof beyond a reasonable
doubt, in determining that payment/receipt of illegal gratui-
ties was the predicate offense implicit in the conspiracy
conviction. Id. at 1161–63. With respect to the upward
departure, we approved of the district court’s methodology
for determining the extent of the departure, but found that
two of the three uncharged offenses on which the court had
relied — tax evasion and fraud on Mrs. Keaton — should not
have been used in the calculation. Id. at 1165–66. As for the
third uncharged offense — the loan fraud — we held that
‘‘the court’s conclusions TTT [were] well supported by the
record,’’ but found that the court’s decision to add an en-
hancement for perjury in its calculation of the adjusted
offense level for that hypothetical offense may have been
improper because the court ‘‘may have confused lying to the
bank TTT with lying to the court.’’ Id. at 1166.
On remand, the district court concluded that a conflict of
interest offense, rather than a gratuities offense, was the
 6

predicate offense for the conspiracy of which Smith was
convicted. United States v. Smith, No. 99-CR-370, mem. op.
at 2–3 (D.D.C. June 23, 2003) (Resentencing Op.). The court
noted that the base offense level for that offense was six, see
2002 U.S.S.G. § 2C1.3, and reached a total offense level of
twelve by adding most of the same enhancements it had
applied in the initial sentencing: two levels for Smith’s perju-
ry at trial, two levels under the vulnerable victim provision,
and two levels for Smith’s role as an organizer. Resentencing
Op. at 3–4. In adopting the last two enhancements, the court
stated that ‘‘the Court of Appeals failed to find that these
adjustments were unwarranted or unsupported by the record,
and therefore the adjustments are not before the Court on
remand.’’ Id. The court elaborated, however, that ‘‘[w]hile
the object offense of the conspiracy has changed, the facts
supporting the two adjustments have not.’’ Id. at 4.
The court again opted to depart upward, although the
government had not requested an upward departure during
the resentencing. Heeding this court’s conclusions in Smith
I, the district court focused only on the uncharged bank fraud
in calculating the extent of the upward departure, and clari-
fied that the perjury enhancement on that hypothetical
charge stemmed from false statements that Smith made at
trial, not the statements he made to the bank. Id. at 3, 10.
Concluding that the uncharged bank fraud — with enhance-
ments for more than minimal planning, Smith’s role in the
offense, and Smith’s perjury at trial — would have yielded a
two-level upward adjustment under the Sentencing Guide-
lines’ grouping rules, the court chose to use that same num-
ber of levels for its discretionary upward departure under
Section 5K2.0. Smith was sentenced to 21 months in prison
and appealed again.

II.

A. Applicable Sentencing Guidelines
As a threshold matter, we address Smith’s contention that
the 1995 version of the Sentencing Guidelines, rather than the
 7

2002 version in effect at the time of Smith’s resentencing,
must be used to avoid an ex post facto problem. See 2002
U.S.S.G. § 1B1.11(b)(1) (‘‘If the court determines that use of
the Guidelines Manual in effect on the date that the defen-
dant is sentenced would violate the ex post facto clause of the
United States Constitution, the court shall use the Guidelines
Manual in effect on the date [of] the offense of conviction’’).
He points to two amendments made in the Guidelines after
1995.
First, in November 1997, the Application Notes to Section
3C1.1 were amended to change the standard of proof for
applying a perjury enhancement: language requiring that
evidence of alleged perjury ‘‘should be evaluated in a light
most favorable to the defendant’’ was removed and replaced
with an admonition for courts to ‘‘be cognizant that inaccurate
testimony or statements sometimes may result from confu-
sion, mistake, or faulty memory.’’ U.S.S.G. app. C, amend.
566. This court construed the amendment to mean that while
proof of perjury by clear and convincing evidence had former-
ly been required, such allegations could now be proven by a
preponderance of the evidence. See United States v. McCoy,
242 F.3d 399, 407 n.14 (D.C. Cir. 2001) (citing United States v.
Dozier, 162 F.3d 120, 124 n.1 (D.C. Cir. 1998)). Second, in
November 1998, Section 3C1.1 and its Application Notes were
both amended to clarify that the enhancement could be
applied if the perjury ‘‘related to TTT the defendant’s offense
of conviction and any relevant conduct.’’ U.S.S.G. app. C,
amend. 581 (emphasis added). Prior to that amendment, this
court had held that an enhancement for perjury could apply
only for perjury relating to the offense of conviction itself.
United States v. Barry, 938 F.2d 1327, 1333 (D.C. Cir. 1991).
Nowhere, however, does Smith show how these amend-
ments actually disadvantage him — a showing that he is
required to make: ‘‘For purposes of ex post facto analysis, the
question is whether, if applied retroactively, the amendment
would effect any pertinent substantive change that disadvan-
tages the defendant.’’ United States v. Clark, 8 F.3d 839, 844
(D.C. Cir. 1993); see also United States v. Harris, 41 F.3d
1121, 1123 (7th Cir. 1994) (no ex post facto violation because
 8

defendant ‘‘failed to show that he suffered any detriment as a
result of the district court’s application of the Guidelines
which were in effect at the time of sentencing’’). The district
court adopted the stricter evidentiary standard for its perjury
determination, so Smith was not prejudiced by the November
1997 change. Resentencing Op. at 11 (‘‘Perjury must be
found by clear and convincing evidence.’’) (citing United
States v. Montague, 40 F.3d 1251, 1254 (D.C. Cir. 1994)).
Similarly, the perjury finding that we affirm herein relates
solely to Smith’s offense of conviction, and thus would be
justified under either set of Guidelines. We therefore con-
clude that the outcome of this case would be the same
whichever set of Guidelines is used. That being so, no ex post
facto problem arises from applying the 2002 Guidelines, and
there is no basis to depart from the default rule that the
Guidelines in effect at the time of sentencing should apply.
See 2002 U.S.S.G. § 1B1.11(a).
B. Perjury Enhancement
Under United States v. Dunnigan, 507 U.S. 87, 94 (1993),
an enhancement for perjury at trial under Section 3C1.1 of
the Guidelines can be imposed only if the district court finds
that the defendant gave ‘‘false testimony concerning a materi-
al matter with the willful intent to provide false testimony,
rather than as a result of confusion, mistake, or faulty memo-
ry.’’ The district court held that on three occasions during
the trial, Smith gave testimony that satisfied the require-
ments of falsity, materiality, and willfulness.
The first was during Smith’s testimony about the fake lease
that he created to help Reid win approval for the mortgage
on the Columbia Road house. Smith ‘‘testified that his
mother was completely unaware that her name was being
bandied about TTT as a purported lessee of Reid’s Upper
Marlboro home,’’ Resentencing Op. at 11, but he also testified
as follows:
Q: And you were actually going to move [your mother]
into [Reid’s home] if necessary?
A: Well, the truth of the matter is that was a possibility
because her house needs to be rehabed [sic]. We’ve
 9

talked about it a number of times, and I think I
probably could have convinced her to do that at that
time.
Trial Tr. (May 10, 2000), at 146. The district court ruled that
this testimony was false, noting that it was ‘‘unclear who the
‘we’ in that sentence is: it could not have been his mother,
TTT and it could not have been Reid, who testified that he did
not know who Florence Ricks was or if she even existed when
the lease was executed.’’ Resentencing Op. at 12. The court
also found that the testimony was ‘‘material TTT because it
went to defendant’s credibility’’ and that it was willful, noting
that all three Dunnigan factors were satisfied by clear and
convincing evidence. Id. at 12, 14.
Although the district court found that this first instance of
perjury was ‘‘entirely adequate’’ to support the two-level
enhancement that it imposed under Section 3C1.1, it held that
Smith had committed perjury on two other occasions. Id. at
14–15. One of those instances was Smith’s testimony about
steps he took to help provide interim office space for BTC in
a District of Columbia government building while BTC was
awaiting approval for a new permanent location. As the
district court noted, Smith initially ‘‘testified that he probably
was not in town at the time this happened, and might not
have spoken to his staff about the issue.’’ Id. at 14 (citing
Trial Tr. (May 11, 2000), at 37–38). Subsequently, when
confronted with evidence that he had signed a check on the
day of BTC’s move to the interim space, Smith admitted that
he had not been out of town, see Trial Tr. (May 11, 2000), at
40; the district court concluded that Smith’s initial testimony
was false, material, and willful. Resentencing Op. at 14.
The final instance of testimony that the court deemed
perjurious was Smith’s explanation of a check for $1415.95
that included the notation ‘‘XMAS — Disney.’’ The evidence
at trial showed that when Reid purchased the house in
December 1994, Smith gave a cashier’s check to a title
company in the amount of $9405.95. According to the records
of the bank that issued the cashier’s check, the funds came
from an $8000 check drawn on Smith’s own credit union
 10

account and a $1415.95 check from a company Smith owned
called SAGA Adventures (reduced by a $5.00 cash withdrawal
and a $5.00 service charge). On the witness stand, Smith
insisted that the SAGA Adventures check — which bore the
Disney notation — was used to pay for ‘‘a Disney excursion
that left Washington taking some disabled folks.’’ Trial Tr.
(May 10, 2000), at 152. The district court concluded that this
testimony was ‘‘false and disproved by the documentary
evidence,’’ as well as material and not the result of confusion
or faulty memory. Resentencing Op. at 15.
Smith argues that the court erred in finding perjury in
these three instances because, in each instance, none of the
Dunnigan requirements was satisfied. We review sentencing
decisions under a now-familiar trichotomy: ‘‘purely legal
questions are reviewed de novo; factual findings are to be
affirmed unless ‘clearly erroneous’; and we TTT give ‘due
deference’ to the district court’s application of the guidelines
to [the] facts.’’ United States v. Kim, 23 F.3d 513, 517 (D.C.
Cir. 1994).
We affirm the two-level enhancement for Smith’s perjury,
based on his testimony regarding the purported Disney
check. The district court did not clearly err in finding by
clear and convincing evidence that Smith’s testimony about
the check was false: the documentary evidence demonstrated
the origins of the $9405.95 check to the title company with so
much precision that there was no error in refusing to credit
Smith’s insistence that the money was instead used for a trip
to Disney World. Indeed, although Smith made passing
reference in his testimony to documents in his possession that
would confirm the Disney story, see Trial Tr. (May 10, 2000),
at 152, it appears that no such documents were ever entered
into evidence during trial. On appeal, Smith points only to
the fact that SAGA Adventures was, in general, a company
that ‘‘organized excursions to places such as Disney World on
behalf of disabled individuals,’’ Appellant’s Br. at 22; that
general observation does not explain away the fact that the
check used to purchase the title-company check was for an
amount identical to the amount of the particular SAGA check
that was the focus of Smith’s testimony.
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The SAGA check was clearly material to the charge of
conspiracy to commit a conflict of interest, because the truth
or falsity of the Disney notation shed light on whether Smith
took steps to hide his role in the purchase of the house where
Braxtonbrown–Smith lived — that is, on Smith’s alleged
criminal intent. Finally, the testimony was clearly willful:
Smith had several opportunities to clarify or retreat from his
stance that the money was used for a Disney excursion, but
he steadfastly refused to do so. In response to a specific
question about whether he used the SAGA check to purchase
the title check, Smith answered, ‘‘No, I did not do that.’’
Trial Tr. (May 10, 2000), at 152; see also id. (‘‘That check is
in reference to a Disney excursion that left Washington
taking some disabled folks.’’). The prosecution pursued the
issue further, emphasizing in detail the correlation between
the amount of the alleged Disney check and the subsequent
cashier’s check to the title company and asking, ‘‘[Do] you
dispute that that $1,400 check on the screen in front of you
was used as part TTT of this cashier’s check?’’ Id. at 153.
Smith answered, ‘‘I dispute the fact that you’re saying that I
used this check. I’m saying TTT the cash that was used out of
this check was for a trip to Disney.’’ Id. And when asked
pointedly whether the Disney notation was on the check to
hide his involvement in buying the house, Smith said ‘‘No,
sir.’’ Id.
Smith argues that because, at one point during this testi-
mony, he uttered the phrase, ‘‘[I]f my memory serves me
correct,’’ id. at 152, each of the statements regarding the
SAGA check was simply a result of faulty memory — and
therefore, under the express terms of Dunnigan, not willful.
In context, however, Smith’s reference to his possibly faulty
memory pertained not to the SAGA check at all, but rather to
the $8000 personal check that accounted for the other portion
of the $9405.95 cashier’s check. Id. (‘‘I did get $8000 out of
my credit union account, and if my memory serves me
correct, and my files are over there, I do have receipts to
support that.’’). Even if his offhand reference to his memory
could be read to qualify the first of his statements that the
SAGA check was used for an innocuous Disney excursion, it
 12

would not undercut the several subsequent statements about
the SAGA check, which were increasingly definitive — una-
dorned by caveats or qualifications.
C. Vulnerable Victim Enhancement
The district court based its two-level enhancement for
vulnerable victims on a finding that ‘‘Smith exploited and
used his power over mentally retarded adults to realize
personal financial gains to their detriment.’’ Initial Sentenc-
ing Op. at 15; see also Resentencing Op. at 4 (court adopts
the initial opinion’s factual and legal support for vulnerable
victim and role in the offense enhancements).1 We affirm the
enhancement.
The district court did not clearly err in finding that Smith’s
MRDDA clients were harmed when he referred them to
BTC: the testimony of several witnesses indicated that the
treatment of patients at BTC was substandard. Jacquelin
Smith, an MRDDA employee (no relation to appellant), testi-
fied about a negative report that she wrote after a May 1994
visit to BTC, cataloging numerous deficiencies in the pro-
gram’s record-keeping and activities. Trial Tr. (May 4, 2000),
at 113–17. Ms. Smith’s report concluded with the ‘‘overall
impression’’ that BTC was ‘‘not meeting the individual needs
of the customers.’’ Id. at 116. On the stand, Ms. Smith
stated that she could not recall ever having written a report
so critical of a day program. Id. at 117. A former BTC
1 The district court initially suggested that the vulnerable victim
and role in the offense enhancements were ‘‘not before [it] on
remand’’ because our opinion in Smith I did not address either of
those enhancements. Resentencing Op. at 3–4. Ultimately, howev-
er, the district court did not simply rest on its assumption that
these enhancements were off-limits. Rather, the court explained
why the enhancements applied to the conflict of interest charges,
stating that ‘‘[w]hile the object offense of the conspiracy has
changed, the facts supporting the two adjustments have not. Nor
does the change in the predicate offense affect the Guidelines
provisions.’’ Id. at 4. We conclude that the district court gave due
consideration to the applicability of the enhancements to the
changed predicate offense.
 13

employee named Juanita Cook, who had begun work at the
company more than six months after Ms. Smith’s report,
testified that the staff was ‘‘minimal’’ and that many of the
staff members ‘‘were not trained to work with developmen-
tal[ly] disabled clients.’’ Trial Tr. (May 8, 2000), at 60. She
added that BTC ‘‘didn’t have appropriate materials and sup-
plies to work with the clients,’’ and that ‘‘[t]he documentations
and records were not in very good shape.’’ Id.
We further agree with the district court that these harmful
referrals are ‘‘relevant conduct’’ for appellant Smith’s conflict
of interest offense, and that the requirements for an enhance-
ment under Section 3A1.1 of the Guidelines are satisfied.
That section states, in pertinent part, that a vulnerable victim
is ‘‘a victim of the offense of conviction and any [relevant
conduct] TTT who is unusually vulnerable due to TTT mental
condition, or who is otherwise particularly susceptible to the
criminal conduct.’’ 2002 U.S.S.G. § 3A1.1 App. Note 2; see
also 1995 U.S.S.G. § 3A1.1(b) (enhancement applies when ‘‘a
victim of the offense was unusually vulnerable due to TTT
mental condition, or TTT otherwise particularly susceptible to
the criminal conduct’’).2 There is little doubt that MRDDA
2 Smith emphasizes that the 1995 Guidelines mention only the
offense, thus suggesting that relevant conduct is not a basis for the
Section 3A1.1 enhancement under that version of the Guidelines.
See Reply Br. at 12. But this allegation of a discrepancy between
the 1995 and 2002 versions of the Guidelines fails. The word
‘‘offense’’ in the 1995 Guidelines — indeed, in every version of the
Guidelines — is a term of art defined to include relevant conduct.
See 1995 U.S.S.G. § 1B1.1 App. Note 1(l) (‘‘ ‘Offense’ means the
offense of conviction and all relevant conduct TTT unless a different
meaning is specified or is otherwise clear from the context.’’).
Section 3A1.1 was amended in 1997 to spell out what eight circuits
had held the Guidelines already provided — that the word ‘‘offense’’
in that section included relevant conduct. See U.S.S.G. app. C,
amend. 564; THOMAS W. HUTCHISON ET AL., FEDERAL SENTENCING LAW
AND PRACTICE § 3A1.1, at 1155–56 & n.34 (2004) (listing cases).
Only one circuit had disagreed, see United States v. Wright, 12 F.3d
70, 73–74 (6th Cir. 1993), and we had not decided the issue. Given
this background, Smith cannot carry his burden of showing that the
amendment changed the law to his disadvantage.
 14

clients were vulnerable to Smith’s conflict-laden referral
scheme: due to their mental condition and the reliance that
they placed on MRDDA, they were in no position to recognize
that the treatment they received at BTC was substandard.
D. Role in the Offense Enhancement
Smith argues that the two-level enhancement for his role as
organizer or leader of the offense, under Section 3B1.1 of the
Guidelines, was unwarranted. Given the deference we accord
to the district court’s application of the Guidelines to the
facts — we use a standard of review that is ‘‘somewhere
between de novo and ‘clearly erroneous,’ TTT something akin
to the review we give administrative agency determinations of
such mixed questions,’’ Kim, 23 F.3d at 517 — we affirm the
enhancement.
Section 3B1.1 provides for a two-level enhancement if the
defendant was ‘‘the organizer, leader, manager, or supervisor
of one or more other participants.’’ 2002 U.S.S.G. § 3B1.1
App. Note 2; see also id. § 3B1.1(c). The district court
based its decision to enhance on two principal findings: first,
that Smith ‘‘directed Terry Reid in the submission of false
representations to the mortgage lender,’’ and second, that
Smith had ‘‘superior bargaining power over Braxtonbrown–
Smith.’’ Initial Sentencing Op. at 18. From our deferential
viewpoint, the court properly applied the enhancement for
Smith’s role in the scheme to hide his interest in the Colum-
bia Road house (including the fraud on the bank in obtaining
the mortgage) and his direction of Reid in carrying out that
scheme.
The Sentencing Guidelines list a number of factors for a
sentencing court to consider when deciding whether to apply
an enhancement for a defendant’s role as organizer or leader:
they include
the exercise of decisionmaking authority, the nature of
participation in the commission of the offense, the re-
cruitment of accomplices, the claimed right to a larger
share of the fruits of the crime, the degree of partic-
ipation in planning or organizing the offense, the nature
 15

and scope of the illegal activity, and the degree of control
and authority exercised over others.
2002 U.S.S.G. § 3B1.1 App. Note 4; see also United States v.
Kelley, 36 F.3d 1118, 1129 (D.C. Cir. 1994). Reid’s testimony
showed that a number of these factors are present here.
Smith recruited Reid to participate in the scheme: when Reid
initially told Smith of his interest in purchasing rental proper-
ty, Smith told him that purchasing the Columbia Road prop-
erty ‘‘would be a TTT good investment TTT because [Braxton-
brown–Smith was] staying there.’’ Trial Tr. (May 5, 2000), at
59. Smith exercised more decisionmaking authority than
Reid, and was the driving force in planning and organizing
the offense: when Reid applied for the mortgage, the decision
to falsely state that Reid would be living in the house was
‘‘Mr. Smith’s decision.’’ Id. at 61. The side agreement that
created the tenancy in common between Reid and Smith left
it entirely up to Smith to record the corresponding deed at a
time of his choosing. Id. at 75. Reid admitted that he did
not fill out the mortgage application himself; it was ‘‘filled out
for [him],’’ and Smith had handed it to him, so he ‘‘assumed
that [Smith] probably had filled it out.’’ Trial Tr. (May 8,
2000) at 11.
Smith’s participation in the offense was also much more
significant than Reid’s. Reid in fact testified that he had
‘‘never seen’’ Braxtonbrown–Smith. Id. at 39. The fake
lease between Reid and Ricks, designed to facilitate Reid’s
mortgage, was created by Smith. Trial Tr. (May 5, 2000), at
63, 94. After Reid became the record owner of the house,
Smith presented him and Braxtownbrown–Smith with the
agreement governing Braxtonbrown–Smith’s continued ten-
ancy. Id. at 73. When Braxtonbrown–Smith was behind in
her rent — on a house nominally owned by Reid alone — it
was nonetheless Smith who drafted correspondence and ‘‘pre-
sented it’’ to Reid for a signature. Id. at 82.
‘‘All persons receiving an enhancement [under Section
3B1.1] must exercise some control over others,’’ United States
v. Graham, 162 F.3d 1180, 1185 (D.C. Cir. 1998), and that
requirement is satisfied in this case. When Reid was asked
 16

why he indicated on the loan application that he would occupy
the house on Columbia Road, he responded, ‘‘I was told I
needed to check that box.’’ Trial Tr. (May 8, 2000), at 34.
And as Reid explained in response to a general question
about the real estate deal near the end of his testimony, the
house ‘‘means nothing to meTTTT [In] the process of flipping
[the] house over TTT I just followed that instruction.’’ Id. at
35; see also id. at 38 (‘‘These terms were presented to me by
[Smith].’’). In light of the evidence, we cannot say that the
district court’s conclusion — that Smith was the organizer of
the scheme and exercised sufficient control over Reid to
warrant a sentence enhancement — exceeds the limits of our
deference.
E. Upward Departure
We turn finally to Smith’s argument that the two-level
upward departure under Section 5K2.0 of the Guidelines was
improper. The government argues that Smith has waived
any challenge to the court’s authority to depart upward, and
we agree. In his memorandum to the court during resen-
tencing, Smith straightforwardly stated: ‘‘Though he does not
believe that such is warranted, assuming the Government so
moves, the Defendant recognizes the Court’s ability to impose
an upward departure pursuant to U.S.S.G. § 5K2.0 for loan
fraud.’’ Def.’s Mem. in Aid of Sentencing (Feb. 15, 2002), at
12. This concession was, as Smith points out, apparently
contingent on a government motion for an upward departure,
and the government chose not to file such a motion. Later in
the same document, however, Smith stated unconditionally
that ‘‘the Court may choose to depart upward.’’ Id. at 14.
This waiver of objections to the fact of departure may have
been influenced by our decision in Smith I, which found the
upward departure for the uncharged loan fraud ‘‘well sup-
ported by the record.’’ 267 F.3d at 1166.
Having also approved, in Smith I, the district court’s
methodology for selecting the extent of the upward depar-
ture, we affirm the two-level upward departure that the court
imposed at resentencing as within the district court’s discre-
tion. In doing so, we need not reach the issue of enhance-
 17

ment for perjury in relation to the uncharged bank fraud; we
instead affirm the two-level ‘‘enhancement’’ for more than
minimal planning, which Smith does not contest, see Appel-
lant’s Br. at 24 n.12, and the two-level ‘‘enhancement’’ for
Smith’s role as an organizer or leader, for the reasons dis-
cussed above.3

* * *
The sentence imposed by the district court is affirmed.
3 With the perjury enhancement for the uncharged bank fraud
omitted, the district court’s methodology for calculating the extent
of the upward departure still yields a departure of two levels. As
the district court found, a hypothetical conviction for the bank fraud
would have constituted a separate ‘‘group’’ from the conspiracy and
substantive conflict of interest offenses, for purposes of the Guide-
lines’ grouping rules, because the bank fraud involved a different
victim. Resentencing Op. at 17; see 2002 U.S.S.G. §§ 3D1.1,
3D1.2(a). In the district court’s calculation, the offense level for the
group containing the conspiracy and conflict of interest offenses was
level twelve, and the hypothetical offense level for the group
containing the bank fraud was also twelve. See Resentencing Op.
at 16. Under our calculation, the offense level for the first group is
level twelve, and the hypothetical offense level for the second group
is ten (because we do not address the two-level enhancement for
perjury in relation to the uncharged bank fraud). With one group
at level twelve and a second group at level ten, each group
constitutes one ‘‘unit’’ under the Guidelines. See 2002 U.S.S.G.
§ 3D1.4(a) (group with highest offense level constitutes one unit,
and any other group up to four levels less serious counts as one
additional unit). The same was true — that is, each group consti-
tuted a single unit — when the district court included a two-level
perjury enhancement for the uncharged bank fraud; in other
words, the two-level difference between the district court’s calcula-
tion and our calculation does not alter the fact that the bank fraud
constitutes a separate unit from the conflict of interest unit. See id.
These two units, in turn, would yield an enhancement of two levels
if the bank fraud were not merely hypothetical. See id. § 3D1.4.
Under the district court’s methodology, the upward departure
under Section 5K2.0 of the Guidelines would thus be the same two
levels.