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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 20-11186
Non-Argument Calendar
________________________
D.C. Docket No. 3:18-cr-00121-RV-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
VICTOR I. CHUKWU,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
________________________
(January 4, 2021)
Before JORDAN, GRANT, and BRASHER, Circuit Judges.
PER CURIAM:
Victor Chukwu was tried and convicted of conspiracy to commit wire fraud,
in violation of
18 U.S.C. §§ 1343 and 1349, and wire fraud, in violation of 18 U.S.C.
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§§ 2 and 1343, for his role in a “Nigerian romance scheme.” The district court then
sentenced Chukwu to 22 months imprisonment on each count, to run concurrently.
He now appeals both his conviction and sentence. Specifically, Chukwu appeals the
district court’s admission into evidence of screenshots and photographs from his
cellphone depicting various financial transactions and the court’s application of three
sentencing enhancements: (1) a four-level enhancement based on an “intended loss”
amount of $22,000, (2) a two-level enhancement based on “substantial financial
hardship” of a victim, and (3) a two-level enhancement based on “a substantial part
of a fraudulent scheme [being] committed from outside the United States.” Upon
consideration, we conclude that the district court neither abused its discretion by
admitting the challenged evidence nor erred by applying the sentencing
enhancements. Accordingly, we affirm.
I.
In early March 2017, Jenny Bui discovered that her Facebook page had been
hacked. Soon after that discovery, Bui began receiving messages on that account
from an individual purporting to be a man named “Oscar Chris.” The messages
began as professions of love, but soon turned threatening when Bui did not
reciprocate. “Oscar Chris” insisted that if Bui did not pay him money, her family
members would be harmed. Bui eventually deposited $4,500 in a Bank of America
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account in an attempt to keep her family safe. That Bank of America account
belonged to Chukwu. Chukwu then transmitted the funds to a foreign bank account.
Chukwu was indicted in the Northern District of Florida on charges of
conspiracy to commit wire fraud and wire fraud. Before trial, the government filed
a Federal Rule of Evidence 404(b) notice, stating that it planned to introduce
evidence tending to prove intent and/or absence of mistake. That evidence included
“[t]he illicit/fraudulent laundering of currency through the defendant’s bank
accounts during 2017 and 2018, to foreign countries, as disclosed in discovery to the
defense via certified bank account records.” The government contended that this
conduct was inextricably intertwined with the charged conduct but filed the notice
“in an abundance of caution.”
Chukwu filed a motion in limine challenging the admissibility of bank records
and related screenshots and photographs from outside of the time period of the
alleged offense conduct. He argued that the evidence was inadmissible under Rule
403 because its probative value was substantially outweighed by the danger of unfair
prejudice. Chukwu further argued that the government had produced “no evidence
that the funds deposited into the accounts were the product of a fraudulent scheme,”
rendering the evidence inadmissible under Rule 404(b).
In response, the government argued that the records in question constituted
uncharged acts arising out of the same series of transactions as the charged offense
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and were inextricably intertwined with the alleged conduct charged in the
indictment. Accordingly, the records’ admissibility should be analyzed under the
traditional Rule 401 and 403 balancing test. Alternatively, the government argued
that the records and photographs from Chukwu’s phone demonstrated unexplained
wealth and were, therefore, admissible under Rule 404(b) to prove his involvement
in a “Nigerian romance scheme.” Finally, the government argued that the bank
records and photographs implicated Chukwu’s father in the scheme, which helped
to establish the existence of a conspiracy.
The district court denied Chukwu’s motion. First, it held that the bank records
and related evidence were inextricably intertwined with the charged offense. Second,
the evidence established that Chukwu sent other funds to his father in Nigeria just
as he did with the victim’s funds. Third, the evidence would likely be admissible
under Rule 404(b) as proof of knowledge, intent, motive, absence of mistake, or lack
of accident even if it were not inextricably intertwined with the charged conduct.
Further, the court determined “that there is sufficient proof to permit the jury to find
that the defendant’s accounts were what the government represents; and that the
probative value of the evidence is not substantially outweighed by unfair prejudice.”
The court declined to definitively rule on the evidence’s admissibility under Rule
404(b), however, until, and unless, it was raised at trial.
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At trial, Chukwu renewed his objection to the bank records. Chukwu argued
that the evidence was not inextricably intertwined with the charged conduct because
it was “way beyond the time that the offense ends in this case.” He further contended
that the case was limited to the $4,500 that the victim deposited into his account, and
evidence of other funds with no proven link to fraudulent activity was irrelevant.
The district court disagreed, ruling that the evidence was “very probative that there
was a conspiracy and that [Chukwu] was an integral part of it because it went through
four accounts in his name.”
The government then preemptively argued for the admissibility of evidence
extracted from Chukwu’s cellphone. Specifically, the government sought to admit
into evidence screenshots of bank accounts showing incoming and outgoing funds
that were not reported on Chukwu’s tax returns, photographs of deposit slips related
to large sums shown on his bank records, screenshots of text messages in which
Chukwu discussed setting up “Yankee” bank accounts, screenshots of money
transfers to and from Nigeria, photographs of Chukwu, and photographs of large
amounts of United States and Nigerian currency. All of this evidence was from 2017,
the year in which Chukwu received the $4,500 from Bui. The government argued
that the evidence was not barred by either Rule 403 or 404(b).
Chukwu responded that the probative value of the screenshots and
photographs was substantially outweighed by their prejudicial impact, thus they
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were inadmissible under Rule 403. The district court once again disagreed. The court
stated that the evidence was probative because it was “inextricably intertwined with
this particular segment,” “shows the similarity of conduct,” and “shows intent.” The
court determined that any prejudice to Chukwu did not outweigh the evidence’s
probative value. The district court left its order unchanged and declined again to rule
on the evidence’s admissibility under Rule 404(b), instead concluding that the
evidence was related to the charge at hand.
Bui then testified to discovering that her Facebook had been hacked, receiving
threatening messages from “Oscar Chris,” and sending the $4,500 to a bank account
that “Oscar Chris” directed her to. She stated that “Oscar Chris” first asked her to
pay $22,000, which she insisted that she did not have. He then said that if she did
not pay him all of the money that she had, he would kill her daughter and other
family members and “cut [her] neck.” She struck a deal with him to pay $4,500 in
exchange for him not killing her daughter, and he sent her a screenshot of a
California bank account where she should send the money. The government asked
Bui where the $4,500 came from, and she responded that she works at a nail salon
and it was all of the tip money that she had saved for her 14-year-old son to attend
college.
Bui sent the $4,500 in the hope that the threats would stop, but “Oscar Chris”
continued to demand more. He told her to sell her house, car, and anything else that
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she had and send the proceeds to him. When she insisted that she did not have any
more money to send, he again threatened to kill her family.
The jury found Chukwu guilty on both counts. Under U.S.S.G. § 2B1.1(a)(1),
Chukwu’s base offense level for violating
18 U.S.C. § 1343 was seven. He received
three enhancements: (1) a four-level enhancement because the intended loss—
$22,000—was over $15,000 and did not exceed $40,000, pursuant to U.S.S.G. §
2B1.1(b)(1)(C); (2) a two-level enhancement because the offense resulted in
substantial financial hardship to the victim due to her transferring all of her savings
to Chukwu’s bank account, pursuant to U.S.S.G. § 2B1.1(b)(2)(a)(iii); and (3) a two-
level enhancement because a substantial part of the fraudulent scheme was
committed outside the United States, pursuant to U.S.S.G. § 2B1.1(b)(10)(B).
Accordingly, Chukwu’s total offense level was fifteen. The probation officer
determined that Chukwu’s criminal history category was I, therefore, his guideline
imprisonment range was 18 to 24 months.
Chukwu made three objections to the PSI that are relevant to this appeal. First,
he objected to the “intended loss” of $22,000. He argued that he was not involved in
the communications between “Oscar Chris” and Bui and that Bui had never
mentioned the request for $22,000 prior to trial. Second, he objected to the probation
officer’s determination that Bui suffered “substantial financial hardship” due to
paying the $4,500. He argued that the only proof that the $4,500 constituted the
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entirety of Bui’s savings for her son’s education was her testimony and that “it would
be important to know whether Ms. Bui and her husband had significant other funds
beyond the $4,500.” Third, he objected to the probation officer’s determination that
“a substantial part of the fraudulent scheme [was] committed from outside the United
States.” He argued that the only evidence to support that enhancement was the fact
that an IP address possibly used by “Oscar Chris” was traced to Malaysia and that
Bui’s $4,500 deposit became part of a larger wire transfer to Nigeria. But, he argued,
there was insufficient reliable evidence to establish that “Oscar Chris” was actually
in Malaysia while communicating with Bui or that any “substantial part of the
fraudulent scheme” was committed in Malaysia, Nigeria, or any other country
outside of the United States.
Chukwu renewed all three objections at the sentencing hearing, and the
district court overruled each. First, the district court found Bui’s testimony that
“Oscar Chris” initially requested $22,000 credible. It considered her omission of
certain details in her initial report understandable since she is not fluent in English
and found further support for her statement in the fact that she credibly testified to
follow-up demands by “Oscar Chris” for her to sell her house and car. Second, the
court also found Bui’s testimony that the $4,500 was all of the money that she had
saved for her son’s education credible. And third, the district court (1) found that
there was evidence of an international operation with Nigeria as the hub of
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operations; and (2) agreed with the probation officer that, in the alternative, the two-
level enhancement would still apply due to the use of sophisticated means.
The district court then sentenced Chukwu to 22 months’ imprisonment for
each count, to be served concurrently, and three years supervised release for each
count, to be served concurrently. The court further ordered that Chukwu pay $4,500
in restitution to Bui and a $200 special monetary assessment. Chukwu filed a timely
notice of appeal from both the judgment and sentence.
II.
On appeal, Chukwu argues that the district court abused its discretion by
admitting the screenshots and photographs on his cellphone and erred by applying
the three sentencing enhancements. We address each issue in turn.
A. The district court did not abuse its discretion by admitting evidence of other
financial transactions
First, Chukwu argues that the screenshots and photographs of financial
records taken from his cellphone were inadmissible under Rule 403 because they
were both irrelevant and unduly prejudicial. Because the charges against him only
concerned Bui’s transfer of $4,500 to his account in March 2017, evidence of any
other transfers to and from other accounts was irrelevant. Moreover, the government
produced no evidence that those extraneous transactions were the product of illegal
activity. Second, Chukwu also argues that the evidence was inadmissible under Rule
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404(b) because the government failed to establish a proper purpose for introducing
it.
We review rulings on the admissibility of evidence for abuse of discretion.
United States v. Shabazz,
887 F.3d 1204, 1216 (11th Cir. 2018). “The standard for
what constitutes relevant evidence is a low one.” United States v. Tinoco,
304 F.3d
1088, 1120 (11th Cir. 2003). Evidence is relevant if (1) “it has any tendency to make
a fact more or less probable than it would be without the evidence” and (2) “the fact
is of consequence in determining the action.” Fed. R. Evid. 401. In general, relevant
evidence is admissible unless otherwise provided by rule or law. Fed. R. Evid. 402.
We have emphasized that a district court possesses “broad discretion to admit
evidence if it has any tendency to prove or disprove a fact in issue.” United States v.
Smith,
459 F.3d 1276, 1295 (11th Cir. 2006).
1. The District Court did not Abuse its Discretion by Declining to Exclude the
Evidence Under Rule 403
Under Rule 403, a district court may exclude relevant evidence “if its
probative value is substantially outweighed by a danger of . . . unfair prejudice.”
However, we have stressed that Federal Rule of Evidence 403 is an extraordinary
remedy which “should be used only sparingly” and that we must “look at the
evidence in a light most favorable to its admission, maximizing its probative value
and minimizing its undue prejudicial impact.” Shabazz, 887 F.3d at 1216 (quoting
Smith,
459 F.3d at 1295); see also United States v. Norton,
867 F.2d 1354, 1361
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(11th Cir. 1989) (“The balance under the Rule, therefore, should be struck in favor
of admissibility.”).
Here, the district court did not abuse its discretion by admitting photographs
and screenshots of bank transactions from Chukwu’s cellphone into evidence. This
evidence is clearly relevant under Rule 401’s low bar. The government had to prove,
in part, both that Chukwu was a willful participant in the conspiracy and that he
acted with intent to defraud to establish his guilt on both counts. Evidence that
Chukwu sent other funds to his father in Nigeria, an uncharged co-conspirator, in
the same manner and in the same year as the $4,500 at issue in this case, has a
tendency to make it more probable that Chukwu was a willful participant in a greater
scheme to defraud. That evidence demonstrates that Chukwu had knowledge of these
transactions and was an active participant in transferring large sums of money to
foreign bank accounts.
As the district court recognized, all evidence carries a risk of prejudice. A
district court should only, therefore, exclude relevant evidence under Rule 403 “if
its probative value is substantially outweighed by a danger of . . . unfair prejudice.”
Fed. R. Evid. 403 (emphasis added). This evidence’s probative value is in its
“completing the story of the crime”—it demonstrates the greater scheme of which
Bui’s $4,500 transfer was only a piece and is circumstantial evidence that Chukwu
was a knowing and active participant in that scheme. Even if the evidence carries a
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risk of prejudice, that effect does not substantially outweigh the evidence’s probative
value.
2. The District Court did not Abuse its Discretion by Declining to Exclude the
Evidence Under Rule 404(b)
Rule 404(b) prohibits the use of “[e]vidence of any other crime, wrong, or act
. . . to prove a person’s character in order to show that on a particular occasion the
person acted in accordance with the character.” Such evidence is admissible,
however, “for another purpose, such as proving motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” Fed.
R. Evid. 404(b)(2). It is well established in this Court that “evidence of criminal
activity other than the crime charged is not extrinsic under Rule 404(b) if the
evidence is inextricably intertwined with evidence of the charged offense.” United
States v. US Infrastructure, Inc.,
576 F.3d 1195, 1210 (11th Cir. 2009) (citation
omitted). Evidence is “inextricably intertwined” if it “is linked in time and
circumstances with the charged crime and concerns the context, motive or setup of
the crime; or forms an integral part of the crime; or is necessary to complete the story
of the crime.”
Id. (citation omitted). “[I]n cases where this Court has found other
acts evidence inextricably intertwined with the crimes charged, the Court has refused
to find that the evidence should nonetheless be excluded as unduly prejudicial” under
Rule 403.
Id. at 1211.
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It is similarly well established in this Court “that the government is entitled to
show that a defendant experienced a sudden acquisition of large sums of money from
unexplained sources in order to prove that he received substantial income and
resources from the continuing criminal enterprise with which he was charged.”
Shabazz, 887 F.3d at 1217–18 (cleaned up). The government need not establish the
source of that unexplained wealth so long as “the charged crime involves pecuniary
gain” and the government provides “other evidence of the defendant’s guilt.” Id. at
1218 (citation omitted).
Here, the evidence is inextricably intertwined with evidence of the charged
offense. The pictures showed financial transactions, many of which were linked to
the bank records admitted at trial, that occurred within a year of the conduct charged
in this case. They demonstrate conduct similar to the charged offense—money
deposited into accounts associated with Chukwu and then transferred in large
batches to foreign bank accounts, some associated with his father. They are,
therefore, “linked in time and circumstances with the charged crime and concern[]
the context, motive or setup of the crime” and are “necessary to complete the story
of the crime.” US Infrastructure,
576 F.3d at 1210. Accordingly, we affirm the
district court’s decision to admit the evidence.
B. The district court did not err in applying the sentencing guidelines
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“We review questions of law arising under the Sentencing Guidelines de
novo.” United States v. Bush,
126 F.3d 1298, 1299 (11th Cir. 1997). Whether a
specific enhancement applies to undisputed facts is such a question of law. See
United States v. Barakat,
130 F.3d 1448, 1452 (11th Cir. 1997) (citation omitted).
However, we review the district court’s findings of fact underlying its determination
that a sentencing enhancement applies only for clear error.
Id.
A district court’s factual finding is clearly erroneous when, after a review of
the evidence, we are left with “a definite and firm conviction a mistake has been
made.” United States v. Dimitrovski,
782 F.3d 622, 628 (11th Cir. 2015). “The
government bears the burden of establishing the facts necessary to support a
sentencing enhancement by a preponderance of the evidence.”
Id. As long as the
evidence has sufficient indicia of reliability, a sentencing court “may consider all
relevant information, regardless of its admissibility under the rules of evidence.”
United States v. Onofre-Segarra,
126 F.3d 1308, 1310 (11th Cir. 1997). We accord
substantial deference to a factfinder’s credibility determination and will accept its
determination unless the proffered evidence is “contrary to the laws of nature” or is
“so inconsistent or improbable on its face that no reasonable factfinder could accept
it.” United States v. Maddox,
803 F.3d 1215, 1220 (11th Cir. 2015) (quoting United
States v. Ramirez-Chilel,
289 F.3d 744, 749 (11th Cir. 2002)).
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Chukwu first argues that the district court erred in applying a four-level
enhancement under U.S.S.G. § 2B1.1(b)(1)(C) based on an “intended loss” of
$22,000 because there was not enough evidence to support that calculation. He
argues that no evidence was presented at trial that Chukwu contacted Bui and the
only evidence to support the intended loss is Bui’s testimony that “Oscar Chris”
demanded $22,000, which is contradicted by her earlier statements.
A district court’s determination of the loss amount for purposes of U.S.S.G.
§ 2B1.1(b)(1) is a finding of fact that we review for clear error. See United States v.
Ford,
784 F.3d 1386, 1398 (11th Cir. 2015). The district court is required to make a
reasonable estimate of the loss given the available information. United States v.
Barrington,
648 F.3d 1178, 1197 (11th Cir. 2011). The Sentencing Guidelines state
that the loss attributable to the defendant is “the greater of actual loss or intended
loss,” and that the “intended loss” is defined as the “pecuniary harm that the
defendant purposely sought to inflict.” U.S.S.G. § 2B1.1, cmt. n.3(A), (A)(ii).
The district court must consider “all relevant conduct,” not merely charged
conduct, when calculating a defendant’s sentencing guideline. United States v.
Rodriguez,
751 F.3d 1244, 1256 (11th Cir. 2014). Relevant conduct for a member
of a criminal conspiracy includes not only “all acts and omissions committed, aided,
[or] abetted . . . by the defendant” but also, the acts and omissions of others that
were: (1) “within the scope of,” (2) “in furtherance of,” and (3) “reasonably
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foreseeable in connection with” that criminal activity. U.S.S.G. § 1B1.3(a)(1). When
calculating the loss amount, then, a district court may hold a participant in a
conspiracy “responsible for the losses resulting from the reasonably foreseeable acts
of co-conspirators in furtherance of the conspiracy.” Rodriguez, 751 F.3d at 1256
(quoting United States v. Mateos,
623 F.3d 1350, 1370 (11th Cir. 2010)).
Here, the district court did not clearly err by determining that the intended loss
amount was $22,000. Bui testified that “Oscar Chris” initially asked her to send
$22,000. The district court determined that Bui’s testimony was credible.
We find nothing in the record proving that her testimony was “so inconsistent or
improbable on its face” that we should not accept the district court’s determination.
See Maddox, 803 F.3d at 1220. That request for $22,000 is attributable to Chukwu
because it was within the scope of, in furtherance of, and reasonably foreseeable in
connection with the conspiracy to defraud Bui. See U.S.S.G. § 1B1.3(a)(1). Because
an intended loss of that size warrants a four-level enhancement under Section
2B1.1(b)(1)(C)–(D), we affirm the district court’s application of the intended loss
amount enhancement.
Chukwu next argues that there was insufficient evidence to support a two-
level enhancement for “substantial financial hardship” because that determination
was based solely on Bui’s testimony that the $4,500 constituted the entirety of her
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savings for her son’s education and no other evidence was presented to complete the
picture of the family’s finances. We disagree.
Section 2B1.1(b)(2)(A) of the Sentencing Guidelines provides for a two-level
enhancement where the offense resulted in substantial financial hardship to one or
more victims. Although the guidelines do not define “substantial financial hardship,”
one factor that courts shall consider in determining whether to apply the
enhancement is whether the crime resulted in a victim “suffering substantial loss of
a retirement, education, or other savings or investment fund.” U.S.S.G. § 2B1.1 cmt.
n.4(F)(iii). Relying on other circuits for guidance, we have held that a substantial
financial hardship may occur in instances where a victim’s pecuniary loss may
appear relatively small because “[t]he same dollar harm to one victim may result in
a substantial financial hardship, while for another it may be only a minor hiccup.”
United States v. Castaneda-Pozo,
877 F.3d 1249, 1252–53 (11th Cir. 2017) (quoting
United States v. Minhas,
850 F.3d 873, 877 (7th Cir. 2017)).
Here, the district court did not clearly err by finding that the $4,500 constituted
the entirety of Bui’s savings account for her son’s education. Bui testified to that
fact, and the district court deemed her testimony credible. That determination was
reasonable; Bui worked in a nail salon and testified that the $4,500 was the entirety
of the tips that she had saved. She told “Oscar Chris” that she had no more money
to give him. Given those facts, the district court properly concluded that the $4,500
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constituted a substantial loss of an education fund. Such a loss may not constitute a
“substantial financial hardship” for everyone, but it did for Bui who lost everything
that she had saved for her son’s education. See U.S.S.G. § 2B1.1 cmt. n.4(F)(iii); see
also Castaneda-Pozo, 877 F.3d at 1252–53. Accordingly, we affirm the district
court’s imposition of the “substantial financial hardship” enhancement.
Finally, Chukwu argues that there was insufficient evidence to support the
enhancement based on “a substantial part of a fraudulent scheme [being] committed
from outside the United States.” He contends that there was no evidence that he
performed any actions outside of California. Further, evidence that money was
transferred from his account to Nigeria and that “Oscar Chris” used a Malaysian IP
address was insufficient to establish that a substantial part of the alleged scheme was
committed outside of the United States.
Section 2B1.1(b)(10)(B) of the Sentencing Guidelines provides for a two-
level enhancement if “a substantial part of a fraudulent scheme was committed from
outside the United States.” A determination that a substantial portion of a conspiracy
was committed outside of the United States is a factual finding that we review for
clear error. See United States v. Singh,
291 F.3d 756, 762 (11th Cir. 2002).
Here, the district court did not clearly err by finding that a substantial part of
the conspiracy for which Chukwu was convicted occurred outside of the United
States. Substantial evidence was presented at trial that funds were sent from
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Chukwu’s accounts to Nigeria. The IP address for “Oscar Chris” was traced to
Malaysia. Even if Chukwu did not commit any actions outside of the United States,
the evidence below clearly establishes that many of the conspiracy’s acts occurred
outside of the United States, and those acts were both reasonably foreseeable and
taken in furtherance of the conspiracy. See Singh,
291 F.3d at 761–62. Under Section
2B1.1(b)(10)(B), the district court’s imposition of a two-level enhancement was
warranted.
III.
For the foregoing reasons, the district court is AFFIRMED.
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