United States v. Eric Francis Kelly, AKA Frankie Theison

Eric Kelly challenges his sentence under the Guidelines for counterfeiting steroids. He disputes the district court’s measurement of the extent of his fraud and its decision to enhance his sentence for “more than minimal planning” and, at the same time, for his leadership role in the offense. See U.S.S.G. §§ 2F1.1(b)(2) & 3Bl.l(a). Kelly also argues that the district court erred in counting a misdemeanor conviction obtained without assistance of counsel in its computation of his criminal history score. We affirm.

I

While living in a half-way house in San Diego, Kelly began a two-part conspiracy, stealing and distributing genuine anabolic steroids in order to raise funds for a steroid counterfeiting business he subsequently established in Mexico. During the initial phase of the conspiracy, Kelly contacted legitimate steroid manufacturing businesses, posing as the local sales representative of their various distributors. He placed orders in the distributors’ names and then arranged to intercept the shipments. Kelly resold the purloined steroids to various coconspirators across the southwestern United States, and before federal agents interrupted his profitable scheme, made enough…