Hoppe

*889 MEMORANDUM *

While posing as a United States Postal Inspector, Eugene Hoppe (“Hoppe”) conned Ms. Wagner and Mr. Thomas (“Victims”) out of several thousand dollars by offering to sell property which he claimed had been seized by the United States Postal Service. Hoppe pleaded guilty to two counts of demanding or obtaining money while impersonating a federal officer, in violation of 18 U.S.C. § 912 (2001). At sentencing, Hoppe received a four-level enhancement under U.S.S.G. § 2Bl.l(b)(7)(A) (2001) for misrepresenting that he acted “on behalf of a ... government agency.” He appeals the resulting sixteen-month prison sentence.

We have jurisdiction over this timely appeal pursuant to 18 U.S.C. § 3742 (a) and 28 U.S.C. § 1291 , and we affirm Hoppe’s sentence.

I Standard of Review

“We review for clear error a district court’s findings of fact underlying a sentencing decision.” United States v. Novak, 284 F.3d 986, 988 (9th Cir.2002). “The district court’s application of the Sentencing Guidelines to the facts is reviewed for an abuse of discretion.” United States v. Gutierrez-Hernandez, 94 F.3d 582, 584 (9th Cir.1996).

II Discussion

Hoppe admits that he “undoubtedly presented…

dissenting.

I respectfully disagree that the district judge acted within his discretion in imposing the four-level sentencing enhancement for misrepresenting that he acted “on behalf of a ... government agency.” U.S.S.G. § 2Bl.l(b)(7)(A) (2001). The enhancement simply does not apply to Hoppe’s conduct.

In 2001, the United States Sentencing Commission changed the commentary accompanying § 2Bl.l(b)(7)(A) and made it clear that the sentencing enhancement for acting “on behalf of’ a government agency applies only to crimes “in which the defendant represented that [he] was acting to obtain a benefit on behalf of ... a government agency.” U.S.S.G. § 2B1.1, cmt. n. 5(B) (emphasis added). The phrase “to obtain a benefit” is a new addition to the commentary, and it narrows the class of defendants to whom the enhancement applies. See United States v. Romero, 293 F.3d 1120, 1126 (9th Cir.2002) (interpreting old commentary and stating: “[T]he plain meaning of ‘on behalf of is broader than ‘to the benefit of ”). The commentary also contains a new, more specific, example: “A defendant, chief of a local fire department, who conducted a public fundraiser representing that the purpose of the…