United States v. Stone

MEMORANDUM *

James C. Stone, a thieving victim of “The Nigerian Scam,” appeals his sentence following his guilty plea to making false statements and concealing facts in relation to documents required by the Employment Retirement Income Security Act of 1974 (“ERISA”), in violation of 18 U.S.C. § 1027 . We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we affirm.

As the parties are familiar with the facts, procedural history, and arguments, we will not recount them here. First, the district court did not err in applying the cross reference to § 2B1.1 to establish the base offense level. The 2005 Sentencing Guidelines § 2E5.3 states that when a defendant makes false statements regarding required ERISA documents “to facilitate or conceal (A) an offense involving a theft, a fraud, or an embezzlement,” the sentencing court is to apply Guidelines § 2B1.1 to establish the base offense level. In his written plea agreement, Stone admitted to “misappropriation” of funds. Misappropriation is defined as “[t]he application of *603 another’s property or money dishonestly to one’s own use. See Embezzlement.” Black’s Law Dictionary 449 (2d Pocket ed.2001). Hence, application of the cross…