Dist. Ct. did not err in applying four-level enhancement under section 2B1.1(b)(20) of USSG when sentencing defendant on wire fraud charge stemming from Ponzi scheme, where defendant solicited funds from certain investors and instead of investing said funds, used said funds to pay off losses incurred by original investors, as well as paid off certain of his personal mortgages and rent obligations from funds invested by original investors in hedge funds operated by defendant. Dist. Ct. imposed enhancement following finding that defendant’s offense qualified as “violation of commodities law” by “commodity pool operator.” While defendant argued that enhancement did not apply because he was not “commodity pool operator” under Commodities Exchange Act (Act), since he traded only in broad-based indexes which fit Act’s definition of “excluded commodity,” defendant satisfied Act’s definition of “commodity pool operator,” where private placement memoranda that defendant used to solicit investment funds showed that he solicited investment funds for purposes of trading in any securities futures product. Moreover, defendant’s reliance on definition of “excluded commodity” was misplaced, since it did not relate to Act’s fraud provision or its definition of “commodity pool operator.” Fact that defendant did not actually trade in commodities mentioned in private placement memoranda did not require different result.
