United States v. Zar (Derek) , 790 F.3d 1036 ( 2015 )


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  •                                                                         FILED
    United States Court of Appeals
    PUBLISH                          Tenth Circuit
    UNITED STATES COURT OF APPEALS                  June 23, 2015
    Elisabeth A. Shumaker
    FOR THE TENTH CIRCUIT                      Clerk of Court
    _________________________________
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    v.                                                  No. 13-1111
    DEREK ZAR,
    Defendant - Appellant.
    –––––––––––––––––––––––––––––––––––
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    v.                                                  No. 13-1119
    MICHAEL JACOBY,
    Defendant - Appellant.
    –––––––––––––––––––––––––––––––––––
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    No. 13-1302
    v.
    SUSANNE ZAR, a/k/a Susanne Hames,
    Defendant - Appellant.
    _________________________________
    Appeals from the United States District Court
    for the District of Colorado
    (D.C. Nos. 1:10-CR-00502-KHV-2
    1:10-CR-00502-KHV-1
    1:10-CR-00502-KHV-3)
    _________________________________
    Ann Marie Taliaferro, Brown, Bradsha & Moffat, L.L.P., Salt Lake City, Utah, for
    Defendant-Appellant Derek Zar.
    Richard A. Hostetler, Law Firm of Richard A. Hostetler, Denver, Colorado, for
    Defendant-Appellant Michael Jacoby.
    Jonathan D. Reppucci, Reppucci Law Firm, P.C., Denver, Colorado, for Defendant-
    Appellant Susanne Zar.
    J. Bishop Grewell, Assistant United States Attorney (John F. Walsh, United States
    Attorney, with him on the brief) Office of the United States Attorney, Denver, Colorado,
    for Plaintiff-Appellee.
    _________________________________
    Before HARTZ, MATHESON, and MORITZ, Circuit Judges.
    _________________________________
    MORITZ, Circuit Judge.
    _________________________________
    Defendants Michael Jacoby, Derek Zar, and Susanne Zar appeal convictions
    and sentences arising from their participation in a mortgage fraud scheme. The
    government tried the defendants together, but each defendant separately appealed and
    filed separate briefs. Because the defendants assert both joint and individual
    challenges to their convictions and sentences, we permitted the government to file a
    single consolidated answer brief and heard combined oral argument. We now resolve
    these three related appeals in a single opinion. Exercising jurisdiction under 28
    
    2 U.S.C. § 1291
     and finding no reversible errors, we affirm each defendant’s
    convictions and sentences.
    BACKGROUND
    Between January 2005 and September 2006, real estate agent Michael Jacoby
    devised and executed a mortgage fraud scheme involving the purchase of 18
    residential properties in Colorado. Jacoby recruited willing sellers to sell homes at
    inflated prices, willing buyers to purchase the homes by obtaining mortgage loans
    based on falsified loan applications, and willing investors to supply short-term loans
    to cover the buyers’ down payments.
    Jacoby acted as realtor for each transaction, while Derek Zar and his mother,
    Susanne Zar (collectively, “the Zars”), were buyers. Derek Zar purchased seven of
    the properties with fraudulent loan applications and participated in the sales of four
    other properties either by arranging for the sale of or selling three properties to
    Susanne Zar and one to another buyer. Susanne Zar purchased six of the properties
    with fraudulent loan applications and participated in the sales of four other properties
    by preparing false documents to support Derek Zar’s purchases.
    For some transactions, Jacoby arranged for sellers to “donate” part of the sales
    proceeds to grant programs without disclosing to lenders that the “donation” would
    be funneled back to buyers to repay short-term loans from investors covering the
    buyers’ down payments. In other transactions, Jacoby arranged for back-to-back sales
    involving the same property. In the first sale, an LLC—usually one formed by the
    individual who acted as the buyer for the second sale—would purchase a new
    3
    construction home from the home builder for cash at a discounted sales price. The
    LLC would then sell the home to the LLC’s founder, as an individual buyer, at an
    artificially inflated price. As part of the second sale, the buyer would obtain a
    mortgage loan with a fraudulent loan application. The buyer would then use some of
    the excess loan proceeds to repay investors who contributed cash for the first sale to
    the LLC. Lenders eventually foreclosed on and sold all 18 homes but experienced
    collective losses of nearly $3 million.
    Additionally, in 2007 Jacoby personally obtained two loans—one from First
    Bank to purchase a home and another from Citibank to refinance the same home.
    While securing the two loans, Jacoby made material misrepresentations and
    omissions by lying about his down payment source and income, failing to disclose
    that he did not initially purchase the home in an arm’s length transaction, artificially
    inflating the home’s sales price, and supplying an artificially inflated appraisal for
    the refinancing loan.
    A federal grand jury indicted Jacoby, Derek Zar and Susanne Zar on charges
    of wire fraud and aiding and abetting in violation of 
    18 U.S.C. §§ 1343
     and 2 and
    money laundering in violation of 
    18 U.S.C. § 1957
    . Additionally, in connection with
    his two personal loans in 2007, the grand jury indicted Jacoby on two counts of bank
    fraud in violation of 
    18 U.S.C. § 1344
    .
    Following a three-week joint trial, the jury convicted Jacoby of 11 counts of
    wire fraud, three counts of money laundering, and two counts of bank fraud; Derek
    Zar of four counts of wire fraud and one count of money laundering; and Susanne Zar
    4
    of three counts of wire fraud and one count of money laundering. The district court
    sentenced each defendant to a term of imprisonment followed by a period of
    supervised release and ordered each defendant to pay restitution.
    DISCUSSION
    We first consider challenges by Derek Zar and Susanne Zar to the district
    court’s denial of three pretrial rulings: the Zars’ joint motion to sever their trial from
    Jacoby’s and their joint motion to dismiss the indictment, both of which were based
    on alleged violations of the statutory speedy trial right, and the Zars’ joint motion to
    suppress statements they made to IRS agents. Next, we consider alleged trial errors,
    including the defendants’ joint challenge to a jury instruction and Susanne Zar’s
    individual argument that the district court violated her Sixth Amendment right to
    confront the witnesses against her, namely Derek Zar. Then, we consider whether to
    address the defendants’ ineffective assistance of counsel claims, which they jointly
    raise for the first time on appeal. Finally, we turn to the defendants’ sentencing
    challenges.
    I.     Pretrial Rulings
    A.     Speedy Trial Act (Derek Zar and Susanne Zar)
    Both Zars challenge two pretrial rulings: (1) the denial of their motion to sever
    their trial from Jacoby’s trial, and (2) the denial of their motion, jointly filed pro se,
    5
    to dismiss the indictment. Both motions alleged violations of the Speedy Trial Act,
    
    18 U.S.C. §§ 3161-3174
     (“the Act”).1
    Under the Act, federal criminal trials must commence within 70 days of public
    indictment or the defendant’s first appearance, whichever is later. 
    18 U.S.C. § 3161
    (c)(1).
    But certain delays are excludable under 
    18 U.S.C. § 3161
    (h). As relevant here,
    § 3161(h)(1)(D) excludes periods of “delay resulting from any pretrial motion, from the
    filing of the motion through the conclusion of the hearing on, or other prompt disposition
    of, such motion.” Section 3161(h)(6) excludes “[a] reasonable period of delay when the
    defendant is joined for trial with a codefendant as to whom the time for trial has not run
    and no motion for severance has been granted.” And, § 3161(h)(7)(A) excludes “[a]ny
    period of delay resulting from a continuance granted by any judge . . . on the basis of his
    findings that the ends of justice served by taking such action outweigh the best interest of
    the public and the defendant in a speedy trial.”
    If a defendant is not brought to trial within the time limit set by § 3161(c) as
    extended by § 3161(h), “the information or indictment shall be dismissed on the motion
    of the defendant.” 
    18 U.S.C. § 3162
    (a)(2).
    Here, all parties agree the Zars’ speedy trial clock began to run on October 19,
    2010, the date of Derek Zar’s initial appearance. The government brought the Zars to
    trial on August 7, 2012—658 days later. The parties also agree that the 51-day period
    from October 28, 2010, the date Susanne Zar filed a motion for continuance, through
    1
    In their joint motion to sever, the Zars also alleged violations of the
    constitutional right to a speedy trial, but they do not reassert those violations on
    appeal.
    6
    December 17, 2010, the date the court heard the motion, is excludable under
    § 3161(h)(1)(D). But the parties disagree as to the number of remaining days that can
    be excluded, and the Zars reassert two alleged speedy trial violations they raised
    below in a motion to sever and a subsequent motion to dismiss the indictment.2 We
    address each motion in turn.
    1.     Motion to Sever
    The Zars challenge the excludability of the 130-day delay between March 19,
    2012, and July 26, 2012, resulting from the district court’s decision, on March 1,
    2012, to vacate the March 19, 2012, trial date without setting a new one.3 Susanne
    Zar objected to vacating the trial date and, on March 8, 2012, moved to sever her trial
    from Jacoby’s. The district court denied the motion on April 25, 2012. The Zars
    contend the district court abused its discretion in denying the severance motion
    because the 130-day delay violated their statutory speedy trial right.
    2
    Although not raised in either the Zars’ motion to sever or motion to dismiss,
    the Zars also challenge on appeal the excludability of a second, 112-day continuance
    that moved the trial date from November 28, 2011, to March 19, 2012. The Zars’
    failure to challenge this continuance below permits us to consider this challenge
    waived. See United States v. Loughrin, 
    710 F.3d 1111
    , 1121 (10th Cir. 2013) (a
    defendant seeking to challenge on appeal a district court’s continuance must do the
    same in motion to dismiss filed in district court). In any event, the Zars acknowledge
    the existence of pending motions during all but four days of this period, and the
    government concedes those four days are nonexcludable. Thus, by our calculation,
    108 days of the challenged 112-day period are excludable under § 3161(h)(1)(D) due
    to pending motions.
    3
    The Zars represent this delay as a 140-day delay, framing the time period as
    March 19, 2012, to August 6, 2012. But the government concedes the 10 days
    between July 27, 2012, and August 6, 2012, are nonexcludable.
    7
    We review the denial of a severance motion based on an alleged speedy trial
    violation for an abuse of discretion. United States v. Apperson, 
    441 F.3d 1162
    , 1190
    (10th Cir. 2006). But compliance with the Speedy Trial Act’s legal requirements is
    subject to de novo review. United States v. Banks, 
    761 F.3d 1163
    , 1174-75 (10th
    Cir.), cert. denied, 
    135 S. Ct. 308
     (2014).
    Preliminarily, the Zars acknowledge the existence of pending motions between
    January 23, 2012, and July 26, 2012. As such, we could simply conclude the disputed
    130-day time period is excludable under § 3161(h)(1)(D). But because this
    continuance gave rise to the severance motion the Zars now claim the district court
    erroneously denied, we choose to address this particular delay in more detail.
    During a motions hearing on January 18, 2012, the district court denied
    Jacoby’s motion to sever the trial. At that time, the trial was scheduled to begin on
    March 19, 2012. In light of the denial of his severance motion, Jacoby orally moved
    to extend the deadline for expert witness disclosure. The court denied his oral motion
    but granted Jacoby leave to file a written motion. He did so on January 23, 2012,
    attaching the disclosure of his newly designated expert witness.
    On March 1, 2012, after hearing oral arguments, the district court granted
    Jacoby’s motion to designate the expert witness, reasoning that Jacoby did not act in
    bad faith in delaying his expert witness identification. The court noted the
    government intended to designate a rebuttal witness and acknowledged that Jacoby
    and the government had jointly moved for a hearing on the admissibility of the expert
    testimony under Federal Rule of Evidence 702. Based on the court’s conclusion that
    8
    it could not conduct that hearing before the March 19, 2012, trial date, the court
    vacated the trial date without setting a new one.
    Susanne Zar objected and moved to sever the trial, arguing the indefinite
    continuance would “significantly prejudice[] her right to a speedy trial.” Second Mot.
    to Sever, Mar. 8, 2012, Doc. 341, at 6-7. Raising similar arguments, Derek Zar
    subsequently sought leave to file his own severance motion.
    Treating the Zars’ motions as a jointly-filed severance motion, the district
    court denied the motion on April 25, 2012. The court recognized the Zars’ substantial
    statutory right to a speedy trial, but concluded the Zars’ “recent decision to invoke
    those rights is not sufficient to overcome the presumption favoring a joint trial.”
    Order, Apr. 25, 2012, Doc. 365, at 3. Further, in light of its denial of the severance
    motion, the court held that the Zars remained subject to § 3161(h)(6), which excludes
    periods of reasonable delay related to continuances requested by joined codefendants.
    The court deemed “reasonable” the delay occasioned by Jacoby’s expert witness
    designation and the corresponding need for a Rule 702 hearing. In so holding, the
    court relied on several circumstances: (1) the Zars were both free on bond, (2) neither
    previously had asserted a speedy trial demand, and (3) the government planned to
    present one primary body of evidence against the three defendants.
    We find no abuse of discretion in the district court’s denial of the severance
    motion. The court recognized the strong presumption favoring trying properly joined
    defendants together. See Zafiro v. United States, 
    506 U.S. 534
    , 537-38 (1993) (noting
    that a defendant seeking severance must show “a serious risk that a joint trial would
    9
    compromise a specific trial right of one of the defendants”). And, while further
    recognizing the significance of the Zars’ speedy trial rights, the court considered
    appropriate factors in reaching its conclusion that the Zars failed to overcome that
    presumption. Consequently, we affirm the district court’s denial of the severance
    motion and conclude the 130 days are excludable both for the reasons stated by the
    district court and because motions were pending during the entire 130-day period.
    2.     Motion to Dismiss
    On October 28, 2010, Susanne Zar sought an 18-month continuance based on
    the case’s complexity. On November 15, 2010, Derek Zar filed a similar motion,
    incorporating his mother’s arguments, but seeking only a 12-month continuance. At
    the December 17, 2010, hearing, the district court agreed to a continuance and
    rescheduled the trial for November 28, 2011. In support, the court cited the
    complexity of the case and the time needed to prepare an adequate defense,
    concluding the continuance would serve “the ends of justice.” See 
    18 U.S.C. § 3161
    (h)(7)(A) (tolling the speedy trial clock for period of delay resulting from
    ends-of-justice continuance); United States v. Margheim, 
    770 F.3d 1312
    , 1318 (10th
    Cir. 2014) (explaining that “[e]nds-of-justice continuances afford the district court a
    modicum of flexibility in managing particularly complex or difficult cases”), cert.
    denied 
    135 S. Ct. 1514
     (2015).
    On June 12, 2012, after the district court declined to sever their trial from
    Jacoby’s, the Zars filed a joint, pro se motion to dismiss the indictment, alleging the
    district court erred in granting the 346-day continuance between December 18, 2010,
    10
    and November 28, 2011. The district court denied the motion and the Zars challenge
    that ruling on appeal, contending the district court failed to make adequate findings
    to support the continuance they requested, at least in part.4
    We review both the denial of a motion to dismiss for Speedy Trial Act
    violations and the grant of an “ends-of-justice” continuance for an abuse of
    discretion. However, as noted, we review the district court’s compliance with the
    Act’s legal requirements de novo. Banks, 761 F.3d at 1174.
    Before granting an ends-of-justice continuance, the district court must consider
    several factors. See 
    18 U.S.C. § 3161
    (h)(7)(B) (listing factors). Further, the court
    must make express findings on the record stating its reasons for granting a
    continuance. See 
    18 U.S.C. § 3161
    (h)(7)(A); see also Zedner v. United States, 
    547 U.S. 489
    , 506-07 (2006); United States v. Toombs, 
    574 F.3d 1262
    , 1269 (10th Cir.
    2009). But while “the record must clearly establish the district court considered the
    proper factors” at the time it granted the continuance, “the district court need not
    articulate facts which are obvious and set forth in the motion for the continuance
    itself.” Toombs, 
    574 F.3d at 1269
     (internal citations and quotation marks omitted);
    see United States v. Loughrin, 
    710 F.3d 1111
    , 1119 (10th Cir. 2013) (citing Toombs
    4
    Although both Zars requested a continuance, they are not precluded from
    challenging the court’s ruling. See Zedner v. United States, 
    547 U.S. 489
    , 503-06
    (2006) (rejecting government’s argument that judicial estoppel barred defendant who
    requested continuance from challenging lack of adequate findings to support
    continuance); United States v. Toombs, 
    574 F.3d 1262
    , 1273 (10th Cir. 2009)
    (“[D]efense responsibility for continuances does not unwind Speedy Trial Act
    violations.”).
    11
    and noting courts can look to oral and written statements of the district court and
    moving party to determine whether record supports an ends-of-justice continuance).
    At the motions hearing, Susanne Zar’s counsel requested an additional 18
    months for trial preparation based on the duration of fraudulent activities, the
    duration of the government’s investigation (five years), the nature of the prosecution,
    and the volume of discovery documents (over 30,000). Derek Zar’s counsel also
    sought a continuance, but asserted he could prepare in 12 months. After considering
    these arguments, the court granted an approximate 12-month continuance, stating,
    So I think this case is complex in that it involves at least 29
    transactions, maybe more transactions. It has four defendants. These
    transactions may be structured in an elaborate fashion, and I appreciate the
    need of counsel to prepare an adequate defense. Therefore, I technically am
    going to find that the case is complex under 18 U.S.C. Section
    3161(h)(7)(B)(ii), but I also am going to find that additional time beyond
    the calculation for speedy trial is necessary for the defendants to adequately
    prepare a defense in deference to due diligence pursuant to Section
    3161(h)(7)(B)(iv).
    I find that the ends of justice are served by a continuance of this trial.
    I do not believe it requires 18 months’ worth of preparation, and we all will
    have the pleasure of spending next December together. So we will set the
    trial for November 28th, 2011, 1:00 p.m.
    Hr’g Tr., Dec. 17, 2010, Doc. 163, at 11-12.
    Contrary to the Zars’ contention, this record consists of more than “short,
    conclusory statements lacking in detail.” See Toombs, 
    574 F.3d at 1271
     (noting
    record must contain explanation of reasons supporting continuance and “short,
    conclusory statements lacking in detail” are insufficient). Further, given the Zars’
    detailed motions and arguments, the court was not required to restate the “facts which
    12
    [were] obvious” from those motions and arguments. See Loughrin, 710 F.3d at 1119;
    Toombs, 
    574 F.3d at 1269, 1271
    .
    Consequently, we conclude the district court did not abuse its discretion in
    granting the first continuance, and that this 346-day delay is excludable under
    § 3161(h)(7)(A). And, because the Zars objected only to this continuance in their
    motion to dismiss the indictment, we further conclude the district court did not abuse
    its discretion in denying the Zars’ motion to dismiss the indictment.
    3.     Conclusion
    To summarize, the speedy trial clock ran for eight days before Susanne Zar
    filed her first motion to continue the trial on October 28, 2010. That motion remained
    pending until December 17, 2010, rendering 51 days excludable under
    § 3161(h)(1)(D). Because the first ends-of-justice continuance is adequately
    supported by the record, the 346-day period from December 18, 2010, through
    November 28, 2011, is excludable under § 3161(h)(7)(A). The 51-day period between
    November 29, 2011, and January 18, 2012, is excludable under § 3161(h)(1)(D) due
    to pending motions. But the speedy trial clock ran for four days from January 19,
    2012, through January 22, 2012, a period when no motions were pending, thus
    ticking off a total of 12 days. Motions were pending or under advisement during the
    186-day period from January 23, 2012, through July 26, 2012, rendering that time
    excludable under § 3161(h)(1)(D) and § 3161(h)(1)(H). Finally, the government
    concedes that the speedy trial clock ran for 10 days between July 27, 2012, and
    August 6, 2012, before the trial began on August 7, 2012. Thus, the government
    13
    correctly argues that only 23 days ticked off the speedy trial clock before the Zars
    were tried. Because the government brought the Zars to trial in compliance with the
    Speedy Trial Act, the district court did not abuse its discretion in denying the Zars’
    severance motion or their motion to dismiss the indictment.
    B.     Motion to Suppress (Susanne Zar)
    Before trial, the Zars jointly moved to suppress statements they made to IRS
    agents Mike Garvey and Beverly Hood during an in-home interview. Following a
    hearing, the district court concluded the interview was not a custodial interrogation
    and denied the suppression motion. Only Susanne Zar appeals that denial,
    challenging two of the district court’s factual findings and its ultimate conclusion that
    the in-home interview was not a custodial interrogation.
    When considering a district court’s suppression ruling, we review the court’s
    factual findings for clear error, viewing the evidence in the light most favorable to
    the prosecution, and its legal conclusions de novo. United States v. Garcia, 
    751 F.3d 1139
    , 1142 (10th Cir. 2014); United States v. Revels, 
    510 F.3d 1269
    , 1273 (10th Cir.
    2007). Clear-error review “ask[s] whether, on the entire evidence, [the appellate
    court] is left with the definite and firm conviction that a mistake has been
    committed.” Easley v. Cromartie, 
    532 U.S. 234
    , 242 (2001) (internal quotation marks
    omitted).
    1.     Relevant Law and the District Court’s Ruling
    Statements obtained during a custodial interrogation cannot be used against a
    defendant unless the government demonstrates the defendant was properly informed
    14
    of her rights under Miranda v. Arizona, 
    384 U.S. 436
     (1966). See United States v.
    Chee, 
    514 F.3d 1106
    , 1112 (10th Cir. 2008).
    A person is in custody when her “freedom of action is curtailed to a ‘degree
    associated with formal arrest.’” United States v. Perdue, 
    8 F.3d 1455
    , 1463 (10th Cir.
    1993) (quoting California v. Beheler, 
    463 U.S. 1121
    , 1125 (1983) (per curiam)).
    Courts consider several factors to determine whether, under the totality of the
    circumstances, a reasonable person would have understood her situation as one akin
    to formal arrest. United States v. Jones, 
    523 F.3d 1235
    , 1239 (10th Cir. 2008). Those
    factors include (1) whether the suspect was aware that she could refrain from
    answering questions or end the interview at will, (2) whether the questioning was
    prolonged and accusatory, and (3) whether the questioning took place in a police-
    dominated atmosphere. 
    Id. at 1240
    .
    Following a hearing, the district court denied the Zars’ suppression motion,
    concluding the Zars were not subject to a custodial interrogation. The court reasoned,
    There are two aspects—well, actually three aspects that are troublesome.
    The first is that the questioning went on for a period of three hours. The
    second is that the agents failed to advise that this was a consensual
    conversation. And the third is that the agents failed at any point to advise
    the interviewees that they had a right to seek counsel.
    None of these factors are dispositive, and they are outweighed, in my
    view, by all of the other aspects of the interrogation which reflect a
    consensual conversation:
    The agents approached the house, requested an opportunity to enter.
    When [Derek] Zar answered the door, he was advised of their credentials
    and their purpose of being there. He closed the door. At that point, he knew
    he did not have to talk to them. When he reopened the door, he chose to
    talk to them.
    And although I would agree with some courts that have observed the
    failure to reaffirm that this was a consensual conversation is probably not
    15
    good practice on the part of the investigating agents, it doesn’t change the
    fact that Mr. Zar invited them into the house after he had previously closed
    the door to evaluate the situation.
    One of the implications that’s been raised in the questioning is that
    the Zars were unacquainted or uninformed or ill-equipped to deal with two
    law enforcement officers. There is no evidence to support that.
    The inquiry with regard to Mr. Zar and his formal education reveals
    that the agent knew that he had not completed high school and, although he
    was 28 years old, he did not have a GED. Any concerns about that,
    however, I believe are relieved by the fact that his mother was present
    during the entirety of the interview, and there has been no information as to
    her inability to perceive or be familiar with what was going on during the
    interview.
    Applying the objective standard, taking into account the totality of
    the circumstances, I find that a reasonable person would have felt that he or
    she was at liberty to terminate the interrogation and to ask the agents to
    leave.
    Hr’g Tr., Oct. 18, 2011, Doc. 279, at 64-66.
    2.     Analysis
    Susanne Zar challenges two of the district court’s factual findings as clearly
    erroneous. First, she argues the district court’s finding that Derek Zar “knew he did
    not have to talk to” agents before he reopened the door is not supported by Agent
    Garvey’s testimony which provided, in relevant part,
    We knocked on the door. Derek Zar answered the door. I identified myself
    as a special agent with IRS and showed him my credentials. Agent Hood
    also showed Derek Zar her credentials.
    I told him I wanted to ask him some questions about the homes that
    he purchased with Mike Jacoby.
    He said to give him a minute, and he closed the door.
    A few minutes later, he opened the door and let us in.
    Hr’g Tr., Oct. 18, 2011, Doc. 279, at 10.
    Garvey later testified he never directly informed either Derek Zar or Susanne
    Zar that they could refuse to talk to the agents or otherwise terminate the
    16
    conversation. But Susanne Zar’s contention that Garvey’s testimony does not support
    the district court’s finding overlooks the district court’s ability to make reasonable
    inferences from the evidence. See United States v. Mabry, 
    728 F.3d 1163
    , 1166 (10th
    Cir. 2013) (“‘The credibility of witnesses, the weight to be given to evidence, and the
    reasonable inferences drawn from the evidence fall within the province of the district
    court.’” (quoting United States v. Rosborough, 
    366 F.3d 1145
    , 1148 (10th Cir.
    2004))). Because the district court’s finding that Derek Zar knew he did not have to
    talk to the agents can reasonably be inferred from Garvey’s testimony, we conclude
    that finding is not clearly erroneous.
    Moreover, even if not supported by the evidence, the district court’s finding
    that Derek Zar knew he could refuse to talk to agents was not material to its decision.
    Subjective knowledge is both generally irrelevant and specifically irrelevant to the
    question now before us—whether a reasonable person in Susanne Zar’s position
    would have understood her situation to be akin to a formal arrest. See United States v.
    Little, 
    18 F.3d 1499
    , 1505 (10th Cir. 1994) (en banc) (“[T]he particular personal
    traits or subjective state of mind of the defendant are irrelevant to the objective
    ‘reasonable person’ test . . . ‘other than to the extent that they may have been known
    to the officer and influenced his conduct.’” (citations omitted)).
    Next, Susanne Zar argues the district court clearly erred in finding that, “[a]t
    the Zars’ invitation, they sat at the kitchen table and they conversed for a period of
    three hours.” She points to the lack of any evidence that she invited the agents into
    her home or to her kitchen table, or that she consented to the three-hour interrogation.
    17
    It is true that Garvey did not directly testify that either of the Zars invited him to the
    kitchen table. Instead, he testified that after Derek Zar invited him inside, he saw
    Susanne Zar “near the staircase,” that he and another agent introduced themselves to
    her, and they “proceeded over to the kitchen table.” Initially, we don’t read the
    district court’s finding as indicating that Susanne Zar personally invited the agents to
    talk for three hours, only that she implicitly invited them to sit at the kitchen table
    where they conversed for three hours. Regardless, because either interpretation of the
    district court’s finding can be inferred from Garvey’s testimony, that finding is not
    clearly erroneous.
    3.     Conclusion
    Like the district court, we are troubled by the agents’ failure to advise the Zars
    that the interview was a consensual conversation. But the agents were not required to
    do so, and as the district court noted, this factor alone did not transform the in-home
    interview into a custodial interrogation. Rather, as the district court concluded, under
    the totality of the circumstances the Zars were not in custody during the interview.
    Consequently, we affirm the district court’s denial of the suppression motion.
    II.    Alleged Trial Errors
    A.     Instruction No. 17 (Derek Zar, Susanne Zar, and Jacoby)
    All three defendants jointly challenge Instruction No. 17—the elements
    instruction for the wire fraud counts—on two grounds. First, they argue the
    instruction omitted an essential element of wire fraud—the scheme to defraud.
    Second, they contend that omitting that element and adding the phrase “or joined a
    18
    scheme” constructively amended the charges to broaden the basis for conviction
    beyond the statute and the indictment.
    1.     Additional Relevant Facts
    The superseding indictment charged the defendants, collectively, with 11
    counts of wire fraud, in violation of 
    18 U.S.C. § 1343
    , which provides, in relevant
    part,
    Whoever, having devised or intending to devise any scheme or artifice to
    defraud, or for obtaining money or property by means of false or fraudulent
    pretenses, representations, or promises, transmits or causes to be
    transmitted by means of wire, radio, or television communication in
    interstate or foreign commerce, any writings, signs, signals, pictures, or
    sounds for the purpose of executing such scheme or artifice, shall be fined
    under this title or imprisoned not more than 20 years, or both.
    (Emphasis added).
    The superseding indictment varied slightly from the statute, conjunctively
    alleging the defendants “knowingly devised and intended to devise a scheme to
    defraud . . . and to obtain moneys, funds, and other property . . . by means of
    materially false and fraudulent pretenses and representations.” Indictment, Doc. 167,
    at 1 (emphasis added). But consistent with the statute, the government, Jacoby, and
    Derek Zar each submitted proposed instructions disjunctively describing § 1343 as
    “mak[ing] it a crime to use interstate wire communication facilities in carrying out a
    scheme to defraud or to obtain money by means of false or fraudulent pretenses,
    representations or promises.” E.g., D. Zar Proposed Instruction, Doc. 510, at 2
    (emphasis added). Additionally, Jacoby and Derek Zar each proposed giving a
    unanimity instruction.
    19
    During the instruction conference, the district court questioned the
    parties as to whether a scheme to defraud differs from a scheme to obtain money or
    property by means of false or fraudulent pretenses and whether the jury should be
    given a unanimity instruction. After discussion, the government eventually elected to
    instruct the jury only on the theory that the defendants devised a scheme “to obtain
    money or property by means of false or fraudulent pretenses, representations, or
    promises.” Trial Tr., Aug. 28, 2012, Doc. 704, at 3089. Based on this election, the
    district court eliminated the words “defraud or” throughout the instruction. Id. at
    3089-90.
    Derek Zar objected, arguing the scheme to defraud is an element of both the
    indictment and the statute and that he had reasonably relied on the government’s
    pursuit of that element at trial. He further argued that striking the phrase “defraud or”
    from the instruction misstated the law. Susanne Zar and Jacoby joined this objection
    and further objected to including the phrase “or joined a scheme,” contending the
    phrase conflicted with the wire fraud statute and pattern instruction. But the court
    overruled the defendants’ objections and Instruction No. 17 ultimately read in
    relevant part,
    Section 1343 of Title 18, United States Code makes it a crime to use
    interstate wire communications facilities to execute a scheme to obtain
    money by means of false or fraudulent pretenses, representations or
    promises. To carry its burden of proof on these charges, as to each
    defendant, the government must prove the following elements beyond a
    reasonable doubt:
    FIRST: Defendant devised, intended to devise, or joined a scheme to obtain
    money or property by means of false or fraudulent pretenses,
    representations or promises as described in the indictment;
    20
    SECOND: Defendant did so knowingly and with specific intent to obtain
    money by means of false or fraudulent pretenses, representations or
    promises;
    THIRD: Defendant used or caused another person to use interstate wire
    communications facilities for the purpose of carrying out the scheme; and
    FOURTH: The scheme employed false or fraudulent pretenses,
    representations or promises that were material.
    Jury Instruction, Doc. 520-2.
    2.     Omission of an Essential Element of Wire Fraud
    In any prosecution for wire fraud, the government must establish three
    elements beyond a reasonable doubt: “(1) a scheme to defraud; (2) an interstate wire
    communication; and (3) a purpose to use the wire communication to execute the
    scheme.” United States v. Wittig, 
    575 F.3d 1085
    , 1093 (10th Cir. 2009) (internal
    quotation marks and citations omitted).
    We review de novo whether the jury instructions, as a whole, accurately
    informed the jury of the governing law. United States v. Sharp, 
    749 F.3d 1267
    , 1280
    (10th Cir. 2014). An instruction that erroneously omits an element of the offense is
    subject to review for harmless error. Neder v. United States, 
    527 U.S. 1
    , 12-13
    (1999).
    The defendants argue that by removing the phrase “defraud or” from the
    instruction, the district court effectively removed the first element, “a scheme to
    defraud,” from the jury’s consideration. They suggest this error is understandable in
    light of this court’s precedent, but that the error nevertheless requires reversal.
    In urging the government to elect whether to instruct the jury to find either (1)
    a scheme to defraud or (2) a scheme to obtain money by false pretenses, the district
    21
    court acted consistently with our precedent interpreting § 1343. See United States v.
    Cronic, 
    900 F.2d 1511
    , 1513 (10th Cir. 1990) (interpreting mail fraud statute, 
    18 U.S.C. § 1341
    , as prohibiting two “overlapping” but separate offenses); see also
    United States v. Welch, 
    327 F.3d 1081
    , 1104 (10th Cir. 2003) (noting first two
    elements of wire fraud and mail fraud are identical).
    But Cleveland v. United States, 
    531 U.S. 12
    , 25-26 (2000), effectively
    overruled Cronic. In Cleveland, the Supreme Court rejected the government’s
    contention that the mail fraud statute, § 1341, “defines two independent offenses: (1)
    ‘any scheme or artifice to defraud’ and (2) ‘any scheme or artifice . . . for obtaining
    money or property by means of false or fraudulent pretenses, representations, or
    promises.’” 
    531 U.S. at 25
     (quoting 
    18 U.S.C. § 1341
    , alteration in original). In
    doing so, the Court clarified that the disjunctive phrases in § 1341 proscribe a single
    offense and that the second phrase merely describes one type of fraudulent scheme.
    Id. at 26. And, as noted earlier, this court has recognized that the first two elements
    of the mail fraud statute and the wire fraud statute, §§ 1341 and 1343, are identical.
    Welch, 
    327 F.3d at 1104
    . Consequently, Cleveland, rather than Cronic, informs our
    analysis of the alleged instruction error.
    The parties acknowledge Cleveland’s impact but disagree on its application.
    The government argues the instruction did not omit an essential element because
    under Cleveland, the scheme to obtain money or property by fraudulent pretenses is
    simply a specific type of scheme to defraud. The defendants’ argument lacks clarity
    but implicitly recognizes that after Cleveland, the wire fraud statute’s two-clause
    22
    disjunctive structure creates a single offense. Yet the defendants seemingly argue that
    because the statute defines only one offense, the district court omitted an essential
    element of that offense—the scheme to defraud—by instructing the jury only on the
    specific means of committing a scheme to defraud described in the second part of the
    clause.
    We disagree. Since the first element of wire fraud is a scheme to defraud and
    that element includes a scheme to obtain property by means of false or fraudulent
    pretenses, representations, or promises, omitting the phrase “defraud or” did not
    render the instruction constitutionally deficient. If anything, the government’s
    “election” worked to the defendants’ favor by requiring the government to prove a
    particular type of scheme to defraud. Consequently, we conclude Instruction No. 17
    did not omit an essential element of wire fraud.
    3.     Constructive Amendment of the Indictment
    Next, the defendants contend Instruction No. 17 constructively amended the
    superseding indictment and broadened the basis for conviction by omitting the
    “scheme to defraud” element and by adding the phrase “or joined a scheme.”
    “‘In reviewing a claim of constructive amendment, we consider the jury
    instructions as a whole, reviewing de novo the propriety of any individual jury instruction
    to which an objection was made at trial.’” United States v. Bedford, 
    536 F.3d 1148
    , 1157
    (10th Cir. 2008) (quoting United States v. Alexander, 
    447 F.3d 1290
    , 1298 (10th Cir.
    2006)).
    Jury instructions constructively amend an indictment when they broaden the
    23
    indictment. See United States v. Sells, 
    477 F.3d 1226
    , 1237 (10th Cir. 2007) (“A
    constructive amendment, which is reversible per se, occurs when the district court’s
    instructions and the proof offered at trial broaden the indictment.”). Here, consistent
    with 
    18 U.S.C. § 1343
    , the superseding indictment alleged both a general scheme to
    defraud and a specific scheme to obtain moneys through false pretenses. Thus, as
    discussed, omitting the phrase “defraud or” narrowed the indictment and required the
    government to prove a particular type of scheme to defraud—one committed by
    means of false pretenses—and did not constructively amend the indictment.
    Similarly, including the phrase “or joined a scheme” did not constructively
    amend the indictment. The indictment alleged in part that the defendants
    “participated in” various real estate transactions to further the fraudulent scheme. A
    defendant who knowingly participates in a fraudulent scheme, i.e., joins one, can be
    convicted of wire fraud. See United States v. Prows, 
    118 F.3d 686
    , 692 (10th Cir.
    1997) (“Under well-established Tenth Circuit precedent a defendant may be
    convicted under either [the mail or wire fraud] statute if the government shows that
    the defendant joined a scheme devised by someone else, as long as the defendant
    possessed the intent to defraud.”). Moreover, the indictment charged each defendant
    with aiding and abetting in conjunction with each wire fraud count, and the district
    court instructed the jury accordingly.
    Because we conclude that the phrase “or joined a scheme” in Instruction No.
    17 merely referenced the indictment’s allegation that the defendants jointly
    participated in the mortgage fraud, we hold that including this phrase did not
    24
    constructively amend the indictment.
    4.      Conclusion
    Because Instruction No. 17 included every essential element of wire fraud and
    modifications to the instruction did not constructively amend the charges against the
    defendants, we find no instructional error.
    B.     Crawford Violation (Susanne Zar)
    Susanne Zar contends that, in the absence of a contemporaneous limiting
    instruction, the admission of testimonial statements her non-testifying codefendant
    Derek Zar made to an IRS agent during the Zars’ in-home interview violated her
    Sixth Amendment right to confrontation as interpreted in Crawford v. Washington,
    
    541 U.S. 36
     (2004).
    Whether the admission of a non-testifying codefendant’s statements or
    confession in a joint trial violated the defendant’s Sixth Amendment right to
    confrontation is ordinarily a legal question subject to de novo review. United States
    v. Clark, 
    717 F.3d 790
    , 813 (10th Cir. 2013); United States v. Sarracino, 
    340 F.3d 1148
    , 1158-59 (10th Cir. 2003). But the parties agree that plain-error review applies
    here because Susanne Zar neither objected to the admission of Derek Zar’s
    statements nor requested a contemporaneous limiting instruction. See United States v.
    Pablo, 
    696 F.3d 1280
    , 1287 (10th Cir. 2012) (explaining that plain error relief is
    granted only when the defendant establishes an error, that is plain or obvious, that
    affects substantial rights, and that seriously affects the fairness, integrity, or public
    reputation of judicial proceedings).
    25
    The Confrontation Clause of the Sixth Amendment guarantees a criminal
    defendant’s right to confront the witnesses against her. U.S. Const. amend. VI; Clark,
    717 F.3d at 813-14. As interpreted in Crawford, “the Sixth Amendment preclude[s]
    the admission of out-of-court statements that are testimonial, unless the witness is
    unavailable and the defendant had a prior opportunity to cross-examine the witness.”
    Clark, 717 F.3d at 814-15 (internal quotation marks and citations omitted).
    Statements made during a police interrogation generally are testimonial. United
    States v. Shaw, 
    758 F.3d 1187
    , 1195 (10th Cir.), cert. denied 
    135 S. Ct. 503
     (2014).
    In the context of multi-defendant trials, whether the admission of a non-testifying
    co-defendant’s statements violates the Confrontation Clause depends on the content of
    the statements and the court’s ability to mitigate any prejudicial impact. When the
    statements of a non-testifying codefendant expressly implicate another codefendant and
    are so “powerfully incriminating” that a court cannot presume the effectiveness of a
    limiting instruction advising the jury to consider the statements only in deciding the non-
    testifying codefendant’s guilt, the statements may not be used in the joint trial. Bruton v.
    United States, 
    391 U.S. 123
    , 135-36 (1968). But if the non-testifying codefendant’s
    statements implicate another codefendant “only when linked with evidence introduced
    later at trial,” the Confrontation Clause is not violated as long as the court (1) redacts the
    non-testifying codefendant’s confession to eliminate the defendant’s name and any
    reference to her existence, and (2) gives a proper limiting instruction when it admits the
    confession. Richardson v. Marsh, 
    481 U.S. 200
    , 208, 211 (1987); see also Spears v.
    Mullin, 
    343 F.3d 1215
     (10th Cir. 2003).
    26
    Here, IRS Agent Beverly Hood testified at trial about several statements Derek
    Zar made during the Zars’ in-home interview. Although Susanne Zar did not object to the
    statements’ admission or request a contemporaneous limiting instruction, the district
    court gave this limiting instruction at the close of trial: “You have heard evidence that
    Susanne Zar and Derek Zar gave statements to the authorities. You may consider any
    such statement in deciding the charges against that defendant, but not against any other
    defendant. You should give such statements such weight, if any, as you feel they
    deserve.” Trial Tr., Aug. 28, 2012, Doc. 704, at 3110.
    On appeal, Susanne Zar acknowledges her son’s statements did not directly
    implicate her. Nevertheless, relying on Richardson and Spears, she contends his
    statements implicated her when linked with other evidence presented at trial and that the
    district court violated her confrontation rights by failing to sua sponte give a limiting
    instruction.
    But even assuming the district court committed an obvious Crawford error by
    admitting Derek Zar’s testimonial statements without a contemporaneous limiting
    instruction, we agree with the government that Susanne Zar cannot establish prejudice
    under the third prong of the plain-error analysis. See Pablo, 696 F.3d at 1293 (noting
    appellant bears burden to demonstrate “a reasonable probability that, but for the error
    claimed, the result of the proceeding would have been different” (internal quotation
    marks and citation omitted)).
    Here, the district court admitted independent evidence of Susanne Zar’s guilt
    including Hood’s testimony regarding inculpatory statements Susanne Zar made during
    27
    the Zars’ in-home interview as well as documentary evidence, such as bank records, loan
    applications, and residential sales contracts, supporting those statements. And witnesses
    other than Derek Zar testified at trial about Susanne Zar’s involvement in various real
    estate transactions arranged by Jacoby. Given this evidence and the district court’s
    instruction at the close of trial advising the jury to consider each defendant’s statements
    individually in determining guilt, we decline to reverse Susanne Zar’s convictions under
    the plain-error standard. 5
    III.   Ineffective Assistance of Counsel (Derek Zar, Susanne Zar, and Jacoby)
    All three defendants jointly assert ineffective assistance of counsel claims for
    the first time on appeal, collectively arguing their respective attorneys demonstrated
    prejudicially deficient performance by entering into a poorly-worded stipulation
    regarding the jurisdictional element of the wire fraud counts.
    Generally, ineffective assistance of counsel claims should be raised in
    collateral proceedings rather than on direct appeal. See, e.g., United States v.
    Galloway, 
    56 F.3d 1239
    , 1240 (10th Cir. 1995) (en banc) (instructing that “such
    claims brought on direct appeal are presumptively dismissible, and virtually all will
    be dismissed”). But relying on United States v. Crowe, 
    735 F.3d 1229
    , 1244 (10th
    5
    Susanne Zar additionally argues that if we reverse her wire fraud conviction
    (Count 16), we must also reverse her money laundering conviction (Count 10).
    Lacking any basis to reverse the wire fraud conviction, we find no basis to reverse
    the money laundering conviction. Further, the Zars jointly seek reversal and a new
    trial based on the cumulative and prejudicial effect of the alleged trial errors. See
    United States v. Caraway, 
    534 F.3d 1290
    , 1302 (10th Cir. 2008) (discussing
    cumulative error analysis). But because the only error we have found is an assumed
    unpreserved Crawford error, we reject the Zars’ cumulative error claim.
    28
    Cir. 2013), defendants argue their claims are fully developed in the record and thus
    present an exception to this general rule. See Galloway, 
    56 F.3d at 1242
     (recognizing
    that “[s]ome rare claims which are fully developed in the record may be brought
    either on direct appeal or in collateral proceedings”).
    As in this case, the defendant in Crowe challenged her attorney’s decision to
    enter into a written stipulation on an element of wire fraud. But in contrast to the
    defendants in this case, the defendant in Crowe asserted her ineffective assistance of
    counsel claim in a motion for new trial and the district court denied the claim on its
    merits. Thus, unlike the panel in Crowe, we lack the benefit of a district court ruling,
    and we decline to address the defendants’ ineffective assistance of counsel claims.
    IV.   Alleged Sentencing Errors
    The defendants jointly assert that the district court violated their Fifth and
    Sixth Amendment rights to a jury trial when it found facts necessary to increase their
    advisory Guidelines sentencing ranges. The Zars jointly challenge the district court’s
    method of calculating the loss both for Guidelines purposes and for imposing
    restitution. Susanne Zar individually contends the district court erroneously attributed
    to her the losses related to three properties, and Derek Zar argues the district court
    erroneously applied a three-level enhancement based on his aggravating role in the
    offense and erroneously denied his motion for a downward variance.
    Before turning to these specific claims, we briefly summarize the district
    court’s calculation of each defendant’s sentence.
    29
    A.     Additional Relevant Facts
    1.     Michael Jacoby
    In calculating Jacoby’s advisory Guidelines range, the presentencing report
    (“PSR”) grouped Jacoby’s wire fraud, money laundering, and bank fraud convictions,
    resulting in a base offense level of 7. See U.S.S.G. § 3D1.2(c), (d); § 3D1.3(b). The
    PSR adopted the government’s loss calculation of $3,160,267 and assigned an 18-
    level increase based on the amount of the loss. See U.S.S.G. § 2B1.1(b)(1)(J)
    (providing 18-level increase if loss is more than $2,500,000 but less than
    $7,000,000). Jacoby also received a two-level increase based on the number of
    victims. See U.S.S.G. § 2B1.1(b)(2)(A) (providing two-level increase for offenses
    involving 10 or more but less than 50 victims). Finally, for his role as an “organizer
    or leader” of the fraudulent scheme, Jacoby received a four-level increase under
    U.S.S.G. § 3B1.1(a). Jacoby’s total offense level of 31 and his criminal history of I
    resulted in an advisory Guidelines range of 108-135 months’ imprisonment for each
    of his 16 convictions.
    The district court sentenced Jacoby to a controlling term of 108 months’
    imprisonment followed by a five-year term of supervised release and ordered
    restitution of $2,926,467.
    2.     Derek Zar
    The PSR grouped Derek Zar’s four wire fraud convictions and one money
    laundering conviction producing a base offense level of 7. See U.S.S.G. § 3D1.2(c),
    (d); § 3D1.3(b). After adopting the government’s loss calculation of $1,599,359, the
    30
    PSR applied a 16-level increase for that loss. See U.S.S.G. § 2B1.1(b)(1)(I)
    (providing 16-level increase for loss of more than $1,000,000 but less than
    $2,500,000). The PSR then applied a three-level increase under U.S.S.G. § 3B1.1(b)
    for Derek Zar’s role in the offense as a “manager or supervisor.” His total offense
    level of 26 and criminal history of I resulted in an advisory Guidelines range of 63-78
    months’ imprisonment for each of Derek Zar’s five convictions.
    The district court sentenced Derek Zar to a controlling term of 63 months in
    prison followed by three years of supervised release and ordered restitution of
    $1,364,657.
    3.    Susanne Zar
    The PSR grouped Susanne Zar’s three wire fraud convictions and one money
    laundering conviction producing a base offense level of 7. See U.S.S.G. § 3D1.2(c),
    (d); § 3D1.3(b). The PSR then assigned a 16-level increase based on a loss
    calculation of $1,519,114, see U.S.S.G. § 2B1.1(b)(1)(I), and a one-level increase for
    the money laundering conviction, see U.S.S.G. § 2S1.1(b)(2)(A). Susanne Zar’s total
    offense level of 24 and criminal history of I produced an advisory Guidelines range
    of 51-63 months’ imprisonment for each of her four convictions.
    At sentencing, the district court found Susanne Zar responsible for less actual
    loss than indicated in the PSR but enough to warrant the recommended 16-level
    increase under U.S.S.G. § 2B1.1(b)(1)(I). The court granted a downward variance,
    imposed a 24-month controlling prison sentence followed by three years of
    supervised release, and ordered restitution of $1,283,835.
    31
    B.     Apprendi/Alleyne Error (Derek Zar, Susanne Zar, and Jacoby)
    The defendants jointly contend the loss amount necessary to support an
    increase in the base offense level under U.S.S.G. § 2B1.1(b)(1) is an “element” of the
    offense that must be charged in the indictment, submitted to a jury, and proved
    beyond a reasonable doubt to satisfy the Fifth and Sixth Amendments as interpreted
    in Alleyne v. United States, 
    133 S. Ct. 2151
     (2013), and Apprendi v. New Jersey, 
    530 U.S. 466
     (2000).
    The defendants’ reliance on Apprendi and Alleyne is misplaced as none of the
    defendants were subject to mandatory minimum sentences or sentenced beyond the
    statutory maximums for their convictions. See Alleyne, 
    133 S. Ct. at 2155, 2160
    (holding any fact increasing mandatory minimum sentence is element that must be
    submitted to jury); Apprendi, 
    530 U.S. at 490
     (holding any fact increasing sentence
    beyond statutory maximum must be submitted to jury). Cf. 
    18 U.S.C. §§ 1957
    , 1343,
    1344 (providing statutory maximum sentences for money laundering, wire fraud and
    bank fraud of imprisonment of not more than 10 years, 20 years, and 30 years,
    respectively).
    Instead, the judicial fact finding the defendants complain of occurred in the
    context of determining their applicable sentencing ranges under the advisory
    sentencing Guidelines. The Apprendi/Alleyne rule does not apply in this context. See
    United States v. Ray, 
    704 F.3d 1307
    , 1314 (10th Cir.) (noting Supreme Court has
    definitively rejected Apprendi’s application to present advisory-Guidelines regime),
    cert. denied, 
    133 S. Ct. 2812
     (2013); see also United States v. Cassius, 
    777 F.3d 32
    1093, 1096-99 (10th Cir. 2015) (explaining that Alleyne applies only to judicial
    findings that alter the applicable statutory sentencing range, as opposed to findings
    that impact the applicable advisory Guidelines range).
    C.     Method of Loss Calculation (Derek Zar and Susanne Zar)
    The Zars argue the district court failed to use a reasonable method to calculate
    the loss amount for purposes of determining their Guidelines sentencing ranges and
    for purposes of imposing restitution under the Mandatory Victim Restitution Act of
    1996, 18 U.S.C. §§ 3663A-3664 (“MVRA”).
    The Zars concede that in calculating the loss amount for Guidelines purposes
    the district court followed our precedent in United States v. Washington, 
    634 F.3d 1180
    , 1184 (10th Cir. 2011), but they raise the issue to preserve it for further review.
    Bound by our precedent, we find no error.
    Likewise, we find no error in the district court’s calculation of loss for
    purposes of restitution. Citing United States v. Yeung, 
    672 F.3d 594
     (9th Cir. 2012),
    the Zars argue the district court erred as a matter of law by not calculating the
    restitution offset amount based on the fair market value of the collateral real estate at
    the date of foreclosure when the victim-lender took title and could have sold it for
    cash. We easily reject this argument as the Supreme Court has expressly abrogated
    the Yeung methodology. See Robers v. United States, 
    134 S. Ct. 1854
    , 1856 (2014)
    (holding that a sentencing court imposing restitution under the MVRA “must reduce
    the restitution amount by the amount of money the victim received in selling the
    collateral, not the value of the collateral when the victim received it”).
    33
    D.     Relevant Conduct (Susanne Zar)
    Susanne Zar individually contends the district court erred by including three
    properties in its loss calculation—1065 Ridge Oaks, 1490 Rose, and 30848 E.
    151st—to determine her Guidelines sentencing range. She acknowledges that these
    properties were among the 18 properties involved in the mortgage fraud scheme but
    she maintains the government failed to sufficiently prove that the losses attributable
    to these three specific properties constituted relevant conduct under U.S.S.G. § 1B1.3
    for purposes of calculating her Guidelines sentence.
    Preliminarily, the parties disagree on whether Susanne Zar properly preserved
    this claim. But even if we assume she preserved her objection, we conclude the
    district court did not clearly err in attributing these losses to her. See United States v.
    Sells, 
    541 F.3d 1227
    , 1234 (10th Cir. 2008) (considering Guidelines calculation
    under § 1B1.3(a)(1)(B) and applying clear error to district court’s factual
    determinations).
    Section 1B1.3(a)(1)(B) makes clear that a participant in a fraudulent scheme
    “undertaken by the defendant in concert with others” must be held responsible for
    “all reasonably foreseeable acts and omissions in furtherance of the jointly
    undertaken criminal activity.” This is true regardless of a defendant’s direct
    participation in a specific transaction. Sells, 
    541 F.3d at 1234
    .
    As the government notes, the indictment listed the three properties among the
    18 properties involved in the mortgage fraud scheme and the evidence at trial
    demonstrated that losses from these three properties were reasonably foreseeable to
    34
    Susanne Zar regardless of whether she directly participated in the real estate
    transactions related to these three specific properties. Thus, we conclude the district
    court did not clearly err in including the three challenged properties in calculating the
    loss attributable to Susanne Zar.
    E.     Three-Level “Manager/Supervisor” Enhancement (Derek Zar)
    Derek Zar individually argues the district court erroneously increased his base
    offense level under U.S.S.G. § 3B1.1(b), which calls for a three-level increase “[i]f
    the defendant was a manager or supervisor (but not an organizer or leader) and the
    criminal activity involved five or more participants or was otherwise extensive.”
    Over Derek Zar’s objections, the district court found the trial evidence demonstrated
    that he was a manager or supervisor and agreed with the PSR’s recommendation to
    apply the three-level enhancement.
    We review a district court’s finding that a defendant is a manager or supervisor
    under § 3B1.1(b) for clear error. United States v. James, 
    592 F.3d 1109
    , 1113 (10th
    Cir. 2010); see United States v. Cruz Camacho, 
    137 F.3d 1220
    , 1223-24 (10th Cir.
    1998) (discussing tension between two lines of this court’s precedent regarding
    appropriate standard of review and concluding clear error review is appropriate).
    “Under this standard, we will not reverse the district court’s finding unless, ‘on the
    entire evidence, we are left with the definite and firm conviction that a mistake has
    been committed.’” James, 
    592 F.3d at 1113
     (quoting United States v. Wilfong, 
    475 F.3d 1214
    , 1218 (10th Cir. 2007)).
    35
    1.     Additional Relevant Facts
    The PSR recommended the three-level enhancement citing evidence from the
    record that Derek Zar “recruited other individuals, including relatives, to participate
    in the scheme and help[ed] them to participate in the fraudulent home purchases.”
    PSR, Doc. 596, at 42 (sealed). The PSR further indicated, “[b]ased on information
    obtained from the case agent and review of discovery materials,” that Derek Zar “had
    a managerial role” in the scheme. Id. at 43. Finally, the PSR urged application of the
    enhancement because Derek Zar “recruited others to participate in the fraudulent
    purchase of multiple homes” and “benefitted from their involvement and directed
    their activities in order to facilitate completion of the fraudulent transactions.” Id. at
    45.
    Derek Zar filed written objections to these portions of the PSR and argued at
    sentencing that the trial evidence did not support the trial court’s finding that he was
    a manager or supervisor. Specifically, he argued he did not exercise any decision-
    making authority, recruit any accomplices, claim a larger share of the fruits of the
    crime, plan or organize the fraudulent scheme, or exert control or authority over
    others.
    In response, the prosecutor reminded the court that two witnesses testified at
    trial that Derek Zar encouraged them to participate in fraudulent real estate
    transactions, identified certain properties for them to buy, informed them of the
    prices for those properties, explained how the grant programs worked, and introduced
    them to Jacoby, who acted as the realtor for the witnesses’ purchases of the
    36
    properties. The prosecutor also pointed out that the government was seeking a four-
    level enhancement for Jacoby’s aggravating role and argued the three-level increase
    was proportionately appropriate for Derek Zar’s role in the scheme.
    After hearing these arguments and the prosecutor’s recitation of the trial
    evidence, the district court overruled the objections, finding Derek Zar’s role as a
    manager or supervisor to be supported by the record and the PSR.
    2.     Analysis
    Derek Zar argues the district court failed to make adequate specific factual
    findings to support its general finding that he was a manager or supervisor. He
    further argues the trial evidence does not support the court’s general finding as to his
    role in the mortgage fraud scheme.6
    a.     Adequacy of Findings
    Before applying an aggravating-role enhancement under § 3B1.1(b), the
    district court must make specific factual findings as to the defendant’s role in the
    offense. United States v. Cordoba, 
    71 F.3d 1543
    , 1547 (10th Cir. 1995); United
    States v. Roberts, 
    14 F.3d 502
    , 522 (10th Cir. 1993); see also Fed. R. Crim. P.
    32(i)(3)(B) (requiring district court to rule on “any disputed portion of the
    presentence report” before imposing a sentence).
    6
    Derek Zar also contends the facts supporting the manager/supervisor
    enhancement must be charged in the indictment, submitted to a jury, and proved beyond a
    reasonable doubt to satisfy the Fifth and Sixth Amendments as interpreted in Alleyne and
    Apprendi. We reject this argument because, as discussed, the Apprendi/Alleyne rule does
    not apply to calculation of an advisory guidelines sentence. See Ray, 704 F.3d at 1314;
    see also Cassius, 777 F.3d at 1096-99.
    37
    Relying on these authorities, Derek Zar argues “the district court articulated no
    specific findings or factual basis” to support the three-level enhancement. D. Zar. Br.,
    at 39. Ordinarily, when a district court fails to make adequate findings or comply
    with Rule 32, we remand for further findings. See, e.g., United States v. Peña-
    Hermosillo, 
    522 F.3d 1108
    , 1113 (10th Cir. 2008); United States v. Brown, 
    164 F.3d 518
    , 522 (10th Cir. 1998). But Derek Zar does not seek that remedy. Instead, he
    urges us to review the record and conclude it does not support the enhancement.
    We see no need to remand for further findings. The district court satisfied Rule
    32 by ruling on Derek Zar’s objections to the PSR before imposing sentence. And
    while the court’s specific factual findings are admittedly sparse, the findings are not
    so deficient as to hinder our review. See United States v. Gonzalez Edeza, 
    359 F.3d 1246
    , 1249 (10th Cir. 2004) (suggesting remand is appropriate when absence of
    factual findings hinders review or findings are “so conclusory as to render the
    enhancement unreviewable”). Significantly, the court ruled on the matter
    immediately after the prosecutor directed the court’s attention to specific portions of
    the trial record and the court concluded the “record clearly reflect[ed]” Derek Zar’s
    role as a manager or supervisor. The court’s reliance on specific portions of the
    record is sufficient to guide our review and, as discussed next, sufficient to support
    its application of the three-level enhancement.
    b.     Sufficiency of Evidence
    U.S.S.G. § 3B1.1 does not define the terms “manager,” “supervisor,”
    “organizer,” or “leader.” Instead, the Commentary provides several factors to
    38
    consider in “distinguishing a leadership and organizational role from one of mere
    management or supervision.” U.S.S.G. § 3B1.1, cmt. n.4. Those factors are,
    the exercise of decision making authority, the nature of
    participation in the commission of the offense, the recruitment of
    accomplices, the claimed right to a larger share of the fruits of the
    crime, the degree of participation in planning or organizing the offense,
    the nature and scope of the illegal activity, and the degree of control and
    authority exercised over others.
    U.S.S.G. § 3B1.1, comment. (n.4).
    Relying on these factors, this court has consistently interpreted the
    “manager/supervisor” role as one requiring the defendant to exercise some degree of
    “decision-making authority,” “control,” or “organizational authority” over a
    subordinate participant in the offense. See, e.g., United States v. Beltran, 
    571 F.3d 1013
    , 1020-21 (10th Cir. 2009) (noting that for three-level enhancement to apply
    “defendant must also exercise some degree of ‘decision-making authority or control
    over a subordinate’”); Peña-Hermosillo, 
    522 F.3d 1108
    , 1112 (10th Cir. 2008)
    (same); Gonzalez Edeza, 
    359 F.3d at 1248
     (explaining enhancement is appropriate
    when defendant is “responsible for organizing others for the purpose of carrying out
    the crime”); United States v. Backas, 
    901 F.2d 1528
    , 1530 (10th Cir. 1990) (“In order
    to be a supervisor, one needs merely to give some form of direction or supervision to
    someone subordinate in the criminal activity for which the sentence is given.”).
    Citing several of these cases, Derek Zar argues the trial evidence fails to
    demonstrate that he “exercise[d] decision-making authority” or otherwise “exerted
    control and authority” over any subordinates in the mortgage fraud scheme. Rather,
    39
    he characterizes himself a lowly buyer in the scheme who, at most, advised other
    buyers who were essentially his peers.
    But the evidence at trial established otherwise. For example, one witness
    testified that Derek Zar advised her to buy two of the properties listed in the
    indictment so she could resell one to him and one to Susanne Zar. He also informed
    her of the price of each property, explained how the real estate transaction would
    work, including how she would use the grant program to “donate” a portion of her
    sales proceeds back to Derek Zar, and introduced her to Jacoby, who then acted as
    the real estate agent for both transactions and provided cashier’s checks to cover the
    down payments for each home. Similarly, a second witness testified that Derek Zar
    encouraged her to join him in investing in real estate, explained how she could buy
    homes utilizing the grant programs, and introduced her to Jacoby. The witness
    purchased six homes with Derek Zar, utilizing the grant programs and Jacoby’s real
    estate services for five of those purchases.
    Our independent review of the record establishes that Derek Zar recruited
    others to participate in the mortgage fraud scheme, advised them as to which homes
    to buy and sell, directed their utilization of the grant programs, and introduced them
    to Jacoby so he could act as the real estate agent and, in some cases, provide hard-
    money loans for down payments. These activities sufficiently demonstrate Derek
    Zar’s role as a manager or supervisor in the mortgage fraud scheme. See, e.g.,
    Gonzalez Edeza, 
    359 F.3d at 1248-49
     (affirming three-level enhancement for
    “manager/supervisor” role on findings that defendant gave instructions to, directed
    40
    the conduct of, and coordinated another participant’s delivery of methamphetamine);
    United States v. Pofahl, 
    990 F.2d 1456
    , 1480-81 (5th Cir. 1993) (finding no error in
    applying § 3B1.1(b) to defendant who negotiated drug prices, recruited other
    conspirators, and directed other members of conspiracy).
    We conclude the district court did not clearly err in finding that Derek Zar was
    a manager or supervisor and we affirm its application of the three-level enhancement.
    F.     Motion for Variance Under 
    18 U.S.C. § 3553
    (a) (Derek Zar)
    Finally, Derek Zar challenges the district court’s denial of his motion for a
    variance under 
    18 U.S.C. § 3553
    (a). “We review sentences for reasonableness under
    a deferential abuse of discretion standard.” United States v. Haley, 
    529 F.3d 1308
    ,
    1311 (10th Cir. 2008). Because the district court “sees and hears the evidence, makes
    credibility determinations, and actually crafts Guidelines sentences day after day” it
    has a distinct advantage over this court in determining “whether the facts of an
    individual case justify a variance pursuant to § 3553(a) . . . [and] we generally defer
    to its decision to grant, or not grant, a variance based upon its balancing of the
    § 3553(a) factors.” Id.
    At sentencing, Derek Zar asserted several factors supported his variance
    request. In denying the motion, the district court concluded most of the factors he
    asserted already had been accounted for in the advisory sentencing Guidelines, that
    his conduct was planned rather than aberrational, and that while others had recruited
    him into the fraudulent scheme, they had not done so through coercion or duress. On
    41
    appeal, Derek Zar contends the district court abused its discretion by essentially
    presuming the reasonableness of the advisory Guidelines sentence and failing to
    adequately consider his reasons for seeking a lower sentence.
    We agree with the government that the district court did all it was required to
    do before imposing a within-Guidelines sentence. See United States v. Lente, 
    647 F.3d 1021
    , 1034-35 (10th Cir. 2011) (noting that when court imposes within-
    Guidelines sentence, it need neither explicitly refer to § 3553(a) factors nor respond
    to every argument for leniency; instead, a general statement of its reasons will
    suffice). Here, the district court noted the advisory sentencing range of 63-78 months,
    discussed several § 3553(a) factors, considered Derek Zar’s arguments for a variance,
    and stated its reasons for rejecting those arguments before imposing the low-end
    prison sentence of 63 months. We find no abuse of discretion under these
    circumstances.
    CONCLUSION
    Finding no reversible trial or sentencing errors as to any defendant, we affirm.
    42