United States v. Pielsticker , 678 F. App'x 737 ( 2017 )


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  •                                                                                   FILED
    United States Court of Appeals
    UNITED STATES COURT OF APPEALS                          Tenth Circuit
    FOR THE TENTH CIRCUIT                          February 7, 2017
    _________________________________
    Elisabeth A. Shumaker
    Clerk of Court
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    v.                                                           No. 15-5105
    (D.C. No. 4:14-CR-00153-GKF-1)
    JAMES DOUGLAS PIELSTICKER,                                   (N.D. Okla.)
    Defendant - Appellant.
    _________________________________
    ORDER AND JUDGMENT*
    _________________________________
    Before BALDOCK and PHILLIPS, Circuit Judges.**
    _________________________________
    James Douglas Pielsticker was the president and chief executive officer
    (“CEO”) of Arrow Trucking Company (“Arrow”), a freight-hauling service. In
    response to a Superseding Information, Pielsticker pleaded guilty to both its counts.
    *
    This order and judgment is not binding precedent, except under the doctrines
    of law of the case, res judicata, and collateral estoppel. But it may be cited for its
    persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
    **
    The Honorable Neil Gorsuch heard oral argument but did not participate in the
    order and judgment. The practice of this court permits the remaining two panel judges, if
    in agreement, to act as a quorum in resolving the appeal. See 28 U.S.C. § 46(d); see also
    United States v. Wiles, 
    106 F.3d 1516
    , n* (10th Cir. 1997) (noting this court allows
    remaining panel judges to act as a quorum to resolve an appeal); Murray v. National
    Broadcasting Co., 
    35 F.3d 45
    , 48 (2d Cir. 1994), cert. denied, 
    513 U.S. 1082
    (1995)
    (remaining two judges of original three judge panel may decide petition for rehearing
    without third judge).
    Count 1 charged that Pielsticker (i) conspired to impede the IRS in collecting federal
    taxes, and (ii) conspired to commit bank fraud by submitting inflated invoices to
    Arrow’s lending bank. Count 2 charged that he evaded federal taxes. The district
    court sentenced him to 90 months in prison to be followed by three years of
    supervised release, and it further ordered him to pay restitution. On appeal,
    Pielsticker challenges the procedural reasonableness of his sentence and the amount
    of restitution. We affirm.1
    BACKGROUND
    I.    Charged Crimes
    On February 4, 2015, Pielsticker pleaded guilty to one count of conspiracy and
    one count of tax evasion. The conspiracy charge set forth two independent crimes:
    (1) conspiracy to defraud the United States by not providing the IRS payroll taxes
    collected from Arrow’s employees; and (2) conspiracy to commit bank fraud by
    obtaining bank funds with fraudulently inflated invoices for Arrow’s accounts
    receivable. Though it did not name coconspirators in the Superseding Information,
    the government established that from January 2009 to December 2009, Pielsticker
    had conspired with Joseph Mowry, Arrow’s legal counsel, and Jonathan Moore,
    Arrow’s chief financial officer, among others.
    Beginning in 2008, Arrow struggled to pay its expenses. It bounced checks to
    its lenders, employees, and vendors. Despite this, Pielsticker received an annual
    1
    We grant Pielsticker’s motion to seal portions of the appendix.
    2
    $1,200,000 salary and drew personal expenses from Arrow totaling $3,563,436.58,
    for such things as payments for his Porsche, Bentley, and Maserati automobiles.
    From 2009 to 2011, Pielsticker underreported his wages and failed to pay his federal
    income taxes, creating a personal tax debt of $1,050,956.
    In January 2009, after Arrow missed a payment, Arrow’s payroll-service
    provider dropped Arrow as a client. Rather than hire another provider, Pielsticker and
    Moore decided to self-report. For the rest of the year, Arrow withheld payroll taxes2
    from its employees’ salaries but never sent these collections to the IRS or filed the
    corresponding tax returns. In total, Arrow withheld and failed to remit to the IRS
    $9,562,121.95 in payroll taxes.
    In November 2008, Transportation Alliance Bank (the “Bank”) entered into an
    agreement with Arrow in which Arrow sold its accounts receivable to the Bank to
    obtain advanced funds. Before the Bank purchased Arrow’s accounts receivable, it
    required that Arrow submit its customer invoices, listing—among other
    information—the total amount owed, the account debtor’s name, and the payment’s
    due date. After receiving the invoices, the Bank would pay Arrow a percentage of the
    total amount owed in exchange for the exclusive right to collect on the accounts. If an
    account debtor failed to pay its account within ninety days of the payment due date,
    2
    Payroll taxes are federal income taxes that an employer must deduct and
    withhold from its employees’ wages. See 26 U.S.C. §§ 3102(a), 3402. An employer is
    liable for paying these taxes and for reporting the amounts withheld on its payroll tax
    returns. 
    Id. § 3403.
    Returns for and payments of payroll taxes are due each calendar
    quarter. 26 C.F.R. § 31.6011(a)-1.
    3
    the Bank could force Arrow to repurchase the account (we refer to the repurchased
    accounts as “Recourse Accounts”).
    In March 2009, an Arrow billing clerk sent the Bank an invoice accidentally
    overstating an account receivable by about $100,000. The Bank advanced this sum to
    Arrow. When Moore learned of the overstated invoice, he told Mowry. Mowry
    advised against notifying the Bank. In May 2009, during a meeting about Arrow’s
    finances, Pielsticker told Moore, “[w]e just need to create another invoice like we did
    the first time,” referencing the mistakenly overstated invoice. Appellant App. vol. 3
    at 459. In previous meetings, Moore suggested that Pielsticker decrease his personal
    expenses, but Pielsticker adamantly refused. So based on Pielsticker’s request and the
    need to cover cash-flow shortages, Moore directed an Arrow billing clerk to overbill
    an invoice before sending it to the Bank.
    Arrow then began intentionally overbilling invoices. Moore would determine
    the amounts needed to cover expenses and ask either Mowry or Pielsticker for
    authorization to submit inflated invoices.3 Then, Mowry or Moore would direct the
    billing clerks to overstate the invoices sent to the Bank. The invoices varied in
    amounts, but Arrow kept track of all the overstated amounts. Initially, the clerks
    would inflate just one or two invoices by large amounts. But as the conspiracy
    continued, Moore told the billing clerks to inflate more invoices but at a lesser
    amount. In this way, the conspirators tried to evade the Bank’s detection during
    3
    During the sentencing hearing, Moore testified that he inflated the invoices
    about six to twelve times without consulting Pielsticker or Mowry.
    4
    audits. Meanwhile, Pielsticker’s personal spending increased and he continued
    siphoning money from Arrow for himself.
    By September 2009, the Bank was suspicious and demanded to verify the
    accuracy of Arrow’s invoices by calling Arrow’s account debtors directly. Initially,
    Pielsticker refused to allow this, but when the Bank insisted, Pielsticker, Mowry, and
    Moore devised a scheme to have Arrow employees answer the Bank’s calls. To get
    away with this, they provided the Bank with a list of account debtor’s fictitious
    phone numbers. In fact, all of the phone numbers belonged to out-of-state cell phones
    that Pielsticker, Mowry, and Moore had obtained to deceive the Bank. Then, they
    staged four to five Arrow employees who would answer the Bank’s calls, identify
    themselves as account debtors, and confirm the overbilled invoices. In December
    2009, Pielsticker, Mowry, and Moore executed the scheme a second time after the
    Bank wanted to verify more invoices. That same month, the bank-fraud conspiracy
    ended when Mowry told the Bank about the fraudulent invoices. In total, Arrow
    submitted false invoices to the Bank totaling at least $20,900,000.
    By January 2010, Moore had begun cooperating with law enforcement. In
    December 2014, he pleaded guilty to conspiracy to defraud the United States and to
    commit bank fraud, in violation of 18 U.S.C. § 371. Hopeful that the government
    would recommend a more lenient sentence, Moore testified as a government witness
    at Pielsticker’s sentencing hearing. Though Mowry also assisted law enforcement, he
    died before facing charges.
    5
    II.   Sentencing
    In February 2015, Pielsticker pleaded guilty. Soon after, the probation office
    prepared a Presentence Investigation Report (PSR).4 The PSR calculated a total
    offense level of 28 and a criminal-history category of I, rendering an advisory
    guideline range of 78 to 97 months of imprisonment. On the bank-fraud conspiracy,
    under U.S. Sentencing Guidelines Manual § 2B1.1 (U.S. Sentencing Comm’n 2014),
    he received a base offense level of 6. The Bank submitted a victim impact statement,
    claiming losses of $11,464,560.08. Finding that Pielsticker entered the bank-fraud
    conspiracy in late 2009, the PSR reduced the Bank’s claimed loss of $11,464,560.08
    down to $7,537,948.25. Based on this amount, it assigned a 20-level increase. See
    USSG § 2B1.1(b)(1)(K) (providing for a 20-level increase when loss is more than $7
    million but not more than $20 million). For his role as manager or supervisor of the
    bank-fraud conspiracy, Pielsticker received a three-level increase under USSG
    § 3B1.1(b). The total adjusted-offense level for the bank-fraud conspiracy was 29.
    For the tax-fraud conspiracy, the PSR adopted the government’s loss amount
    of $9,562,121.95. Based on this amount, it assigned a base offense level of 26. See
    USSG § 2T1.1(a)(1); USSG § 2T4.1(K) (providing an offense level of 26 for tax
    losses of more $7 million but not more than $20 million). Because Pielsticker failed
    4
    The PSR applied the 2014 edition to the United States Sentencing
    Commission Guidelines Manual. Here, all references to the guidelines refer to the
    2014 edition unless otherwise indicated.
    6
    to report his taxes, he received a two-level increase under USSG § 2T1.1(b)(1). Thus,
    the total adjusted-offense level for the tax-fraud conspiracy amounted to 28.
    The PSR then applied additional adjustments to the greater of the two
    adjusted-offense levels, which was 29. First, because the conspiracy and tax-evasion
    counts were within four levels of each other, Pielsticker received a two-level increase
    under USSG § 3D1.4(a). Second, for his acceptance of responsibility, he received a
    three-level reduction under USSG § 3E1.1(a) and (b). Pielsticker’s criminal-history
    score of zero placed him in Category I, resulting in a guidelines range of 78 to 97
    months.
    Both parties objected to the PSR and submitted depositions, records, and other
    information to the probation office. In addition, Pielsticker filed two motions for
    variance, a motion for departure, and a sentencing memorandum. The government
    also filed a sentencing memorandum and responded to each of Pielsticker’s motions.
    During the sentencing hearing, the government called Moore to testify and
    introduced several exhibits. When the evidentiary portion of the hearing concluded,
    the district court made findings on the parties’ objections to the PSR and denied each
    of Pielsticker’s objections. The district court then heard arguments from both parties
    on Pielsticker’s motions and denied all three motions. Applying the offense level of
    28, the district court imposed a 90-month sentence, to be followed by three years of
    supervised release, and ordered Pielsticker to make restitution for $21,026,682.03 on
    Count 1 and $1,050,956 on Count 2. Pielsticker appealed.
    7
    DISCUSSION
    We review Pielsticker’s sentence for reasonableness under a “deferential
    abuse-of-discretion standard.” United States v. Mollner, 
    643 F.3d 713
    , 714 (10th Cir.
    2011) (quoting United States v. Alapizco-Valenzuela, 
    546 F.3d 1208
    , 1214 (10th Cir.
    2008)). “Reasonableness review is a two-step process comprising a procedural and a
    substantive component.” 
    Mollner, 643 F.3d at 714
    (quoting United States v. Verdin-
    Garcia, 
    516 F.3d 884
    , 895 (10th Cir. 2008)) (internal quotation marks omitted). A
    challenge to the district court’s application of the sentencing guidelines tests the
    sentence’s procedural reasonableness. 
    Id. Pielsticker raises
    four grounds to challenge
    the procedural reasonableness of his sentence. For the first two grounds, he disputes
    the district court’s loss calculation under USSG §§ 2B1.1 and 2T1.1 and the amount
    of restitution. Third, he challenges the district court’s denial of his variance motions.
    Fourth, he contests the district court’s imposing an aggravating-role adjustment for
    his acting as a manager or supervisor of at least five participants in the bank-fraud
    conspiracy. Below, we consider each of Pielsticker’s arguments and affirm.
    I.    Loss Calculation for Guidelines Purposes
    For Count 1’s bank-fraud conspiracy, the district court found that the Bank
    suffered a loss of $11,464,560.08; and for Count 2’s individual tax-fraud (grouped
    with Count 1’s tax-fraud conspiracy), it found that the IRS suffered a loss of
    $10,613,077.95. Based on its finding that Pielsticker entered these offenses from the
    outset, the district court attributed the total bank-fraud and tax-fraud losses to him.
    8
    Pielsticker raises different challenges to the district court’s bank- and tax-fraud
    loss calculations. For the bank-fraud losses, Pielsticker challenges (1) the district
    court’s calculation methodology; (2) its finding that the total loss was
    $11,464,560.08; and (3) its finding that Pielsticker entered the bank-fraud conspiracy
    from its outset. For the tax-fraud calculation, Pielsticker challenges the district
    court’s finding that he entered the tax-fraud conspiracy from its outset.
    When a defendant objects to the district court’s loss calculation, we review
    the district court’s factual findings for clear error and its calculation methodology de
    novo. United States v. Howard, 
    784 F.3d 745
    , 748 (10th Cir. 2015). “[W]e will not
    disturb the district court’s factual findings unless they have no basis in the record,
    and we view the evidence and inferences therefrom in the light most favorable to the
    district court’s determination.” United States v. Hoyle, 
    751 F.3d 1167
    , 1174 (10th
    Cir. 2014).
    A.      The Bank-Fraud Conspiracy
    Under the sentencing guideline for fraud, the amount of loss heavily influences
    the offense level. See USSG § 2B1.1(b)(1). Here, the district court found that
    Pielsticker’s relevant conduct included $11,464,560.08 in bank-fraud losses. Under
    USSG § 2B1.1(b)(1)(K), Pielsticker received a 20-level increase for losses exceeding
    $7 million but not more than $20 million. Pielsticker challenges (1) the district
    court’s calculation methodology; (2) its finding that the total loss was
    $11,464,560.08; and (3) its finding that Pielsticker entered the bank-fraud conspiracy
    9
    from its outset. We hold that the district court did not err in calculating the amount of
    loss and that the record supports its factual findings.
    1.     Calculation Methodology
    Pielsticker challenges the district court’s loss-calculation methodology
    associated with the bank-fraud conspiracy, arguing that the district court failed to
    “articulate any methodology whatsoever.” Appellant Opening Br. at 50. “Loss” under
    the guidelines is the greater of intended or actual loss. USSG § 2B1.1, cmt. n.3(A).
    Actual loss is “the reasonably foreseeable pecuniary harm that resulted from the
    offense.” 
    Id., cmt. n.3(A)(i).
    And pecuniary harm is harm that is monetary or readily
    measureable in money. 
    Id., cmt. n.3(A)(iii).
    In calculating loss, the district court
    “need only make a reasonable estimate of the loss . . . . [and its] loss determination is
    entitled to appropriate deference.” 
    Id., cmt. n.3(c).
    Pielsticker argues that the district court erred by failing to state its
    methodology. But the district court first found that Arrow’s inflated invoices totaled
    $20,922,058.25, and then subtracted Recourse Accounts and credits to arrive at the
    Bank’s total loss of $11,464,560.08. From this, we have no problem identifying the
    district court’s methodology in calculating actual loss. And this methodology met
    § 2B1.1’s direction to reduce loss by “the money returned.” USSG § 2B1.1, cmt.
    n.3(E)(i).
    Thus, we find that Pielsticker has failed to demonstrate that the district court
    employed an improper loss-calculation methodology.
    10
    2.     Amount of the Bank-Fraud Loss
    Pielsticker challenges the district court’s finding that the Bank suffered
    $11,464,560.08 in bank-fraud loss, arguing that this amount lacks evidentiary
    support. Based on the Bank’s May 1, 2015 victim-impact statement, the PSR
    calculated $11,464,560.08 in loss. In response, Pielsticker objected to the Bank’s
    “bare conclusion of its loss, without any supporting back-up.” Appellant App. vol. 4
    at 672. He also objected to the PSR, mentioning that the Bank had asserted different
    loss amounts over time and questioning whether the Bank had reduced its claim by
    legitimate invoice amounts and collections after the fraud. In its revised PSR, the
    probation office rejected Pielsticker’s objection, explaining in an addendum that the
    Bank’s loss calculations had decreased after “accounting for recourses and payment
    of legitimate invoices.” Appellant App. vol. 5 at 919. The probation office
    acknowledged that the Bank’s loss calculation had fluctuated, but noted that the
    calculated losses averaged $12,284,523.
    Had the record ended here, we might sympathize more with Pielsticker’s
    position. But instead the record shows that four days before Pielsticker’s October 8,
    2015 sentencing, Pielsticker’s counsel entered into a “Stipulation Regarding
    Testimony of [the Bank] Representatives” to enable the court to accept the
    stipulation’s contents as the Bank’s testimony in lieu of having a representative
    11
    testify.5 Appellant App. vol. 3 at 621. Included within this testimony was the
    following:
    During the course of the scheme, Arrow submitted false invoices to [the
    Bank] totaling at least $20,900,000. As a result, [the Bank] suffered a
    loss of at least $11,400,000. This is a conservative calculation of [the
    Bank’s] losses resulting directly from the Accounts Receivable . . . .
    This loss takes into account all collection activity, including collateral
    obtained after Arrow closed.
    Appellant App. vol. 3 at 622.
    This testimony supports the district court’s bank-fraud loss finding by
    bolstering the Bank’s victim-impact statement with testimony. Using a “conservative
    calculation,” the Bank’s written testimony estimates the Bank’s losses near the
    Bank’s slightly higher6 figure in its victim-impact statement from four months
    earlier. Appellant App. vol. 3 at 623. And, because Pielsticker stipulated to the
    written statement as the Bank’s testimony, the district court was entitled to rely on it
    as evidence. United States v. Spann, 
    515 F.2d 579
    , 580-83 (10th Cir. 1975) (stating
    5
    At oral argument, Pielsticker’s counsel cryptically justified the decision to
    stipulate but later maintain his present position as being for tactical reasons. Oral
    Argument at 4:30-4:32. Whatever tactical reason Pielsticker had for stipulating—to
    require a remand for a more precise calculation?—his stipulation certainly means that
    he chose not to cross-examine the Bank’s witnesses about the bases for their loss
    figure. His stipulating led to his present complaint—and hurt the district court’s
    ability to hear more precise information on loss.
    6
    For some reason, the Bank, in the written testimony stipulated for admission
    to the district court, rounded its losses to $11.4 million, rather than use the more
    precise $11,464,560.08 given in its victim-impact statement and used in the PSR. The
    Bank’s written testimony described its rounded number as a “conservative estimate.”
    Appellant App. vol. 3 at 623.
    12
    that a jury may rely on testimony admitted into evidence by the parties’ stipulation in
    reaching its decision).
    Now Pielsticker attacks the Bank’s written testimony as unreliable for stating
    an unsupported conclusion. He argues that to calculate the bank-fraud losses
    properly, the district court would need to analyze each of the “hundreds, if not
    thousands, of inflated invoices” for fraud, for recourse payments, and for any other
    collections. Appellant Opening Br. at 46. In other words, Pielsticker challenges the
    worth of the very evidence he stipulated be admitted at sentencing. By stipulating and
    forfeiting any cross-examination of live testimony from Bank witnesses, Pielsticker
    deprived the district court, and us, of the Bank’s proof in response. In this
    circumstance, with the Bank’s written testimony properly before it, the district court
    had a sufficient basis to establish guideline loss. See United States v. Abbo, 515 F.
    App’x 764, 770 (10th Cir. 2013) (unpublished) (stating that a stipulation to admit
    into evidence a witness’s testimony in lieu of live testimony “waive[s] any right to
    challenge the admissibility of the evidence on foundational grounds”) (citing United
    States v. Aptt, 
    354 F.3d 1269
    , 1281 (10th Cir. 2004)).
    Because the district court properly received the Bank’s written testimony, the
    district court could rely on it in making its bank-fraud loss calculation.
    3.     Date of Entry into the Bank-Fraud Conspiracy
    Pielsticker raises an additional challenge to the district court’s bank-fraud loss
    calculation by disputing its finding that he entered the bank-fraud conspiracy from its
    outset. He asserts that he entered the bank-fraud conspiracy late, and thus was
    13
    responsible for a portion of the total bank-fraud loss, specifically $7,537,948.25 (as
    the PSR found), or less. To find that Pielsticker entered the bank-fraud conspiracy
    from the outset, the district court relied on Moore’s testimony from the sentencing
    hearing. Moore testified that by May 2009, when the bank-fraud conspiracy began,
    Pielsticker had decided “[Arrow] just need[ed] to create another invoice like . . . the
    first time.” Appellant App. vol. 3 at 459. And from that point on, either Mowry or
    Pielsticker authorized the inflated amounts that Arrow billing clerks sent the Bank.
    Pielsticker doesn’t dispute that Moore’s testimony supported the district
    court’s finding. Rather, he argues that the district court erred in finding Moore
    credible. When the district court bases its findings on determinations regarding the
    witnesses’ credibility, “Rule 52(a) demands even greater deference to the trial court’s
    findings; for only the trial judge can be aware of the variations in demeanor and tone
    of voice that bear so heavily on the listener’s understanding of and belief in what is
    said.” Anderson v. City of Bessemer City, N.C., 
    470 U.S. 564
    , 575 (1985). Unless the
    witness’s story is internally inconsistent or contradicted by objective evidence or
    documents, we will “virtually never” reverse for clear error. 
    Id. On three
    grounds, Pielsticker argues that Moore’s testimony was not credible.
    First, Pielsticker asserts that Moore gave conflicting testimony about the number of
    times that Pielsticker authorized the inflated amounts. The record shows that on
    direct examination, Moore testified that either Mowry or Pielsticker authorized the
    inflated invoices. On cross-examination, Moore clarified that Pielsticker, as opposed
    to Mowry, authorized the inflated invoices about 25-30 percent of the time. Despite
    14
    Pielsticker’s contention, Moore’s apportionment between Mowry and Pielsticker is
    consistent with his statement that either Mowry or Pielsticker authorized the inflated
    amounts.
    Second, Pielsticker contends that an e-mail Moore sent on August 15, 2009
    contradicts his testimony. In his August 15 e-mail, referring to the inflated invoices,
    Moore stated, “I have no guilt about the fluff.” Appellant App. vol. 3 at 509. On
    direct, he testified that Pielsticker was a “tyrant.” Appellant App. vol. 3 at 433. These
    statements aren’t inconsistent.
    Third, Pielsticker contends that statements from other Arrow employees
    contradicted Moore’s testimony. The district court’s decision to credit one
    individual’s testimony over another’s is “virtually never . . . clear error.” 
    Anderson, 470 U.S. at 575
    . And our review of the record shows that at least one of these Arrow
    employees lacked personal knowledge of Pielsticker’s involvement in the bank-fraud
    conspiracy.7
    Because Pielsticker has failed to show that Moore’s testimony was “so
    internally inconsistent or implausible on its face,” 
    id., the district
    court could find
    Moore credible. Thus, the district court did not clearly err in finding that Pielsticker
    entered the bank-fraud conspiracy from the outset based on Moore’s testimony.
    7
    For example, Arrow’s billing clerk, Michelle Bullard, stated in her Bank
    interview that she never communicated with Pielsticker about the practice of inflating
    invoices.
    15
    Therefore, we affirm the district court’s finding that the Bank suffered
    $11,464,560.08 in bank-fraud loss.
    B.     Date of Entry into Tax-Fraud Conspiracy
    Pielsticker disputes the district court’s finding that the IRS suffered
    $9,562,121.95 in loss for Count 1’s tax-fraud conspiracy.8 He argues that this amount
    lacks evidentiary support. Similar to his bank-fraud loss argument, Pielsticker
    specifically challenges the district court’s finding that he entered the tax-fraud
    conspiracy from its outset. Here, too, Pielsticker asserts that he entered the tax-fraud
    conspiracy late, and thus is responsible for only a portion of the total tax-fraud loss.
    To find that Pielsticker entered the tax-fraud conspiracy from the outset, the district
    court relied on Moore’s testimony from the sentencing hearing. Pielsticker argues
    that Moore’s testimony was insufficient to establish that Pielsticker knowingly
    participated in the tax-fraud conspiracy from the outset.
    “A defendant convicted of conspiracy is accountable for reasonably
    foreseeable conduct in furtherance of the jointly undertaken criminal activity.”
    United States v. Dazey, 
    403 F.3d 1147
    , 1176 (10th Cir. 2005). The district court must
    make “particularized findings about, the scope of the specific agreement the
    individual defendant joined in relation to the conspiracy as a whole.” 
    Id. (quoting United
    States v. Melton, 
    131 F.3d 1400
    , 1404 (10th Cir. 1997)). A defendant is not
    accountable for the conduct of coconspirators “prior to the defendant joining the
    8
    Pielsticker does not challenge the tax-loss amount for Count 2’s individual
    tax-fraud, which was $1,050,956.
    16
    conspiracy, even if the defendant knows of that conduct.” 
    Id. (quoting USSG
    § 1B1.3, cmt. n.2). For sentencing purposes, the government’s burden of proof is by a
    preponderance of the evidence. United States v. Cook, 
    550 F.3d 1292
    , 1294-95 (10th
    Cir. 2008).
    The evidence was sufficient to establish that Pielsticker participated in the tax-
    fraud conspiracy from the outset. At Pielsticker’s sentencing, Moore testified that he
    conversed daily with Pielsticker about Arrow’s cash-flow problems and that
    Pielsticker decided the order in which to pay Arrow’s creditors. Moore also testified
    that Pielsticker knew from the outset (January 2009) that Arrow was withholding
    payroll taxes from its employees’ wages without remitting these withholdings to the
    IRS, yet Pielsticker still directed Arrow to pay his personal expenses ahead of the
    IRS. As mentioned above, the district court did not err in finding Moore credible.
    Thus, the record supports the district court’s finding that Pielsticker entered the tax-
    fraud conspiracy from its outset.
    II.   Restitution
    Under the Mandatory Victims Restitution Act (MVRA), 18 U.S.C. § 3663A,
    the district court ordered Pielsticker to pay $21,026,682.03 in restitution, jointly and
    severally with Moore on Count 1, and $1,050,956 on Count 2. Pielsticker challenges
    the $21,026,682.03.9 This amount represented the $11,464,560.08 owed to the Bank
    and the $9,562,121.95 owed to the IRS for Count 1’s tax-fraud conspiracy. The
    9
    Pielsticker doesn’t challenge the Count 2 restitution for $1,050,956.
    17
    district court determined this amount based on its bank-fraud and tax-fraud loss
    calculations. Pielsticker argues that the government insufficiently proved its loss and
    restitution. We conclude that the record supports the district court’s restitution order.
    “We review the district court’s application of the MVRA de novo and its
    factual findings for clear error.” United States v. Ferdman, 
    779 F.3d 1129
    , 1131
    (10th Cir. 2015). We ultimately assess a district court’s restitution amount for an
    abuse of discretion. 
    Id. Restitution seeks
    to ensure that victims, if possible, “are made whole for their
    losses.” United States v. Parker, 
    553 F.3d 1309
    , 1323 (10th Cir. 2009) (quoting
    United States v. Arutunoff, 
    1 F.3d 1112
    , 1121 (10th Cir. 1993)). Restitution restores
    actual loss but does not “unjustly enrich crime victims or provide them a windfall.”
    
    Ferdman, 779 F.3d at 1132
    . “[T]he determination of an appropriate restitution
    amount is by nature an inexact science.” United States v. James, 
    564 F.3d 1237
    , 1247
    (10th Cir. 2009) (quoting United States v. Williams, 
    292 F.3d 681
    , 688 (10th Cir.
    2002)) (internal quotation marks omitted). The district court may “draw inferences
    from the totality of the circumstances through . . . ‘logical and probabilistic
    reasoning.’” United States v. Ahidley, 
    486 F.3d 1184
    , 1189 (10th Cir. 2007) (quoting
    United States v. Atencio, 
    435 F.3d 1222
    , 1232 (10th Cir. 2006)). Because the MVRA
    requires “information sufficient for the court to exercise its discretion in fashioning a
    restitution order,” 18 U.S.C. § 3664(a), “[s]peculation and rough justice are not
    permitted.” 
    Ferdman, 779 F.3d at 1133
    (quoting United States v. Anderson, 
    741 F.3d 938
    , 954 (9th Cir. 2013)). In arriving at a restitution amount, district courts decide
    18
    disputes using a preponderance-of-evidence standard, and assign the government the
    burden of proof. See 18 U.S.C. § 3664(e); Parker, 553 at 1323.
    Contesting the restitution amount, Pielsticker complains that the district court
    (1) “rubber stamped” the PSR’s conclusory statement of the bank-fraud loss; (2)
    based the bank-fraud and tax-fraud losses on its erroneous finding that Pielsticker
    entered the conspiracies at the outset; and (3) failed to articulate any calculation
    methodology. Appellant Opening Br. at 27.
    For his first ground—that the district court simply “rubber stamped” the PSR’s
    bank-fraud loss without sufficient evidence—Pielsticker relies on Ferdman. In
    Ferdman, the defendant was convicted of fraudulently procuring Sprint 
    phones. 779 F.3d at 1131
    . Before sentencing, Sprint representatives submitted an unsworn and
    unverified letter to the probation office, listing Sprint’s losses. 
    Id. at 1133.
    Although
    it claimed lost sales, Sprint never provided affidavits or receipts verifying these lost
    sales. 
    Id. at 1134.
    Despite this, in making its restitution recommendation, the PSR
    adopted Sprint’s lost-sales claim. 
    Id. Like Pielsticker,
    the defendant in Ferdman
    challenged the sufficiency of proof of the loss amount. 
    Id. Faced with
    the defendant’s
    objection, the government simply relied on the PSR and didn’t introduce supporting
    evidence. 
    Id. at 1135.
    After the district court adopted the PSR’s restitution figure, we
    reversed, concluding that “[t]he record contains no actual proof, not even an
    affidavit, of what those expenses were.” 
    Id. at 1140.
    Pielsticker’s restitution order is stronger in at least two ways. First, unlike in
    Ferdman, here the district court had testimony to support its loss finding. After
    19
    Pielsticker first challenged the Bank’s figures for its bank-fraud losses, he stipulated
    to the Bank’s written testimony, bolstering the PSR’s and victim-impact statement’s
    figure. Because the district court may “draw inferences from the totality of the
    circumstances” in exercising its discretion, 
    Ahidley, 486 F.3d at 1189
    , it could infer
    that the Bank rounded its loss estimate to $11,400,000 in its written testimony and
    gave the precise amount of $11,464,560.08 in its victim-impact statement. We also
    note that Pielsticker himself credited the precise figure in his objections to the PSR
    estimating the loss attributable to him as “38.36 percent of $11,464,560.” Appellant
    App. vol. 5 at 918. Thus, we cannot say that the district court abused its discretion in
    relying on the testimony and ordering the sum it did as restitution. Second, unlike in
    Ferdman, the district court had no need to value property such as phones or to
    determine a valuation method for lost 
    profits. 779 F.3d at 1134
    . Here, the district
    court’s task was much simpler—to determine the total overbillings and then subtract
    recourses or credits. The district court did just that. And, in doing so, it could rely on
    the calculation set out in the Bank’s testimony that Pielsticker stipulated be admitted
    into evidence. Once the district court had this sufficient basis behind its restitution
    amount, it acted in its discretion to adopt that amount.10
    10
    To show an abuse of discretion on appeal, Pielsticker needs to show that he
    did more at sentencing than generally object. Pielsticker chose not to cross-examine a
    Bank witness offering live testimony about the restitution calculation. In addition, he
    chose to present nothing undermining the Bank’s evidence that he stipulated be
    admitted as a government exhibit at the sentencing hearing. In this regard, we
    observe that Pielsticker knew which invoices Arrow had inflated and which debtors
    20
    Pielsticker’s second ground—that the district court erred in finding that
    Pielsticker entered the conspiracies at the outset—is a factual finding that we review
    for clear error. United States v. Masek, 
    588 F.3d 1283
    , 1287 (10th Cir. 2009). In
    finding as it did, the district court found Moore credible and relied on his testimony.
    “We give the district court’s determinations regarding the credibility of witnesses
    great deference.” 
    Id. at 1288
    (quoting Wessel v. City of Albuquerque, 
    463 F.3d 1138
    ,
    1145 (10th Cir. 2006)). Under our deferential review, we find no error in the district
    court’s finding that Pielsticker entered the conspiracies at the outset.
    For his third ground, Pielsticker asserts that the district court failed to
    articulate a calculation methodology. Under the MVRA, the district “court must use
    actual loss as its metric.” 
    Id. As we
    stated above, where the district court first found
    that Arrow’s inflated invoices totaled $20,922,058.25, and then subtracted Recourse
    Accounts and credits to arrive at the Bank’s total loss of $11,464,560.08, we see the
    district court’s methodology clearly. Thus, the district court did not abuse its
    discretion in ordering Pielsticker to pay $21,026,682.03 in restitution on Count 1.
    III.   Motions for Variance
    Pielsticker filed two pre-sentence motions for variance.11 After hearing
    arguments from both parties at sentencing, the district court denied the motions. We
    associated with those invoices could testify about credits and recourses. After all,
    Moore and the billing clerks kept track of the overbilled amounts on a spreadsheet.
    11
    Pielsticker also filed a motion for downward departure, which the district
    court denied. He failed to challenge this on appeal.
    21
    review the district court’s decision to grant or deny a request for variance for an
    abuse of discretion. United States v. Haley, 
    529 F.3d 1308
    , 1311 (10th Cir. 2008)
    (reviewing the district court’s denial of a variance motion for an abuse of discretion).
    A district court abuses its discretion when it renders a judgment that is arbitrary,
    capricious, whimsical, or manifestly unreasonable. 
    Id. A. Medical-Condition
    Variance
    Pielsticker based his first motion for variance on his heart condition. He argues
    that the district court unreasonably denied the motion for variance by failing to
    consider the 18 U.S.C. § 3553(a) factors. In his motion and during sentencing,
    Pielsticker presented evidence that he relies on an implant to shock his heart when it
    fails or becomes arrhythmic; and that he needs to replace the implant. His treating
    cardiologist stressed that Pielsticker was at a “GREAT risk of death” and worried
    how prison might affect his medical condition. Appellant App. vol. 1 at 73-74.
    As a matter of procedural reasonableness, because Pielsticker’s sentence falls
    within the advisory Guidelines’ range, § 3553(c) requires that the district court state
    “the reasons for its imposition of the particular sentence.” 18 U.S.C. § 3553(c);
    United States v. McComb, 
    519 F.3d 1049
    , 1054 (10th Cir. 2007). The district court
    meets this threshold when it provides a “general discussion”12 of the § 3553(a)
    factors. 
    Geiner, 498 F.3d at 1113
    . Despite Pielsticker’s contention that the district
    12
    Though we also noted that this “is not necessarily the best practice.” United
    States v. Geiner, 
    498 F.3d 1104
    , 1113 (10th Cir. 2007).
    22
    court failed to consider the § 3553(a) factors, the record shows that the district court
    provided more than a general discussion.
    Without explicitly listing the § 3553(a) factors, the district court considered
    the need “to provide the defendant with . . . medical care.” 18 U.S.C.
    § 3553(a)(2)(D). Based on a Bureau of Prisons’ (the “Bureau”) representation, the
    district court found that Pielsticker could have his implant replaced in a federal
    medical facility. It also found that Pielsticker’s “heart condition is not so
    extraordinary or unusual as to distinguish [his] case from typical cases covered by the
    guidelines.” Appellant App. vol. 3 at 585. Evidence from the record supported this
    finding, including (1) Pielsticker’s failure to have surgery within the eight months
    leading up to sentencing; (2) the Bureau’s representation that it had a federal medical
    facility capable of performing the replacement;13 and (3) Pielsticker’s ability to
    engage in normal life activities. Thus, the district court did not abuse its discretion in
    denying Pielsticker’s first motion for variance.
    13
    Pielsticker argues that the Bureau’s representation is “a double hearsay ex
    parte communication about a mission-critical fact.” Appellant Opening Br. at 43. But
    at sentencing, the district court can credit “relevant information without regard to its
    admissibility . . . provided that the information has sufficient indicia of reliability to
    support its probable accuracy.” USSG § 6A1.3(a); see United States v. Friedman, 499
    F. App’x 807, 810-11 (10th Cir. 2012) (unpublished) (finding that the record
    suggested no prejudice from an assumed ex parte communication with the United
    States Marshals).
    23
    B.     Anticipated-Amended Loss Table
    Pielsticker based his second motion for variance on a pending amendment to
    the 2015 sentencing guidelines. As mentioned above, the district court applied the
    2014 sentencing guidelines, which imposed a 20-level enhancement for losses of
    more than $7 million and not more than $20 million. USSG § 2B1.1(b)(1)(K).
    Beginning November 1, 2015, an amendment to the fraud-loss table in USSG § 2B1.1
    increased the threshold for a 20-level enhancement from $7 million to $9.5 million.
    USSG § 2B1.1(b)(K) (U.S. Sentencing Comm’n 2015). Based on Pielsticker’s
    assuming that the district court erred by finding that he entered the bank-fraud
    conspiracy at its outset, he argues that the district court ignored the “parsimony
    principle” of § 3553(a) by not applying the 2015 guidelines. Appellant Opening Br.
    at 38. This argument fails because the district court did not abuse its discretion in
    finding that Pielsticker joined the conspiracy at its outset, 
    see supra
    Discussion
    Sections I(A)(2), and (3).
    IV.    Manager or Supervisor Enhancement
    For his role as a “manager or supervisor” of a conspiracy consisting of five or
    more participants, Pielsticker received a three-level increase under USSG
    § 3B1.1(b).14 Pielsticker argues that the district court clearly erred in finding that he
    was a manager or supervisor of the bank-fraud conspiracy under USSG § 3B1.1(b)
    14
    USSG § 3B1.1(b) states in part as follows: “If 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, increase by 3 levels.” (emphasis
    added).
    24
    because the evidence was insufficient to support the enhancement. He contends that
    (1) the conspiracy consisted of fewer than five participants, and (2) that Moore
    supervised or managed the conspiracy.
    We review the district court’s fact findings for clear error. United States v.
    Zar, 
    790 F.3d 1036
    , 1056 (10th Cir. 2015). In doing so, we view the evidence in the
    light most favorable to the district court’s finding. United States v. Mozee, 
    405 F.3d 1082
    , 1088 (10th Cir. 2005). Only if “on the entire evidence, we are left with a
    definite and firm conviction that a mistake has been committed” will we reverse. 
    Zar, 790 F.3d at 1056
    (quoting United States v. James, 
    592 F.3d 1109
    , 1113 (10th Cir.
    2010)).
    First, in determining the number of participants, the guidelines define
    “participant” as “a person who is criminally responsible for the commission of the
    offense, but need not have been convicted.” USSG § 3B1.1(b), cmt. n.1. Because the
    defendant counts as a participant, the district court properly counted Pielsticker as
    one of the five participants. United States v. Hardwell, 
    80 F.3d 1471
    , 1496 (10th Cir.
    1996) (“In determining whether there were five or more participants, the defendant is
    included.”). And Pielsticker acknowledges that Moore and Mowry also counted; but
    he contests whether other Arrow employees qualified. Over Pielsticker’s contention,
    we find that the record supports the district court’s finding that Elaine Cox, Michelle
    Bullard, and Tom Webster also acted as participants.
    As for criminal responsibility, in their interviews with the Bank, Cox and
    Bullard admitted that they inflated invoices for Arrow. Specifically, Cox testified
    25
    that, “each day either Michelle or myself was given a dollar amount we were
    supposed to bill for that day.” Appellee App. at 38. And Bullard testified that, “we
    would just inflate like two invoices, maybe just one invoice, for a very large dollar
    amount.” Appellee App. at 12. Similarly, in his FBI interview, Webster said that he
    had answered calls for the Bank audit, posing as an Arrow customer to reassure the
    Bank that the inflated invoices were legitimate. Thus, the record supports the district
    court’s finding that the bank-fraud conspiracy involved at least five participants.
    Second, Pielsticker disputes whether he was a manager or supervisor of the
    bank-fraud conspiracy. If Pielsticker “exercised any degree of direction or control
    over someone subordinate to him,” then he qualifies as a manager or supervisor.
    United States v. Backas, 
    901 F.2d 1528
    , 1530 (10th Cir. 1990). His supervision of
    just one other participant satisfies the definition. United States v. Cruz Camacho, 
    137 F.3d 1220
    , 1224 (10th Cir. 1998).
    The record supports the district court’s finding that Pielsticker was a
    supervisor or manager of at least one other participant. In his FBI interview, Webster
    recounted answering the Bank’s audit calls to validate the inflated invoices. After
    answering calls the first time, he told Pielsticker that Moore had asked him to answer
    calls a second time. To this, Pielsticker responded, “do it.” Appellant App. vol. 2 at
    230. This command shows that Pielsticker exercised some degree of direction or
    control over Webster. Thus, the district court properly found that Pielsticker was a
    manager or supervisor.
    26
    CONCLUSION
    For the reasons stated above, we AFFIRM Pielsticker’s sentence and the
    district court’s restitution order.
    Entered for the Court
    Gregory A. Phillips
    Circuit Judge
    27