USCA11 Case: 21-10777 Date Filed: 09/13/2022 Page: 1 of 8
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-10777
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAVID JOHN RIDLING,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 6:19-cr-00243-PGB-EJK-1
____________________
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2 Opinion of the Court 21-10777
Before WILSON, BRANCH, and LAGOA, Circuit Judges.
PER CURIAM:
Defendant-Appellant David Ridling challenges his 180-
month sentence for wire fraud, bank fraud, money laundering, and
aggravated identity theft. The district court applied a 22-level in-
crease to Ridling’s offense level based on a finding that Ridling in-
tended to cause victims a loss of more than $52 million. In calcu-
lating the intended loss amount, the district court equated “indif-
ference or reckless disregard” to intent. Intended loss, however,
refers only to losses the defendant purposely inflicted. The district
court thus erred in applying a recklessness standard to determine
the amount of loss. Accordingly, we vacate and remand for resen-
tencing.
I
We assume the parties are familiar with the facts and proce-
dural history of this case. To summarize, Ridling is a 60-year-old
farmer from Vero Beach, Florida. Between 2016 and 2019, he de-
frauded a number of lenders. To gain access to loans and lines of
credit, Ridling lied about his assets and fabricated documents, in-
cluding tax returns and account statements. He also set up fake
email accounts to impersonate Charles Schwab account represent-
atives. He then used the loans and lines of credit for farming ma-
chinery, farmland, two trucks (one of them customized), and a
trailer. Occasionally, Ridling also used funds from one loan to pay
off another loan.
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21-10777 Opinion of the Court 3
A federal grand jury charged Ridling with wire fraud, in vio-
lation of
18 U.S.C. § 1343 (Counts 1–10), bank fraud, in violation of
18 U.S.C. § 1344 (Counts 11–14), money laundering, in violation of
18 U.S.C. § 1957 (Counts 15–22), and aggravated identity theft, in
violation of 18 U.S.C. § 1028A(a)(1) (Counts 23–24). Without a
written plea agreement, Ridling pleaded guilty.
A presentence investigation report (PSI) calculated Ridling’s
initial base offense level for Counts 1–22 as 7, but a 24-level en-
hancement applied because of the loss amount. Under the Sen-
tencing Guidelines, loss is calculated as the greater of actual loss or
intended loss. U.S.S.G. § 2B1.1, cmt. n.3(A). The PSI listed in-
tended loss as approximately $69.9 million.
Ridling objected. He argued first that the $69.9 million in-
tended-loss figure was incorrectly calculated and that, based on the
numbers identified in the PSI, the correct calculation was just over
$52.7 million. Second, he pointed out that intended loss is the “pe-
cuniary harm that the defendant purposely sought to inflict.” Id. §
2B1.1, cmt. n.3(A)(ii). According to Ridling, he did not purposely
harm anyone; he intended to repay the loans he took out and, in
fact, he did repay some of the loans. As a result, he urged the court
to sentence him based on actual loss, which he said was $10.8 or
$16.8 million. The lower loss amount would have translated to a
less severe increase in his offense level.
The Probation Office rejected the argument that Ridling
should be sentenced based on actual loss, but it issued an updated
PSI listing the intended loss as $52,719,192.89. That figure included
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4 Opinion of the Court 21-10777
loans Ridling applied for but never received, and lines of credit he
was approved for but never used. With a total intended loss
amount of roughly $52.7 million, Ridling fell within the scope of
U.S.S.G. § 2B1.1(b)(1)(L), which requires a 22-level increase for
losses between $25 and $65 million. Next, the PSI added two levels
because the offense involved sophisticated means, two levels be-
cause Ridling derived more than $1 million in gross receipts from
one or more financial institutions as a result of the offense, and one
level because Ridling was convicted under
18 U.S.C. § 1957. The
PSI then subtracted two levels for acceptance of responsibility, and
one level because Ridling timely notified authorities of his intent to
enter a guilty plea. His total offense level was 31.
At the sentencing hearing, Ridling continued to object to the
PSI’s application of intended loss. He argued that he intended to
repay all the loans. The district court rejected Ridling’s argument,
observing that he operated his scheme without regard to the harm
he might cause. Relying on nonbinding precedent, United States
v. Morrison,
713 F.3d 271 (5th Cir. 2013), the district court held that
“when we’re talking about intended loss, we’re talking about
whether there is indifference or reckless disregard for the ability to
repay.” Applying a recklessness standard, the district court adopted
the PSI’s intended loss amount of $52,719,192.89.
With a total offense level of 31 and a criminal history cate-
gory of I, Ridling’s Guideline range for Counts 1–22 was 108 to 135
months. The district court imposed a 132-month sentence on
those counts, along with 24-month sentences on each of Counts 23
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21-10777 Opinion of the Court 5
and 24. The result was a total sentence of 180 months (15 years), 3
years longer than what the prosecution had recommended. The
court also ordered Ridling to pay $10,910,851.43 in restitution. In
imposing the sentence, the court told Ridling “I think you were
hoping to pay off litigation with additional fraud. And maybe you
had hoped that somehow a crop would come in or something else
would materialize and you would make this all go away, but you
were too far in the hole by the time any of that could have come
to realization.” Ridling timely appealed his sentence.
II
We review for clear error the district court’s factual findings
as to the amount of loss, but we review de novo the district court’s
application of the Sentencing Guidelines to those facts. United
States v. Corbett,
921 F.3d 1032, 1037 (11th Cir. 2019).
On appeal, Ridling argues that the district court erroneously
applied a recklessness standard in assessing the amount of loss. Un-
der the correct standard, Ridling says, the amount of loss and his
resulting offense level would have been lower. 1 The government
responds that Ridling invited the error, and, alternatively, that he
failed to preserve the issue below.
1 Ridlingalso argues that the district court imposed a substantively and proce-
durally unreasonable sentence. Because we are vacating Ridling’s sentence
and remanding for a determination of the loss amount, we make no comment
on whether Ridling’s sentence was reasonable.
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6 Opinion of the Court 21-10777
As to invited error, “[i]t is a cardinal rule of appellate review
that a party may not challenge as error a ruling or other trial pro-
ceeding invited by that party.” Birmingham Steel Corp. v. Tenn.
Valley Auth.,
353 F.3d 1331, 1341 n.5 (11th Cir. 2003). The govern-
ment says that Ridling invited the court to (1) apply a recklessness
standard, and (2) use $52,719,192.89 as the intended loss amount.
On the first point, it is true that Ridling’s sentencing memorandum
cited a Fifth Circuit case, Morrison,
713 F.3d 271, which endorsed
a recklessness standard. But defense counsel cited Morrison only
for the proposition that actual loss—not intended loss—is the
proper metric where there is evidence of intention to repay the
loans. Defense counsel never asked the court to apply a reckless-
ness standard. On the second point, context is important. An early
version of the PSI made mathematical errors and listed intended
loss at $69.9 million. Defense counsel identified those errors and
argued that the correct tabulation was roughly $52.7 million. But
Ridling also objected to the PSI’s use of intended loss, rather than
actual loss, to calculate the amount of loss. And defense counsel
urged the court not to sentence Ridling using intended loss at all,
maintaining that “Mr. Ridling intended to repay everyone.” He
asked the court to use actual loss instead. So although defense
counsel was imprecise in framing his argument, we cannot say that
he invited the court to sentence Ridling based on an intended loss
amount of $52,719,192.89.
Nor did defense counsel fail to preserve an objection to how
the district court calculated the amount of loss in the proceedings
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21-10777 Opinion of the Court 7
below. He argued in his sentencing memorandum that: (1) “in-
tended loss” is defined as “pecuniary harm that the defendant pur-
posely sought to inflict,” (2) Ridling did not purposely inflict a loss,
and (3) the court should thus sentence Ridling based on actual loss.
At the sentencing hearing, defense counsel emphasized once again
that Ridling did not intend to harm anyone, and that “[h]e was hop-
ing eventually that the crop would come in, so to speak, and that
he would be able to repay everyone.” Therefore, Ridling did not
waive or forfeit his objection to the amount of loss.
Turning to the merits, then, we find that the district court
erred in applying a recklessness standard to determine intended
loss. The Sentencing Guidelines make clear that intended loss is
“the pecuniary harm that the defendant purposely sought to in-
flict.” 2 U.S.S.G. § 2B1.1, cmt. n.3(A)(ii) (emphasis added). And the
difference between acting recklessly and purposely is significant, as
recklessness is a “less culpable mental state.” Borden v. United
States,
141 S. Ct. 1817, 1821–22 (2021). Therefore, the district court
erred by holding Ridling responsible for intended loss based on
recklessness.
As for actual loss, which is defined as “the reasonably fore-
seeable pecuniary harm that resulted from the offense,” the PSI
2 We have held that the commentary for a guideline is “authoritative ‘unless it
violates the Constitution or a federal statute, or is inconsistent with, or a
plainly erroneous reading of, that guideline.’” United States v. Cingari,
952
F.3d 1301, 1308 (11th Cir. 2020) (quoting Stinson v. United States,
508 U.S. 36,
38 (1993)).
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8 Opinion of the Court 21-10777
does not appear to have calculated the total amount, and the dis-
trict court does not appear to have made a factual finding on the
matter. See U.S.S.G. § 2B1.1, cmt. n.3(A)(i). Because the amount
of loss is a finding for the district court to make in the first instance,
we remand for the district court to calculate intended and actual
loss under the proper standards. On remand, the district court
should take additional evidence if needed and recalculate the
Guideline range if its findings so require. Accordingly, we vacate
Ridling’s sentence and remand for resentencing in accordance with
this opinion.
VACATED and REMANDED.
