United States v. Jeffrey Kinseth , 599 F. App'x 603 ( 2014 )

United States Court of Appeals
For the Eighth Circuit
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No. 13-3515
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Jeffrey J. Kinseth
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Northern District of Iowa - Cedar Rapids
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Submitted: June 13, 2014
Filed: June 30, 2014
[Unpublished]
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Before LOKEN, BRIGHT, and GRUENDER, Circuit Judges.
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PER CURIAM.
Jeffrey Kinseth appeals the district court’s1 imposition of a 51-month sentence
of incarceration following his guilty plea to one count of wire fraud in violation of
18 U.S.C. § 1343. Kinseth argues that his sentence is substantively unreasonable.
Having jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742, we affirm.
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The Honorable Linda R. Reade, Chief Judge, United States District Court for
the Northern District of Iowa.
Between approximately March 2008 and September 2009, Kinseth used his
company, Virtual Vision, to solicit and accept hundreds of thousands of dollars from
at least eleven individual investors. Kinseth represented to the investors that they
would receive substantial returns knowing in many instances that he would not invest
the money and would use it instead to make payments to earlier investors. Kinseth
also used at least $405,295 of investor funds to pay personal bills and expenses, such
as his monthly mortgage payment. Additionally, the investor funds that Kinseth
actually traded consistently sustained losses. Kinseth would at times conceal losses
and misappropriation by issuing statements to investors that falsely reflected profits.
Kinseth also sent several email messages to investors falsely promising them returns
on their money. In all, Kinseth’s conduct resulted in total victim losses of over
$1,000,000.
On July 29, 2013, the district court accepted Kinseth’s guilty plea to one count
of wire fraud in violation of 18 U.S.C. § 1343. At the sentencing hearing held on
October 31, 2013, the parties withdrew their objections to the presentence
investigation report and stipulated to a Guidelines range of 41-51 months. The
district court accepted the parties’ calculation and sentenced Kinseth to the top of the
Guidelines range—51 months (4 years, 3 months)—in addition to 3 years of
supervised probation and $1,107,414.51 in restitution. Kinseth filed a timely notice
of appeal of the judgment. On appeal, Kinseth challenges only the substantive
reasonableness of his sentence.
In reviewing the substantive reasonableness of a sentence, whether inside or
outside the Guidelines range, we apply “‘a deferential abuse-of-discretion standard.’”
United States v. Hayes, 518 F.3d 989, 996 (8th Cir. 2008) (quoting Gall v. United
States, 552 U.S. 38, 52 (2007)). “An abuse of discretion occurs when: (1) a court
fails to consider a relevant factor that should have received significant weight; (2) a
court gives significant weight to an improper or irrelevant factor; or (3) a court
considers only the appropriate factors but in weighing them commits a clear error of
judgment.” United States v. Williams, 624 F.3d 889, 899 (8th Cir. 2010).
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Kinseth argues that the district court placed undue weight on the nature and
effect of his crime in imposing his sentence without considering a number of
mitigating factors, including the unlikelihood that he will recidivate, his lack of
criminal history, and the “aberrant” nature of his crime. The district court was not
persuaded by these arguments and instead gave particular weight to Kinseth’s failure
to make efforts to repay his victims prior to sentencing in addition to the “horrible
impact” of his crime. The district court did not err in considering these factors nor
“assign[ing] [them] greater weight than others in determining an appropriate
sentence.” United States v. Bridges, 569 F.3d 374, 379 (8th Cir. 2009). We conclude
that the district court gave necessary consideration to the relevant sentencing factors,
see 18 U.S.C. § 3553(a), and carried out “an individualized assessment based on the
facts presented,” Gall, 552 U.S. at 50. Although the district court sentenced Kinseth
to the top of the range, 51 months (4 years, 3 months), no basis is established for
reversing the sentence as unreasonable. Accordingly, we affirm.
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