United States v. Edward Showalter ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 08-50109
Plaintiff-Appellee,
v.  D.C. No.
8:06-cr-00129-AG-1
EDWARD SHOWALTER,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Central District of California
Andrew J. Guilford, District Judge, Presiding
Argued and Submitted
April 8, 2009—Pasadena, California
Filed June 26, 2009
Before: Harry Pregerson and David R. Thompson,
Circuit Judges, and Jeremy D. Fogel*, District Judge.
Opinion by Judge Thompson
The Honorable Jeremy D. Fogel, United States District Judge for the
Northern District of California, sitting by designation.
8129
UNITED STATES v. SHOWALTER 8133
COUNSEL
Ezekiel E. Cortez, San Diego, California, for the defendant-
appellant.
Mieke Biesheuvel, Assistant United States Attorney, Santa
Ana, California, for the appellee.
OPINION
THOMPSON, Senior Circuit Judge:
Appellant Edward Showalter (“Showalter”) pleaded guilty
to one count of wire fraud in violation of 18 U.S.C. § 1343.
He now appeals the order denying his motion to withdraw that
guilty plea and his sentence. We have jurisdiction under 28
U.S.C. § 1291. We affirm the denial of Showalter’s motion to
withdraw his guilty plea, but we vacate his sentence and
remand for resentencing.
8134 UNITED STATES v. SHOWALTER
I. Background
From 2003 to 2005, Showalter owned and operated High
Park Investments (“High Park”). He raised capital to improve
real property and then sell it for a profit. Showalter promised
investors returns of 10% to 26%. As security for the invest-
ments, he was supposed to record deeds of trust on the proper-
ties in favor of investors who provided money for the
improvements. The deeds of trust, however, often were not
recorded, and if they were, the properties were over-
encumbered.
Showalter raised more than $15 million from investors, but
he diverted money he received for uses other than the prom-
ised improvements to the properties. This included making
other investments, paying High Park operating expenses, and
using money for personal purposes.
The government filed an information against Showalter,
charging him with one count of wire fraud in violation of
Title 18 U.S.C. § 1343 for defrauding his investors. Pursuant
to a plea agreement, Showalter pleaded guilty to that charge.
Approximately seven months later, Showalter moved to with-
draw his guilty plea on the basis of newly discov-
ered/available evidence. The district court denied the motion.
Showalter was sentenced to 151 months imprisonment fol-
lowed by three years of supervised release, $15,418,500 in
restitution, and a $100 special assessment. This appeal fol-
lowed.
II. Discussion
A. Withdrawal of Guilty Plea
The first issue we consider is whether the district court
abused its discretion by denying Showalter’s motion to with-
draw his guilty plea.
UNITED STATES v. SHOWALTER 8135
We review for abuse of discretion a district court’s denial
of a motion to withdraw a guilty plea. United States v.
Ortega-Ascanio, 376 F.3d 879, 883 (9th Cir. 2004). Findings
of fact that underlie the district court’s exercise of its discre-
tion are reviewed for clear error. Nostratis, 321 F.3d at 1208.
[1] The decision whether to permit the withdrawal of a plea
“is solely within the discretion of the district court.” Nostratis,
321 F.3d at 1208. Before the imposition of a sentence, how-
ever, withdrawal of a guilty plea should be freely allowed if
a defendant “can show a fair and just reason for requesting the
withdrawal.” Fed. R. Crim. P. 11(d)(2)(B). We have
explained that “[f]air and just reasons for withdrawal include
inadequate Rule 11 plea colloquies, newly discovered evi-
dence, intervening circumstances, or any other reason for
withdrawing the plea that did not exist when the defendant
entered his plea.” United States v. McTiernan, 546 F.3d 1160,
1167 (9th Cir. 2008) (internal citation omitted). The defendant
has the burden of demonstrating the existence of at least one
of these conditions. Fed. R. Crim. P. 11(d)(2)(B); United
States v. Davis, 428 F.3d 802, 805 (9th Cir. 2005).
1. Adequacy of District Court’s Analysis
Showalter argues the district court erred in denying his
motion to withdraw his guilty plea because it failed to analyze
two of the three fair and just reasons he offered as grounds for
withdrawing his plea. He contends the district court focused
on only whether there was “newly discovered evidence”
despite his presentation of three distinct “fair and just rea-
sons”: (1) newly discovered evidence; (2) newly available
evidence; and (3) change in circumstances.
a. Newly Available Evidence
[2] Although Showalter argues the district court ignored his
“newly available evidence” argument, he does not make clear
how that argument differs from his “newly discovered evi-
8136 UNITED STATES v. SHOWALTER
dence” argument. Although he presents the two arguments
separately, both rely on the same witness declarations, and
both are assertions that these “new” declarations are a fair and
just reason justifying withdrawal of the guilty plea. The dis-
trict court’s analysis and conclusion that Showalter’s prof-
fered evidence was not new adequately resolved both
contentions. The district court made a factual finding that
Showalter was “aware of the potential evidence [the wit-
nesses] could supply” and “could have not pleaded guilty and
compelled these same witnesses to testify on his behalf at
trial.” This finding was not clearly erroneous.
Even if the district court had failed to address Showalter’s
“newly available evidence” argument, that argument is merit-
less because “newly available evidence” does not constitute
“newly discovered evidence” justifying withdrawal of a guilty
plea. See United States v. Lockett, 919 F.2d 585, 591-92 (9th
Cir. 1990). In Lockett, we affirmed the district court’s denial
of a motion to withdraw a guilty plea where a co-defendant,
who previously asserted her right not to testify, offered
“newly available” testimony that exculpated the defendant. Id.We stated that “great caution” must be exercised in consider-
ing evidence “newly discovered” when it existed all along. Id.(citing United States v. Jacobs, 475 F.2d 270, 286 n.33 (2d
Cir. 1973)).
b. Change in Circumstances
Showalter also contends the district court ignored his argu-
ment that there was a “change in circumstances” that consti-
tuted a fair and just reason for him to withdraw his guilty
plea. He does not make clear how such “change in circum-
stances” or “intervening circumstances” differs from the
“newly discovered evidence” on which his motion was based.
The district court reasonably assumed that the alleged inter-
vening circumstances were the proffered declarations of wit-
nesses and Showalter’s alleged realization that the
government had overstated the strength of its case against
UNITED STATES v. SHOWALTER 8137
him. He argued that, “Between the new facts that have
emerged and Mr. Showalter’s realization that the
SEC/Government have been overstating their case at best if
not flat out creating facts at worst, Mr. Showalter is in a sig-
nificantly different position today than he was one year ago
when he pleaded guilty.”
[3] Just as the proffered declarations do not constitute
newly discovered evidence, they do not constitute an inter-
vening circumstance. As we have stated, the district court
properly addressed this argument and concluded the witnesses
were known to Showalter at the time he pleaded guilty and
could have been called to testify for him at trial. Showalter
does not explain how witnesses known to him at the time he
entered his plea can be considered an intervening circum-
stance.
c. Strength of Government’s Case
[4] The district court also thoroughly addressed Show-
alter’s argument that the SEC and government exaggerated
the strength of their case against him. It explained why it was
not persuaded by the argument:
In Brady v. United States, 397 U.S. 742 (1970), the
Supreme Court rejected the idea that a defendant
could withdraw his guilty plea simply upon discov-
ering that the State would have a weaker case against
him than anticipated. Specifically the Court stated:
Often the decision to plead guilty is heavily
influenced by the defendant’s appraisal of
the prosecution’s case against him and by
the apparent likelihood of securing leniency
should a guilty plea be offered and accepted
. . . . A defendant is not entitled to withdraw
his plea merely because he discovers long
8138 UNITED STATES v. SHOWALTER
after the plea has been accepted that his cal-
culus misapprehended the quality of the
State’s case or the likely penalties attached
to alternative courses of action. Brady, 397
U.S. at 756-57.
Defendant has merely shown that he has reevaluated
the government’s purportedly “rock solid” case
against him and second-guessed his decision to plead
guilty. But Defendant’s claim that he did not see all
the government’s cards before pleading guilty does
not entitle him to withdraw his plea. United States v.
Schmidt, 373 F.3d 100, 102 (2d Cir. 2004).
For the reasons set forth in the district court’s order, Show-
alter’s belief that the government had a weaker case than he
originally thought does not constitute a fair and just reason to
withdraw his guilty plea.
d. New Fact
[5] Lastly, Showalter mentions a “new fact,” which appears
to be related to his “changed circumstances” argument. He
asserts that, after he pleaded guilty, the properties that he rep-
resented would be improved were developed and sold, reduc-
ing the amount of the previously anticipated loss. He
characterizes this as a “material change in circumstances.”
The government addresses this argument accurately:
[Showalter] is mistaken, however, that this ‘new
fact’ constitutes a material change in circumstances.
[Showalter] was charged with and pled guilty to wire
fraud for misappropriating investors’ money. That
properties he used to lure people to ‘invest’ their
money in High Park Investments may have sold is in
no way connected to whether [Showalter] defrauded
investors and whether he intended to defraud them.
UNITED STATES v. SHOWALTER 8139
[6] Even if Showalter were correct in asserting that the loss
amount turned out to be less than it was anticipated to be, the
only possible impact from that would be to decrease the appli-
cable Guideline range, and potentially lessen his sentence.
But, a defendant may not withdraw a guilty plea because his
sentence may be different from that which was originally
anticipated. See Nostratis, 321 F.3d at 1211.
[7] The district court adequately considered and correctly
resolved all of Showalter’s arguments pertaining to his motion
to withdraw his guilty plea.
2. Application of Correct Legal Standard
Showalter also argues the district court applied the wrong
legal standard in determining whether he offered newly dis-
covered evidence. He contends the evidence should have been
deemed “new” because (1) “he had no way of knowing that
[the investors he was alleged to have defrauded] would later
be willing to swear under oath that they did not feel defrauded
by him,” (2) he “was not in a position to compel the ‘victims’
in this case to favorably testify on his behalf,” and (3) he
“could not foresee that these ‘victims’ would one day come
forward to provide exonerating evidence.” According to
Showalter, the district court adopted a heightened legal stan-
dard for what constitutes new evidence, improperly relying on
law applicable to motions for a new trial, which motions are
granted only in exceptional cases.
[8] Showalter’s argument lacks merit. The district court
applied the proper legal standard as to what constitutes newly
discovered evidence justifying a defendant’s withdrawal of a
guilty plea. Indeed, the district court demonstrated that it
understood the applicable standard by setting forth the very
standard that Showalter alleges it failed to apply:
“A defendant may withdraw a plea of guilty or nolo
contendere after the court accepts the plea, but
8140 UNITED STATES v. SHOWALTER
before it imposes sentence if the defendant can show
a fair and just reason for requesting the withdrawal.”
Fed. R. Crim. P. 11(d)(2)(B). “The decision to allow
withdrawal of a plea is solely within the discretion
of the district court.” United States v. Ortega-
Ascanio, 376 F.3d 879, 883 (9th Cir. 2004) (quoting
United States v. Nostratis, 321 F.3d 1206, 1208 (9th
Cir. 1993). The Ninth Circuit has held that fair and
just reasons for withdrawal include “inadequate Rule
11 plea colloquies, newly discovered evidence, inter-
vening circumstances, or any other reason for with-
drawing the plea that did not exist when the
defendant entered his plea.” Ortega-Ascanio, 376
F.3d at 883.
If, as Showalter argues, the district court believed that it
should apply the legal standard applicable to a motion for a
new trial, the court presumably would have stated that the
motion should be granted “only in exceptional cases in which
the evidence preponderates heavily against the verdict.”
United States v. Pimental, 654 F.2d 538, 545 (9th Cir. 1981).
It did not do so.
The district court’s analysis itself demonstrates that the
court used the appropriate standard. The court followed
United States v. Garcia, 401 F.3d 1008, 1010-11 (9th Cir.
2005), in which we considered the question of when a wit-
ness’s declaration will constitute “newly discovered evi-
dence” sufficient to justify the withdrawal of a defendant’s
guilty plea.
In Garcia, after pleading guilty to a charge of manufacture
of methamphetamine and a firearm charge, the defendant
moved to withdraw his guilty plea because he found a witness
who stated in a declaration that the defendant did not live in
the house where methamphetamine was manufactured, she
did not believe the firearms found in the house belonged to
the defendant, and she had never seen firearms in the defen-
UNITED STATES v. SHOWALTER 8141
dant’s possession. Id. at 1009-10. We explained that a defen-
dant claiming to have new evidence provides a “fair and just
reason” for withdrawing his guilty plea if the evidence is both
(1) newly discovered, and (2) plausibly could have motivated
a reasonable person in the defendant’s position to not plead
guilty had he known about the evidence before pleading. Id.
at 1011-12. We determined that the subject declaration consti-
tuted “newly discovered evidence” because the witness was
unknown to the defendant when he entered his guilty plea. Id.at 1010 n.2. The declaration also directly contradicted the tes-
timony of another witness, distancing the defendant from the
house where firearms and drug paraphernalia were seized. Id.
at 1010. The declaration, thus was evidence that could have
“at least plausibly motivated a reasonable person in [the
defendant’s] position” not to have pleaded guilty had he
known about it. Id.[9] Applying Garcia, the district court in this case
explained:
In contrast [with Garcia], here [Showalter] knew
each of the declarants before he pleaded guilty.
Thus, he was also aware of the potential evidence
they could supply through declarations before he
pleaded guilty. Further, [Showalter] was fully aware
that he could have not pleaded guilty and compelled
these same witnesses to testify on his behalf at trial.
[10] The record supports the district court’s reasoning. One
declarant worked for Showalter as a construction worker, then
a foreman, and finally a project manager. Showalter knew
him before the government filed its criminal charge. Another
declarant was a large investor who gave Showalter approxi-
mately $900,000. Showalter had met him three times before
he made his investment. Showalter also knew the third declar-
ant, an investor since 2003 who had a business relationship
with Showalter for approximately three years.
8142 UNITED STATES v. SHOWALTER
Showalter does not dispute he knew of these three declar-
ants before he pleaded guilty. However, he contends that the
declarants were not available before he pleaded guilty because
he could not compel them to testify favorably for him and he
could not foresee that they would later come forward with
exonerating testimony. The record does not support these con-
tentions.
At Showalter’s change of plea hearing, the district court
advised him of his ability to compel these witnesses to testify,
and all three of them stated their current testimony would be
the same as it would have been before he pleaded guilty.
Although Showalter attempted to rebut this evidence with
statements in the declarations, the statements do not refute the
notion that the declarants would have been willing to testify
consistently with their declarations. The witnesses stated that
they “only recently agreed to sign” the declarations and had
not made a “commitment to sign” the declarations earlier.
This does not constitute an admission that they were unavail-
able to Showalter earlier.
3. Reaching the Merits
Showalter argues that, in denying his motion to withdraw
his guilty plea, the district court improperly reached the merits
of his proffered defense. He contends the district court’s nega-
tive characterization of his position and the court’s assertion
of an improper motive for him moving to withdraw his guilty
plea prove that the court actually ruled on the merits of his
case. He bases his argument on the district court’s use of
phrases such as “investors allegedly,” “defendant contends,”
“defendant claims,” “defendant has merely shown,” and “de-
fendant’s mere reevaluation of his tactical strength.”
This language was used in the context of the district court’s
summary of the arguments presented by the parties, not an
evaluation of the merits of the case or Showalter’s defense.
What Showalter calls “negative characterization” is actually
UNITED STATES v. SHOWALTER 8143
common language used by attorneys and the court to discuss
legal claims. It would be difficult for a court to discuss a case
without using words such as “allegedly,” “contends,” and
“claims.” As correctly stated by the government, “[t]he
court’s qualifying language was merely a method of recount-
ing the facts and arguments as alleged or asserted by the par-
ties without making unnecessary factual findings.”
4. United States v. McTiernan
On October 21, 2008, after Showalter filed his opening
brief in this appeal, but before the government filed its
answering brief, we issued an opinion in United States v.
McTiernan, 546 F.3d 1160 (9th Cir. 2008). Showalter devoted
his entire reply brief to arguing that McTiernan is dispositive
of this appeal in his favor. We disagree.
In McTiernan, we stated that bad legal advice can consti-
tute a fair and just reason justifying withdrawal of a defen-
dant’s guilty plea. See McTiernan, 546 F.3d at 1167(“[e]rroneous or inadequate legal advice may also constitute
a fair and just reason for plea withdrawal” (citing Davis, 428
F.3d at 806)). We remanded the case to the district court for
an evidentiary hearing because the declaration submitted con-
cerning whether McTiernan was advised properly lacked suf-
ficient clarity and precision that would allow a conclusion that
the defendant was properly and adequately advised. Id. at
1168.
While a factual question remained in McTiernan as to
whether the defendant in fact had been adequately advised of
his right to bring a motion to suppress before he pleaded
guilty, no factual question exists in this case. The issue before
this court is whether the district court abused its discretion
when it determined the declarations proffered by Showalter
did not constitute “newly discovered evidence” under Garcia.
401 F.3d at 1008. McTiernan does not overrule or change
8144 UNITED STATES v. SHOWALTER
Garcia, the case upon which the district court primarily relied
in its decision.
B. Sentencing
We next consider whether the district court abused its dis-
cretion in sentencing Showalter to 151 months of imprison-
ment. In the plea agreement, Showalter stipulated that he: (1)
owned High Park Investments which “took in over $15 mil-
lion in investors[‘] money;” and (2) “victimized at least 10
people an[d] caused a loss of at least $1 million but not more
than $20 million.” The plea agreement contained a provision
that allowed Showalter and the government to argue for sen-
tence adjustments outside of the facts stipulated to in the plea
agreement.
The probation office submitted a pre-sentence report
(“PSR”). The PSR stated that Showalter victimized 117 inves-
tors. The basis for this figure was a phone conversation
between a probation officer and the bankruptcy trustee of
Showalter’s now defunct business, High Park. The PSR also
included as an attachment a list of victims that showed a “loss
amount” next to each victim’s name. The total amount of the
loss was $15,418,500. The PSR also included narratives
describing the circumstances of seventeen of the victims.
Showalter objected to the PSR’s statements that there were
fifty or more victims and that the loss amount was in excess
of $7 million, claiming that “the government has not produced
any of the documents upon which the PSR’s loss calculation
is based.”
Federal Rule of Criminal Procedure 32(i)(3)(A) provides
that at sentencing, the court “may accept any undisputed por-
tion of the presentence report as a finding of fact.” Addition-
ally, Rule 32(f) states that “[w]ithin 14 days after receiving
the presentence report, the parties must state in writing any
objection.” Although Showalter submitted no objections to
UNITED STATES v. SHOWALTER 8145
the original PSR, he filed timely objections to the addendum
to the PSR, containing the list of alleged victims, by filing
“Additional Materials for Sentencing and for Bail Pending
Appeal” on February 27, 2008. Specifically, Showalter con-
tended that “there is insufficient evidence for [the district
court] to impose four levels, rather than two for the number
of victims.” The factual allegations of the PSR regarding the
number of victims and loss calculation thus were disputed.
Solely on the basis of the factual statements in the PSR, the
district court imposed two sentence enhancements that are at
issue in this appeal. The district court imposed: (1) a 4-level
enhancement for “50 or more victims;” and (2) a 20-level
enhancement for a loss of “more than $7 Million.” See
U.S.S.G. § 2B1.1(b)(1)(K) (20-level enhancement for loss of
more than $7 Million); U.S.S.G. § 2B1.1(b)(2)(B) (4-level
enhancement if offense involved “50 or more victims”). As a
result of these enhancements, the district court determined
that Showalter’s total offense level was 33 and his Criminal
History Category was 1. These determinations resulted in an
advisory guideline range of 135-168 months imprisonment.
The district court’s sentence of 151 months was in the middle
of this range.
We review for clear error a district court’s factual findings
supporting a sentence enhancement. United States v. Zolp,
479 F.3d 715, 718-19 (9th Cir. 2007). “If the district court
makes a material miscalculation in the advisory guidelines
range, even after Booker, we must vacate the sentence and
remand for resentencing.” Zolp, 479 F.3d at 721 (citing
United States v. Cantrell, 433 F.3d 1269, 1280 (9th Cir.
2006)).
[11] “[T]he government bears the burden of proving, by a
preponderance of the evidence, the facts necessary to enhance
a defendant’s offense level under the Guidelines.” United
States v. Burnett, 16 F.3d 358, 361 (9th Cir. 1994). District
courts have broad discretion to “consider information relevant
8146 UNITED STATES v. SHOWALTER
to the sentencing determination . . . provided that the informa-
tion has sufficient indicia of reliability to support its probable
accuracy.’ ” United States v. Berry, 258 F.3d 971, 976 (9th
Cir. 2001) (quoting USSG § 6A1.3(a)). Additionally, “the dis-
trict court may rely on undisputed statements in the PSR at
sentencing . . . . However, when a defendant raises objections
to the PSR, the district court is obligated to resolve the factual
dispute, and the government bears the burden of proof . . . .
The court may not simply rely on the factual statements in the
PSR.” United States v. Ameline, 409 F.3d 1073, 1085-86 (9th
Cir. 2005) (en banc); see also Fed. R. Crim. P. 32(i)(3)(B)
(requiring court to rule on disputed matters at sentencing).
[12] The Guidelines provide that a sentence enhancement
under § 2B1.1(b)(1) (enhancement for “monetary loss”), may
be based on an “estimate” of the monetary loss. U.S.S.G.
§ 2B1.1, cmt. n.3(C). The Guidelines do not, however, allow
a district court to “estimate” the number of victims to enhance
a sentence under § 2B1.1(b)(2). See U.S.S.G. § 2B1.1(b)(2).
Relying upon on Zolp, the government argues that it need
not “prove every victim.” However, Zolp does not stand for
the proposition that the number of victims may be estimated.
While Zolp supports the government’s argument that the
enhancement for the estimated monetary loss under
§ 2B1.1(b)(1) was reasonable, Zolp does not address sentence
enhancements for the number of victims under § 2B1.1(b)(2).
In allowing estimates of monetary loss, the Guidelines note
expressly the difficulty of calculating monetary loss accu-
rately and specifically list various factors that sentencing
courts should take into consideration when estimating mone-
tary loss. See U.S.S.G. § 2B1.1, cmt. n.3(C)(i-v). The difficul-
ties inherent in calculating monetary loss, however, do not
exist when determining the number of victims.
UNITED STATES v. SHOWALTER 8147
1. The District Court Erred in Determining There Were
50 Or More Victims
[13] The district court erred in applying a 4-level enhance-
ment for “50 or more victims,” rather than applying the two-
level enhancement for “10 or more victims.” The court’s addi-
tional two-level enhancement raised the advisory guideline
range from 108-135 months to 135-168 months and resulted
in a sentence that was at least sixteen months longer than
should have been imposed. Because the district court imposed
a sentence at the mid-point of an inappropriate Guideline
range, we may not presume that it would have imposed the
same sentence had the Guideline range been determined cor-
rectly.
[14] Although Showalter stipulated in his plea agreement
that there were at least 10 victims, he objected to the PSR’s
statement that there were fifty or more victims. After Show-
alter objected to this statement, the district court was obli-
gated to do more than simply adopt it. Ameline, 409 F.3d at
1086. Rather, Showalter’s timely objection to the PSR
required the government to produce at least some evidence to
support its contention that there were fifty or more victims.
See Burnett, 16 F.3d at 361 (“[T]he government bears the bur-
den of proving, by a preponderance of the evidence, the facts
necessary to enhance a defendant’s offense level under the
Guidelines.”). The district court did not require the govern-
ment to meet this burden.
[15] The record reveals that the only basis for the district
court’s finding that there were fifty or more victims was: (1)
the PSR’s statement regarding a phone call to the bankruptcy
trustee; and (2) the list of victims attached to the PSR. The
district court did hear from roughly a dozen victims at Show-
alter’s sentencing. However, this testimony was insufficient to
establish that there were fifty or more victims.
[16] The PSR did not provide any details of the probation
officer’s conversation with the bankruptcy trustee, nor did it
8148 UNITED STATES v. SHOWALTER
offer any explanation of how the bankruptcy trustee deter-
mined the total number of victims or indicate the source of the
list of victims attached to the PSR. It is impossible to deter-
mine from the record whether the probation office ever
inquired into the accuracy of the victim list or of the individ-
ual dollar amounts associated with the names on the list.
Essentially, it appears that the probation office said there were
117 victims because the bankruptcy trustee said so, without
any explanation as to how the trustee came up with this num-
ber. This does not justify a conclusion that the government
met its burden of establishing that there were “50 or more vic-
tims.” Accordingly, while Showalter’s stipulation in the plea
agreement that there were “10 or more victims” provided a
sufficient basis for a 2-level enhancement, there was insuffi-
cient evidence to support a 4-level enhancement for “50 or
more victims.”
2. The District Court Committed No Error In Finding The
Loss More Than $7 Million
[17] A sentence enhancement for the amount of loss under
§ 2B1.1(b)(1) involves a fundamentally different calculation
than a sentence enhancement for the number of victims under
§ 2B1.1(b)(2). The commentary to the Guidelines allows the
district court to “estimate” the monetary loss. U.S.S.G.
§ 2B1.1, cmt. n.3(C). In calculating monetary loss under the
Guidelines, the court may consider both “actual loss” and “in-
tended loss.” U.S.S.G. § 2B1.1, cmt. n.3(A). The Guidelines,
however, define “victim,” in relevant part, to include only
those people who suffered part of the “actual loss” deter-
mined under U.S.S.G. § 2B 1.1(b)(1). See U.S.S.G. 2B 1.1
cmt. n.1. (emphasis added).
[18] The court’s estimate of monetary loss can be based on
“[t]he approximate number of victims multiplied by the aver-
age loss to each victim” or “[m]ore general factors, such as
the scope and duration of the offense and revenues generated
by similar operations.” U.S.S.G. § 2B1.1, cmt. n.3(C)(iii) &
UNITED STATES v. SHOWALTER 8149
(v). Moreover, the calculation of monetary loss may be based
on the amount put at risk or the actual loss. United States v.
Munoz, 233 F.3d 1117, 1126 (9th Cir. 2000). Thus, a district
court has a number of permissible methods for determining
monetary loss, and “need not make its loss calculation with
absolute precision.” Zolp, 479 F.3d at 719.
[19] Given the number of permissible methods for estimat-
ing loss, the district court’s loss estimate of “more than $7
million” was not clearly erroneous. Showalter acknowledged
in his plea agreement that High Park “took in over $15 mil-
lion in investors[’] money” and that he “caused a loss of at
least $1 million but not more than $20 million.” These admis-
sions provided a sufficient basis for a finding that the “actual”
or “intended” losses exceeded $7 million.
III. Conclusion
[20] We affirm the denial of Showalter’s motion to with-
draw his guilty plea, but we vacate the sentence imposed upon
him and remand for resentencing.
AFFIRMED IN PART; SENTENCE VACATED and
REMANDED FOR RESENTENCING.