United States v. Yurek (Wendy)

FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS May 21, 2019
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 18-1134
WENDY MARIE YUREK,
Defendant-Appellant.
_________________________________
Appeal from the United States District Court
for the District of Colorado
(D.C. No. 1:15-CR-00394-WJM-2)
_________________________________
Robert S. Jackson, Oklahoma City, Oklahoma, for Defendant-Appellant.
Pegeen D. Rhyne, Assistant United States Attorney (Jason R. Dunn, United
States Attorney, with her on the brief), Denver, Colorado, for Plaintiff-
Appellee.
_________________________________
Before BACHARACH, BALDOCK, and EBEL, Circuit Judges.
_________________________________
BACHARACH, Circuit Judge.
_________________________________
Mrs. Wendy Yurek and her husband, Mr. Daryl Yurek, were charged
with tax evasion and bankruptcy fraud. 1 After a joint jury trial, Mrs. Yurek
and her husband were convicted on both offenses. The district court then
sentenced Mrs. Yurek to a prison term of 27 months, leading her to appeal
the conviction and sentence.
We affirm in part and reverse in part. We affirm Mrs. Yurek’s
conviction, but we vacate the sentence because the district court applied
the wrong test when deciding whether to grant a mitigating-role
adjustment.
I. We reject Mrs. Yurek’s challenges to the sufficiency of the
evidence on her conviction for tax evasion and bankruptcy fraud.
We conclude that the evidence of Mrs. Yurek’s guilt was sufficient to
support her conviction for tax evasion and bankruptcy fraud.
A. We engage in de novo review over the sufficiency of the
evidence.
In considering the sufficiency of the evidence, we engage in de novo
review. United States v. Ramos-Arenas, 596 F.3d 783, 786 (10th Cir.
2010). We will reverse only if no rational factfinder could have found that
the government had proven all of the elements of an offense beyond a
1
Mr. Yurek was also charged with making a false statement under oath
in a bankruptcy proceeding and willfully making false statements to the
IRS under penalty of perjury.
2
reasonable doubt. United States v. Brown, 400 F.3d 1242, 1247 (10th Cir.
2005).
Under de novo review, we view the trial evidence in the light most
favorable to the government. United States v. Boisseau, 841 F.3d 1122,
1125 (10th Cir. 2016). We do not reevaluate witness credibility or reweigh
the evidence. United States v. Smith, 133 F.3d 737, 742 (10th Cir. 1997).
B. The evidence was sufficient to convict on tax evasion.
Mrs. Yurek was convicted of tax evasion, which consists of
“willfully attempt[ing] in any manner to evade or defeat any tax imposed
by [the Internal Revenue Code] or the payment thereof.” 26 U.S.C. § 7201.
To obtain a conviction on this offense, the government had to prove three
elements:
1. Mrs. Yurek owed a substantial tax to the IRS.
2. Mrs. Yurek committed “an affirmative act constituting an
evasion or attempted evasion” of assessment or payment of the
tax.
3. Mrs. Yurek willfully evaded or attempted to evade the
assessment or payment of the tax. 2
United States v. Boisseau, 841 F.3d 1122, 1125 (10th Cir. 2016) (citing
Sansone v. United States, 380 U.S. 343, 351 (1965)); see United States v.
2
Mrs. Yurek argues that the government did not establish that she and
her husband had the ability to pay their IRS tax debt. But the ability to pay
one’s taxes is not an element of tax evasion. See Boisseau, 841 F.3d at
1125.
3
Thompson, 518 F.3d 832, 850 (10th Cir. 2008) (noting that the tax liability
must be “substantial”).
Mrs. Yurek challenges the sufficiency of the evidence on the second
and third elements (an affirmative act and willfulness).
1. The evidence was sufficient to find an affirmative act.
To establish an affirmative act, the government had to prove an act
designed to “mislead or conceal” within the six-year period of limitations.
United States v. Thompson, 518 F.3d 832, 852 (10th Cir. 2008); see United
States v. Anderson, 319 F.3d 1218, 1219 (10th Cir. 2003) (holding that
when a defendant commits a series of affirmative acts over multiple years,
the six-year period of limitations for tax evasion begins with the last
affirmative act). The government bore the burden to prove that Mrs. Yurek
had committed at least one affirmative act. United States v. Hoskins, 654
F.3d 1086, 1091 (10th Cir. 2011). The jury could have reasonably found
that the government had satisfied this burden.
a. “Affirmative acts” are broadly defined.
We first consider what constitutes an affirmative act. Federal law
suggests an expansive definition, stating that tax evasion can be committed
by evading taxes “in any manner.” 26 U.S.C. § 7201; see Boisseau, 841
F.3d at 1125 (“[T]he type of affirmative conduct that can constitute an
affirmative act of evasion is broad.”). Affirmative acts thus include
 concealing assets,
4
 covering up sources of income, and
 engaging in misleading or concealing conduct.
Boisseau, 841 F.3d at 1125. Affirmative acts may even consist of otherwise
lawful conduct if the acts are committed with an intent to evade taxes. Id.;
United States v. Gorrell, No. 18-5041, 2019 WL 1890971 at *5 (10th Cir.
Apr. 29, 2019).
b. The evidence sufficed for a finding that Mrs. Yurek had
committed an affirmative act.
Viewed in the light most favorable to the government, the trial
evidence allowed a reasonable jury to find affirmative acts involving (1)
payment of personal expenses from business accounts and (2) submission
of false tax documents to the IRS.
i. The jury could have reasonably found that Mrs. Yurek had
committed affirmative acts by paying her and her husband’s
personal expenses out of business accounts.
Mrs. Yurek had authority to write checks on behalf of Bolder Venture
Partners and Veracity Credit Consultants, LLC, and she used that authority
to write business checks for her and her husband’s personal expenses. A
fact-finder could have reasonably viewed the writing of these checks as
affirmative acts to evade taxes.
Some of these checks came from Bolder Venture Partners, where
Mrs. Yurek was a partner. For example, Mrs. Yurek signed a $2,309.68
5
check from Bolder 3 to pay condominium-association dues for the loft where
she and her husband lived.
Mrs. Yurek contends that her son, Mr. Justin Yurek, owned the loft.
But the trial evidence was sufficient to support findings that (1) Justin had
been a “straw purchaser” and (2) Mrs. Yurek and her husband were the true
owners of the loft. See United States v. Reese, 745 F.3d 1075, 1078 (10th
Cir. 2014) (explaining a straw purchase).
Mrs. Yurek and her husband had been leasing the loft and living in it.
They had a contract to purchase the loft, but a tax lien prevented them
from obtaining a mortgage. So they assigned the contract to Justin, who
purchased the loft. Though Justin was the purchaser, Mrs. Yurek’s husband
negotiated the sale and used companies (over which he wielded significant
control) to fund more than $112,000 of the down payment.
After Justin purchased the loft, Mrs. Yurek signed an affidavit on
Justin’s behalf, stating under oath that (1) the loft would serve as Justin’s
primary residence and (2) Justin had no intent to lease the loft or to make
the purchase as an investment. 4 But Justin never lived in the loft, and Mrs.
3
Mrs. Yurek wrote the check for $2,309.68 within the six-year
limitations period.
4
Despite the affidavit, Justin testified that he had bought the loft as an
investment.
6
Yurek and her husband continued to live there while making only
infrequent rental payments.
Mrs. Yurek not only used her role at Bolder to pay condominium-
association dues but also used her check-writing authority at Veracity
Credit Consultants, LLC to pay her husband’s country-club dues and
expenses. For example, she signed a Veracity check for $3,403.43 to pay
these expenses. 5
Veracity also paid other expenses for Mrs. Yurek and her husband.
For example, Veracity paid the rent on two homes that Mrs. Yurek and her
husband used. Veracity’s former chief financial officer, Mr. Michael
Hennigan, testified that he knew of no business purpose for these rentals or
the country-club dues and expenses.
Veracity also made mortgage payments on the loft where Mrs. Yurek
and her husband lived. The jury could reasonably infer that the Yureks
were trying to hide the source of these mortgage payments. For example,
they recorded the mortgage payments under an account designated as a
loan account for Mrs. Yurek’s husband, but Veracity did little to collect on
the purported loan.
Bolder and Veracity paid these various personal expenses for Mrs.
Yurek and her husband while they
 owed substantial taxes and penalties to the IRS and
5
This check was signed within the six-year period of limitations.
7
 tried to settle with the IRS based on their inability to pay what
they owed.
These payments continued through the bankruptcy proceedings, where Mrs.
Yurek and her husband tried to discharge their federal tax debt. But Mrs.
Yurek and her husband did not tell the IRS about these payments.
Given this combination of evidence, the jury could have reasonably
found that Mrs. Yurek had committed an affirmative act to evade the
payment of taxes. See United States v. Farr, 701 F.3d 1274, 1285–86 (10th
Cir. 2012) (concluding that the defendant’s use of a corporate account to
pay for personal living expenses supported a factual finding that the
defendant had “willfully evaded [a tax penalty] and [had taken] affirmative
steps to do so”).
ii. A reasonable jury could also have found that Mrs. Yurek
had committed affirmative acts by submitting false tax
documents to the IRS.
Along with her husband, Mrs. Yurek submitted tax forms to the IRS
in 2009 and 2010. On these forms, Mrs. Yurek and her husband reported
that their gross monthly income was $7,667. But this amount didn’t include
Bolder and Veracity’s payments for personal expenses. The jury could
reasonably have viewed these omissions as misleading or even false.
8
Mrs. Yurek’s submission of misleading or false tax documents to the
IRS could constitute affirmative acts. 6 See Sansone v. United States, 380
U.S. 343, 351–52 (1965) (“[I]t is undisputed that petitioner filed a tax
return and that the petitioner’s filing of a false tax return constituted a
sufficient affirmative commission to satisfy that requirement of § 7201.”);
United States v. Hoskins, 654 F.3d 1086, 1091 (10th Cir. 2011)
(concluding that submission of a false tax return “was sufficient to
establish an affirmative act under § 7201”).
2. The evidence was sufficient to find that Mrs. Yurek had
acted willfully.
To satisfy the willfulness requirement, the government had to prove a
specific intent to evade taxes. United States v. Payne, 978 F.2d 1177, 1182
(10th Cir. 1992); see Hoskins, 654 F.3d at 1090 (“Under § 7201,
‘willfulness’ means the ‘voluntary, intentional violation of a known legal
duty.’” (quoting Cheek v. United States, 498 U.S. 192, 201 (1991))).
The government can ordinarily establish the willfulness requirement
through “circumstantial evidence or inferences arising from a defendant’s
conduct.” United States v. Boisseau, 841 F.3d 1122, 1127 (10th Cir. 2016).
The willfulness requirement is “closely connected” to the affirmative-act
6
The government also argues that Mrs. Yurek’s filing of the
bankruptcy petition constituted an affirmative act. We need not address
this argument.
9
requirement, for “‘[e]vidence of affirmative acts may be used to show
willfulness.’” Id. (quoting United States v. Romano, 938 F.2d 1569, 1572
(2d Cir. 1991)) (alteration in original).
Viewed in the light most favorable to the government, the trial
evidence was sufficient in five ways to prove Mrs. Yurek’s specific intent
to evade taxes.
First, a reasonable jury could have found that Mrs. Yurek had known
of her legal obligation to pay her federal tax debt. With this finding, the
jury could reasonably have concluded that Mrs. Yurek had committed the
affirmative acts with an intent to evade payment of her tax debt.
Second, Mrs. Yurek represented to the IRS that she and her husband
couldn’t pay more than $75,000 of their tax liability based on “insufficient
assets and income” even though they had just signed a contract to pay $1.3
million for a loft. Supp. R., vol. 1, at 125, 185. Given the timing of Mrs.
Yurek’s representation to the IRS and the contract to purchase the loft, a
jury could rationally have found a specific intent to evade the tax debt.
Third, the jury could reasonably have found that Mrs. Yurek had
arranged for Justin to purchase the loft in order to conceal her financial
interest in it. See pp. 6–7, above.
Fourth, Mrs. Yurek reported to the IRS that she and her husband had
a gross monthly income of $7,667 in 2009 and 2010, but Bolder and
10
Veracity paid monthly payments of more than $7,667 for the Yureks’
personal expenses.
Fifth, Mrs. Yurek told Veracity’s accountant that her husband would
repay his loan account every year. He didn’t, so a jury could reasonably
have found that (1) Mrs. Yurek was misleading the accountant about her
husband’s intent to repay the loans and (2) the loan account served as a
sham to deceive the IRS.
The jury thus could reasonably have found that Mrs. Yurek had a
specific intent to evade the payment of tax debt, and this finding would
satisfy the requirement of willfulness. See United States v. Guidry, 199
F.3d 1150, 1157 (10th Cir. 1999) (observing that willfulness can be
inferred from “concealment of assets or covering up sources of income”
(quoting Spies v. United States, 317 U.S. 492, 499 (1943))).
Despite this evidence, Mrs. Yurek argues that she lacked expertise in
tax matters and depended on professionals. But the jury could reasonably
have discounted this argument and found that Mrs. Yurek had known that
she was giving false information to the IRS. For example, the jury could
have reasonably relied on Mrs. Yurek’s accounting experience, which
included handling Veracity’s payroll and accounts payable and helping to
prepare Bolder’s tax returns in 2005, 2006, and 2007. See United States v.
Guidry, 199 F.3d 1150, 1157 (10th Cir. 1999) (treating evidence of a
defendant’s accounting experience as support for a finding of willfulness).
11
* * *
For these reasons, we reject Mrs. Yurek’s challenge to the
sufficiency of the evidence for her conviction on tax evasion. 7
C. The evidence was sufficient to convict Mrs. Yurek of
bankruptcy fraud.
Mrs. Yurek was also convicted of bankruptcy fraud. This crime
involves filing a bankruptcy petition with an intent to execute, conceal, or
attempt to execute or conceal “a scheme or artifice to defraud.” 18 U.S.C.
§ 157(1). To obtain a conviction on this offense, the government had to
prove three elements beyond a reasonable doubt:
1. Mrs. Yurek had devised or intended to devise a scheme to
defraud or otherwise engage in a fraudulent scheme.
2. Mrs. Yurek had filed a bankruptcy petition with the purpose to
execute or conceal the scheme or attempt to do so.
3. Mrs. Yurek had acted with the specific intent to defraud. 8
7
Mrs. Yurek argues that her conviction cannot stand because the
government didn’t present expert testimony on “technical concepts such as
income or assets.” Appellant’s Op. Br. at 15. We disagree and conclude
that expert testimony was not necessary to assist the jury in understanding
the evidence.
8
In its jury instructions on the first and third elements, the district
court referred to our circuit’s pattern jury instruction for mail fraud under
18 U.S.C. § 1341:
A “scheme to defraud” is conduct intended to or reasonably
calculated to deceive persons of ordinary prudence or
comprehension and includes a scheme to deprive another of
money or property. An “intent to defraud” means an intent to
deceive or cheat someone.
12
See United States v. Spurlin, 664 F.3d 954, 964 (5th Cir. 2011) (listing the
elements that the government must prove under § 157(1) as “(1) a specific
intent to defraud; (2) a scheme to defraud; and (3) filing a bankruptcy
petition to conceal or execute that scheme”). Mrs. Yurek argues that the
trial evidence was insufficient on the elements of bankruptcy fraud. 9 We
disagree.
Viewed in the light most favorable to the government, the trial
evidence was sufficient for a jury to reasonably find satisfaction of each
element. That evidence showed six pertinent facts:
1. Mrs. Yurek and her husband had owed a substantial tax debt to
the IRS.
2. Mrs. Yurek and her husband had filed a bankruptcy petition in
order to discharge that debt.
3. When filing the bankruptcy petition, Mrs. Yurek and her
husband had not told the court that Bolder and Veracity were
paying the Yureks’ personal expenses.
R., vol. 2, at 121–22 (citing 10th Cir. Pattern Crim. Jury Instr. § 2.56 (mail
fraud)). As the district court noted, courts have used § 1341 for guidance
when interpreting 18 U.S.C. § 157(1). See United States v. Milwitt, 475
F.3d 1150, 1155 n.5 (9th Cir. 2007) (“Most of the few courts that have
interpreted 18 U.S.C. § 157 have looked to 18 U.S.C. §§ 1341 and 1343 for
guidance.”).
9
Mrs. Yurek also relies on the fact that the IRS and the bankruptcy
trustee didn’t object to discharge of the Yureks’ tax debt. According to
Mrs. Yurek, the absence of an objection shows that the government did not
prove the elements of bankruptcy fraud. We disagree. The absence of an
objection could conceivably affect the weight of the evidence but not its
sufficiency to convict.
13
4. Bolder and Veracity had continued to pay the Yureks’ personal
expenses during the bankruptcy proceedings, but Mrs. Yurek
and her husband never told the bankruptcy court about these
payments.
5. Mrs. Yurek had been a partner at Bolder and was responsible
for Veracity’s accounts payable and payroll.
6. Mrs. Yurek had participated in obtaining the checks from
Bolder and Veracity for personal expenses.
Given the evidence of these six facts, we conclude that the jury could
reasonably have found all of the elements of bankruptcy fraud.
II. We reject Mrs. Yurek’s challenges to the district court’s denials
of her motions for severance and a new trial.
We also reject Mrs. Yurek’s arguments that the district court should
have (1) severed her trial from her husband’s or (2) granted her a new trial.
A. The district court generally enjoyed discretion on these
matters.
On these issues, we apply the abuse-of-discretion standard. See
United States v. Pursley, 577 F.3d 1204, 1215 (10th Cir. 2009)
(severance); United States v. Patterson, 41 F.3d 577, 579–80 (10th Cir.
1994) (new trial). On the refusal to sever the trial, Mrs. Yurek needed to
show actual prejudice. See United States v. Hack, 782 F.2d 862, 870 (10th
Cir. 1986) (“To establish that a court abused its discretion, a defendant
must show actual prejudice to him resulting from a denial of his request for
severance.”).
14
To satisfy this burden, Mrs. Yurek needed to show a “serious risk”
that joinder would compromise a specific trial right or prevent a reliable
determination of guilt. Pursley, 577 F.3d at 1215. Mrs. Yurek argues both,
asserting that joinder
 created prejudice through a spillover effect from the evidence
of her husband’s guilt and
 violated the Sixth Amendment and created further prejudice by
preventing her from confronting her husband about his out-of-
court statement in bankruptcy court. 10
In our review of her Sixth Amendment theory, we engage in de novo
review. United States v. Clark, 717 F.3d 790, 813 (10th Cir. 2013).
B. Mrs. Yurek has not shown actual prejudice from
introduction of the evidence against her husband.
Mrs. Yurek contends that her trial should have been severed from her
husband’s because
 the evidence against her was slim in comparison to the
evidence against her husband and
 the jury could not have followed the district court’s instruction
to separately consider the evidence against her and her
husband.
10
In a footnote, Mrs. Yurek also suggests that the government violated
Federal Rule of Evidence 403 by using her husband’s out-of-court
statement against her. Mrs. Yurek’s passing reference to Rule 403 does not
constitute adequate briefing of a distinct issue. See Adler v. Wal-Mart
Stores, Inc., 144 F.3d 664, 679 (10th Cir. 1998) (“Arguments inadequately
briefed in the opening brief are waived.”); COPE v. Kan. State Bd. of
Educ., 821 F.3d 1215, 1219 n.4 (10th Cir. 2016) (concluding that “passing
references” to an issue do not constitute adequate briefing).
15
We conclude that the district court acted within its discretion by rejecting
these arguments.
Federal courts generally prefer to jointly try defendants who were
indicted together. Zafiro v. United States, 506 U.S. 534, 537 (1993). This
preference is based on recognition that
 joint trials “promote efficiency and serve the interests of
justice by avoiding the scandal and inequity of inconsistent
verdicts” 11 and
 joint trials are ordinarily more efficient in cases where the
evidence against multiple defendants is “overlapping and
intertwined.” 12
Mrs. Yurek tries to skirt this preference based on the alleged
spillover of evidence against her husband. But severance is not warranted
by “a mere allegation that defendant would have a better chance of
acquittal in a separate trial” or “a complaint of the ‘spillover effect’ from
the evidence that was overwhelming or more damaging against the co-
defendant than that against the moving party.” United States v. Hack, 782
F.2d 862, 870 (10th Cir. 1986); see United States v. Wardell, 591 F.3d
1279, 1300 (10th Cir. 2009) (“[T]he nearly insuperable rule in this circuit
is that a defendant cannot obtain severance simply by showing that the
11
Zafiro, 506 U.S. at 537 (internal quotation marks omitted).
12
United States v. Morales, 108 F.3d 1213, 1220 (10th Cir. 1997).
16
evidence against a co-defendant is more damaging than the evidence
against herself.” (internal quotation marks omitted)). So Mrs. Yurek’s
complaints about the strength of the trial evidence against her husband do
not warrant severance.
Coupled with the preference for joint trials is the district court’s
guidance to the jury. The court instructed the jury
 that it “must separately consider the evidence against each
defendant and return a separate verdict for each” and
 that its “verdict as to one defendant . . . should not affect [its]
verdict as to the other defendant.”
R., vol. 2, at 113. These instructions, which the jury presumably followed,
negated the risk of prejudice to Mrs. Yurek from the joint trial. See Weeks
v. Angelone, 528 U.S. 225, 234 (2000) (“A jury is presumed to follow its
instructions.”); Wardell, 591 F.3d at 1301 (noting that the district court’s
jury instruction “to give separate and individual consideration to each
charge against each defendant” and the district court’s other cautionary
statements to the jury “negated any risk of prejudice” to the defendant
from the joint trial). We thus conclude that the district court acted within
its discretion by denying Mrs. Yurek’s motions to sever the trial and to
grant a new trial.
17
C. The district court’s refusal to sever the trial did not violate
Mrs. Yurek’s right to confrontation because her husband’s
out-of-court statement had not been testimonial.
Mrs. Yurek contends that the refusal to sever the trial violated her
right to confrontation by allowing the government to use the husband’s
out-of-court statement against her. But the Sixth Amendment applies only
when the out-of-court statement is testimonial. 13 See United States v.
Clark, 717 F.3d 790, 815 (10th Cir. 2013) (observing that the Sixth
Amendment’s Confrontation Clause applies only if a statement is
“testimonial”). Statements in furtherance of a conspiracy are
nontestimonial, so they are admissible even when the defendants cannot
confront the declarants. United States v. Patterson, 713 F.3d 1237, 1247
(10th Cir. 2013); see Crawford v. Washington, 541 U.S. 36, 56 (2004)
13
We have supplied “two possible definitions” for what constitutes a
“testimonial” statement:
1. “a formal declaration made by the declarant that, when
objectively considered, indicates the primary purpose for which
the declaration was made was that of establishing or proving
some fact potentially relevant to a criminal prosecution” and
2. “[a] formal statement [such that] a reasonable person in the
position of the declarant would objectively foresee that the
primary purpose of the statement was for use in the
investigation or prosecution of a crime.”
United States v. Clark, 717 F.3d 790, 816 (10th Cir. 2013) (alterations in
original) (quoting United States v. Smalls, 605 F.3d 765, 778 (10th Cir.
2010)).
18
(observing that statements in furtherance of a conspiracy are not
testimonial).
Prior to trial, the district court concluded that Mr. Yurek’s out-of-
court statement 14 was admissible against Mrs. Yurek as a statement by a
coconspirator. To qualify for admissibility as a coconspirator statement,
the statement must have been made during and in furtherance of a
conspiracy. Fed. R. Evid. 801(d)(2)(E).
Mrs. Yurek does not challenge the district court’s admissibility
determination, so we regard the husband’s out-of-court statement as
nontestimonial. Introduction of this nontestimonial statement against Mrs.
Yurek did not violate the Sixth Amendment. See Patterson, 713 F.3d at
1247 (concluding that statements made in furtherance of a conspiracy were
properly admitted because they were nontestimonial).
D. Mrs. Yurek has not demonstrated that her husband would
have been willing to testify at a severed trial.
Mrs. Yurek also contends that if the trial had been severed, she could
have cross-examined her husband about his out-of-court statement. 15 But
Mrs. Yurek never presented evidence that her husband would have testified
14
He made the statement in bankruptcy court; but for purposes of
admissibility, the pertinent court is the federal district court in Mrs.
Yurek’s trial.
15
The parties dispute whether Mrs. Yurek preserved this argument. For
the sake of argument, we assume preservation.
19
at a severed trial. Indeed, Mrs. Yurek concedes that she does not know
whether he would have done so. Appellant’s Op. Br. at 27. The resulting
uncertainty is fatal to Mrs. Yurek’s contention. See United States v.
Pursley, 577 F.3d 1204, 1216 (10th Cir. 2009) (upholding the denial of a
motion to sever because the defendant did not submit affidavits from his
co-defendants regarding their willingness to testify at a severed trial);
United States v. Dirden, 38 F.3d 1131, 1141 n.13 (10th Cir. 1994)
(upholding the denial of the defendant’s motion to sever based on the lack
of evidence that the co-defendant would have given exculpatory
testimony).
* * *
For these reasons, we conclude that the district court acted within its
discretion in denying Mrs. Yurek’s motions for severance and a new trial.
III. We reject Mrs. Yurek’s challenge based on multiplicity.
Mrs. Yurek insists that she was convicted of multiplicitous charges:
tax evasion and bankruptcy fraud. Charges are multiplicitous when they
cover the same criminal conduct. United States v. McCullough, 457 F.3d
1150, 1162 (10th Cir. 2006). On challenges involving multiplicity, we
generally engage in de novo review. United States v. McIntosh, 124 F.3d
1330, 1336 (10th Cir. 1997). But Mrs. Yurek did not raise the issue in a
20
pretrial motion, so we review her argument only for plain error. Id. We
conclude that there was no error, plain or otherwise.
The Fifth Amendment forbids convictions on multiplicitous charges.
McCullough, 457 F.3d at 1162. But under the Blockburger test, the same
conduct can trigger prosecution for multiple crimes “if each crime requires
proof of a fact that the other does not.” United States v. Berres, 777 F.3d
1083, 1090 (10th Cir. 2015); see Blockburger v. United States, 284 U.S.
299, 304 (1932) (“[W]here the same act or transaction constitutes a
violation of two distinct statutory provisions, the test to be applied to
determine whether there are two offenses or only one, is whether each
provision requires proof of a fact which the other does not.”). We thus
focus on whether the elements differ for Mrs. Yurek’s crimes of tax
evasion and bankruptcy fraud. See Illinois v. Vitale, 447 U.S. 410, 416
(1980) (analyzing the elements of the crimes of conviction when applying
the Blockburger test).
A conviction for tax evasion requires proof of three elements:
1. The defendant owed a substantial tax to the IRS.
2. The defendant committed “an affirmative act constituting an
evasion or attempted evasion” of assessment or payment of the
tax.
3. The defendant willfully evaded or attempted to evade the
assessment or payment of the tax.
21
United States v. Boisseau, 841 F.3d 1122, 1125 (10th Cir. 2016) (citing
Sansone v. United States, 380 U.S. 343, 351 (1965)). A conviction for
bankruptcy fraud also requires proof of three elements:
1. The defendant devised or intended to devise a scheme to
defraud or otherwise engage in a fraudulent scheme.
2. For the purpose of executing or concealing the scheme or
attempting to do so, the defendant filed a petition under the
Bankruptcy Code.
3. The defendant acted with the specific intent to defraud.
United States v. Spurlin, 664 F.3d 954, 964 (5th Cir. 2011). As Mrs. Yurek
admits, each crime requires proof of an element that the other crime does
not. We thus would not ordinarily consider the two counts multiplicitous.
But Mrs. Yurek argues that the government’s theory essentially
required the same elements for both crimes because the government
characterized the bankruptcy fraud as a scheme to evade taxes. To support
this argument, Mrs. Yurek points to the indictment, contending that the
indictment shows that both counts stemmed from the same underlying
conduct. But the Blockburger test “focuses on the proof necessary to prove
the statutory elements of each offense, rather than on the actual evidence
to be presented at trial.” Illinois v Vitale, 447 U.S. 410, 416 (1980). Given
the focus of this test, Mrs. Yurek’s argument fails because the nature of the
charges does not alter the elements that the government needed to prove.
22
To argue that she was convicted of multiplicitous charges, Mrs.
Yurek also relies on United States v. McIntosh, 124 F.3d 1330 (10th Cir.
1997). In McIntosh we acknowledged that “Congress undoubtedly may
subject a defendant to multiple convictions and punishments for the same
act,” but we held that Congress did not intend to subject the defendant to
convictions for both 18 U.S.C. § 152(3) (making a false statement) and 18
U.S.C. § 152(7) (concealing assets). 124 F.3d at 1336–37.
But Mrs. Yurek was not convicted of violating either § 152(3) or
§ 152(7), so McIntosh does not control. And unless Congress expresses a
contrary intent, “we presume . . . that Congress intended multiple
convictions and sentences for the same criminal behavior which violates
more than one statute when each statute requires proof of a fact that the
other does not.” United States v. Benoit, 713 F.3d 1, 12 (10th Cir. 2013).
Mrs. Yurek has not pointed to any evidence that Congress expressed
an intent to preclude a conviction for both tax evasion and bankruptcy
fraud. Mrs. Yurek’s reliance on McIntosh is thus misguided, and we
conclude that the charges were not multiplicitous.
IV. The district court erroneously calculated the guideline range by
applying the wrong test for a mitigating-role adjustment.
Mrs. Yurek contends that the district court
 should have applied Sentencing Guideline § 2T1.1 to her
conviction for bankruptcy fraud,
 incorrectly calculated the loss attributable to her, and
23
 applied the wrong test for a mitigating-role adjustment.
We agree that the district court erred in deciding whether to grant Mrs.
Yurek a mitigating-role adjustment. But the court did not otherwise err at
sentencing.
A. Sentencing Guideline § 2T1.1 does not apply to Mrs.
Yurek’s conviction for bankruptcy fraud.
To calculate the guideline range, the district court must select the
applicable guideline (if one exists) for the offense of conviction. U.S.S.G.
1B1.2(a) (2016). 16 Here the parties agree that the relevant offense of
conviction was bankruptcy fraud under 18 U.S.C. § 157(1). For this
offense, however, the Sentencing Commission has not expressly adopted a
guideline. When the Sentencing Commission has not specified the
applicable guideline, the district court must “apply the most analogous
offense guideline.” U.S.S.G. § 2X5.1 (2016). This process involves two
steps. The court begins by determining which guidelines are sufficiently
analogous; from these guidelines, the court then selects the most analogous
16
The 2016 version was in effect at the time of Mrs. Yurek’s
sentencing. See U.S.S.G. § 1B1.11(a) (2016) (Ordinarily, “[t]he court shall
use the Guidelines Manual in effect on the date that the defendant is
sentenced.”).
24
one. 17 Id. § 2X5.1 cmt.; United States v. Nichols, 169 F.3d 1255, 1270–71
(10th Cir. 1999).
The district court assumed for the sake of argument that both § 2T1.1
and § 2B1.1 were “sufficiently analogous” to bankruptcy fraud under 18
U.S.C. § 157(1). The district court then concluded that § 2B1.1 was the
more analogous guideline.
The parties agree that § 2B1.1 is sufficiently analogous to
bankruptcy fraud under 18 U.S.C. § 157(1). 18 But the parties disagree over
whether § 2T1.1 is also sufficiently analogous to bankruptcy fraud. To
determine whether § 2T1.1 is “sufficiently analogous” to bankruptcy fraud,
we compare the elements of bankruptcy fraud under 18 U.S.C. § 157(1)
17
If there is not a sufficiently analogous guideline, 18 U.S.C. § 3553would control. U.S.S.G. § 2X5.1 cmt. (2016).
18
Section 2B1.1 covers crimes of fraud and deceit. Two of the crimes
covered by § 2B1.1 are mail fraud and wire fraud. See U.S.S.G. App’x A
(2016) (identifying 18 U.S.C. §§ 1341 and 1343 as covered by § 2B1.1).
The statutes for these crimes served as the model for § 157. See United
States v. Milwitt, 475 F.3d 1150, 1155 (9th Cir. 2007). Like § 157, both
mail fraud and wire fraud include as elements (1) a scheme or artifice to
defraud and (2) the specific intent to defraud. Compare United States v.
Spurlin, 664 F.3d 954, 964 (5th Cir. 2011) (listing the elements for
bankruptcy fraud under § 157(1)), with United States v. Welch, 327 F.3d
1081, 1104 (10th Cir. 2003) (listing the elements for mail fraud and wire
fraud).
25
with the elements of the offenses covered by § 2T1.1. See United States v.
Nichols, 169 F.3d 1255, 1270 (10th Cir. 1999). 19
Section 2T1.1 relates to matters of taxation. Thus, all of the crimes
expressly covered by § 2T1.1 involve taxation:
 evading taxes (26 U.S.C. § 7201),
 willfully failing to file a tax return, keep records, supply
information, or pay a tax (26 U.S.C. § 7203),
 making false or fraudulent statements to the IRS (26 U.S.C.
§ 7206(1), (3), (4), and (5)),
 willfully filing a fraudulent return, statement, or other
document (26 U.S.C. § 7207),
 making false statements to purchasers or lessees relating to a
tax (26 U.S.C. § 7211), and
 attempting to interfere with the administration of the tax laws
(26 U.S.C. § 7212(a)).
U.S.S.G. App’x A (2016).
Because these crimes target taxation, they contrast starkly with
bankruptcy fraud. Bankruptcy fraud requires specific intent to defraud, 20
and the § 2T1.1 crimes require specific intent only with regard to the tax
laws. For example, tax evasion under 26 U.S.C. § 7201 requires proof that
19
Because the district court didn’t decide this issue, we use our
independent judgment on this legal issue. Cf. Nichols, 169 F.3d at 1270(stating that determination of the first step is “purely legal,” requiring de
novo review).
20
United States v. Spurlin, 664 F.3d 954, 964 (5th Cir. 2011).
26
a defendant had the “specific intent to evade taxes.” United States v.
Payne, 978 F.2d 1177, 1182 (10th Cir. 1992). A violation of 26 U.S.C.
§ 7203 occurs only if a defendant “willfully fails” to pay a tax, file a
return, keep tax records, or supply tax-related information. And a
conviction under 26 U.S.C. § 7206(4) requires the government to prove
that a defendant hid taxable property “with intent to evade or defeat the
assessment or collection” of a tax. So the specific-intent element for
bankruptcy fraud sweeps beyond the specific-intent elements found in
§ 2T1.1 crimes.
Nor is there a match between § 2T1.1 and bankruptcy fraud’s first
element (scheme to defraud). See United States v. Spurlin, 664 F.3d 954,
964 (5th Cir. 2011). It is true that many of the crimes covered by § 2T1.1
target fraudulent conduct. But § 2T1.1’s fraud crimes again relate only to
the tax laws:
1. making false or fraudulent statements to the IRS (26 U.S.C.
§ 7206(1)),
2. making false statements regarding a tax to purchasers or lessees
(26 U.S.C. § 7211),
3. filing false or fraudulent documents with the IRS (26 U.S.C.
§ 7207),
4. concealing taxable property from the IRS (26 U.S.C.
§§ 7206(4) and 7206(5)), and
5. falsely or fraudulently executing or signing documents required
by the provisions of the Internal Revenue Code or regulations
issued under those provisions (26 U.S.C. § 7206(3)).
27
See p. 26, above. Unlike these crimes, bankruptcy fraud targets a scheme to
defraud unrelated to taxation or the administration of the federal tax laws.
So the fraudulent conducted covered by bankruptcy fraud sweeps beyond
the fraudulent conduct covered by § 2T1.1.
Because the elements of § 2T1.1 crimes are narrower than and largely
unrelated to the elements of bankruptcy fraud, we conclude that § 2T1.1 is
not sufficiently analogous to bankruptcy fraud. Thus the only potentially
applicable guideline was § 2B1.1, and the district court did not err by
applying this section.
B. The amount of intended loss attributable to Mrs. Yurek
could reasonably be based on the amount of debt that Mrs.
Yurek had tried to discharge in bankruptcy.
At Mrs. Yurek’s sentencing, the district court applied Sentencing
Guideline § 2B1.1 to determine Mrs. Yurek’s base-offense level and
specific offense characteristics. For the specific offense characteristics,
§ 2B1.1 allowed the court to increase the base-offense level based on the
28
amount of the intended loss attributable to a defendant. 21 See U.S.S.G.
§ 2B1.1(b)(1) (2016).
To calculate the intended loss, the district court considered two
methodologies:
1. the amount of federal tax debt that Mrs. Yurek tried to
discharge in bankruptcy and
2. the value of the assets that Mrs. Yurek concealed from the
bankruptcy court.
The court found that under either approach, the intended loss was between
$550,000 and $1,500,000. Given this finding, the court overruled Mrs.
Yurek’s objection to the U.S. Probation Department’s recommendation of a
14-level enhancement.
On appeal, Mrs. Yurek argues that the loss attributable to her was
less than $550,000 and that the district court erred in two ways when
calculating the intended loss:
1. The amount sought to be discharged in bankruptcy did not
constitute an appropriate methodology.
2. The district court miscalculated the value of the assets that had
been concealed from the bankruptcy court.
We reject Mrs. Yurek’s challenge to the district court’s methodology
for calculating the intended loss. Determining this methodology involves a
21
Under § 2B1.1, “loss is the greater of actual loss or intended loss.”
U.S.S.G. § 2B1.1 cmt. n.3(A) (2016). The parties agree that the applicable
measure of loss is intended loss because there was no actual loss.
29
legal conclusion, so we engage in de novo review. See United States v.
Gordon, 710 F.3d 1124, 1160–61 (10th Cir. 2013) (stating that we engage
in de novo review of the district court’s methodology for calculating loss
under § 2B1.1(b)). Engaging in de novo review, we start with the
applicable guideline and related application notes. The application notes
for § 2B1.1 define “intended loss” as a loss that a defendant “purposely
sought to inflict.” U.S.S.G. § 2B1.1 cmt. n.3(A)(ii)(I) (2016); see United
States v. Manatau, 647 F.3d 1048, 1050 (10th Cir. 2011) (Gorsuch, J.)
(“Something is intended if it is done on purpose—not merely known,
foreseen, or just possible or potentially contemplated.”). 22 We must follow
this definition of intended loss because it is not plainly erroneous,
inconsistent with § 2B1.1, or violative of the U.S. Constitution or a federal
statute. United States v. Mojica, 214 F.3d 1169, 1171 (10th Cir. 2000).
Applying this definition, we conclude that the intended loss equals
the monetary harm that Mrs. Yurek wanted to cause her creditors. See
United States v. Holthaus, 486 F.3d 451, 455 (8th Cir. 2007) (“When
determining intended loss [in the bankruptcy context], we look to the
22
In Manatau, we interpreted the phrase “intended loss” in a prior
version of § 2B1.1 to mean “a loss the defendant purposely sought to
inflict.” Manatau, 647 F.3d at 1050 (emphasis in original). The Sentencing
Commission later amended § 2B1.1 to reflect this holding. See U.S.S.G.
amend. 792 (eff. Nov. 1, 2015), available at U.S.S.G. supp. to app. C 108–
12 (2016 ) .
30
amount of loss a defendant actually intended to cause his creditors.”);
United States v. Bussell, 504 F.3d 956, 962 (9th Cir. 2007) (“When
determining intended loss [in the bankruptcy context], we must look to the
amount of loss that [the defendant] intended to cause her creditors.”).
These creditors included the IRS, so the intended loss includes the
amount of federal tax debt that Mrs. Yurek tried to discharge in
bankruptcy. That discharge would have extinguished Mrs. Yurek’s federal
tax debt, causing a loss to the IRS. See United States v. Mutuc, 349 F.3d
930, 937 (7th Cir. 2003) (“A successful discharge in bankruptcy would
have left the creditors without recourse against Mutuc; it follows that
Mutuc intended a loss equal to the amount to be discharged in
bankruptcy.”).
In similar circumstances, other circuits have ordinarily allowed
calculation of the intended loss based on the amount of debt that the
defendant was trying to discharge, though the circuits have taken somewhat
different approaches. For example, the Seventh Circuit has flatly stated
that it allows measurement of the intended loss based on the amount that
the defendant sought to discharge in bankruptcy. See United States v.
Arthur, 582 F.3d 713, 720–21 (7th Cir. 2009); United States v. Mutuc, 349
F.3d 930, 936–37 (7th Cir. 2003); United States v. Holland, 160 F.3d 377,
381 (7th Cir. 1998). On the other hand, the Ninth Circuit allows the district
court to consider the economic realities in each case and use discretion in
31
determining whether to calculate the intended loss based on the entire
amount to be discharged or the value of concealed assets. See United States
v. Bussell, 504 F.3d 956, 961–62 (9th Cir. 2007). And the Eighth Circuit
has suggested that the intended loss can equal the entire amount that the
defendants are trying to discharge only if the fraud had created the illusion
of dischargeability. See United States v. Holthaus, 486 F.3d 451, 455 (8th
Cir. 2007).
All of these approaches support the district court’s decision to
calculate the intended loss attributable to Mrs. Yurek based on the amount
of tax debt ($1.2 million) that Mrs. Yurek was trying to discharge in
bankruptcy. So regardless of whether we consider the economic realities or
the illusion of dischargeability, the district court did not err in calculating
the intended loss based on the amount that Mrs. Yurek had tried to
discharge in bankruptcy.
Of course, Mrs. Yurek couldn’t succeed in causing this loss because
once she committed tax evasion, the entire tax debt became
nondischargeable. See 18 U.S.C. § 523(a)(1)(C). But a loss can be intended
even when it is improbable or impossible. U.S.S.G. § 2B1.1 cmt. n.3(A)(ii)
(2016). 23
23
We have stated that a loss is intended only if (1) “the defendant
realistically intended a particular loss” or (2) such a loss was probable.
United States v. Swanson, 360 F.3d 1155, 1168 (10th Cir. 2004); United
32
Mrs. Yurek disagrees, relying on United States v. Holthaus, 486 F.3d
451 (8th Cir. 2002). There, however, the Eighth Circuit expressly
disavowed a blanket prohibition against calculation of intended loss based
on the amount that the defendant had tried to discharge in bankruptcy.
Holthaus, 486 F.3d at 455; see p. 32, above. Given the pinpoint citation in
Mrs. Yurek’s opening appeal brief, Mrs. Yurek is apparently intending to
rely on the Holthaus panel’s discussion of a prior opinion, United States v.
Wheeldon, 313 F.3d 1070 (8th Cir. 2002). There the Eighth Circuit
addressed the proper method for calculating intended loss when the amount
of the attempted discharge exceeds the value of the concealed assets.
Wheeldon, 313 F.3d at 1072. Applying the 2000 version of the U.S.
Sentencing Guidelines, the Eighth Circuit concluded that this situation
required the district court to calculate the intended loss based on the value
of the concealed assets. Id.In reaching this conclusion, the Eighth Circuit didn’t apply the term
“intended loss;” the court instead applied the term “probable intended
States v. Schild, 269 F.3d 1198, 1200 (10th Cir. 2001). We later
characterized the reference to “probable” loss as “dicta” based on
“questionable authority.” United States v. Baum, 555 F.3d 1129, 1134
(10th Cir. 2009). That “questionable authority” was United States v. Smith,
951 F.2d 1164 (10th Cir. 1991), which had relied on guideline language
that was later deleted. See Baum, 555 F.3d at 1134–35 (discussing the
origin of the language in Swanson and Schild and later changes to the
sentencing guidelines) .
33
loss.” Id. But the Sentencing Commission amended the applicable
definition of “intended loss” in 2001, providing that a loss can be intended
even when it is unlikely or impossible. U.S.S.G. amend. 617 (eff. Nov. 1,
2001), available at U.S.S.G. app. C vol. II at 117 (2016) (“The amendment
resolves the conflict to provide that intended loss includes unlikely or
impossible losses that are intended, because their inclusion better reflects
the culpability of the offender.”); see p. 32 & note 23, above. Given the
change in definition, the nondischargeability of Mrs. Yurek’s tax debt does
not affect the available methods to calculate intended loss.
Mrs. Yurek listed a tax debt of $1.2 million in her bankruptcy
petition, requesting that it be discharged. And her husband, who also
signed the bankruptcy petition, stated in bankruptcy court that he and his
wife had filed the bankruptcy petition in order to discharge their $1.2
million tax debt. Given this evidence, the court could calculate the
intended loss attributable to Mrs. Yurek based on the amount of tax debt
that she had tried to discharge.
* * *
We conclude that the district court appropriately calculated the
intended loss attributable to Mrs. Yurek based on the amount of tax debt
that she had tried to discharge in bankruptcy. Thus, the district court did
not err in applying the 14-level sentencing enhancement.
34
C. The district court plainly erred by applying the wrong test
for a mitigating-role adjustment.
Mrs. Yurek also argues that the district court applied the wrong test
when deciding not to grant a downward adjustment for a mitigating role.
We agree.
1. Preservation and the Argument for Plain Error
The government contends that Mrs. Yurek did not preserve the issue
for appeal. We agree.
To preserve an appellate issue involving the district court’s
explanation for a sentence, the defendant must lodge a “contemporaneous
objection.” United States v. Romero, 491 F.3d 1173, 1177 (10th Cir. 2007);
see United States v. Lopez-Flores, 444 F.3d 1218, 1221 (10th Cir. 2006)
(“[T]he usual reasons for requiring a contemporaneous objection apply to
challenges to the district court’s method of arriving at a sentence.”). At
sentencing, the district court explained that it would deny Mrs. Yurek a
mitigating-role adjustment because her participation in tax evasion and
bankruptcy fraud had been “central and necessary for both . . . crimes to
take place.” R., vol. 5, at 1925; see also id. at 1925–26 (finding “ample
grounds to conclude that Ms. Yurek’s participation in these criminal
schemes was central and necessary and that her husband could not have
proceeded with either the tax evasion or the bankruptcy fraud without
her”).
35
Mrs. Yurek argues that the district court applied the wrong test. She
bases her argument on the district court’s explanation for denying a
mitigating-role adjustment, but she did not raise this issue in district court.
According to Mrs. Yurek, she preserved the issue by objecting to the
presentence report. But she is alleging an error in the district court’s
explanation, not in the content of the presentence report. So objecting to
the presentence report would not have alerted the district court to an error
in its explanation. See United States v. Mendoza, 543 F.3d 1186, 1195
(10th Cir. 2008); 24 see also United States v. Chavez-Morales, 894 F.3d
1206, 1213 (10th Cir. 2018) (concluding that a defendant’s sentencing
memorandum did not preserve an issue involving the adequacy of the
district court’s explanation). Because Mrs. Yurek did not preserve her
argument involving correctness of the legal standard for a mitigating-role
24
In Mendoza, the government appealed the sentence, arguing that the
district court failed to provide written reasons for its downward variance.
543 F.3d at 1186. We concluded that the government had forfeited this
appeal point by failing to alert the district court to its failure to provide
written reasons. Id. at 1195. An objection to the presentence report didn’t
suffice for preservation: “Unlike other forms of sentencing error, which
can be preserved for appellate review through written objections to the
[presentence report] or an oral objection during the sentencing hearing,
failure to enter a written statement of reasons becomes apparent to the
parties only after the court enters its final judgment regarding the sentence
imposed.” Id.36
adjustment, any review would be confined to the plain-error standard.
Romero, 491 F.3d at 1178. 25
But the government argues that Mrs. Yurek lost her opportunity to
urge plain error by waiting until her reply brief to do so. We disagree. Mrs.
Yurek appeared to assume in her opening brief that she had preserved her
challenge to the denial of a mitigating-role adjustment. After the
government challenged preservation, Mrs. Yurek argued in her reply brief
that the error would be considered plain even if she had forfeited the issue.
This approach was a permissible way to invoke plain-error review. See
United States v. Zander, 794 F.3d 1220, 1232 n.5 (10th Cir. 2015) (“We
hold that Defendant adequately addressed the issue of plain error review in
his reply to the government’s brief, after arguing in his opening brief that
his objections below were sufficiently raised to be preserved for review on
appeal.”). We thus apply the standard for plain error.
2. Mrs. Yurek is entitled to relief under the plain-error
standard.
For Mrs. Yurek to prevail under the plain-error test, she must show
1. that an error took place,
25
Mrs. Yurek contends that the government induced the error by
arguing that she had played a central and necessary role in the crimes. But
the government never suggested to the district court that it apply the wrong
legal test. The government simply argued against a mitigating-role
adjustment. Presentation of this argument did not induce the court’s error.
37
2. that the error was plain,
3. that it affected her substantive rights, and
4. that the error “seriously affects the fairness, integrity, or public
reputation of judicial proceedings.”
United States v. Bustamante-Conchas, 850 F.3d 1130, 1137 (10th Cir.
2017) (en banc). Mrs. Yurek has satisfied each of these prongs.
a. The government properly conceded the first and second
prongs.
The government concedes the first two prongs of the plain-error test.
We agree that the first two prongs are satisfied.
A defendant who was a minimal or minor participant in criminal
activity is eligible for a downward adjustment. See U.S.S.G. § 3B1.2
(2016). Finding that a defendant performed an “essential or indispensable
role . . . is not determinative” of eligibility for this adjustment. Id. § 3B1.2
cmt. n.3(C). The court instead must focus on whether the defendant “is
substantially less culpable than the average participant in the criminal
activity.” Id.; see United States v. Salazar-Samaniega, 361 F.3d 1271,
1277 (10th Cir. 2004) (noting that a § 3B1.2 reduction is available only for
“a defendant who plays a part in committing the offense that makes him
substantially less culpable than the average participant”); United States v.
Ayers, 84 F.3d 382, 383 (10th Cir. 1996) (“Section 3B1.2 vests the district
court with discretion to grant a base-offense level reduction if it finds a
38
defendant is less culpable relative to other participants in a given offense.”
(internal quotation marks omitted)).
But the district court did not consider Mrs. Yurek’s culpability
relative to other participants in the scheme. 26 The court instead found that
Mrs. Yurek’s role had been essential to the crimes and treated that finding
as determinative. By failing to consider Mrs. Yurek’s relative culpability,
the district court applied the wrong test when denying a mitigating-role
adjustment. As the government admits, the district court’s application of
the wrong test constitutes an error that was plain. Mrs. Yurek has thus
satisfied both the first and second prongs of the plain-error standard.
26
In the criminal scheme, only two persons were named: Mrs. Yurek
and her husband. But the husband was not an “average participant” because
he had obtained a two-level enhancement for a leadership role in the
crimes. So in this scheme, it is impossible to compare Mrs. Yurek’s
culpability to another “average” participant.
Given the absence of another “average” participant in this scheme,
the sentencing court must focus on (1) the degree of Mrs. Yurek’s
culpability relative to her husband’s and (2) the scope of the criminal
scheme. See United States v. Lopez, 545 F.3d 515, 517 (7th Cir. 2008)
(“[I]n situations where criminal activity involves only two participants
(and thus it is impossible to ascertain the culpability of an ‘average’
participant), the key inquiry is the degree of the defendant’s culpability
relative to the other participant’s and the scope of the criminal
enterprise.”). With this dual focus, the court should determine whether
Mrs. Yurek bore substantially less culpability than her husband. See id.;
see also United States v. Tholl, 895 F.2d 178, 1185–86 (7th Cir. 1990)
(concluding that under § 3B1.2, it was not enough for the defendant to
prove less culpability than the sole other participant, who had been the
“mastermind” behind the criminal scheme).
39
b. Mrs. Yurek has satisfied the third prong of the plain-error
test.
Mrs. Yurek has also satisfied the third prong of the plain-error test.
Under this prong, Mrs. Yurek bears the burden to show prejudice. United
States v. Gonzales-Huerta, 403 F.3d 727, 732–33 (10th Cir. 2005). To
satisfy this burden, Mrs. Yurek must show a reasonable probability
sufficient to undermine confidence in the outcome at her sentencing.
United States v Bustamante-Conchas, 850 F.3d 1130, 1138 (10th Cir. 2017)
(en banc). Confidence in the outcome can be undermined even if Mrs.
Yurek’s showing would not satisfy the preponderance-of-the-evidence
standard. United States v. Dominguez Benitez, 542 U.S. 74, 83 n.9 (2004).
Mrs. Yurek has shown prejudice from the district court’s application
of the wrong test. The crux of § 3B1.2 is a defendant’s relative culpability.
See pp. 38–39, above. After denying a mitigating-role adjustment to Mrs.
Yurek, the court considered her relative culpability and downplayed her
role in the scheme:
It is true that the trial evidence established that the
defendants used accountants and attorneys as tools to accomplish
the bankruptcy fraud and tax evasion schemes for which they
were convicted, but in the mitigation for this defendant, these
accountants and attorneys unambiguously testified at trial that it
was always Mr. Yurek, as opposed to his wife, who took the lead
in communicating and strategizing with them in the perpetuation
of these schemes.
While it does not absolve her from her culpability for her
crimes, in my judgment fairness requires me to temper the
sentence I will impose on Ms. Yurek to reflect her passive and,
40
to some degree, submissive personality when compared to her
husband, at least insofar as matters such as the complex criminal
schemes in this case are concerned.
R., vol. 5, at 1969–70 (emphasis added). Given Mrs. Yurek’s lesser role in
the scheme, the district court varied downward to 27 months from the
guideline range of 41–51 months.
The district court justified the downward variance based in part on
its view that Mrs. Yurek bore less culpability than her husband. If a
district court finds that a defendant is less culpable relative to other
participants in a crime and varies downward from the advisory guideline
range based partly on that determination, a reasonable probability exists
that the district court would have granted a mitigating-role adjustment
under the correct test. See United States v. Trujillo-Terrazas, 405 F.3d
814, 820 (10th Cir. 2005) (considering a district court’s comments at
sentencing when determining whether the plain error prejudiced the
defendant); see also United States v. Sierra-Castillo, 405 F.3d 932, 942
(10th Cir. 2005) (noting that a district court’s comments at sentencing can
help a defendant satisfy the third prong of the plain-error test).
And if the district court had granted Mrs. Yurek a mitigating-role
adjustment, the district court’s starting point (the guideline range) would
have been lower. “When the court’s starting point is skewed a ‘reasonable
probability’ exists that its final sentence is skewed too.” United States v.
41
Sabillon-Umana, 772 F.3d 1328, 1333 (10th Cir. 2014) (Gorsuch, J.). Mrs.
Yurek has thus satisfied the third prong of the plain-error test.
c. The fourth prong was also satisfied.
To satisfy the fourth prong, Mrs. Yurek must show that the district
court’s error “seriously affects the fairness, integrity, or public reputation
of judicial proceedings.” United States v. Bustamante-Conchas, 850 F.3d
1130, 1137 (10th Cir. 2017) (en banc). We conclude that Mrs. Yurek has
met this burden.
When an error affects the calculation of a defendant’s guideline
range, the fourth prong is ordinarily satisfied when the first three prongs
are satisfied. Rosales-Mireles v. United States, 138 S. Ct. 1897, 1908
(2018). After all, “what reasonable citizen wouldn’t bear a rightly
diminished view of the judicial process and its integrity if courts refused to
correct obvious errors of their own devise that threaten to require
individuals to linger longer in federal prison than the law demands?” Id.(quoting United States v. Sabillon-Umana, 772 F.3d 1328, 1333–34 (10th
Cir. 2014) (Gorsuch, J.)).
* * *
We conclude that the district court plainly erred by applying the
wrong test for a mitigating-role adjustment.
42
V. Conclusion
We affirm Ms. Yurek’s conviction, but we vacate her sentence and
remand for resentencing. At resentencing, the district court must
reconsider the possibility of a mitigating-role adjustment.
43