United States v. Wright

FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS February 21, 2017
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 15-5090
BRUCE CARLTON WRIGHT,
Defendant - Appellant.
_________________________________
Appeal from the United States District Court
for the Northern District of Oklahoma
(D.C. No. 4:14-CR-00136-GKF-2)
_________________________________
Barry L. Derryberry, Research and Writing Specialist (Julia L. O’Connell, Federal Public
Defender, William Patrick Widell, Assistant Federal Public Defender, and Julie K.
Linnen, Assistant Federal Public Defender, with him on the briefs), Office of the Federal
Public Defender, Tulsa, Oklahoma, for Defendant-Appellant.
Joel-lyn A. McCormick, Assistant United States Attorney (Danny C. Williams, Sr.,
United States Attorney, with her on the brief), Office of the United States Attorney,
Tulsa, Oklahoma, for Plaintiff-Appellee.
_________________________________
Before PHILLIPS and BALDOCK, Circuit Judges.*
*
The Honorable Neil Gorsuch heard oral argument but did not participate in the
opinion. The practice of this court permits the remaining two panel judges, if in
agreement, to act as a quorum in resolving the appeal. See 28 U.S.C. §46(d); see also
United States v. Wiles, 106 F.3d 1516, 1516 n* (10th Cir. 1997) (noting this court allows
remaining panel judges to act as a quorum to resolve an appeal); Murray v. Nat’l Broad.
Co., 35 F.3d 45, 48 (2d Cir. 1994) (remaining two judges of original three judge panel
_________________________________
PHILLIPS, Circuit Judge.
_________________________________
A jury convicted Bruce Carlton Wright of conspiracy to commit bank fraud
and of eleven counts of bank fraud arising from his participation in a scheme to
submit false draw requests and invoices to obtain bank loans. The district court
sentenced Wright to thirty-three months’ imprisonment and ordered him to pay
$1,094,490.60 in restitution. Wright raises several issues on appeal, concerning jury
instructions, withheld impeachment evidence, and bank loss and restitution amounts.
We affirm.
BACKGROUND
A grand jury sitting in the Northern District of Oklahoma indicted Wright and
Alan Blaksley on one count of conspiracy to commit bank fraud in violation of 18
U.S.C. §§ 1349 and 1344 (Count 1), and on twelve counts of bank fraud in violation
of 18 U.S.C. § 1344(1) (Counts 2-13). Before trial, Blaksley pleaded guilty to
conspiracy to commit bank fraud and agreed to testify as a government witness at
trial. Wright chose to defend against the charges at trial.
During the time charged in the Indictment, June 2007 to July 2008, Wright
served as president of five Oklahoma limited liability companies owned by Blaksley.
One of these companies, Group Blaksley Properties, LLC, obtained a $6.5 million
may decide petition for rehearing without third judge), cert. denied, 513 U.S. 1082(1995).
2
loan from International Bank of Commerce (Bank) to develop a senior-living
community in Bentonville, Arkansas.1 Sometime during the development of the
property, Wright and Blaksley agreed to a fraudulent scheme in which Wright
submitted fraudulent monthly draw requests for unperformed work and duplicate
draw requests for work already performed elsewhere. As part of their scheme, Wright
and Blaksley included with the draw requests pictures of construction work
supposedly (but not) completed at the Bentonville project. Misled by the false
information, the Bank paid $1,176,490.60 in draw requests to Group Blaksley
Properties. In fact, Group Blaksley Properties had performed little work on the
Bentonville site. Blaksley pocketed almost all of the $1,176,490.60 for his personal
use, and Wright obtained incidental benefits.
In April 2008, the Bank inspected the property and saw that Group Blaksley
Properties had done much less work than represented. Before 2015, the Bank
foreclosed and sold the Bentonville property, but the record doesn’t say how much it
got from the sale.
The jury convicted Wright on the conspiracy count and eleven of the twelve
bank-fraud counts.2 Wright didn’t object to the Presentence Investigation Report
(PSR) or any of its contents, either before or at sentencing. The district court adopted
1
The Bank’s loan acted as a line of credit, requiring Group Blaksley Properties
to submit draw requests after completion of work.
2
The jury found Wright not guilty of Count 2—the first bank-fraud count.
Count 2 represented the first draw request for $82,000. The Presentence Investigation
Report and the district court did not hold Wright accountable for this draw request.
3
the PSR’s uncontested loss calculation of $1,094,490.60, and sentenced Wright to
thirty-three months’ imprisonment. Relying also on the PSR’s uncontested restitution
calculation, the district court ordered Wright to pay $1,094,490.60 in restitution.
Wright appealed.
DISCUSSION
Wright asserts that the district court erred in five ways: (1) the district court
plainly erred by not including within its listed elements of conspiracy to commit bank
fraud the necessary element of intent to defraud; (2) the district court erred in
responding to a written question from the jury during deliberations by directing the
jury to consider each indictment count separately; (3) the district court erred in
denying Wright’s Motion for New Trial based on a claimed Brady violation; (4) the
district court plainly erred in calculating the loss amount under USSG § 2B1.1(b)(1);
and (5) the district court plainly erred in calculating the restitution amount.
We review Wright’s first, second, fourth, and fifth asserted errors, to which he
didn’t properly object in the district court, under the plain-error standard. United
States v. Faust, 795 F.3d 1243, 1251 (10th Cir. 2015). Under this standard, Wright
must establish “(1) error, (2) that is plain, which (3) affects substantial rights, and
which (4) seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” United States v. Gonzalez-Huerta, 403 F.3d 727, 732 (10th Cir. 2005)
(quoting United States v. Burbage, 365 F.3d 1174, 1180 (10th Cir. 2004)). Plain error
affects a defendant’s substantial rights if “there is a reasonable probability that, but
for the error claimed, the result of the proceeding would have been different. A
4
reasonable probability is a probability sufficient to undermine confidence in the
outcome.” United States v. Hale, 762 F.3d 1214, 1221 (10th Cir. 2014) (quoting
United States v. Rosales-Miranda, 755 F.3d 1253, 1258 (10th Cir. 2014)).
Because Wright’s Motion for New Trial, his third asserted error on appeal,
alleges a Brady violation, we review de novo the district court’s denial of that
motion. United States v. Velarde, 485 F.3d 553, 558 (10th Cir. 2007).
I. The district court didn’t plainly err in its jury instruction listing the
elements of conspiracy to commit bank fraud.
We review the jury instructions “in the context of the entire trial to determine
if they accurately state the governing law and provide the jury with an accurate
understanding of the relevant legal standards and factual issues in the case.” United
States v. Kalu, 791 F.3d 1194, 1200–01 (10th Cir. 2015) (quoting United States v.
Thomas, 749 F.3d 1302, 1312 (10th Cir. 2014)).
Wright argues that the district court plainly erred by not including “intent to
defraud” as an element of conspiracy to commit bank fraud in Jury Instruction 14.
Appellant’s Opening Br. at 13. Because Wright didn’t object to this jury instruction,
we review under the plain-error standard. United States v. LaVallee, 439 F.3d 670,
684 (10th Cir. 2006). Wright’s plain-error argument fails on the first step of the
analysis—he cannot show error. Though the conspiracy instruction didn’t list “intent
to defraud” as an element of the conspiracy, the district court cured this deficiency by
incorporating into the conspiracy instruction that same intent element from
Instruction 15, which provided the elements of bank fraud.
5
Count 1 charged Wright with conspiracy to commit bank fraud, in violation of
18 U.S.C. §§ 1344 and 1349. “[C]onspiracy to commit a particular substantive
offense cannot exist without at least the degree of criminal intent necessary for the
substantive offense itself.” United States v. Robertson, 473 F.3d 1289, 1292 (10th
Cir. 2007) (quoting Ingram v. United States, 360 U.S. 672, 678 (1959)). And bank
fraud requires intent to defraud a financial institution. United States v. Gallant, 537
F.3d 1202, 1223 (10th Cir. 2008). In this circumstance, our circuit’s pattern jury
instructions favor listing “intent to defraud” as an element of conspiracy to commit
bank fraud. Tenth Circuit Pattern Jury Instructions Criminal § 2.19 (Use Note). Here,
the district court’s conspiracy instruction neglected to expressly include this intent-
to-defraud element.
Even so, we disagree with Wright that the district court’s straying from the
most proper instruction amounts to error in his case.3 See United States v. Knight,
659 F.3d 1285, 1287 (10th Cir. 2011) (in reviewing jury instructions for error, we
read and evaluate them in their entirety to determine whether the instructions as a
whole fairly, adequately, and correctly state the governing law and provide the jury
with an ample understanding of the applicable principles of law). Under Instruction
14—the conspiracy instruction—the district court informed the jury that it could not
convict of conspiracy absent finding that Wright had agreed with another person to
commit “bank fraud”:
3
We don’t address whether the deficiency would have mattered had the jury
convicted on the conspiracy count but acquitted on all the bank-fraud counts.
6
The defendant Bruce Carlton Wright is charged in Count 1 with
conspiring to commit bank fraud. It is a crime for two or more people to
agree to commit a crime. To find the defendant guilty of conspiracy to
commit bank fraud you must be convinced the government has proved
each of the following beyond a reasonable doubt:
First: two or more people reached an agreement to commit the
crime of bank fraud;
Second: the defendant knew the essential objectives of the
conspiracy;
Third: the defendant knowingly and voluntarily participated in
the conspiracy; and
Fourth: the alleged coconspirators were interdependent.
R. Vol. 1 at 45 (emphasis added). And under Instruction 15, the district court told the
jury that bank fraud required proof that Wright had “acted with intent to defraud.” Id.
at 47; see Weeks v. Angelone, 528 U.S. 225, 234 (2000) (“A jury is presumed to
follow its instructions,” and “to understand a judge’s answer to its question.”). Hence
the conspiracy instruction incorporated “intent to defraud” into its elements by
requiring an agreement to commit bank fraud.4
4
Because Wright fails the first step of the plain-error analysis—error—we
need not reach the remaining three steps. Even so, we note that Wright could not
show that his claimed error affected his substantial rights. In convicting Wright on
individual bank-fraud counts, the jury necessarily found that Wright had acted with
intent to defraud in those instances. In such circumstances, where a conspiracy
instruction incorporates a missing intent element by reference to the instruction
governing the substantive crime, we sustain the conspiracy conviction against a
challenge that its instruction missed an element. See Robertson, 473 F.3d at 1291–93.
7
II. Wright waived any objection to the district court’s response to a jury
question by failing to argue plain error on appeal.
During deliberations, the jury sent the district court a note asking, “Your
Honor, does the defendant have to be guilty of Count No. 1 in order to be guilty or
not guilty of other counts.”5 R. Vol. 2 at 1614. In conferring with counsel, the district
court stated its belief that the proper response was “no.” Id. It proposed to respond,
“No, the counts should be reviewed separately.” Id. at 1618. Wright’s counsel stated
that he preferred that the court respond, “You have all the law necessary.” Id. The
district court asked Wright’s counsel, “[A]re you saying that it would be legally
incorrect to say ‘no’?” Id. Wright’s counsel responded, “No, sir. I think the answer is
– I think legally the answer is ‘no.’” Id. Wright’s counsel then requested that the
court respond, “You must decide whether the government has proven each and every
element of each count in the indictment and you must consider each count
separately.”6 Id. at 1619. Over the general objection of Wright’s counsel, the district
court responded to the jury, “No, you must consider each count separately.” Id.
On appeal, Wright still concedes that the district court correctly answered the
note “No” for the jury’s consideration of the bank-fraud counts based on Wright’s
own conduct. But, now for the first time, he argues a new point—that the correct
5
Our circuit’s pattern jury instructions favor instructing the jury to separately
consider the evidence on each count. Tenth Circuit Pattern Jury Instructions Criminal
§ 1.22. Here, the jury instructions didn’t include this instruction.
6
This response would not have answered the jury’s question.
8
answer was “Yes” for bank-fraud convictions based on Blaksley’s acts and not his
own—the Pinkerton theory of liability.7 To convict Wright of bank fraud on
Pinkerton liability, the jury would have to convict him of Count 1—conspiracy to
commit bank fraud. So, Wright says, the district court’s written response to the jury
was incorrect—it enabled the jury to acquit him of the conspiracy but still convict
him for bank fraud based on Pinkerton liability. From this, Wright claims that we
can’t know whether the jury convicted Wright of bank fraud for his own acts, or
instead for Blaksley’s acts under Pinkerton.
Because Wright didn’t object on Pinkerton grounds to the district court’s
written response to the jury’s question, he forfeited that argument. Even though
Wright objected generally, he didn’t object on Pinkerton grounds and never presented
his current argument to the district court. When a defendant objects at the district
7
See Pinkerton v. United States, 328 U.S. 640, 646–48 (1946); United States
v. Rosalez, 711 F.3d 1194, 1208 (10th Cir. 2013) (Pinkerton stands for the
“longstanding rule that a party to a continuing conspiracy may be responsible for
substantive offenses a coconspirator commits”) (quoting United States v. Dumas, 688
F.2d 84, 87 (10th Cir. 1982)). The instruction in this case stated as follows:
If you find the defendant guilty of the conspiracy charged in Count One
and you find beyond a reasonable doubt that during the time the
defendant was a member of that conspiracy another coconspirator
committed any of the specific offenses in Counts Two through Thirteen,
and that specific offense either was committed to achieve an objective
of, or was a foreseeable consequence of, the conspiracy, then you may
find the defendant guilty of that specific offense, even though the
defendant may not have participated in any of the acts which constitute
that specific offense.
R. Vol. 1 at 49.
9
court but raises a different argument on appeal, we review for plain error. United
States v. Sorensen, 801 F.3d 1217, 1238 (10th Cir. 2015). Thus, Wright must satisfy
the plain-error standard to obtain appellate relief.
But on appeal, Wright doesn’t argue that the district court plainly erred in its
response to the jury’s question. Instead, he argues that the district court abused its
discretion. We have stated that “the failure to argue for plain error and its application
on appeal . . . surely marks the end of the road for an argument for reversal not first
presented to the district court.” Richison v. Ernest Group, Inc., 634 F.3d 1123, 1131
(10th Cir. 2011). And we have repeatedly declined to consider arguments under the
plain-error standard when the defendant fails to argue plain error. See, e.g., United
States v. De Vaughn, 694 F.3d 1141, 1159 (10th Cir. 2012) (refusing to discuss
merits where the defendant “has not even tried to show how the alleged errors were
‘plain’”); United States v. Lamirand, 669 F.3d 1091, 1098 n.7 (10th Cir. 2012) (“Mr.
Lamirand has not asked us to review his late-blooming argument for plain error.
Accordingly, we decline to do so and will not definitively opine on the merits of this
argument.”). Thus, we decline to review Wright’s argument under the plain-error
standard.8
8
Even if we considered Wright’s argument under the plain-error standard, we
would find no error. First, the district court’s Pinkerton instruction itself shows the
jury would not be led astray as Wright fears. The first sentence of the Pinkerton
instruction tells the jury that Pinkerton liability depends on a conspiracy conviction.
The district court’s response to the jury’s question did nothing to contradict this
language. Second, the jury did convict Wright of conspiracy to commit bank fraud, so
10
III. The district court properly exercised its discretion in denying Wright’s
Motion for New Trial.
Wright filed a Motion for New Trial under Federal Rule of Criminal Procedure
33, arguing that the government withheld from him during trial a Victim Impact
Statement that the Bank’s President, David Moore, prepared for his coconspirator
Blaksley’s upcoming sentencing. In the Victim Impact Statement, dated a week
before Wright’s trial, Mr. Moore reported that Blaksley had continued interfering
with the Bank’s attempt to recover assets even after the Bank obtained a charging
order.9 In particular, Mr. Moore reported that Blaksley had intentionally withheld
distributions from one of his limited liability companies to prevent the Bank from
recovering money under its charging order against that company. Even though the
FBI agent and the Assistant United States Attorney knew about this information,
Wright says, the government withheld this information from him until after his trial.
Wright claims this information would have helped him further impeach Blaksley at
trial.
The district court denied Wright’s Motion for New Trial, concluding that the
Victim Impact Statement introduced at Blaksley’s sentencing hearing was merely
cumulative impeachment evidence. Wright seeks a new trial, arguing that the
it had full basis to convict Wright on the bank-fraud counts either for his own acts or
Blaksley’s.
9
A charging order is a “statutory procedure whereby an individual partner’s
creditor can satisfy its claim from the partner’s interest in the partnership.” Charging
Order, Black’s Law Dictionary (10th ed. 2014); see Okla. Stat. Ann. tit. 18, § 2034.
11
government withheld exculpatory evidence in violation of Brady v. Maryland, 373
U.S. 83 (1963).10
To obtain a new trial based on a Brady violation, Wright must show that
“(1) the prosecution suppressed evidence, (2) the evidence was favorable to [Wright],
and (3) the evidence was material.” Velarde, 485 F.3d at 558 (quoting United States
v. Quintanilla, 193 F.3d 1139, 1149 (10th Cir. 1999)). “Due process mandates
disclosure by the prosecution of all evidence that favors the defendant and is
‘material either to guilt or punishment.’” Id. at 558–59 (quoting United States v.
Robinson, 39 F.3d 1115, 1118 (10th Cir. 1994)).
Addressing the first two factors, the government acknowledges that it didn’t
furnish Wright the Victim Impact Statement until after trial. And the Victim Impact
Statement perhaps was marginally favorable to Wright. Evidence is favorable if it is
exculpatory or impeaching. Douglas v. Workman, 560 F.3d 1156, 1172–73 (10th Cir.
2009). “Impeachment evidence is exculpatory for Brady purposes.” United States v.
Cooper, 654 F.3d 1104, 1119 (10th Cir. 2011) (quoting United States v. Smith, 534
F.3d 1211, 1222 (10th Cir. 2008)). Here, Wright contends that he could have
impeached Blaksley with information from the Victim Impact Statement about
Blaksley’s efforts to frustrate the Bank’s recoupment efforts. Specifically, at trial,
10
In Brady, the Supreme Court held “that the suppression by the prosecution
of evidence favorable to an accused upon request violates due process where the
evidence is material either to guilt or to punishment, irrespective of the good faith or
bad faith of the prosecution.” Strickler v. Greene, 527 U.S. 263, 280 (1999) (quoting
Brady, 373 U.S. at 87). The Court also held that the duty to disclose such evidence is
applicable even if the accused hasn’t requested it. Id.12
Wright wanted to impeach further Blaksley’s direct testimony that he had “accepted
responsibility” for his crime.11 R. Vol. 2 at 1118.
In any event, Wright’s Brady claim fails on the third step because the
information in the Victim Impact Statement was not material. Evidence is material if
“there is a reasonable probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence in the outcome.”
Cooper, 654 F.3d at 1119 (quoting United States v. Torres, 569 F.3d 1277, 1282
(10th Cir. 2009)). To make this determination, we view the suppressed evidence’s
significance against the record as a whole. Id. at 1120.
At trial, even without the Victim Impact Statement, Wright impeached
Blaksley and attacked his credibility several different ways. After thoroughly
reviewing the record, we agree with the district court that Blaksley’s credibility was
“ably and significantly undermined” at trial. R. Vol. 1 at 126. For example, during
cross-examination, Blaksley admitted that he had stolen money from the Bank and
had repeatedly lied under oath to keep the money fraudulently obtained from the
Bank. Blaksley also admitted that he had lied under oath at a receivership hearing to
11
Here, any impeachment value is questionable from the start. “Acceptance of
responsibility” is a term of art in the advisory sentencing guidelines. U.S. Sentencing
Guidelines Manual § 3E1.1 (U.S. Sentencing Comm’n 2014). In evaluating whether a
defendant has accepted responsibility, the guideline commentary lists several
considerations, including whether the defendant has truthfully admitted the offense
conduct. On cross-examination, Blaksley testified that by “acceptance of
responsibility” he meant “I admitted to the government for what I felt like I did
wrong.” R. Vol. 2 at 1118.
13
prevent the Bank from recovering the value of its lent money. So, even without the
Victim Impact Statement, Wright still showed that Blaksley had obstructed the
Bank’s recovery.
“Where evidence ‘insignificantly impact[s] the degree of impeachment,’ it
generally will ‘not be sufficient to meet the . . . materiality standard.’” Cooper, 654
F.3d at 1120 (alteration and omission in original) (quoting Douglas, 560 F.3d at
1174). For instance, where a defendant has already attacked a witness’s credibility,
“additional impeachment evidence will generally be immaterial and will not provide
the basis for a Brady claim.” Id. (quoting Nuckols v. Gibson, 233 F.3d 1261, 1267 n.8
(10th Cir. 2000)). The record confirms that Wright effectively impeached Blaksley at
trial. Any additional impeachment evidence would have been cumulative and
insufficient to support a Brady violation.
Further, we agree with the district court’s position that Wright’s not having the
Victim Impact Statement does not undermine confidence in the outcome. Notably,
the Victim Impact Statement doesn’t address any of Blaksley’s testimony about
Wright’s guilt. Instead, it simply concerns Blaksley’s conduct after he and Wright
committed their crimes. The government presented testimony from Blaksley’s
employees and the Bank’s employees to establish Wright’s role. Even if the Victim
Impact Statement would meaningfully have cast further doubt on Blaksley’s
credibility, we agree with the district court that the government overwhelmingly
proved Wright’s guilt. We are convinced that the jury would have convicted Wright
14
even if he had the Victim Impact Statement before trial. Thus, the district court
properly exercised its discretion in denying Wright’s Motion for New Trial.
IV. Wright cannot show that the district court plainly erred in calculating his
loss and restitution.
Wright claims the district court erred in calculating the Bank’s loss for
sentencing and in calculating the amount of restitution Wright owed under the
Mandatory Victims Restitution Act (MVRA). See 18 U.S.C. § 3663A. Based on
Wright’s fraudulent draw requests, the PSR recommended holding him accountable
for $1,094,490.60 in actual losses to the Bank. After Wright accepted the PSR as
written, the district court imposed the PSR’s loss and restitution recommendations.
The district court attributed $1,094,490.60 in loss to Wright, resulting in an adjusted
offense level of 23 (a base-offense level of 7 plus 16 levels for loss exceeding
$1 million).
Together with Wright’s criminal history category I, the advisory guideline
range was 46–57 months. The district court granted Wright’s motion to vary
downward two levels for anticipated changes to the Sentencing Guidelines, reducing
the guideline range to 30–37 months. From this range, the district court sentenced
Wright to 33 months’ imprisonment and ordered that he pay $1,094,490.60 in
restitution. Now Wright claims that the district court plainly erred in calculating loss
and restitution by not reducing loss and restitution by the Bank’s foreclosure
recovery. Because Wright asserts the same arguments for both loss and restitution,
we review these issues together.
15
Under the sentencing guideline governing economic offenses, we calculate
Wright’s offense level largely based on the amount of loss. See U.S. Sentencing
Guidelines Manual § 2B1.1(b)(1) (U.S. Sentencing Comm’n 2014). In determining
loss, the district court must use the greater of the actual loss or intended loss. Id.
§ 2B1.1 cmt. 3(A). Actual loss is “the reasonably foreseeable pecuniary harm that
resulted from the offense.” Id. § 2B1.1 cmt. 3(A)(i). “Where a lender has foreclosed
and sold the collateral, the net loss should be determined by subtracting the sales
price from the outstanding balance on the loan.” United States v. Washington, 634
F.3d 1180, 1184 (10th Cir. 2011); see USSG § 2B1.1 cmt. 3(E)(ii) (“Loss shall be
reduced by . . . the amount the victim has recovered at the time of sentencing from
disposition of the collateral . . . .”). “The court need only make a reasonable estimate
of the loss” and it may use loss information that is supported by a preponderance of
the evidence. USSG § 2B1.1 cmt. 3(C); Washington, 634 F.3d at 1184.
“A district court may order criminal restitution only as authorized by federal
statute.” United States v. Ferdman, 779 F.3d 1129, 1131 (10th Cir. 2015). Here, the
district court ordered Wright to pay restitution under the MVRA. See 18 U.S.C.
§ 3663A. The MVRA mandates that district courts order restitution under convictions
for fraud or deceit. 18 U.S.C. § 3663A(c)(1)(A)(ii). Wright agrees that the statute
required the district court to order restitution, but he disputes the district court’s
restitution amount. As in calculating loss under the guidelines, the district court must
reduce Wright’s restitution obligation to account for money received by the victim
from the sale of the collateral to avoid a windfall for the victim. Robers v. United
16
States, 134 S. Ct. 1854, 1857–58 (2014). Wright claims that the district court failed
to credit the Bank’s foreclosure recovery against his loss and restitution amounts but
the government says otherwise.
One problem for Wright on appeal is that he failed to object to the district
court’s loss calculation and restitution obligation. Before Wright’s sentencing, the
government submitted the Victim Impact Statement from Blaksley’s sentencing
hearing for the district court’s consideration. In that Victim Impact Statement, as
mentioned, Mr. Moore stated that the Bank suffered $4,613,811.67 in total losses,
after crediting the Bank’s foreclosure recovery. The PSR set the amount of loss at
$1,094,490.60, representing the total amount of Wright’s draw requests. Wright
didn’t object to the PSR or any of its contents. Thus, Wright admitted responsibility
for causing $1,094,490.60 in losses to the Bank. United States v. Deninno, 29 F.3d
572, 580 (10th Cir. 1994) (“Failure to object to a fact in a presentence report, or
failure to object at the hearing, acts as an admission of fact.”).
At Wright’s sentencing, Mr. Moore, the Bank’s president, read the district
court a second statement, once again asserting that Wright and Blaksley’s fraudulent
scheme caused the Bank to suffer total losses of $4,613,811.67. As with the PSR,
Wright didn’t object to Mr. Moore’s calculation of the Bank’s loss. In accordance
with the PSR and Mr. Moore’s written and oral statements, the district court set the
17
Bank’s loss and Wright’s restitution at $1,094,490.60.12 Significantly, Wright did not
object to the statements that the bank’s loss figure had already credited the amount
received from its foreclosure on the mortgaged property.
Because Wright failed to object to the amount of loss and restitution, we
review for plain error. United States v. Howard, 784 F.3d 745, 748 (10th Cir. 2015).
On appeal, despite his silence in the district court, Wright contends that the district
court erred by failing to reduce the amount of loss and restitution by the amount
recovered after the Bank foreclosed on the property. But under the plain error
standard, Wright waived this challenge by failing to dispute this fact at sentencing.
United States v. Zhou, 717 F.3d 1139, 1154 (10th Cir. 2013).
“[F]actual disputes regarding sentencing not brought to the attention of the
district court do not rise to the level of plain error.” Howard, 784 F.3d at 749
(quoting United States v. Lewis, 594 F.3d 1270, 1288 (10th Cir. 2010)). In Howard,
the defendant claimed the district court plainly erred in calculating loss for his fraud
conviction by adding moneys lost from second mortgages. Id. We noted that the
challenge to the loss calculation raised solely a fact question. Id. We explained that
“[b]ecause Defendant failed to object to the evidence below, there was no need for
the government to explain why the printout was likely to be accurate.” Id. Thus, we
12
The district court didn’t hold Wright accountable for the total losses of
$4,613,811.67. Doing so would have increased Wright’s adjusted offense level two
levels.
18
concluded that the defendant’s fact challenge could not rise to the level of plain error.
Id.In Zhou, the defendant argued that the district court had erred under the
MVRA by ordering restitution that included certain unauthorized expenses. 717 F.3d
at 1154. We began by acknowledging that we could properly review for plain error
any legal arguments Zhou had failed to raise in district court. Id. But for unpreserved
factual errors, we restated our rule that even under the plain-error standard, “failure
to assert a factual dispute at sentencing waives the challenge because it prevented . . .
the district court from resolving the fact issue.” Id. We determined that Zhou waived
any challenges to unobjected-to facts found by the district court. Id. at 1154–55.
Here, as did the defendants in Howard and Zhou, Wright presents a fact
question—did the district court’s loss and restitution amounts credit the Bank’s
foreclosure recovery? Had Wright contested this at sentencing, the district court
could have asked the Bank’s president for more support that the foreclosure recovery
was included in the Bank’s proffered losses. But Wright’s silence to the Bank’s
evidence left the government no need to belabor an already-lengthy sentencing
hearing with more detailed evidence. The same goes for Wright’s not objecting to the
loss and restitution amounts recommended in the PSR. Deninno, 29 F.3d at 580. By
not protesting the loss and restitution amounts in the district court, Wright has
waived them on appeal. See Howard, 784 F.3d at 748; Zhou, 717 F.3d at 1154.
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CONCLUSION
Wright fails to show that he is entitled to a new trial and fails to satisfy the
plain-error standard for any of his remaining claims. Thus, the district court’s
judgment is affirmed.
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