United States v. James Wiederhold

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 14a0037n.06
No. 12-2111
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
UNITED STATES OF AMERICA, ) Jan 16, 2014
) DEBORAH S. HUNT, Clerk
Plaintiff-Appellee, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR
) THE WESTERN DISTRICT OF
JAMES EDWARD WIEDERHOLD, ) MICHIGAN
)
Defendant-Appellant. )
BEFORE: SUHRHEINRICH, GRIFFIN, and KETHLEDGE, Circuit Judges.
PER CURIAM. James Edward Wiederhold, a federal prisoner, appeals the sentence
imposed following his guilty plea to a charge of wire fraud, 18 U.S.C. § 1343.
Wiederhold and several co-defendants operated a fraudulent investment scheme. They
took nearly a million dollars from victims, made none of the promised investments, and spent the
money themselves. Wiederhold pled guilty pursuant to a plea agreement. The district court
determined that the sentencing guidelines range was 63 to 78 months, and sentenced Wiederhold
to 72 months of imprisonment.
On appeal, Wiederhold argues that his sentence is procedurally unreasonable because the
district court improperly applied a four-level enhancement to his offense level for being an
organizer or leader, pursuant to USSG § 3B1.1(a). Instead, he asserts that he was actually a
manager or supervisor subject to a three-level enhancement under § 3B1.1(b). He also argues
that his sentence is substantively unreasonable because the district court did not properly weigh
the sentencing factors set forth in 18 U.S.C. § 3553(a).
No. 12-2111
United States v. Wiederhold
A sentence may be procedurally unreasonable where the district court errs in calculating
the guidelines range. See United States v. Blue, 557 F.3d 682, 684 (6th Cir. 2009). Wiederhold
argues that such an error occurred when the district court determined that he was an organizer or
leader of the criminal enterprise. A district court’s determination that an enhancement for being
an organizer or leader is appropriate under § 3B1.1(a) is subject to a deferential standard of
review. United States v. Washington, 715 F.3d 975, 983 (6th Cir. 2013). Wiederhold contends
that two of his co-defendants were responsible for starting the investment scheme, and that he
did not receive a larger share of the victims’ money; therefore, he was improperly found to be an
organizer or leader. However, Wiederhold admitted at his plea hearing that he was involved
from the start of the scheme, and his name was included in the bogus prospectus that was given
to the victims. Further, the evidence showed that more of the ill-gotten gains went to
Wiederhold and certain family members who assisted him than to the other co-defendants. We
therefore defer to the district court’s determination that Wiederhold was an organizer or leader of
the scheme because it is supported by the record and not clearly erroneous.
Wiederhold next argues that his sentence is substantively unreasonable because the
district court did not properly weigh the sentencing factors. However, by the terms of his plea
agreement, Wiederhold retained only the right to appeal that the guidelines range was incorrectly
determined and that a sentence was greater than the statutory maximum or based on
unconstitutional factors. Wiederhold’s argument here is not one of those that he retained the
right to raise on appeal. A defendant may waive his appeal rights, so long as the waiver is
knowing and voluntary. See United States v. Fleming, 239 F.3d 761, 763-64 (6th Cir. 2001).
Wiederhold does not argue that his appeal waiver was unknowing and involuntary. Thus, we
will enforce the plea agreement.
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No. 12-2111
United States v. Wiederhold
Accordingly, we affirm the district court’s judgment.
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