United States v. James Brennan, III , 908 F.3d 995 ( 2018 )


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  •                          RECOMMENDED FOR FULL-TEXT PUBLICATION
    Pursuant to Sixth Circuit I.O.P. 32.1(b)
    File Name: 18a0250p.06
    UNITED STATES COURT OF APPEALS
    FOR THE SIXTH CIRCUIT
    UNITED STATES OF AMERICA,                              ┐
    Plaintiff-Appellee,   │
    │
    >      Nos. 17-6174/6177
    v.                                               │
    │
    │
    DOUGLAS A. DYER (17-6174); JAMES H. BRENNAN, III,      │
    (17-6177)                                              │
    Defendants-Appellants.     │
    ┘
    Appeal from the United States District Court
    for the Eastern District of Tennessee of Chattanooga.
    No. 1:17-cr-00053—Travis R. McDonough, District Judge.
    Argued: October 4, 2018
    Decided and Filed: November 13, 2018
    Before: SUHRHEINRICH, MOORE, and BUSH, Circuit Judges.
    _________________
    COUNSEL
    ARGUED: Mark E. Brown, MENEFEE & BROWN, P.C., Knoxville, Tennessee, for Appellant
    in 17-6174. Jennifer Niles Coffin, FEDERAL DEFENDER SERVICES OF EASTERN
    TENNESSEE, INC., Knoxville, Tennessee, for Appellant in 17-6177. Luke A. McLaurin,
    UNITED STATES ATTORNEY’S OFFICE, Knoxville, Tennessee, for Appellee. ON BRIEF:
    Mark E. Brown, MENEFEE & BROWN, P.C., Knoxville, Tennessee, for Appellant in 17-6174.
    Jennifer Niles Coffin, FEDERAL DEFENDER SERVICES OF EASTERN TENNESSEE, INC.,
    Knoxville, Tennessee, for Appellant in 17-6177. James T. Brooks, UNITED STATES
    ATTORNEY’S OFFICE, Chattanooga, Tennessee, for Appellee.
    Nos. 17-6174/6177                United States v. Dyer, et al.                        Page 2
    _________________
    OPINION
    _________________
    SUHRHEINRICH, Circuit Judge. The Double Jeopardy Clause of the Fifth Amendment
    protects against multiple criminal prosecutions and punishments for the same offense. Recently,
    the Supreme Court held that “[d]isgorgement, as it is applied in SEC enforcement proceedings,
    operates as a penalty under [28 U.S.C.] § 2462.” Kokesh v. SEC, 
    137 S. Ct. 1635
    , 1645 (2017).
    In this criminal sentencing appeal, we must consider whether SEC civil disgorgement is now a
    criminal punishment after Kokesh. It is not, so we AFFIRM Defendants’ sentences.
    I.
    A. Facts
    From 2008 to 2016, James H. Brennan and Douglas A. Dyer (collectively, “Defendants”)
    owned and managed Broad Street Ventures, LLC (“Broad Street”). Brennan and Dyer had a
    claimed goal of using Broad Street to create and incorporate eight Tennessee corporations that
    would be known as Scenic City F-10, I–VIII (collectively, “Scenic City”).        They induced
    investment in Scenic City by claiming that once Scenic City was appropriately capitalized,
    Brennan and Dyer would register the common stock of Scenic City with the SEC by filing a
    Form 10. They promised to publicly trade Scenic City and use Scenic City to acquire small
    private businesses. This process is known as a reverse merger and is legal.
    Investors sent Brennan and Dyer money by mail and electronic wire from locations
    outside of Tennessee. As money came in, however, Brennan and Dyer did not invest it into
    Scenic City. Instead, they moved the funds through Broad Street’s bank accounts and diverted a
    significant portion of that money to their own personal bank accounts. To fool the investors,
    Brennan and Dyer issued stock certificates to create the perception that they had handled the
    investment funds appropriately.     Brennan and Dyer mailed these stock certificates to the
    investors via the United States Postal Service. Yet Brennan and Dyer never filed a Form 10 with
    the SEC and never completed any reverse mergers. In total, the Government estimated that
    investors lost $4,942,070.18 in Brennan and Dyer’s scheme.
    Nos. 17-6174/6177                      United States v. Dyer, et al.                                      Page 3
    Brennan and Dyer reported the embezzled funds they received through Broad Street as
    long-term capital gains, which substantially reduced their personal tax liability each year by
    capping the tax rate at 15%. The embezzled funds should have been reported as ordinary income
    subject to a significantly higher tax rate. Brennan and Dyer also made payments to themselves
    from Broad Street that they treated as nontaxable distributions. These payments made up
    Brennan and Dyer’s primary source of income for the relevant years. In summary, Brennan and
    Dyer funneled the embezzled funds through Broad Street, paid out those funds to themselves as
    nontaxable distributions, and underreported their income to evade paying taxes on it. For the
    years 2010 through 2014, Dyer owed an additional $312,799 in taxes and Brennan owed an
    additional $164,542.
    B. Procedural History
    1. SEC Civil Case Begins
    On July 20, 2016, the SEC began a civil enforcement suit against Brennan and Dyer (the
    “Civil Case”). The SEC alleged that Brennan and Dyer had committed securities fraud in
    violation of 
    15 U.S.C. §§ 77
    (q)(a)(1), 77(q)(a)(2), 77(q)(a)(3), and 78j(b), and Rule 10b-5 of the
    Securities Exchange Act (
    17 C.F.R. § 240
    .10b-5). Less than a week later, Brennan and Dyer
    consented to a preliminary injunction freezing their assets and enjoining further securities law
    violations.
    2. Criminal Case Begins and Defendants Plead Guilty
    Nine months later, on April 10, 2017, the Government filed an information charging
    Defendants with conspiracy to commit mail and wire fraud in violation of 
    18 U.S.C. §§ 371
     and
    1341 and tax evasion in violation of 26 U.S.C § 7201 (the “Criminal Case”). Dyer was also
    charged with criminal contempt in violation of 
    18 U.S.C. § 401
    (3). 1                         On May 3, 2017,
    Defendants pleaded guilty to the conspiracy to commit wire fraud and mail fraud and tax evasion
    1The   contempt plea is not at issue in this appeal. Dyer was enjoined from transferring assets pending the
    outcome of Securities and Exchange Commission v. Brennan, et al, 1:16-cv-00307 (E.D. Tenn.). Dyer brokered a
    deal to allow restricted stock belonging to another company, Fision, to be merged with Scenic City F-10 VII. Dyer
    issued this stock in the name of victim investors in the Scenic City scheme. For this, he pleaded guilty to contempt.
    Nos. 17-6174/6177                     United States v. Dyer, et al.                                    Page 4
    charges. Dyer also pleaded guilty to the additional count of contempt of court. As part of their
    plea agreements, Brennan agreed to pay $184,022.84 in restitution to the Internal Revenue
    Service, and Dyer agreed to pay $354,251.58. Brennan and Dyer stipulated that the amount of
    loss caused by their conduct was greater than $3,500,000 and waived any double jeopardy
    defenses to the prosecution.
    3. Defendants Consent to Final Judgment in Civil Case
    On May 10, 2017—one week after pleading guilty in the Criminal Case—Brennan and
    Dyer consented to entry of a final judgment in the Civil Case to enjoin them from violating
    15 U.S.C. § 78j(b), Rule 10b-5 (
    17 C.F.R. § 240
    .10b-5) and 15 U.S.C. § 77q(a). They also
    agreed that the court would order disgorgement of ill-gotten gains, pre-judgment interest, and a
    civil penalty according to 15 U.S.C. § 77t(d) and § 78u(d)(3). The court left open the amount of
    disgorgement and civil penalty pending a motion by the SEC. As part of the consent judgment,
    Defendants “waive[d] any claim of Double Jeopardy based upon the settlement of this
    proceeding, including the imposition of any remedy or civil penalty herein.”2 The court entered
    the final judgment in the Civil Case into the record on August 1, 2017.
    4. Criminal Sentencing and Objections
    In the Criminal Case, the Presentence Investigation Report (“PSR”) applied the
    Sentencing Guidelines and gave both Defendants a base level of six under USSG § 2B1.1(a)(2).
    Because the amount of loss exceeded $3,500,000, eighteen levels were added under
    § 2B1.1(b)(1)(J). Two additional levels were added under § 2B1.1(b)(2)(A) because the offense
    involved approximately 200 victims.             Three levels were subtracted from both Defendants
    because they accepted responsibility for the crimes in their plea agreements. Dyer had an
    additional two points added for his contempt of court pursuant to § 2B1.1(b)(9)(C). The final
    tally set Brennan’s offense level as 23 and Dyer’s as 25. Since neither Defendant had a criminal
    history score, each received a criminal history category of I. This produced a Guidelines range
    2Although   the Government raised the waiver issue in the district court, it has not pursued it on appeal.
    Therefore, the Government forfeited its waiver argument, and we need not consider it. See Osborn v. Griffin,
    
    865 F.3d 417
    , 450 (6th Cir. 2017) (“Ordinarily, we limit our consideration to the issues that the parties properly
    preserve and put before us.” (citation omitted)).
    Nos. 17-6174/6177                 United States v. Dyer, et al.                            Page 5
    for Brennan of 46 to 57 months’ imprisonment and for Dyer of 57 to 71 months of
    imprisonment.
    Defendants objected to the PSR calculations based on the Supreme Court’s unanimous
    decision in Kokesh v. SEC, 
    137 S. Ct. 1635
     (2017). Decided on June 5, 2017, Kokesh held that
    in SEC enforcement proceedings, disgorgement is a “penalty” subject to the five-year statute of
    limitations in 
    28 U.S.C. § 2462
    . Kokesh, 137 S. Ct. at 1645. According to Defendants, the 18-
    level increase of their base offense level violated the Double Jeopardy Clause because
    Defendants were already punished by disgorgement in the Civil Case. Dyer also argued that the
    five-year statute of limitations from Kokesh prevented the court from considering conduct that
    happened more than five years before he was indicted. Finally, Brennan argued for a downward
    variance based on his status as a first offender.
    The district court held a sentencing hearing in the Criminal Case on September 29, 2017
    and adopted the recommendations from the PSR.             The court denied each objection from
    Defendants. The court ruled that Kokesh did not apply to Defendants’ Double Jeopardy claims,
    that the court was allowed to consider “relevant conduct” that could not be prosecuted separately
    because of the statute of limitations, and that Brennan did not qualify as a first offender given his
    previous censure by the Financial Industry Regulatory Authority (“FINRA”). The court then
    analyzed the 
    18 U.S.C. § 3553
    (a) factors and sentenced Brennan to 48 months and Dyer to 60
    months. The court also ordered Brennan and Dyer to pay restitution in the full amount of loss,
    $4,942,070.18. Brennan and Dyer were ordered to pay additional amounts of $184,022.84 and
    $354,251.58, respectively, to the IRS for their tax evasion.
    5. Civil Case Disgorgement
    On January 30, 2018, the SEC moved for disgorgement in the Civil Case. Two weeks
    later, the court entered an order of disgorgement against Brennan and Dyer, jointly and severally,
    in the amount of $4,942,070.18, to be offset by the amount of restitution ordered to be paid in the
    Criminal Case.
    Nos. 17-6174/6177                 United States v. Dyer, et al.                             Page 6
    II.
    Defendants now appeal their criminal sentences, principally claiming the disgorgement
    violates the Double Jeopardy Clause under Kokesh.               Dyer also appeals the eighteen-level
    enhancement on collateral estoppel and statute of limitations grounds. Brennan also appeals the
    district court’s decision not to grant a downward variance based on his first-offender status. We
    have jurisdiction over the appeal of criminal sentences pursuant to 
    18 U.S.C. § 3742
    (a)(2) and 
    28 U.S.C. § 1291
    .
    III.
    A. Double Jeopardy
    The Double Jeopardy Clause states: “nor shall any person be subject for the same offence
    to be twice put in jeopardy of life or limb . . . .” U.S. Const. amend. V. Criminal defendants are
    thus protected from “multiple punishments for the same offense.”              United States v. Ehle,
    
    640 F.3d 689
    , 694 (6th Cir. 2011) (quoting North Carolina v. Pearce, 
    395 U.S. 711
    , 717 (1969)).
    When reviewing the district court’s calculation of the Guidelines, including sentencing
    enhancements, we review its factual findings for clear error and its legal conclusions de novo,
    and we give “due deference” to the district court’s determination that an enhancement applies in
    a particular factual scenario.    United States v. Taylor, 
    648 F.3d 417
    , 431 (6th Cir. 2011)
    (citations omitted).
    In Kokesh, the Supreme Court held that SEC disgorgement is a “penalty” subject to the
    five-year statute of limitations in 
    28 U.S.C. § 2462
    . Kokesh, 137 S. Ct. at 1645. The Court
    reached this conclusion for three main reasons. First, SEC disgorgement is imposed for a
    violation of public laws. Id. at 1643. Therefore, the remedy is designed to protect the public at
    large, rather than any one individual injured party. Id. “Second, SEC disgorgement is imposed
    for punitive purposes”: it has a deterrent effect, and since “deterrence [is] not [a] legitimate
    nonpunitive governmental objective[e],” disgorgement must be punitive.             Id. (alterations in
    original) (citations omitted). Third, disgorgement is not compensatory because courts are not
    required to distribute the funds to the victims. Id. at 1644.
    Nos. 17-6174/6177                 United States v. Dyer, et al.                           Page 7
    It is important to recognize what the Court did not say in Kokesh. The Court did not say
    that SEC civil disgorgement is a criminal punishment. Nor did it say anything about Double
    Jeopardy. Defendants ask us to read between the lines in the Kokesh opinion. They assert it
    should be read broadly to mean that every “penalty” is a “punishment,” and in turn that every
    “punishment” necessarily implicates the Double Jeopardy Clause. This is based on the general
    language from Kokesh defining “penalty” as a “punishment, whether corporal or pecuniary,
    imposed and enforced by the State, for a crime or offen[s]e against its laws.” Id. at 1642
    (alteration in original) (quoting Huntington v. Attrill, 
    146 U.S. 657
    , 667 (1892)). But even if a
    civil penalty is a punishment, the Double Jeopardy Clause still allows the successive imposition
    of some “sanctions that could . . . be described as punishment.” Hudson v. United States,
    
    522 U.S. 93
    , 98–99 (1997) (citation omitted). Rather, only multiple criminal punishments are
    prohibited. 
    Id.
     And apart from a single mention of the word “crime,” nothing in Kokesh
    suggests that the Court considered SEC disgorgement to be a criminal punishment. Kokesh,
    137 S. Ct. at 1642 (quoting Huntington, 
    146 U.S. at 667
    ). Therefore, Defendants’ broad reading
    seems improper, especially considering that just four years earlier the Supreme Court analyzed
    the exact same statute of limitations at issue in Kokesh—
    28 U.S.C. § 2462
    ––as the “general
    statute of limitations for civil penalty actions.” Gabelli v. SEC, 
    568 U.S. 442
    , 444 (2013).
    Even so, Defendants urge us to apply the two-part test for determining whether a penalty
    is criminal punishment explained in Ward v. United States, 
    448 U.S. 242
     (1980) and Hudson v.
    United States, 
    522 U.S. 93
     (1997). But applying this test reveals that SEC disgorgement is not a
    criminal punishment. Under that test, we ask first whether the legislature “indicated either
    expressly or impliedly a preference” for the punishment to be labeled civil or criminal. Hudson,
    
    522 U.S. at 99
     (quoting Ward, 
    448 U.S. at 248
    ). Second, even if Congress has indicated a
    preference for a civil penalty, we ask “whether the statutory scheme was so punitive either in
    purpose or effect” as to negate that intention and “transfor[m] what was clearly intended as a
    civil remedy into a criminal penalty.” 
    Id.
     (alteration in original) (citations omitted).
    As to the first question, Congress expressly established a preference for disgorgement to
    be a civil remedy. When Congress juxtaposes civil and criminal penalties within the same
    statute, the distinction gives “added significance” to Congress’s choice of the “civil penalty”
    Nos. 17-6174/6177                       United States v. Dyer, et al.                                       Page 8
    label. Ward, 
    448 U.S. at 249
    . Here, Defendants consented to final judgment in the Civil Case,
    enjoining them from violations of 15 U.S.C. §§ 78j(b) and 77q(a) and of Rule 10b-5. For the
    § 78j(b) violation, the court ordered disgorgement pursuant to 15 U.S.C. § 78u(d)(3), which
    grants the district court jurisdiction to impose “a civil penalty.” Another section, § 78ff(a),
    outlines criminal penalties of fines and imprisonment for violations of § 78j(b) (and of “any
    [other] provision of this chapter” (governing securities exchanges) aside from § 78dd-1). For the
    § 77q(a) violations, the court referenced § 77t, which distinguishes between civil and criminal
    penalties.3 A separate section, § 77x, also authorizes criminal penalties for violations of “this
    subchapter” (governing domestic securities).                These labels and the separation of civil and
    criminal penalties indicate that Congress intended SEC disgorgement to be civil in nature.
    Turning to the second question, we cannot override congressional intent to establish a
    civil remedy unless we have the “clearest proof” that the penalty is criminal in nature. Hudson,
    
    522 U.S. at 100
     (citation omitted). Hudson lists seven factors to consider:
    (1) [w]hether the sanction involves an affirmative disability or restraint;
    (2) whether it has historically been regarded as a punishment; (3) whether it
    comes into play only on a finding of scienter; (4) whether its operation will
    promote the traditional aims of punishment—retribution and deterrence;
    (5) whether the behavior to which it applies is already a crime; (6) whether an
    alternative purpose to which it may rationally be connected is assignable for it;
    and (7) whether it appears excessive in relation to the alternative purpose
    assigned.
    
    Id.
     at 99–100 (quoting Kennedy v. Mendoza-Martinez, 
    372 U.S. 144
    , 168–69 (1963) (alteration
    in original) (internal quotation marks omitted). This list is “neither exhaustive nor dispositive,”
    Ward, 
    448 U.S. at 249
    , and the factors apply only “to the statute on its face,” Hudson, 
    522 U.S. at 100
     (citation omitted).4
    3For   example, § 77t(b) distinguishes between a civil action for injunction and a criminal prosecution.
    Section 77t(d) authorizes monetary penalties in civil actions, and § 77t(e) gives district courts authority, in either
    civil or criminal proceedings, to prohibit any person who violates § 77q(a)(1) from acting as an officer or director of
    an issuer that has a class of securities registered under the statute.
    4Although the analysis applies to the statute on its face, we note that even under the statute as applied here
    Defendants were not actually impacted by the disgorgement order. To put it bluntly, Defendants stole nearly
    $5 million from approximately 200 victims. They must give that money back. The disgorgement at issue here does
    just that. And it was offset by the amount of restitution in the Criminal Case, so Defendants are not somehow
    Nos. 17-6174/6177                     United States v. Dyer, et al.                                   Page 9
    Although this Circuit has not ruled on the issue, at least five other Circuits have
    determined that SEC disgorgement is not a criminal penalty for Double Jeopardy purposes. 5 The
    Second Circuit’s analysis of the Hudson factors and conclusion that disgorgement is not a
    criminal penalty are persuasive, and we adopt them here. See SEC v. Palmisano, 
    135 F.3d 860
    ,
    865–66 (2d Cir. 1998). The Second Circuit recognized that disgorgement shares traits common
    to criminal laws, such as the scienter requirement and deterrent effect. 
    Id. at 866
    . Further,
    disgorgement applies “to conduct that may also be prosecuted” criminally.                      
    Id.
     However,
    disgorgement is not “an affirmative disability or restraint.” 
    Id.
     (citation and internal quotation
    marks omitted).        And there are “clear rational purpose[s]” for disgorgement other than
    punishment, including ensuring that defendants do not profit from their illegal acts, “encouraging
    investor confidence, increasing the efficiency of financial markets, and promoting the stability of
    the securities industry.” 
    Id.
     When assessing those factors in the context of Congress’s decision
    to allow both civil and criminal penalties for securities law violations, “there is little indication,
    and certainly not the ‘clearest proof’ . . . that disgorgement . . . [is a] criminal punishment[].” 
    Id.
    (quoting Hudson, 
    522 U.S. at 100
    ).
    Defendants do not dispute the weight of authority from other Circuits. Instead, they
    assert that Kokesh changed the analysis. Kokesh describes disgorgement as a penalty imposed
    for punitive, deterrent purposes because the defendant violated a public law. Kokesh, 137 S. Ct.
    at 1643–44. Defendants argue that disgorgement is a penalty that will “promote the traditional
    aims of punishment—retribution and deterrence.”                But the courts that have declared SEC
    disgorgement to be civil have already characterized it as a deterrent. See, e.g., Palmisano,
    
    135 F.3d at 866
     (“[D]isgorgement . . . possess[es] some characteristics common to criminal laws,
    such as . . . effecting deterrence . . . .”); United States v. Gartner, 
    93 F.3d 633
    , 635 (9th Cir.
    1996) (“An obvious deterrent purpose, however, while lending support to the argument that the
    penalty constitutes punishment, does not automatically convert the penalty into ‘punishment.’”
    paying back more than what they stole. At oral argument, Defendants’ counsel conceded that, had restitution in an
    amount equal to the total Defendants have been ordered to pay in both cases been ordered in the Criminal Case
    alone, there would not be a Double Jeopardy issue.
    5See,  e.g., United States v. Van Waeyenberghe, 
    481 F.3d 951
    , 956–59 (7th. Cir. 2007); United States v.
    Perry, 
    152 F.3d 900
    , 904 (8th Cir. 1998); SEC v. Palmisano, 
    135 F.3d 860
    , 865–66 (2d Cir. 1998); United States v.
    Gartner, 
    93 F.3d 633
    , 635 (9th Cir. 1996); SEC v. Bilzerian, 
    29 F.3d 689
    , 696 (D.C. Cir. 1994).
    Nos. 17-6174/6177                       United States v. Dyer, et al.                                     Page 10
    (citation omitted)). And the “mere presence of [a deterrent] purpose” does not make a sanction
    criminal for Double Jeopardy purposes. Hudson, 
    522 U.S. at 105
     (citations omitted). To hold it
    does “would severely undermine the Government’s ability to engage in effective regulation of
    institutions such as banks.” 
    Id.
     Thus, the statement in Kokesh that disgorgement is a “penalty”
    is not a game changer.
    The holding in Kokesh was narrow and limited solely to the statute of limitations in
    
    28 U.S.C. § 2462
    . Nothing from Kokesh serves as the “clearest proof” we require to transform a
    civil remedy into a criminal punishment for Double Jeopardy purposes. If anything, Kokesh
    reinforces the long-held understanding that SEC disgorgement is civil in nature. 6 Accordingly,
    Defendants’ Double Jeopardy claim fails.
    Even if SEC disgorgement were a criminal punishment, we would affirm Defendants’
    sentences for two additional reasons. First, in the Civil Case, the complaint alleged securities
    violations, so the SEC had to prove that the purchase or sale of a security was involved. See 15
    U.S.C. §§ 78j(b), 77q(a).          In the Criminal Case, the information charged Defendants with
    conspiracy, so the Government had to prove Defendants joined in an agreement. See 
    18 U.S.C. §§ 371
    , 1341. These elements are exclusive to the Civil and Criminal Cases, respectively.
    Under the test from Blockburger v. United States, this is not Double Jeopardy. 
    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.” (citation omitted));
    see also Ehle, 
    640 F.3d at 694
    .
    Second, in this case, the consideration of relevant conduct resulting in an eighteen-level
    enhancement is not “punishment” for Double Jeopardy purposes. See United States v. Watts,
    
    519 U.S. 148
    , 154–56 (1997) (holding that a sentencing court could consider relevant conduct of
    which defendant had been previously acquitted for sentencing purposes); Witte v. United States,
    6While  the disgorgement order was tailored directly to the order of restitution in the Criminal Case, one can
    certainly imagine a scenario where the SEC does not offset the civil disgorgement by the amount of criminal
    restitution. Although this would still not open the door for a Double Jeopardy claim, it could raise an Excessive
    Fines Clause issue if the penalties were “grossly disproportional to the gravity of [the hypothetical] defendant’s
    offense.” United States v. Bajakajian, 
    524 U.S. 321
    , 334 (1998).
    Nos. 17-6174/6177                United States v. Dyer, et al.                          Page 11
    
    515 U.S. 389
    , 403–04 (1995) (holding that a sentencing court could, consistent with the Double
    Jeopardy Clause, consider uncharged cocaine importation in imposing a sentence for marijuana
    offenses that was within the statutory range, without precluding the defendant’s subsequent
    prosecution for the cocaine offense); United States v. Mack, 
    938 F.2d 678
    , 681 (6th Cir. 1991)
    (“An enhanced sentence because of a prior conviction is no more double jeopardy than is a
    consideration of other relevant conduct, including the likelihood of a subsequent conviction.”).
    The district court properly considered Defendants’ relevant conduct and applied a sentence
    enhancement.
    B. Collateral Estoppel
    For the first time on appeal, Dyer raises a collateral estoppel claim.         Because the
    collateral estoppel claim was not raised below, the district court’s decision must be reviewed for
    plain error. Fed. R. Crim. P. 52(b). Under plain error review, Dyer must show that the court
    committed “(1) error, (2) that is plain, and (3) that affect[s] substantial rights.” Johnson v.
    United States, 
    520 U.S. 461
    , 466–67 (1997) (alteration in original) (citation and internal
    quotation marks omitted). If all three prongs are satisfied, we may use our discretion to take note
    of the forfeited error only if the error “seriously affect[s] the fairness, integrity or public
    reputation of judicial proceedings.” 
    Id. at 467
     (alteration in original) (quoting United States v.
    Olano, 
    507 U.S. 725
    , 732 (1993)).
    Dyer appears to argue that the courts in the Criminal and Civil Cases could not both find
    him responsible for the lost $4,942,070.18.      Issue preclusion—which Dyer calls collateral
    estoppel—means that “when an issue of ultimate fact has once been determined by a valid and
    final judgment, that issue cannot again be litigated between the same parties in any future
    lawsuit.” Bravo-Fernandez v. United States, 
    137 S. Ct. 352
    , 356 (2016) (quoting Ashe v.
    Swenson, 
    397 U.S. 436
    , 443 (1970)). In plainer terms, the parties cannot attempt to litigate the
    same issue in two different proceedings to different results under the same burden of proof. See
    Ashe, 
    397 U.S. at 446
    .
    The amount of loss did not change from the Civil Case to the Criminal Case, so there was
    no error, plain or otherwise, by the district court. The court in the Criminal Case set the amount
    Nos. 17-6174/6177                 United States v. Dyer, et al.                             Page 12
    of loss at $4,942,070.18 and ordered restitution in that amount. In the Civil Case, the court
    ordered disgorgement of $4,942,070.18 on February 15, 2018, four months after Dyer was
    criminally sentenced. It makes no sense to argue issue preclusion based on the later decision in
    the Civil Case. In any event, the courts reached the same result. Dyer fails to explain why this
    was an error, especially considering that Dyer stipulated that the amount of loss was greater than
    $3,500,000. Under USSG § 2B1.1(b)(1)(J), an 18-level increase is applied when the amount of
    loss or fraud exceeds $3,500,000. The amount of loss in both the Criminal and Civil Cases
    easily surpasses that threshold. Even an error of over $1,000,000 by the court in the Criminal
    Case when calculating the amount of loss would not have affected the 18-level increase.
    C. Statute of Limitations
    Dyer again raises a statute of limitations objection, which the district court overruled at
    sentencing. Defendants’ scheme lasted 8 years, from 2008 to 2016. However, in Kokesh, the
    Supreme Court held that the five-year statute of limitations from 
    28 U.S.C. § 2462
     applies when
    the SEC seeks disgorgement. 
    137 S. Ct. at 1645
    . Dyer argues that this five-year statute of
    limitations also applies to the court’s consideration of the total amount of loss or fraud for
    criminal sentencing purposes under § 2B1.1(b)(1)(J). In essence, because Dyer pleaded guilty on
    May 3, 2017, he argues that § 2462 barred the court from considering any losses that occurred
    prior to May 3, 2012. According to Dyer, considering only losses that occurred after that date
    would reduce the amount of loss below $3,500,000 and alter his Guidelines calculation.
    However, it is a settled point of law in this circuit that the district court could consider the
    full amount of loss as relevant conduct for sentencing purposes, regardless of the statute of
    limitations. See United States v. Pierce, 
    17 F.3d 146
    , 150 (6th Cir. 1994). “[C]onduct that
    cannot be prosecuted under the applicable statute of limitations can be used to determine relevant
    conduct” for sentencing purposes. 
    Id.
     (citing United States v. August, 
    984 F.2d 705
    , 713 (6th
    Cir. 1992); United States v. Moreno, 
    933 F.2d 362
    , 374 (6th Cir. 1991); United States v. Lokey,
    
    945 F.2d 825
    , 840 (5th Cir. 1991)). Here, the district court even mentioned Pierce by name at
    sentencing.
    Nos. 17-6174/6177                  United States v. Dyer, et al.                        Page 13
    A recent case provides a clear illustration. In United States v. Decker, the defendant
    embezzled funds from January 2000 until July 2006. 370 F. App’x 671, 673 (6th Cir. 2010).
    “An audit by the Department of Labor Office of Labor-Management Standards . . . uncovered the
    embezzlement,” and “Decker was indicted on December 11, 2008 for violating 
    29 U.S.C. § 501
    (c) . . . .” 
    Id.
     Because 
    18 U.S.C. § 3282
    (a) had a five-year statute of limitations, Decker
    was indicted for only the conduct between December 11, 2003 and June 23, 2006. 
    Id.
     However,
    his sentence was calculated using the full loss amount from conduct dating to January 2000, less
    restitution he had made. Id. at 675. Decker challenged the calculation, arguing that the statute of
    limitations barred the court from considering any loss prior to December 11, 2003. Id. at 676.
    This Court affirmed the sentence because relevant conduct under the sentencing guidelines “is
    not limited to conduct for which the defendant has been convicted . . . .” Id. (citation omitted).
    The Decker court concluded that since Decker’s sentence was within the range authorized by
    
    29 U.S.C. § 501
    (c), the district court’s consideration of relevant conduct committed more than
    five years before the indictment was not plain error. 
    Id.
    The facts of this case are functionally equivalent to Decker. Brennan and Dyer operated
    a scheme for more than eight years and the amount of loss or fraud from that scheme was
    $4,942,070.18. The district court considered the full amount at criminal sentencing when it
    imposed the 18-level enhancement under the Guidelines. As our precedent makes clear, there
    was no clear error in the district court’s decision to do so.
    D. Procedural Reasonableness of Brennan’s Sentence
    The last issue in this appeal is Brennan’s challenge to the procedural reasonableness of
    his sentence. Brennan requested a downward variance in his Guidelines calculation because he
    is a “first offender.” The district court denied his request.
    We review the procedural reasonableness of a sentence for an abuse of discretion. Gall v.
    United States, 
    552 U.S. 38
    , 51 (2007); United States v. Bolds, 
    511 F.3d 568
    , 578 (6th Cir.
    Nos. 17-6174/6177                      United States v. Dyer, et al.                                   Page 14
    2007).7 A district court commits procedural error when it “fail[s] to calculate (or improperly
    calculate[es]) the Guidelines range, treat[s] the Guidelines as mandatory, fail[s] to consider the
    § 3553(a) factors, select[s] a sentence based on clearly erroneous facts, or fail[s] to adequately
    explain the chosen sentence . . . .” Gall, 
    552 U.S. at 51
    ; United States v. Nichols, 
    897 F.3d 729
    ,
    737 (6th Cir. 2018). The sentence should reflect the § 3553(a) factors, United States v. Gahan,
    678 F. App’x 275, 279 (6th Cir. 2017), but the district court’s reasoning does not need to address
    every single concern; instead, the record may sufficiently imply the considerations, United States
    v. Moore, 654 F. App’x 705, 711 (6th Cir. 2016). We may presume that a sentence within the
    Guidelines range is reasonable. Peugh v. United States, 
    569 U.S. 530
    , 537 (2013) (citing Rita v.
    United States, 
    551 U.S. 338
    , 347 (2007)).
    In his motion for a downward variance, Brennan asserted that he should receive a one-
    level reduction in sentencing because of his “first offender” status. He cited a set of proposed
    amendments from the Sentencing Commission and a recidivism study that suggests first-time
    offenders are less likely to be deterred by longer prison sentences and present the lowest risk of
    recidivism.8 At sentencing, the Government presented evidence that Brennan and Dyer had each
    been censured by FINRA in 1999, barred from association with any National Association of
    Securities Dealers member in any capacity, and fined $10,000. The court rejected Brennan’s
    request, stating:
    I agree there’s no question there’s no criminal history, but there is history of—I
    won’t say comparable conduct, but certainly conduct that people in Mr. Brennan’s
    and Mr. Dyer’s positions shouldn’t engage in; namely, this—it was a few years
    before this scheme at issue today started, but they were—I think they were fined
    either $10,000 total or $10,000 apiece, suspended by what was then NASD for
    two or three months, censured, and it essentially had to do with—I may be pulling
    this from the civil case, but I don’t think there’s any question that everybody
    knows about it. As I recall, they were essentially punished for trading for either
    their or their brokerage’s own interests and against the interests of their clients
    by—by engaging in trades that were at a lower than—buying stock, I believe, at a
    7Both   sides agree that the district court did not ask the parties whether they had any objections to the
    sentence just pronounced that had not been previously raised, as required by United States v. Bostic, 
    371 F.3d 865
    ,
    872 (6th Cir. 2004). Therefore, plain error review does not apply.
    8Noticeof Proposed Amendments, 
    81 Fed. Reg. 92,003
    , 92,005-06 (Dec. 19, 2016) and Notice of Proposed
    Amendments, 
    82 Fed. Reg. 40,651
    , 40,656-57 (Aug. 25, 2017). The proposed amendments have not passed.
    Nos. 17-6174/6177                United States v. Dyer, et al.                          Page 15
    lower than market price or lower than fair value price from their clients. And so
    how should I consider that with regard to—although there’s no criminal history,
    there is—there is history of pretty serious misconduct that is – that bears some
    relevance, I think, to what happened and what brought us here today.
    (emphasis added). The district court then identified the § 3553(a) factors and explained how
    each factor applied to both Brennan and Dyer.             Referencing the need for deterrence,
    § 3553(a)(2)(B), the court stated Defendants would not be deterred by a shorter sentence:
    [Y]ou’ve both been censured, fined, suspended from the securities industry
    before. You’ve had other interactions with regulatory authorities. Within a . . .
    relatively short time after these punishments, you were back at it, except this time
    in a much more aggressive, bolder way. Your actions suggest to me that a
    significant sentence is necessary to ensure that you do not engage in criminal
    conduct again.
    Similarly, referencing the need to protect the public, a consideration codified at § 3553(a)(2)(C),
    the court stated that a longer sentence was necessary to protect the public because Defendants
    have a history of misconduct:
    [T]he prior discipline with the regulatory agencies concerns me. Within just a
    few years of what should have been a very public and very embarrassing
    punishment, you both began to engage in worse conduct than you had been
    punished for. You have a talent for winning over the confidence of investors, and
    you’ve shown a proclivity to take advantage of those who trust you. And I have
    to try to convince you to stop this conduct as I craft the sentence.
    The court declined to depart downward and gave Brennan a total sentence of 48 months, the low
    end of the recommended Guideline range of 46 to 57 months.
    On appeal, Brennan argues that the district court committed procedural error when it did
    not specifically mention the recidivism studies in its analysis of the § 3553(a) factors. When a
    defendant raises a non-frivolous argument, “the record must reflect both that the district judge
    considered the defendant’s argument and that the judge explained the basis for rejecting it.”
    United States v. Wallace, 
    597 F.3d 794
    , 803 (6th Cir. 2010) (quoting United States v. Gapinski,
    
    561 F.3d 467
    , 474 (6th Cir. 2009)). The transcript clearly establishes that the court did not find
    Brennan’s argument persuasive because Brennan was not, in any true sense, a first-time offender
    due to his prior censure and fine. And although the court did not specifically mention the
    Nos. 17-6174/6177                United States v. Dyer, et al.                         Page 16
    recidivism studies by name, the district court was not required to accept or reject arguments in a
    certain way. See United States v. Gunter, 
    620 F.3d 642
    , 646 (6th Cir. 2010). In short, the
    district court did not abuse its discretion when it did not apply a downward variance to Brennan’s
    Guidelines calculation.
    IV.
    For the foregoing reasons, we AFFIRM Defendants’ sentences.