United States v. Dazey , 242 F. App'x 563 ( 2007 )

F I L E D
United States Court of Appeals
Tenth Circuit
PU BL ISH
August 2, 2007
UNITED STATES CO URT O F APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
U N ITED STA TES O F A M ER ICA,
Plaintiff-Appellee, No. 05-6258
v. (D.C. No. 02-CR-92-R)
D EN N IS D EA N D A ZEY , also known
as W ooly W est,
Defendant-Appellant.
OR D ER ON PETITION FOR REHEARING
Before L UC ER O, M cKA Y, and M U RPH Y, Circuit Judges.
Defendant-Appellant Dennis Dean Dazey requests panel rehearing. Dazey
brought to the court’s attention the erroneous omission of the trial transcript from
the record transmitted by the district court to this court for the purposes of
Dazey’s appeal. In light of this omission, the panel grants rehearing and
withdraws its prior Order and Judgment dated June 27, 2007. The panel
supplemented the record on appeal with the eleven-volume trial transcript and
reviewed those portions of the trial transcript cited in the parties’ briefs. A
revised Order and Judgment is issued.
Entered for the Court
Elisabeth A . Shumaker, Clerk
By:
Deputy Clerk
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F I L E D
United States Court of Appeals
Tenth Circuit
August 2, 2007
UNITED STATES CO URT O F APPEALS
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff-Appellee, No. 05-6258
v. (W .D. Oklahoma)
D EN N IS D EA N D A ZEY , also known (D.C. No. 02-CR-92-R)
as W ooly W est,
Defendant-Appellant.
OR D ER AND JUDGM ENT *
Before L UC ER O, M cKA Y, and M U RPH Y, Circuit Judges.
I. IN TR OD UC TIO N
Defendant Dennis Dean Dazey returns to this court after resentencing on
convictions for conspiracy to commit fraud, wire fraud, and money laundering. In
United States v. Dazey (Dazey I), 403 F.3d 1147 (10th Cir. 2005), this court
concluded Dazey was entitled to a new sentencing proceeding in light of the
*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
United States Supreme Court’s decision in United States v. Booker, 543 U.S. 220(2005). On remand, the district court found by a preponderance of the evidence
the same facts it found at the original sentencing hearing. It imposed an identical
sentence length, restitution order, and forfeiture order as in the original
sentencing hearing. Dazey again appeals his sentence.
Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a),
this court finds Dazey’s legal and factual arguments unavailing. W e therefore
affirm Dazey’s sentence, restitution order, and forfeiture order. 1
1
The argument headings in Dazey’s brief challenge the reasonableness of
the $100,000 forfeiture order. The brief’s text, however, entirely omits argument
on the issue. Accordingly, we decline to consider Dazey’s claim and affirm the
district court’s $100,000 forfeiture order. See United States v. Edwards, 69 F.3d
419, 430 (10th Cir. 1995) (“[I]t is insufficient merely to state in one’s brief that
one is appealing an adverse ruling below without advancing reasoned argument as
to the grounds for the appeal.” (quotation omitted)); Fed. R. App. P. 28(a)(9)(A )
(“The appellant’s brief must contain . . . the argument, which must contain: (A)
appellant’s contentions and the reasons for them, with citations to the authorities
and parts of the record on which the appellant relies.”). Consistent with Dazey’s
failure to provide substantive argument on forfeiture, he failed to include with his
brief a copy of the forfeiture order as required by Tenth Circuit Rule 28.2(A )(1).
Because of Dazey’s failure to provide substantive argument on forfeiture,
Appellee is excused from its obligation under Rule 28.2(B).
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II. B AC KGR OU N D
A. Dazey I
The facts of Dazey’s case are set out at length in Dazey I, 403 F.3d at1156–59. Dazey, along with several co-defendants, engaged in a conspiracy to
defraud investors through a fraudulent investment company called W ealth-M art.
W ealth-M art was portrayed as an investment fund that promised short-term high
returns by investing in overseas “prime” banks in accordance with Christian and
humanitarian principles. During the late 1990s, investors poured more than $14
million into W ealth-M art. None of this money was ever invested overseas and
little of it w as ever returned to investors. Id. at 1156.
Following a jury trial for his role in the W ealth-M art scam, Dazey was
convicted of one count of conspiracy to comm it fraud under 18 U.S.C. § 371, ten
counts of wire fraud under 18 U.S.C. § 1343, and one count of money laundering
under 18 U.S.C. § 1957. At sentencing in June 2003, prior to the Supreme
Court’s decision in Booker, the district court accepted the probation officer’s
calculation that Dazey’s base offense level under the United States Sentencing
Guidelines was six. The district court heard evidence on the four sentencing
enhancements included in the Presentence Investigative Report (“PSR”). The
court found by a preponderance of the evidence facts to support the following
three enhancements: loss of more than $7,000,000, U.S.S.G. § 2B1.1(b)(1)(K )
(tw enty-level enhancement); offense including more than fifty victims, U.S.S.G .
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§ 2B 1.1(b)(2)(B ) (four-level enhancement); and obstruction of justice, U.S.S.G .
§ 3C1.1 (two-level enhancement).
At sentencing, the district court determined Dazey’s adjusted offense level
was thirty-two, which, combined with a criminal history category of I, carried a
sentencing range of 121 to 151 months. According to well-settled law at the time
of sentencing, the court applied the Sentencing Guidelines in a mandatory fashion
and sentenced Dazey to 121 months’ imprisonment. The court also ordered
Dazey to pay $2,966,257 in restitution pursuant to 18 U.S.C. § 3663A, and
incorporated a $100,000 forfeiture order for money laundering into the court’s
final judgment. The court indisputably used judge-found facts to increase
Dazey’s sentence beyond the maximum authorized by the jury verdict. Dazey I,
403 F.3d at 1173.
In Dazey I, this court held that, in light of Booker, Dazey’s Sixth
Amendment rights were violated. Id. at 1174. The Dazey I court engaged in
plain error analysis and determined Dazey met all four prongs of the plain error
test. Id. at 1174–79. It therefore remanded the case to the district court for
resentencing. Id. at 1179.
B. Post-Booker Resentencing Proceeding
At Dazey’s resentencing hearing, FBI Special Agent Kevin M arkey
summarized the evidence the Government presented at trial. Agent M arkey
recounted testimony and evidence about Dazey’s role in the conspiracy in order to
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show Dazey could have reasonably foreseen more than $7 million in losses to
W ealth-M art investors. In support of the sentencing enhancement for more than
fifty victims, Agent M arkey stated there were approximately 130 victims listed in
the restitution order. Additionally, he cited multiple instances of D azey’s false
testimony at trial to support an enhancement for obstruction of justice. The
Government did not present any new evidence at the resentencing hearing,
choosing instead simply to remind the court about the evidence and arguments it
made at the initial sentencing hearing. Dazey did not present any evidence at all.
Upon reconsideration of the same evidence it had considered at Dazey’s
initial sentencing hearing, the district court found by a preponderance of the
evidence that losses of $7 million were attributable to Dazey, Dazey’s scheme had
more than fifty victims, and Dazey had obstructed justice by giving false
testimony at his trial. 2 Acknowledging the advisory nature of the Guidelines, the
court again determined Dazey fell within the Guidelines range of 121 to 151
months. It once again sentenced Dazey to a 121-month prison term, ordered him
to pay $2,966,257 in restitution, and ordered Dazey to forfeit $100,000.
2
These findings on remand are unremarkable in the sense that they are the
same findings, made upon the same preponderance of the evidence standard, as
were made at the original sentencing hearing. It would appear that the sentencing
court on remand could have merely adopted its original findings and proceeded to
the imposition of a sentence under the post-Booker regime of the advisory, non-
mandatory Sentencing Guidelines.
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III. D ISC USSIO N
On appeal to this court, Dazey presents several arguments in support of his
request for modification of his sentence: (1) the district court improperly used a
preponderance of the evidence standard in finding facts related to sentencing
when such facts should have been determined by the jury according to a
reasonable doubt standard; (2) the district court erroneously determined Dazey
was responsible for more than fifty victims based on insufficient evidence,
including unreliable hearsay from Agent M arkey and in the PSR; (3) the district
court erroneously determined Dazey obstructed justice, violating Dazey’s Fifth
Amendment rights; (4) the amount of loss attributed to Dazey was erroneous and
not foreseeable to him, as is required by U.S.S.G. § 1B1.3(a)(1)(B); and (5) his
sentence, restitution order, and forfeiture order are unreasonable. For reasons
explained below, Dazey cannot prevail on any of these claims.
A. District Court Correctly Applied the Preponderance of the Evidence
Standard at Resentencing
At the resentencing hearing, Dazey contended the district court could not
enhance his sentence based on facts not admitted by him unless the jury had
found those facts beyond a reasonable doubt. Dazey’s counsel acknowledged his
claim was inconsistent with the controlling law in this circuit, which continues to
recognize the preponderance of the evidence standard as applicable to judicial
factfinding at sentencing. See United States v. Dalton, 409 F.3d 1247, 1252 (10th
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Cir. 2005); United States v. Magallanez, 408 F.3d 672, 684–85 (10th Cir.), cert.
denied, 126 S. Ct. 468 (2005). Dazey, however, continues to advocate the
application of the reasonable doubt standard on appeal.
For the reasons stated in Dalton and M agallanez, the district court applied
the correct standard in evaluating the factual evidence related to D azey’s
sentencing enhancements. As this court has explained, “Constitutional Booker
error occurs when the district court re[lies] on judge-found facts . . . to enhance a
defendant’s sentence mandatorily.” Dalton, 409 F.3d at 1252 (quotation omitted).
It is only the mandatory application of enhancements that create constitutional
problems, not the manner in w hich the facts underlying the enhancements are
found.
B. The District Court’s Factual Finding as to the Num ber of Victims W as
Not Clearly Erroneous and D id N ot Rely on Impermissible Hearsay
At the resentencing hearing, Agent M arkey summarized evidence presented
at trial regarding the number of Wealth-M art investors. He stated the restitution
order listed approximately 130 victims. He indicated the people included in the
restitution order had either testified at trial or returned an investor questionnaire.
Agent Markey also stated Government trial exhibits showed more than fifty people
who had deposited money either into Dazey’s bank account or Wealth-Mart’s
account and who were confirmed through search warrants or testimony at trial to be
victims. Although Dazey objected to Agent M arkey’s description of the number of
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victims included in the restitution order as hearsay, the district court overruled this
objection. 3 The court found the Government proved there were at least 130 victims
and said, “for the purpose of this conspiracy, [Dazey] should be held accountable
for 130.”
On appeal, Dazey asserts the evidence of the number of victims affected by
the Wealth-M art scheme was insufficient to support an enhancement under
U.S.S.G. § 2B1.1(b)(2)(B). 4 He argues § 2B1.1(b)(2)(B) requires “actual loss” on
the part of “victims,” and contends that the testimony presented at trial and
referenced at resentencing does not support a finding of actual loss by more than
fifty investors. Additionally, Dazey resurrects his hearsay objection to Agent
M arkey’s testimony that there were hundreds of victims and also challenges as
hearsay the statement in the PSR that “[T]here are several hundred victims in this
case.” He asserts the statements are unsupported and therefore unreliable.
This court reviews the district court’s legal interpretations of the Sentencing
Guidelines de novo and reviews the factual findings used to enhance a defendant’s
sentence for clear error. Dalton, 409 F.3d at 1251. Factual findings are reversed
“only if the district court’s finding was without factual support in the record or we
3
Dazey’s hearsay objection to the restitution order was the fourth such
objection to A gent M arkey’s testimony. The court earlier overruled D azey’s
objections by stating the court’s view that M arkey was simply summarizing the
trial evidence.
4
U.S.S.G. § 2B1.1(b)(2)(B) states, “If the offense . . . involved fifty or more
victims, increase by 4 levels.”
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are left with the definite and firm conviction that a mistake has been made.” Id.
(quotation omitted).
Based on Agent M arkey’s recitation of the evidence presented at trial and
in the Government’s exhibits, this court concludes there was no clear error in the
district court’s determination that Dazey’s crimes involved more than fifty
victims. According to Agent M arkey’s recollection, the trial court received
evidence that the Government and the FBI identified 130 victims for the purposes
of the restitution order. Additionally, Agent M arkey pointed to a notation in
Dazey’s day planner indicating 104 people attended one of the three seminars for
potential investors at which Dazey spoke in Colorado. Dazey has not provided
contradictory evidence about how many attendees at the conference actually
invested or otherwise rebutted the asserted fact that the Government identified
130 individuals deserving restitution. Thus, this court cannot say the district
court’s finding of Dazey’s responsibility for loss to over fifty victims was without
factual support.
W hile the nature of Agent M arkey’s testimony summarizing evidence the
court had already heard during the guilt phase of the trial w as w holly
unnecessary, Dazey’s hearsay objection to Agent M arkey’s testimony misses the
mark. Agent M arkey’s testimony does not fit the definition of hearsay in Federal
Rule of Evidence 801(c) because it was merely summarizing the evidence and
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testimony presented to the trial court during prior in-court proceedings. 5 W ere
M arkey’s testimony hearsay, however, it would not have been barred from the
resentencing hearing because the Federal Rules of Evidence do not apply to
sentencing proceedings. Fed. R. Evid. 1101(d)(3); United States v. Shewmaker,
936 F.2d 1124, 1129 (10th Cir. 1991). M ost important, Agent M arkey’s
testimony had no effect as testimony; it was merely a means to refresh the court’s
recollection of the evidence the court had heard during the jury trial on Dazey’s
guilt. The court itself noted that Agent M arkey’s testimony merely reflected what
the evidence had been. Agent M arkey’s testimony was therefore no more than
what the government’s attorney could have argued. The court itself indicated that
its sentence w as based, in part, on its memory of the trial testimony. As a
consequence, the testimony of Agent M arkey was not prejudicial to Dazey.
Finally, Dazey asserts the PSR contained inadmissible hearsay regarding
the number of victims. W e need not decide whether the statement in the PSR is
hearsay because the district court did not say it relied on this statement in
determining the number of victims.
In sum, this court concludes there was no error in the district court’s
findings regarding the number of victims, and holds the imposition of the four-
5
A more appropriate challenge might have been found in Federal Rules of
Evidence 401 and 402, defining and limiting admissible evidence to that which is
relevant, or Rule 602, requiring a witness to have personal knowledge of the
matter to which he is testifying.
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level enhancement under U.S.S.G. § 2B1.1 was an appropriate exercise of the
district court’s discretion in sentencing.
C. The District Court Did N ot Erroneously Find D azey O bstructed
Justice and Did Not Violate Dazey’s Fifth Amendment Right To Testify
At resentencing, Agent M arkey referenced three instances in which
testimony given by Dazey was contradicted by testimony of other w itnesses.
Specifically, Agent M arkey said Dazey testified he (1) never identified himself to
investors as a trader, whereas five of the investors, each of whom attended
separate seminars and did not know one another, testified Dazey did identify
himself as a trader; (2) had never worn a tracking device overseas, whereas one of
the investors testified Dazey told him he wore a tracking device when he traveled
to Europe; and (3) was unemployed and had to shut down his business and lay off
his employees during trial, whereas, in his post-trial detention hearing, Dazey
testified he needed time to close his business and had to take care of his fourteen
employees. Agent M arkey also reminded the court that Dazey contradicted
himself under oath about his use of $7000 in investor’s funds: Dazey stated on
direct examination he had used the money to pay his credit card bill for travel
expenses related to a railroad bond deal but admitted on cross-examination the
credit card debt had actually arisen from the purchase of camping equipment for
use on a camping trip with his son.
The district court found by a preponderance of the evidence that Dazey
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obstructed justice and, accordingly, enhanced his sentence by two levels under
U.S.S.G. § 3C1.1. 6 The court supported its decision with the finding that Dazey
“tried to deceive the Court and the jury by saying that he never had represented
himself as a trader nor that he had made these other statements that were self-
aggrandizing.” The court also placed significance on his testimony “about the
$7,000 that he said were for railroad bonds that actually went for a camping trip.”
Dazey argues there is insufficient evidence to support the obstruction of
justice enhancement. He also claims the finding that he obstructed justice based
on his trial testimony is a violation of his Fifth Amendment right to testify in his
own defense.
This court reviews the district court’s legal conclusions regarding the
applicability of the Guidelines de novo and factual findings for clear error.
Dalton, 409 F.3d at 1251. Application Note 4(b) of U.S.S.G. § 3C1.1 defines
obstruction of justice as, inter alia, “committing, suborning, or attempting to
suborn perjury.” In order to use a defendant’s perjury as a basis for applying the
obstruction of justice sentencing enhancement, the district court must determine
that the defendant (1) gave false testimony under oath, (2) concerning a material
6
U.S.S.G. § 3C1.1 provides, “If (A) the defendant willfully obstructed or
impeded, or attempted to obstruct or impede, the administration of justice during
the course of the investigation, prosecution, or sentencing of the instant offense of
conviction, and (B) the obstructive conduct related to (i) the defendant’s offense
of conviction and any relevant conduct; or (ii) a closely related offense, increase
the offense level by 2 levels.”
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matter, (3) and did so willfully, “rather than as a result of confusion, mistake or
faulty memory.” United States v. Dunnigan, 507 U.S. 87, 94 (1993).
Additionally, according to Tenth Circuit precedent, the court must explicitly
specify the false statements it considered in imposing the enhancement. United
States v. Hawthorne, 316 F.3d 1140, 1146 (10th Cir. 2003); United States v.
M assey, 48 F.3d 1560, 1573 (10th Cir. 1995).
W e conclude the district court satisfied the requirements set out in
Dunnigan and M assey. The district court said explicitly that Dazey had given
false testimony under oath. Accepting the district court’s findings regarding the
nature of D azey’s false statements, this court concludes the false statements were
material. See U.S.S.G. § 3C1.1 cmt. n.6 (defining a material statement as one
which “if believed, would tend to influence or affect the issue under
determination”). Additionally, the court’s statement that Dazey “tried to deceive
the court” satisfies the requirement that the statements were made with “willful
intent to provide false testimony, rather than as a result of confusion, mistake or
faulty memory.” Massey, 48 F.3d at 1573. The district court also identified the
specific instances of false testimony it considered in imposing the enhancement.
Id. This panel concludes, therefore, the district court’s finding of obstruction of
justice was procedurally proper and sufficient evidence supported the
enhancement.
As to D azey’s Fifth Amendment claim, Dazey asserts the district court’s
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imposition of the obstruction of justice sentencing enhancement would not have
occurred but for his decision to testify at trial. As the Supreme Court stated more
than a decade ago, a defendant “cannot contend that increasing her sentence
because of her perjury interferes with her right to testify, for we have held on a
number of occasions that a defendant’s right to testify does not include a right to
comm it perjury.” Dunnigan, 507 U.S. at 96. Although the Sentencing Guidelines
acknowledge the risk that a defendant’s desire to exercise his constitutional right
to testify might result in misstatements that an overzealous court or prosecutor
might characterize as obstruction of justice, that risk is not manifest here. 7 Dazey
has proffered no excuse for his false testimony. He has not attempted to claim he
suffered from confusion, mistake, or faulty memory.
Thus, contrary to Dazey’s contention, this is not a case where “[t]he mere
fact that a defendant testifies to his or her innocence and is later found guilty” led
to a finding of obstruction of justice. United States v. Anderson, 189 F.3d 1201,
1213 (10th Cir. 1999). The district court set forth specific statements made by
Dazey and refuted by other witnesses to support its finding that Dazey had
obstructed justice. Dazey’s untruthfulness was not linked solely to his denial of
7
In anticipation of such a misuse of U.S.S.G. § 3C1.1, Application Note 2
says, “This provision is not intended to punish a defendant for the exercise of a
constitutional right . . . . [I]naccurate testimony or statements sometimes may
result from confusion, mistake, or faulty memory and, thus, not all inaccurate
testimony or statements necessarily reflect a wilfull attempt to obstruct justice.”
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guilt and, therefore, his Fifth Amendment rights were not violated.
For the reasons discussed above, this court concludes the district court’s
finding of obstruction of justice under U.S.S.G. § 3C1.1 was not improper. W e
hold the district court’s imposition of a two-level enhancement under that provision
was neither clearly erroneous nor unconstitutional.
D. There W as Sufficient Evidence to Attribute M ore Than $7 M illion in
Victim Losses to Dazey
At the resentencing hearing, the Government argued for the imposition of a
sentencing enhancement for more than $7 million in losses, pursuant to U.S.S.G.
§ 2B1.1(b)(1)(K). It requested the enhancement based on the theory that Dazey’s
central role meant he should be held accountable for more than the $2,292,500
which went directly to him. Agent M arkey reviewed for the court the trial
testimony and evidence relating to Dazey’s role in the W ealth-M art scheme.
First, Agent M arkey explained the evidence showed Dazey received
chartered air flights from W ealth-M art co-conspirator Ronald Gerald Craft to
three seminars in Colorado in early 1998. Dazey represented himself as an
overseas trader to investors at these seminars. Second, the evidence indicated
Dazey provided cell phones to Craft and another conspirator, which were used
almost daily for communications about W ealth-M art; the phones had phone
numbers with Dazey’s Tulsa area code to deceive investors into thinking they
were calling Dazey’s office. Third, Agent M arkey referred to bank records
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showing that three investors deposited a total of nearly $2.3 million into D azey’s
“LaM esa” account at N ation’s B ank at the beginning of the conspiracy; this
money was used to purchase a car and real property and to pay personal credit
card debt. Fourth, Agent M arkey reminded the court about money that Dazey and
Craft invested with a third party to help cover up the W ealth-M art fraud. Fifth,
Agent M arkey said evidence showed Craft received $1 million in cash and $3.3
million in property; M arkey also detailed other payments made and received
during the course of the conspiracy. He estimated the total dollar loss to be $14.6
million and placed Dazey as the “number two” person in the conspiracy behind
Craft.
In response to Agent M arkey’s characterization of Dazey’s role, D azey did
not dispute the existence of the evidence M arkey referenced, but argued his role
was minimal. He highlighted he was not one of Wealth-M art’s “founders,” was
never employed by W ealth-M art, had not made promises regarding the yield or
return on any investment, had no contact with investors other than at the three
Colorado seminars, gave no instructions on the mechanics of investing in W ealth-
M art to any potential investors, and did not make “lulling statements” to induce
investment in W ealth-M art. Dazey also noted he was not involved in W ealth-
M art’s day to day operations, did not receive any of the benefits of the cars or
real property procured by Craft, and did not go on Craft’s Carribean cruise. In
sum, Dazey argued that, as a matter of law, his mere receipt of money from and
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association with Craft could not have made the total amount of loss resulting from
the conspiracy attributable or foreseeable to him.
Finding the evidence persuasive, the district court enhanced Dazey’s
sentence by twenty levels for losses in excess of $7 million. W hen considering
Dazey’s responsibility for the aggregate loss caused by W ealth-M art, the district
court said it had been “perhaps overly lenient” in the initial sentencing proceeding
when it rejected a sentencing enhancement under U .S.S.G. § 3B1.1(a) for Dazey’s
leadership role in the offense, and stated Dazey did, in fact, play a major role. In
support of its decision to impose the loss enhancement, the court highlighted
Dazey’s receipt of over $2 million, portrayal of himself as “investor in chief” who
“played a substantial role in tempting . . . investors to invest in a completely
fraudulent scheme,” repeated phone communications w ith Craft, and Dazey’s role
in providing cell phones to Craft. The court also noted Dazey himself received
over $2 million and, therefore, it was reasonably foreseeable that other parties to
the conspiracy would receive “much more than that.”
As with the imposition of the sentencing enhancements reviewed above,
this court reviews the district court’s legal conclusions de novo and factual
findings for clear error. Dalton, 409 F.3d at 1251. Dazey urges this court to
construe “reasonable foreseeability” under the Guidelines narrowly, relying on
the Sentencing Guidelines M anual’s caution that “[t]he principles and limits of
sentencing accountability under this guideline are not always the same as the
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principles and limits of criminal liability.” U .S.S.G. § 1B1.3 cmt. n.1. Dazey’s
contention is that his conspiracy conviction should not be co-extensive with the
total amount of loss caused by the conspiracy where his direct interaction was
limited only to his participation in the three Colorado seminars. 8
Case law does not support Dazey’s position. “In a conspiracy case, loss is
calculated on the basis of all reasonably foreseeable acts and omissions of others
in furtherance of the jointly undertaken criminal activity[] that occurred during
the commission of the offense of conviction . . . .” United States v. Suitor, 253
F.3d 1206, 1209 (10th Cir. 2001) (quotation omitted). Based on the evidence
discussed at the resentencing proceeding and cited by the district court on the
magnitude of the W ealth-M art operation, this court concludes the factual
predicates necessary to find Dazey responsible for the W ealth-M art conspiracy’s
aggregate loss were present. Although D azey himself only received a little less
than $2.3 million, the evidence shows he knew he was part of a much larger
scheme from which his co-conspirators would reap substantial gains. Dazey has
8
In his brief to this court, Dazey also contends the amount of loss for which
he can be held responsible is the amount specified in the indictment, which Dazey
calculates to be $362,250. Dazey does not cite any support for this proposition,
nor does any exist in our case law. W hile it is true, as the Dazey I court noted,
the indictment in this case was imprecise, that imprecision does not foreclose the
sentencing court from engaging in factfinding on the amount of loss. Cf. United
States v. Burridge, 191 F.3d 1297, 1304–05 (10th Cir. 1999) (upholding district
court decision to consider conduct not included in the indictment at sentencing
when determining the amount of loss attributable to defendant).
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not provided any evidence to persuade this court that the district court’s findings
about Dazey’s role in the conspiracy “from beginning to end” were clearly
erroneous. We accordingly hold it was reasonably foreseeable to Dazey that the
amount of loss would be more than $7 million.
E. Dazey’s Sentence and Restitution Order W ere Not Unreasonable 9
1. Dazey’s 121-M onth Sentence
Dazey contends the district court did not properly take the factors
enumerated in 18 U.S.C. § 3553(a) into account at resentencing. He argues his
121-month sentence was unnecessarily harsh and unreasonable. He claims the
court’s sentencing decision failed to take into account his age, lack of prior
criminal history, and actual imprisonment of two and a half years at the time of
resentencing.
This court first determines w hether the district court appropriately
calculated the applicable Guidelines range. United States v. Kristl, 437 F.3d
1050, 1054 (10th C ir. 2006). If the Guidelines range was calculated correctly, w e
review the defendant’s sentence for reasonableness. Id. If the sentence imposed
is within the Guidelines range, the sentence is entitled to a presumption of
reasonableness. Id.; see Rita v. United States, 551 U.S. ___, No. 06-5754, slip.
op. at 7 (U.S. June 21, 2007) (upholding appellate presumption of reasonableness
9
Dazey also purports to challenge the reasonableness of the forfeiture order.
See supra note 1, however, regarding the disposition of this challenge.
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for within-Guidelines sentences). The presumption can be rebutted by
demonstrating the sentence is unreasonable when considered against the other
factors enumerated in 18 U.S.C. § 3553(a). Kristl, 437 F.3d at 1054.
Because Dazey does not challenge his base offense level and because this
court has determined the district court did not err when it imposed the three
sentencing enhancements discussed above, we conclude the district court properly
calculated Dazey’s applicable Guidelines offense level as thirty-two. Under the
Guidelines, the combination of an offense level of thirty-two and criminal history
category I yields a now-advisory sentencing range of 121 to 151 months. Dazey
was sentenced at the bottom of the range to 121 months’ imprisonment.
Because Dazey’s sentence falls within the Guidelines range, it is
presumptively reasonable. Kristl, 437 F.3d at 1054. The only remaining question
is whether Dazey has provided any evidence to rebut the presumption of
reasonableness. Other than rehashing his argument that his role in the W ealth-
M art scheme w as not as great as the district court believed it to be, the factors
Dazey points to as making his sentence unreasonable are his age and lack of
criminal record. This minimal showing is not enough to demonstrate the
unreasonableness of his sentence. Dazey raised these issues with the district
court prior to the pronouncement of his sentence. The district court presumably
took these factors into consideration when evaluating the Guidelines range in
light of § 3553(a). See Rita, slip op. at 17 (discussing parameters of sentencing
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court’s obligation to explain its consideration of the § 3553(a) factors).
Therefore, this court concludes Dazey’s 121-month sentence is reasonable.
2. Dazey’s Restitution Order for $2,966,257
After finding the Government proved $2,966,257 in claims to identifiable
victims, the district court reasonably determined Dazey should pay $2,966,257 in
restitution pursuant to 18 U.S.C. § 3663A for the more than $7 million in total
loss that Wealth-M art caused its victims.
The M andatory Victim Restitution Act of 1996 (“M VRA”) requires the
payment of restitution in any case involving an “offense against property under
[Title 18],” including “any offense committed by fraud or deceit.” 18 U.S.C.
§ 3663A(c)(1)(A)(ii). The procedures for issuing and enforcing a restitution
order are set forth in 18 U.S.C. § 3664.
This court reviews de novo a district court’s interpretation of the M VRA ,
reviews the factual findings on which a restitution order is based for clear error,
and reviews the amount of restitution ordered for an abuse of discretion. United
States v. Wilson, 416 F.3d 1164, 1169–70 (10th Cir. 2005). Dazey argues the
statute requires a nexus between the convicted offense and the loss being
remedied and, therefore, restitution should be limited to the amount stated in the
indictment or the amount reasonably foreseeable to Dazey. This argument merely
restates the sufficiency of the evidence argument discussed above.
Dazey does not include any persuasive authority to convince this court the
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restitution order is unreasonable. In light of the conclusions this court reached
regarding the number of victims and amount of loss, we hold the factual findings
underpinning the district court’s restitution order were not clearly erroneous and
the amount of restitution ordered was not an abuse of the district court’s
discretion.
IV . C ON CLU SIO N
For the foregoing reasons, Dazey’s sentence, restitution order, and
forfeiture order, as imposed by the district court, are AFFIRM ED.
ENTERED FOR THE COURT
M ichael R. M urphy
Circuit Judge
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