United States v. Edward Okun , 453 F. App'x 364 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4743
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
EDWARD HUGH OKUN,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Robert E. Payne, Senior
District Judge. (3:08-cr-00132-REP-1)
Argued: September 21, 2011 Decided: November 17, 2011
Before NIEMEYER and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
ARGUED: Andrew Anthony Protogyrou, PROTOGYROU & RIGNEY, PLC,
Norfolk, Virginia, for Appellant. Michael Steven Dry, OFFICE OF
THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee.
ON BRIEF: Neil H. MacBride, United States Attorney, Alexandria,
Virginia, Jessica A. Brumberg, Richard D. Cooke, Assistant
United States Attorneys, OFFICE OF THE UNITED STATES ATTORNEY,
Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Edward Hugh Okun operated a “Ponziesque” scheme, resulting
in losses in excess of $125 million dollars. Following a jury
trial, he was convicted on twenty-three counts arising from this
scheme. He was sentenced to 1200 months’ imprisonment, a
sentence 3600 months below the advisory Guidelines sentence.
Okun raises four issues on appeal: (1) whether the superseding
indictment was legally sufficient; (2) whether the district
court erred when it refused to grant an evidentiary hearing
pursuant to Franks v. Delaware, 438 U.S. 154 (1978); (3) whether
the district court erred when it denied his motion for
continuance filed two weeks before trial; and (4) whether the
district court abused its discretion in sentencing him. For the
reasons stated below, we affirm.
I. Background
In 2005, Okun was the sole owner of Investment Properties
of America (IPofA), a Virginia limited liability company, with
its principal place of business in Richmond, Virginia. IPofA
was involved in the business of commercial real estate
investment and management. In 2005, Okun formed 1031 Tax Group,
a Delaware limited liability company with its principal place of
business in Richmond.
2
In connection with 1031 Tax Group, Okun became involved in
the business of operating qualified intermediary (QI) companies. 1
Between August 2005 and December 2006, Okun acquired six
different QI companies, which in turn became subsidiaries of
1031 Tax Group.
After acquiring his first QI company, Atlantic Exchange
Company (AEC), Okun began to wire AEC client funds to his
personal bank account and IPofA’s bank account, with the
assistance of Lara Coleman, IPofA’s Chief Operating Officer.
During the conspiracy, Coleman continued to assist Okun in the
1
Section 1031 of the Internal Revenue Code permits
individuals (exchangers) to defer the payment of capital gains
tax on the sale of certain assets when such assets are properly
exchanged in a “like kind” exchange. 26 U.S.C. 1031. In
general, a like-kind exchange occurs when one piece of property
is sold and, within a given period of time, a similar piece of
property is purchased. The like-kind exchange allows the
exchanger to delay recognizing a gain on the sold property, as
the tax basis of the sold property carries forward to the newly-
acquired property. Thus, the recognition of a gain and the
payment of capital gains tax are delayed. Id. § 1031(d). For
the newly-acquired property to qualify as “like kind,” it must
be identified within forty-five days and be purchased within one
hundred and eighty days of the sale of the sold property. Id. §
1031(a)(3). In addition, the exchanger must not receive the
proceeds from the sale of the sold property, either actually or
constructively, during the prescribed period. 26 C.F.R. §
1.1031(k)–1(a). A QI company can be used to hold the sale
proceeds in the interim, preventing the exchanger’s receipt of
the funds. Id. § 1.1031(k)–1(g)(4). The Internal Revenue Code
and regulations contain no requirement or restriction as to how
the QI company is to hold the proceeds and, so far as the
Internal Revenue Code is concerned, the QI company may invest
the proceeds. Such investment typically is governed by the
agreement between the exchanger and the QI company.
3
fraudulent scheme, which enabled Okun to use money held by the
QI companies on behalf of the exchangers for personal use and
for purposes related to IPofA’s business. The uses of the funds
held by the QI companies were not disclosed to the exchangers
and were in violation of the agreements between the exchangers
and the QI companies.
In 2007, Janet Dashiell, who had managed one of the QI
companies acquired by Okun, began to work for 1031 Tax Group.
Dashiell alerted the government to the manner in which the QI
funds were being used by Okun and 1031 Tax Group.
In May 2007, 1031 Tax Group filed for bankruptcy. The
collapse of 1031 Tax Group ultimately resulted in a loss in
excess of $125 million dollars to exchangers who had deposited
funds with the QI companies affiliated with 1031 Tax Group.
On March 17, 2008, a three-count indictment was filed in
the United States District Court for the Eastern District of
Virginia, charging Okun with the following offenses: one count
of mail fraud, 18 U.S.C. § 1341; one count of bulk cash
smuggling, 31 U.S.C. § 5332; and one count of making a false
declaration, 18 U.S.C. § 1623(a).
On July 10, 2008, a twenty-seven count superseding
indictment was filed in the district court. The superseding
indictment charged Okun with the following offenses: one count
of conspiracy to commit mail fraud and wire fraud, 18 U.S.C.
4
§§ 1341, 1343, and 1349, one count of conspiracy to commit money
laundering, id. §§ 371 and 1956(h), thirteen counts of wire
fraud, id. § 1343, three counts of mail fraud, id. § 1341; three
counts of promotional money laundering, id. § 1956(a)(1)(A)(i),
one count of concealment money laundering, id.
§ 1956(a)(1)(B)(i), three counts of money laundering, id.
§ 1957, one count of bulk cash smuggling, 31 U.S.C. § 5332, and
one count of making a false declaration, 18 U.S.C. § 1623(a).
On February 27, 2009, the government filed a motion to
dismiss one of the wire fraud and one of the mail fraud counts.
On the same day, the district court granted the motion.
On March 3, 2009, the case proceeded to trial. After the
government rested its case, Okun moved for a judgment of
acquittal pursuant to Rule 29 of the Federal Rules of Criminal
Procedure. The district court granted the motion with respect
to the two remaining mail fraud counts, but denied the motion as
to the other counts. Following Okun’s presentation of his
defense, closing arguments, and the district court’s
instructions, the case went to the jury. The jury found Okun
guilty as to the remaining twenty-three counts of the
superseding indictment.
The district court sentenced Okun to 1200 months’
imprisonment, a downward variance from the advisory Guidelines
5
sentence of 4800 months’ imprisonment. Okun noted a timely
appeal.
II. Sufficiency of the Indictment
Okun first challenges the sufficiency of the indictment
with respect to the mail fraud and wire fraud conspiracy count
and the wire fraud counts. According to Okun, the indictment
did not provide sufficient notice of the alleged
misrepresentations made by Okun to complete the alleged frauds.
Whether an indictment properly charges an offense is a
matter of law which we consider de novo if, as in this case, the
defendant below makes a timely objection to the indictment.
United States v. Darby, 37 F.3d 1059, 1062-63 (4th Cir. 1994).
Because Okun timely objected below to the sufficiency of the
indictment, we apply a heightened scrutiny. Id. at 1063. Under
our case law, a “valid indictment must: (1) allege the essential
facts constituting the offense; (2) allege each element of the
offense, so that fair notice is provided; and (3) be
sufficiently distinctive that a verdict will bar a second
prosecution for the same offense.” United States v. Bolden, 325
F.3d 471, 490 (4th Cir. 2003).
In this case, the mail fraud and wire fraud conspiracy
count and the wire fraud counts tracked the statutory language
of the relevant statutes and contained the essential elements of
6
both mail fraud and wire fraud, as well as conspiracy. Cf.
United States v. Fogel, 901 F.2d 23, 25 (4th Cir. 1990) (noting
that an indictment that tracks the statutory language ordinarily
is valid). 2 For example, the mail fraud and wire fraud
conspiracy count charges:
From in or about August 2005 through in or about May
2007, within the Eastern District of Virginia and
elsewhere, defendants [Edward Hugh Okun and Lara
Coleman] did unlawfully, knowingly, and intentionally
combine, conspire, confederate, and agree with each
other and with others, both known and unknown, to
commit offenses against the United States, to wit:
a. To devise and intend to devise a scheme and
artifice to defraud and to obtain money and property
by means of material false and fraudulent pretenses,
representations, and promises, and knowingly transmit
and cause to be transmitted by means of wire
communications in interstate and foreign commerce, any
writings, signs, signals, pictures, and sounds for the
purpose of executing such scheme and artifice, in
violation of Title 18, United States Code, Section
1343;
b. To devise and intend to devise a scheme and
artifice to defraud and to obtain money and property
by means of material false and fraudulent pretenses,
representations, and promises, and knowingly: (a)
placing and causing to be placed in any post office
2
The elements of mail fraud are: (1) the existence of a
scheme to defraud and (2) the use of mails to perpetrate that
scheme. United States v. Vinyard, 266 F.3d 320, 326 (4th Cir.
2001). The elements of wire fraud are: (1) the existence of a
scheme to defraud and (2) the use of wire communication in
furtherance of that scheme. United States v. Curry, 461 F.3d
452, 457 (4th Cir. 2006). The elements of a mail fraud or wire
fraud conspiracy are: (1) the existence of an agreement to
commit mail or wire fraud, (2) willing participation by the
defendant, and (3) an overt act in furtherance of the agreement.
United States v. Edwards, 188 F.3d 230, 234 (4th Cir. 1999).
7
and authorized depository for mail matter, any matter
and thing whatever to be sent and delivered by the
Postal Service; (b) depositing and causing to be
deposited any matter and thing whatever to be sent and
delivered by any private and interstate commercial
carrier; and (c) causing to be delivered by mail and
private and interstate commercial carrier any matter
and thing whatever according to the direction thereon,
in violation of Title 18, United States Code, Section
1341.
(J.A. 69).
The language used to describe the mail fraud and wire fraud
conspiracy count directly tracks both the mail and wire fraud
statutes, but adds in both instances that the “false and
fraudulent pretenses” were “material.” (J.A. 69). The
introductory charging language tracks 18 U.S.C. § 1349, which
criminalizes any attempt or conspiracy to violate, among other
statutes, the mail fraud and wire fraud statutes. Numerous
overt acts in furtherance of the conspiracy are set forth in the
lengthy manner and means section of the mail fraud and wire
fraud conspiracy count. Thus, the essential elements for this
count are clearly specified.
The same can be said about the wire fraud counts. Those
counts charge that Okun and others
for the purpose of executing the scheme and artifice
to defraud and to obtain money and property by means
of material false and fraudulent pretenses,
representations, and promises, did knowingly transmit
and cause to be transmitted by means of wire
communications in interstate and foreign commerce, any
writings, signs, signals, pictures, and sounds for the
purpose of executing such scheme and artifice.
8
(J.A. 83). This charging language is identical to § 1343,
except that, like the language in the mail fraud and wire fraud
conspiracy count, it adds the word “material” to describe the
“false and fraudulent pretenses.” (J.A. 83).
The mail fraud and wire fraud conspiracy count and the wire
fraud counts also alleged the essential facts underlying each
offense, allowing Okun to raise the defense of double jeopardy
should the need arise in a successive prosecution. With respect
to the mail fraud and wire fraud conspiracy count, the manner
and means section of that count describes how Okun purchased QI
companies, which used exchange agreements that required client
exchange funds to be held for the purpose of funding client
exchanges. Instead of abiding by the requirements set forth in
the exchange agreements, Okun used the client exchange funds
both to purchase other QI companies and for other purposes
wholly unrelated to funding client exchanges.
The manner and means section of the mail fraud and wire
fraud conspiracy count also describes how Okun and others hid
from 1031 Tax Group clients the true and desperate financial
condition of 1031 Tax Group by paying off earlier exchangers
with the deposits of later exchangers. The count also describes
how Okun and others lied to exchangers when the exchanges came
due and how 1031 Tax Group was unable to fund the exchanges.
9
The manner and means section of the mail fraud and wire
fraud conspiracy count also details how Okun and other
conspirators concealed the theft of 1031 Tax Group client
exchange funds from other executives both at IPofA and 1031 Tax
Group. The count focuses on important aspects of Okun’s
scheme by highlighting three different sources of legal advice
that Okun received in the late fall of 2006 regarding his
misappropriation of 1031 Tax Group funds. The count also sets
forth an approximate loss of $132 million dollars.
Like the mail fraud and wire fraud conspiracy count, the
wire fraud counts also set forth the essential facts underlying
each count. The superseding indictment provides a sufficient
description of a scheme to defraud. The superseding indictment
alleges that property had been misappropriated, the means by
which Okun gained control over that property, and that he
attempted to conceal material facts from the rightful owners of
that property. Moreover, each count sets forth a date, an
amount, and a description of the wire transaction.
In sum, the mail fraud and wire fraud conspiracy count sets
forth the essential elements of the offense and the essential
facts with more than sufficient specificity to put Okun and any
future court on notice of the actions for which Okun was
charged, and would allow Okun to properly raise a defense of
double jeopardy in a future prosecution. The count included a
10
date range for the conduct charged, identified the relevant
companies, detailed the manner and means of the scheme, and
included an approximate amount of total loss. The wire fraud
counts contained the same necessary specificity. Thus, Okun’s
challenge to the sufficiency of the indictment must be rejected.
Cf. United States v. Loayza, 107 F.3d 257, 261 (4th Cir. 1997)
(“The indictment here was sufficiently specific. The time
period, the scheme, the purported investment companies, the
‘cover-up’ of the diversion of funds, and the use of the mail to
carry out the scheme are all alleged.”).
III. Franks Evidentiary Hearing
On April 26, 2007, a search warrant was issued by a United
States Magistrate Judge pursuant to a sworn affidavit filed by
United States Postal Inspector John Barrett, Jr. Inspector
Barrett’s affidavit set forth information and beliefs concerning
the illegal activities of Okun and his related corporate
entities. The primary source of the information in the
affidavit was Dashiell. The information from Dashiell was
corroborated by evidence produced by a confidential informant
(CI). At issue here is Paragraph 18 of the affidavit, which
states:
[Dashiell] has informed me that on a daily basis, 1031
Tax Group clients either close on substitute property,
and so need their deposited funds, or decide not to
11
purchase new property and request that their deposits
be returned. Because client funds have not been
maintained in insured bank accounts, and have instead
been used by the subjects for various investments and
personal expenses, their funds are not available to be
returned. Instead, for at least the last several
weeks, 1031 Tax Group has been using the money
deposited by new clients to re-pay other clients who
need or are demanding their funds immediately.
[Dashiell] has informed me that 1031 Tax Group has not
had enough money over the past several weeks to pay
several of their clients. In conversations between
David Field and [Dashiell], recorded with the consent
of [Dashiell], Field confirmed that 1031 Tax Group
does not have sufficient funds to repay its clients.
During one of those conversations, Field stated that
Edward Okun was working on refinancing deals that
would bring more money into the 1031 Tax Group
companies, but that in the meantime, the companies
should continue to bring in new clients so that their
deposits can be used to pay the clients currently
demanding their money.
(J.A. 747-48).
The search warrant authorized the searching agents to
retrieve: (1) all communications between and among 1031 Tax
Group clients and officers and employees of IPofA and its
subsidiaries and related companies; (2) all documents and data
regarding the movement of money between Okun and other Okun-
related companies and third parties; (3) all bank records of
Okun and other Okun-related companies; and (4) any retained
copies of tax returns filed by Okun and other Okun-related
companies.
On April 27, 2007, federal law enforcement agents undertook
a thorough search of the offices of various corporate entities
12
associated with Okun and 1031 Tax Group. The product of that
search was a large quantity of documentary evidence relating to
Okun and his transactions with the various companies with which
he was involved.
In the district court, Okun challenged the search on
numerous grounds. On appeal, however, he presses only one
claim. According to Okun, Paragraph 18 of Inspector Barrett’s
affidavit contained one material false statement, that is, that
IPofA’s Chief Financial Officer, David Field, “confirmed [with
Dashiell] that 1031 Tax Group does not have sufficient funds to
repay its clients.” (J.A. 748). Okun posits the exact opposite
is true—that Field “believed that sufficient assets were
available to repay all investors.” Appellant’s Br. at 11.
The district court rejected this contention, concluding
that Inspector Barrett’s statement concerning Field’s
confirmation was not false. According to the district court,
Inspector Barrett’s statement was not false, because, in
context, Inspector Barrett “is stating that he has been informed
that 1031TG does not have the funds on hand to pay back those
exchangers who are currently requesting the return of their
funds, but that the corporation is investigating financing
options that would allow for the exchangers to be paid.” (J.A.
581). The district court noted that this reading of the
affidavit was supported by other portions of the affidavit.
13
In general, a defendant is not entitled to challenge the
veracity of a facially valid search warrant affidavit. United
States v. Allen, 631 F.3d 164, 171 (4th Cir. 2011). In its
decision in Franks, however, the Supreme Court carved out a
narrow exception to this rule:
[W]here the defendant makes a substantial preliminary
showing that a false statement knowingly and
intentionally, or with reckless disregard for the
truth, was included by the affiant in the warrant
affidavit, and if the allegedly false statement is
necessary to the finding of probable cause, the Fourth
Amendment . . . requires that a hearing be held at the
defendant’s request.
438 U.S. at 155-56. After making the essential preliminary
showing, the defendant is entitled to an evidentiary hearing on
the veracity of the statements in the affidavit. The purpose of
a Franks evidentiary hearing is to determine whether the
probable cause determination was based on intentionally false
statements. United States v. Akinkoye, 185 F.3d 192, 199 (4th
Cir. 1999). If, after a Franks evidentiary hearing, the
defendant has shown by a preponderance of the evidence that
false statements were knowingly and intentionally (or with
reckless disregard for the truth) included in the search warrant
affidavit, and that such false statements were necessary to
establish probable cause, the evidence seized must be
suppressed. Franks, 438 U.S. at 155–56.
14
In order for the Franks rule to apply and justify
suppression, the defendant must satisfy both prongs of the rule.
First, the defendant must show by a preponderance of the
evidence that the affiant placed false statements in the
affidavit, either knowingly and intentionally or with a reckless
disregard for the truth. Id. at 156. Second, the defendant
must show that, with the false statements purged from the
affidavit, the remainder of the affidavit is insufficient to
establish probable cause. Id. at 155–56. Thus, if an affidavit
includes false statements knowingly and intentionally (or
recklessly) made, the evidence seized in the resulting search
will not be suppressed if the affidavit, purged of the false
statements, is nonetheless sufficient to establish probable
cause. See United States v. Friedemann, 210 F.3d 227, 229 (4th
Cir. 2000) (requiring suppression only if false statements
necessary to finding of probable cause).
Okun’s Franks contention founders for the simple reason
that Inspector Barrett’s affidavit does not contain a false
statement, as counsel for Okun candidly conceded at oral
argument. 3 Inspector Barrett’s affidavit states that he had been
3
In its brief, the government raises the issue of standing,
contending that the mere fact that Okun owned the corporate
entities whose premises were searched is insufficient to confer
upon him Fourth Amendment standing. Because there were no false
(Continued)
15
informed by Dashiell that 1031 Tax Group in “the past several
weeks” did not have sufficient funds on hand to pay back
“several” of its clients. (J.A. 748). This information, which
Okun does not challenge, amply supports the veracity of Field’s
confirmation that there were insufficient funds to repay 1031
Tax Group’s clients. The truth of Field’s confirmation also is
supported by the corroborative evidence that Okun was seeking
financing to continue the fraud. In short, the district court
did not err when it refused to order an evidentiary hearing
pursuant to Franks. 4
IV. Denial of Motion for Continuance
We review the district court’s denial of a motion for
continuance for abuse of discretion. United States v. Williams,
445 F.3d 724, 739 (4th Cir. 2006). The district court abuses
its discretion when its denial of a motion for continuance is
“an unreasoning and arbitrary insistence upon expeditiousness in
statements in the affidavit at issue, we need not address the
issue of standing.
4
We also note that Okun’s Franks argument fails because:
(1) nothing in the record indicates that Inspector Barrett’s
alleged false statement was made with intentional or reckless
disregard for its truth; and (2) even assuming that Okun is
correct that Inspector Barrett intentionally included the
alleged false statement in his affidavit, the remainder of the
lengthy and thorough affidavit demonstrates probable cause.
16
the face of a justifiable request for delay.” Id. (citation and
internal quotation marks omitted).
In November 2008, Okun received a continuance of the trial
until March 2, 2009. His January 16, 2009 request for a
continuance was denied. Two weeks prior to trial, Okun again
sought a continuance. This motion was premised on two theories.
First, the government had provided a witness list in
alphabetical order instead of listing the order in which it
intended to call such witnesses. Second, Okun argued that he
was uncertain as to whether the government would be permitted to
proceed with a theory that Okun made misrepresentations to the
prior owners of the QI companies he purchased, in addition to
the clients of those QI companies.
The district court denied the motion though, in its order,
the government was ordered to provide a list of witnesses in the
order in which they would be called to testify. The district
court found that Okun had adequate notice of the government’s
theory of the case and that a continuance would prejudice the
government.
We find no abuse of discretion. The record reflects that
the government discussed with Okun’s counsel for many months its
theory of misrepresentations to prior owners of the QI
companies. Counsel for Okun was also on notice of such theory
through a variety of district court filings and document
17
production. Moreover, had a continuance been granted, the
government would have suffered prejudice, as it had already
arranged for over twenty-five witnesses to travel to Richmond
from around the country.
V. Sentence
We review a sentence imposed by the district court under
the deferential abuse-of-discretion standard, regardless of
whether the sentence imposed is inside, just outside, or
significantly outside the Guidelines range. United States v.
Evans, 526 F.3d 155, 161 (4th Cir. 2008); see also Gall v.
United States, 552 U.S. 38, 41 (2007). The first step in this
review requires us to inspect the record for procedural
reasonableness by ensuring that the district court committed no
significant procedural errors, such as failing to calculate or
improperly calculating the Guidelines range, failing to consider
the 18 U.S.C. § 3553(a) factors, or failing to adequately
explain the sentence. United States v. Boulware, 604 F.3d 832,
837–38 (4th Cir. 2010).
In explaining the selected sentence, the district court is
not required to “robotically tick through § 3553(a)’s every
subsection.” United States v. Johnson, 445 F.3d 339, 345 (4th
Cir. 2006). Rather, the district court “must make an
individualized assessment based on the facts presented,” by
18
applying “the relevant § 3553(a) factors to the specific
circumstances of the case before it.” United States v. Carter,
564 F.3d 325, 328 (4th Cir. 2009) (citation, internal quotation
marks, and emphasis omitted). The district court must also
state in open court the particular reasons supporting its chosen
sentence and “set forth enough to satisfy” us that it has
“considered the parties’ arguments and has a reasoned basis for
exercising [its] own legal decisionmaking authority.” Rita v.
United States, 551 U.S. 338, 356 (2007). “If, and only if, we
find the sentence procedurally reasonable can we consider” its
substantive reasonableness. Carter, 564 F.3d at 328 (citation
and internal quotation marks omitted).
In this case, the sentence imposed is both procedurally and
substantively reasonable. First, the district court properly
calculated the applicable Guidelines range. Okun was convicted
of one count of conspiracy to commit mail fraud and wire fraud,
one count of conspiracy to commit money laundering, twelve
counts of wire fraud, seven counts involving money laundering,
one count of bulk cash smuggling, and one count of making a
false declaration. The convictions were grouped together for
sentencing purposes and produced a single offense level of 53,
ten levels above the highest offense level on the Sentencing
Table. A total offense level of more than 43 is to be treated
as an offense level of 43. U.S. Sentencing Guidelines Manual
19
(USSG) Chapter 5, Part A Sentencing Table, comment. (n.2).
Okun’s criminal history category was I. Under the Guidelines,
offense level 43, in criminal history category I, provides an
advisory Guidelines sentence of life imprisonment. Because none
of the counts of conviction carried a statutory maximum sentence
of life imprisonment, the district court applied USSG § 5G1.2,
which governs sentencing on multiple counts of conviction. 5 As
such, Okun’s advisory Guidelines sentence was the statutory
maximum sentence on all counts of conviction combined—4,800
months.
Next, the district court considered the relevant § 3553(a)
factors, emphasizing the extensive harm caused by Okun’s
conduct, and the need for adequate deterrence and to protect the
public from further crimes by Okun. The district court also
considered Okun’s heart condition.
Okun’s main challenge to his sentence is that the district
court did not consider his age and lack of criminal history in
5
The statutory maximum sentences for the counts of
conviction varied from five to twenty years. USSG § 5G1.2(d)
states: “If the sentence imposed on the count carrying the
highest statutory maximum is less than the total punishment,
then the sentence imposed on one or more of the other counts
shall run consecutively, but only to the extent necessary to
produce a combined sentence equal to the total punishment. In
all other respects, sentences on all counts shall run
concurrently, except to the extent otherwise required by law.”
USSG § 5G1.2(d).
20
imposing sentence. However, we have repeatedly emphasized that
the district court is not required to apply § 3553(a) in a
checklist fashion. Johnson, 445 F.3d at 345. Here, the
district court made extensive findings supporting the imposition
of a variance sentence 3600 months below the advisory Guidelines
sentence. After reviewing those extensive findings, we are
satisfied that the district court considered the parties’
arguments and had a reasoned basis for exercising its own legal
decisionmaking authority. Rita, 551 U.S. at 356. Accordingly,
we reject Okun’s challenge to his sentence. 6
VI. Conclusion
For the reasons stated herein, the judgment of the district
court is affirmed.
AFFIRMED
6
Okun also complains that his sentence exceeded the length
of sentence typically imposed in similar cases. Under 18 U.S.C.
§ 3553(a), one relevant sentencing factor is the need to avoid
unwarranted sentence disparities among defendants with similar
records who have been found guilty of similar conduct. 18
U.S.C. § 3553(a)(6). We note the sentence imposed in this case
is in line with sentences imposed in similar white-collar cases.
See, e.g., United States v. Lewis, 594 F.3d 1270, 1278 (10th
Cir.) (affirming 310-year sentence for a defendant convicted by
a jury of an investment fraud of over $40 million dollars),
cert. denied, 130 S. Ct. 3441 (2010).
21