United States v. Roger Waldner ( 2009 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 08-2606
__________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Northern District of Iowa.
Roger Waldner, *
*
Appellant. *
___________
Submitted: December 9, 2008
Filed: September 4, 2009
___________
Before COLLOTON, BRIGHT, and SHEPHERD, Circuit Judges.
___________
SHEPHERD, Circuit Judge.
Roger Waldner pled guilty to two counts of making a false statement in relation
to a bankruptcy proceeding, in violation of 18 U.S.C. § 152(3). The district court1
sentenced Waldner to 120 months imprisonment and ordered him to make restitution
in the amount of $1,722,717.61. He appeals both his sentence and the restitution
order. We affirm.
1
The Honorable Linda R. Reade, Chief Judge, United States District Court for
the Northern District of Iowa.
I.
In January 2001, Roger Waldner took control of H&W Motor Express
(“H&W”), a trucking company in Dubuque, Iowa. Waldner obtained all of H&W’s
stock in exchange for his assumption of H&W’s corporate debt. Waldner became
CEO of H&W, participating in the daily management of the company and assuming
control of its financial operations.
Within a few months of assuming control of H&W, Waldner and his associates
began transferring approximately $1.8 million worth of assets from H&W to four
other corporations with which he had a close relationship–Equity Holdings, Inc.
(“EHI”), STRAC, Inc. (“STRAC”), Nationwide Cartage (“Nationwide”), and Solace
Transfer (“Solace”). Waldner and his associates formed EHI and STRAC as holding
companies for the purpose of acquiring other trucking businesses. Waldner was the
president, secretary, treasurer, and sole director of EHI, and, for a time, EHI held
Waldner’s H&W stock. EHI shared the same address with H&W’s headquarters in
Dubuque, Iowa. In May 2001, after Waldner had already acquired H&W, H&W’s
board authorized Waldner to pay EHI $100,000 for “consulting/legal fees” regarding
the acquisition of H&W. Waldner and Galley Smith, an officer and board member of
H&W, were among those who signed the authorization for the payment to EHI.
Waldner was never listed as owner, officer, or director of STRAC, but he was
present during the H&W board meeting at which the board approved the formation
of STRAC for the purpose of acquiring non-union trucking companies.2 The H&W
board then issued a resolution, signed by Waldner, authorizing a payment of $100,000
to STRAC to perform a “feasability study” for acquiring Midland Transportation
2
Because H&W was a union company, STRAC was formed to purchase non-
union companies so that the two could be kept separate.
-2-
(“Midland”), a financially troubled trucking company. However, none of this amount
was paid to STRAC before it acquired Midland.
Midland subsequently failed, and Waldner used its employees and trucking
contracts to form Nationwide on August 10, 2001. Waldner became CEO of
Nationwide. Nationwide’s address was the same as H&W’s address in Dubuque,
Iowa, and H&W’s employees performed all of Nationwide’s billing and payroll
services. Nationwide performed hauling services for H&W, the revenue from which
was paid to H&W and then transferred to Nationwide. According to one of
Nationwide’s truck drivers, William Utley, Nationwide earned, at most, $1,500 a week
from H&W, which would amount to approximately $36,000 in total payments before
H&W filed for bankruptcy in June 2002. However, H&W paid $459,744.56 to
Nationwide during this period. H&W’s accounts payable clerk, Gregory Wolfe, stated
he never saw any invoices that would justify these payments.
Waldner and his wife owned a holding company called One Stop, Inc. (“One
Stop”). One Stop also shared the same address as H&W in Dubuque, Iowa. In
December 2001, One Stop acquired Solace, which, like Midland, was a financially
troubled trucking company. Waldner was the CEO of Solace, and Galley Smith
became its president. Solace did not perform any hauling services for H&W until
May 2002. These services were estimated to be worth less than $10,000. However,
H&W made net payments of $1,262,973.05 to Solace before H&W filed for
bankruptcy. As with the payments to Nationwide, H&W’s accounts payable clerk
stated that he knew of no invoices that would explain these payments. In 2002,
Waldner sold Solace for $1.1 million.
H&W filed for bankruptcy in June 2002. Attorney Frank Baron was hired to
perform the legal work for H&W’s bankruptcy. Baron was paid for his services by
Solace. After H&W filed for bankruptcy, Waldner met with Baron, Galley Smith, and
a man named Brad Hartke, who had been hired to draft H&W’s bankruptcy schedules.
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According to Hartke, when he expressed concern over the fact that the payments to
Solace and Nationwide had not been included on the bankruptcy schedules, Baron
suggested that Hartke and Smith leave the meeting. When Hartke and Smith returned,
the schedules were completed without disclosures of the payments to Nationwide or
Solace. Although Smith stated that he did not recall discussing anything about the
disclosures at this meeting, he did recall being asked to leave with Hartke. Waldner
later claimed that he signed blank bankruptcy schedules and that someone else
completed them. However, Baron testified that he never gave Waldner blank
schedules to sign, and Hartke stated that he witnessed Waldner sign the completed
schedules.
Shortly after the filing of the bankruptcy schedules, Waldner appeared at a
Section 341 “meeting of creditors” as owner and CEO of H&W to answer questions
under oath about the company’s bankruptcy.3 At this meeting, Waldner stated that
Solace had no relation to H&W, that he did not know anything about STRAC, that he
had no ownership or affiliation with Nationwide, and that he was not aware of any
common officers among Solace, Nationwide, and H&W.
In May 2006, Waldner was indicted on 12 counts of knowingly and
fraudulently making a false statement under penalty of perjury in relation to a
bankruptcy proceeding, in violation of 18 U.S.C. § 152(3). On May 18, 2007,
immediately after a jury was selected for his trial, Waldner pled guilty to counts 11
and 12 of the indictment. The counts concerned his denials, made at the Section 341
meeting. One denial was of his ownership and affiliation with Nationwide, the other
was a denial of any knowledge of common officers among Solace, Nationwide, and
H&W. Pursuant to his plea agreement, Waldner stipulated to a number of facts,
including stipulations that he signed the completed bankruptcy schedules and that he
3
11 U.S.C. § 341 states: “Within a reasonable time after the order for relief in
a case under this title, the United States trustee shall convene and preside at a meeting
of creditors.”
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made fraudulent statements at the Section 341 meeting about the relationship between
Solace, Nationwide, and H&W to prevent creditors from reaching the assets
transferred from H&W to Solace and Nationwide. In exchange, the remaining ten
counts were dismissed.
In preparation for sentencing, the government investigated Waldner’s
involvement in a number of transactions that suggested the criminal character of his
enterprise. In particular, the government questioned Waldner about the purchase of
a ring for approximately $5,000, using a Solace check made payable to “McCoy
Repair,” a non-existent company. The ring was purchased from McCoy Jewelers, a
jewelry store in Dubuque, Iowa. Although Waldner claimed that the ring was a gift
and he knew nothing of why a Solace check was used to pay for it, the jeweler who
made the ring later testified at the sentencing hearing that he had made the ring at
Waldner’s request. Furthermore, Smith testified that Waldner instructed him to use
a check drawn on Solace’s funds to pay the fictitious McCoy Repair.
Similarly, the government questioned Waldner about the sale of two truckloads
of H&W’s equipment after the filing of the bankruptcy petition. The sale was to a
Minnesota company named Thompson Motors and was for $17,000. Waldner had
instructed Thompson Motors to make two payments in the amount of $8,500 to Sioux
Falls Cartage, a defunct company previously owned by Waldner. In an apparent effort
to distance himself from this transaction before sentencing, Waldner produced
invoices regarding the sale purporting to be from Sioux Falls Cartage and faxed by a
man named Greg Hohnecker, who was a supervising mechanic at H&W’s garage.
However, Hohnecker subsequently testified that he never worked for Sioux Falls
Cartage and that he had never seen the documents purporting to be invoices for the
sale of H&W equipment to Thompson Motors.4
4
Waldner’s untruthful statements to investigators regarding the ring and the sale
of equipment to Thompson Motors formed the basis for the district court’s
obstruction-of-justice sentencing enhancement under United States Sentencing
Commission, Guidelines Manual, §3C1.1.
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During the three-and-a-half-day sentencing hearing, Waldner produced three
witnesses on his behalf: Lois Lex, a secretary at H&W; Linda Schueller, a former
H&W employee; and Larry Eide, a lawyer who served as trustee for H&W’s
bankruptcy estate. Lex claimed to have loaned Waldner $700,000, even though she
never earned more than $30,000 a year, owed $60,000 on her mortgage, and owned
no stock or other investments. Lex also testified that Waldner’s subordinates,
especially Galley Smith, were responsible for the suspicious transactions and that, in
her opinion, Waldner did not know anything about STRAC. Schueller, who has no
training in accounting, attested to the legitimacy of H&W’s transactions and
minimized Waldner’s role in the company’s financial operations. Eide had originally
accused Waldner of secreting away $1.5 million of H&W’s assets, and brought an
action against Waldner, Waldner’s wife, and One Stop to recover the funds. However,
Eide then proposed a settlement agreement in which Lex would pay H&W’s
bankruptcy estate $5,000. In exchange, the estate would hire the law firm that
represented Waldner to recover funds for the bankruptcy estate. After their recovery,
80 percent of the funds would be paid to Lex and the law firm. Eide testified at
Waldner’s sentencing hearing that an unspecified amount of money had come back
into H&W’s accounts. The district court did not find Lex, Schueller, or Eide to be
credible.
At the conclusion of the sentencing hearing, the district court made a number
of sentencing determinations. First, the court determined Waldner’s base offense level
to be six under United States Sentencing Commission, Guidelines Manual, §2B1.1(a).
Then, the court applied a number of enhancements: (1) a two-level increase for
committing fraud during a bankruptcy proceeding under USSG §2B1.1(b)(8)(B); (2)
a 16-level increase for intending to cause a loss in excess of $1 million under USSG
§2B1.1(b)(1)(I); (3) a two-level increase for using sophisticated means under USSG
§2B1.1(b)(9)(C); (4) a two-level increase for abusing a position of private trust under
USSG §3B1.3; and (5) a two-level increase for obstruction of justice under USSG
§3C1.1. The court then denied Waldner’s request for a two-level decrease for
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acceptance of responsibility under USSG §3E1.1. This resulted in an offense level of
30. With a Criminal History Category of I, Waldner’s advisory Sentencing Guidelines
range was 97 to 121 months, which was limited to 97 to 120 months by the five-year
statutory maximum for each of the two counts of violating 18 U.S.C. § 152(3). At this
point, the court then made four additional findings that it characterized as “upward
departures”: (1) causing extreme psychological injury under USSG §5K2.3; (2)
causing property loss or damage not taken into account by the Sentencing Guidelines
under USSG §5K2.5; (3) committing the offense in order to facilitate or conceal the
commission of another offense under USSG §5K2.9; and (4) dismissed and uncharged
conduct under USSG §5K2.21. Based on these findings, the court “departed upward”
and found that Waldner had an advisory Guidelines range of 120 months. After
considering the factors under 18 U.S.C. § 3553(a), the court sentenced Waldner to 120
months imprisonment. In addition to the sentence, the court awarded restitution in the
amount of $1,722,717.61 to H&W’s bankruptcy estate. This amount reflects the
approximately $1.2 million paid to Solace and the $460,000 paid to Nationwide.
II.
The district court should begin with a correct calculation of the advisory
Sentencing Guidelines range. Then, after giving both parties a chance
to argue for the sentence they deem appropriate, the court should
consider all of the factors listed in 18 U.S.C. § 3553(a) to determine
whether they support the sentence requested by either party. The district
court may not assume that the Guidelines range is reasonable, but instead
“must make an individualized assessment based on the facts presented.”
If the court determines that a sentence outside of the Guidelines is called
for, it “must consider the extent of the deviation and ensure that the
justification is sufficiently compelling to support the degree of the
variance.” The sentence chosen should be adequately explained so as “to
allow for meaningful appellate review and to promote the perception of
fair sentencing.”
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United States v. Braggs, 511 F.3d 808, 812 (8th Cir. 2008) (quoting Gall v. United
States, 128 S. Ct. 586, 597 (2007)). We review a sentence for abuse of discretion,
first ensur[ing] that the district court committed no significant procedural
error, such as failing to calculate (or improperly calculating) the
Guidelines range, treating the Guidelines as mandatory, failing to
consider the § 3553(a) factors, selecting a sentence based on clearly
erroneous facts, or failing to adequately explain the chosen sentence-
including an explanation for any deviation from the Guidelines range.
Gall, 128 S. Ct. at 597. The district court’s sentencing enhancements must be
supported by a preponderance of the evidence. United States v. Boyce, 564 F.3d 911,
915 (8th Cir. 2009).
Waldner challenges his sentence on the grounds that the district court
committed significant procedural error by enhancing his Guidelines range based on
unsupported factual findings and abused its discretion in determining a substantively
unreasonable sentence. The parties agree that Waldner’s base offense level for two
violations of 18 U.S.C. § 152(3) is six under USSG §2B1.1(a) and that he is subject
to a two-level increase for fraud committed during a bankruptcy proceeding under
USSG §2B1.1(b)(8)(B).
First, Waldner challenges the 16-level increase under USSG §2B1.1(b)(1)(I) for
causing a loss of more than $1,000,000 to his creditors. As a general rule, “loss is the
greater of actual loss or intended loss.” USSG. § 2B1.1, comment. (n.3(A)). “‘Actual
loss’ means the reasonably foreseeable pecuniary harm that resulted from the offense,”
while “‘[i]ntended loss’ (I) means the pecuniary harm that was intended to result from
the offense; and (II) includes intended pecuniary harm that would have been
impossible or unlikely to occur.” Id. at comment. (n.3(A)(i-ii)). Because the loss
caused by fraud is often difficult to determine precisely, “a district court is charged
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only with making a reasonable estimate of the loss.” United States v. Parish, 565 F.3d
528, 534 (8th Cir. 2009) (quotation omitted).
Waldner points to the testimony of Lex, Schueller, and Eide in an attempt to
show that H&W had made legitimate payments to EHI, STRAC, Solace, and
Nationwide. Waldner also argues that the suspicious transfers were not permanent,
but were intended to be temporary “paper transactions” by Galley Smith in an effort
to make the other companies appear to be in better financial health than they were.
However, the district court’s finding that the intended loss exceeded $1 million is
supported by a preponderance of the evidence. The district court’s finding that the
testimony of Lex, Schueller, and Eide was not credible is afforded great deference and
is supported by the record. See United States v. Martinez, 557 F.3d 597, 600 (8th Cir.
2009). The record shows that, while under Waldner’s control and during the year
preceding its bankruptcy, H&W made payments to Solace, Nationwide, STRAC, and
EHI in the amount of approximately $1.8 million. In his plea agreement, Waldner
stipulated to the fact that “[d]isassociating H&W from Solace and Nationwide may
have prevented creditors from seeking to satisfy H&W debts from the assets of Solace
and Nationwide, and therefore [Waldner] intended to defraud creditors by making the
false statement.” Plea Agreement ¶ 28(D), United States v. Waldner, No. 2:06-cr-
01019-LRR (N.D. Iowa July, 2008). The district court found that, at Waldner’s
direction, H&W transferred approximately $1.2 million to Solace and approximately
$460,000 to Nationwide. Thus, even if the approximately $200,000 transferred to
STRAC and EHI were excluded from the loss calculation, the facts as stipulated in the
plea agreement show that Waldner committed fraud during the bankruptcy
proceedings with the intention of causing a loss of greater than $1 million to his
creditors. Therefore, the district court did not err in applying a 16-level enhancement
for intending to cause a loss of more than $1 million.
Second, Waldner challenges his two-level increase for using “sophisticated
means” under USSG §2B1.1(b)(9)(C). “Conduct such as hiding assets or transactions,
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or both, through the use of fictitious entities [or] corporate shells . . . ordinarily
indicates sophisticated means.” Id. at comment. n.(8(B)). The record amply supports
a finding that Waldner used EHI, STRAC, Nationwide, and Solace as corporate shells
to hide assets from H&W’s creditors. This is precisely the type of conduct to which
the enhancement for using sophisticated means should apply. Therefore, the district
court did not err in applying the two-level enhancement for using sophisticated means.
Third, Waldner challenges his two-level enhancement for abuse of a position
of private trust under USSG §3B1.3. The commentary to section 3B1.3 defines a
position of private trust as a position that is
characterized by professional or managerial discretion (i.e., substantial
discretionary judgment that is ordinarily given considerable deference).
Persons holding such positions ordinarily are subject to significantly less
supervision than employees whose responsibilities are primarily non-
discretionary in nature.
USSG §3B1.3, comment. (n.1). Once the sentencing court has determined that a
person occupies a position of private trust, “the position of . . . trust must have
contributed in some significant way to facilitating the commission or concealment of
the offense . . .” before the enhancement may apply. Id. Furthermore, “[t]his
adjustment may not be employed if an abuse of trust or skill is included in the base
offense level or specific offense characteristic.” USSG §3B1.3.
Waldner argues that, although he was CEO and owner of H&W, he occupied
no position of private trust either with respect to the company or its creditors. As the
district court found, Waldner’s position as CEO and sole owner endowed him with
significant discretion and control over H&W’s operations. However, the district court
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did not expressly discuss whose trust Waldner abused.5 Nonetheless, the record
demonstrates that Waldner abused the trust of H&W’s creditors when he committed
fraud at the Section 341 creditors meeting.
Although “an arms-length commercial relationship will ordinarily not suffice
for the enhancement to apply, . . . [w]e have upheld the application of the
enhancement in situations involving arms-length commercial relationships.” United
States v. Septon, 557 F.3d 934, 937 (8th Cir. 2009) (citing United States v. Fazio, 487
F.3d 646, 659 (8th Cir.), cert. denied, 128 S. Ct. 523 (2007), United States v. Erhart,
415 F.3d 965, 972 (8th Cir. 2005)). Moreover, this is not a typical arms-length
relationship between creditor and debtor, because “[t]his examination under oath [at
a Section 341 meeting] enables creditors and the trustee to determine if assets have
improperly been disposed [of] or concealed.” In re Parmetex, Inc., 199 F.3d 1029,
1036 (9th Cir. 1999) (McKeown, J., dissenting) (quotation omitted). As Section 341
meetings are not adversarial proceedings, reliance on the debtor’s oath of truthfulness
is necessary for the meeting to function properly. Thus, Waldner’s position enabled
him to perpetrate the scheme whereby he drove H&W into bankruptcy by siphoning
off its assets. His position also helped him conceal this scheme by making fraudulent
statements during the Section 341 creditors meeting.
5
The district court cited to cases holding that CEOs and other corporate officers
occupy positions of trust. See United States v. Morris, 18 F.3d 562, 568 (8th Cir.
1994) (abuse-of-trust enhancement applied to CEO and board chairman of bank);
United States v. Buck, 324 F.3d 786, 795 (5th Cir. 2003) (president and CEO of a
nonprofit corporation occupied a position of private trust). However, “the issue of
whether an abuse-of-trust enhancement applies is fact intensive because it turns on the
precise relationship between the defendant and [his] victims and therefore cannot be
decided on the basis of generalities . . . .” United States v. Septon, 557 F.3d 934, 937
(8th Cir. 2009) (quotation omitted). Although Waldner was CEO of H&W, he was
also its sole shareholder. This arguably undermines the importance of the fact that he
was H&W’s CEO because there were no other shareholders to whom he owed
fiduciary duties. We need not decide this issue, however, because it is not necessary
to affirming the enhancement in this case.
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Furthermore, this enhancement is not duplicative of Waldner’s base offense
level or specific offense characteristic. “[S]entencing courts err when precisely the
same aspect of a defendant’s conduct factors into his sentence in two separate ways.”
United States v. Smith, 516 F.3d 473, 476 (6th Cir. 2008) (quotation omitted)
(affirming abuse-of-trust enhancement for convictions of wire fraud and making a
false statement on a loan application). “But in this instance the [abuse-of-trust]
enhancement[] [and the underlying offenses] penalize distinct aspects of [Waldner’s]
conduct and distinct harms.” Id. (quotation omitted). The abuse-of-trust enhancement
accounts for Waldner’s efforts to use his position to defraud creditors who were
entitled to rely on his representations at the creditors meeting. The prohibition on
fraud during a bankruptcy proceeding is one instance of the more general prohibition
on perjury that seeks to protect the integrity and dignity of government proceedings.
Thus, the district court did not abuse its discretion in enhancing Waldner’s sentence
for abusing a position of private trust. Cf. Fazio, 487 F.3d at 659 (affirming abuse-of-
trust enhancement for real estate agent who committed wire and mail fraud by
submitting fraudulent claims to a mortgage company); United States v. Goldman, 447
F.3d 1094, 1096 (8th Cir. 2006) (holding that attorney who lied during a bankruptcy
proceeding abused a position of public trust); Erhart, 415 F.3d at 972-73 (affirming
abuse-of-trust enhancement for chiropractor who submitted false insurance claims).
Fourth, Waldner challenges his two-level increase for obstruction of justice
under USSG §3C1.1. The commentary to USSG §3C1.1 states, in pertinent part, that
the obstruction-of-justice enhancement applies to the “producing or attempting to
produce a false, altered, or counterfeit document or record during an official
investigation or judicial proceeding,” id. at comment. (n.4(c)), as well as “providing
a materially false statement to a law enforcement officer that significantly obstructed
or impeded the official investigation or prosecution of the instant offense,” id. at
comment. (n.4(g)). The district court properly applied this enhancement based on
sufficiently supported factual findings. First, the district court properly found that, in
preparation for the sentencing hearing, Waldner produced two forged facsimile
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documents purporting to be invoices for $8,500 from the defunct Sioux Falls Cartage
relating to the sales of two truck loads of H&W equipment to another business,
Thompson Motors. Although the facsimiles purport to be from Greg Hohnecker, a
former H&W employee, Hohnecker testified at the sentencing hearing that he had
never seen the documents bearing his name. The sale of this equipment occurred after
H&W filed for bankruptcy. Based on this fact and Hohnecker’s testimony, it was a
permissible inference that the two invoices were designed to evade the IRS’s reporting
requirements and, therefore, that the sale of this equipment was part of Waldner’s
scheme to hide H&W’s assets from its creditors. This scheme was conduct relevant
to the two counts of fraud during a bankruptcy proceeding to which Waldner pled
guilty. Waldner also denied, during the investigation, that he purchased a ring from
McCoy Jewelers with $5,000 of Solace’s funds. However, this was undermined by
ample evidence showing that he orchestrated the transaction. The record clearly
supports the district court’s two-level enhancement for obstruction of justice under
USSG §3C1.1. See id. at comment. (n.4(c)).
Similarly, “[f]lowing from our determination regarding the adjustment for
obstruction of justice is our support of the district court’s denial of any reduction for
acceptance of responsibility.” United States v. King, 559 F.3d 810, 815 (8th Cir.
2009), petition for cert. filed, (U.S. Jun. 12, 2009) (No. 08-10961). Although “[t]here
may . . . be extraordinary cases in which adjustments” both upwards for obstruction
of justice and downwards for acceptance of responsibility may apply, “[c]onduct
resulting in an enhancement [for obstruction of justice] ordinarily indicates that the
defendant has not accepted responsibility for his criminal conduct.” USSG §3E1.1,
comment. (n.4). Although Waldner pled guilty, “[a] defendant who enters a guilty
plea is not entitled to an adjustment under [USSG §3E1.1] as a matter of right.” Id.
at comment. (n.3). Even after his guilty plea, Waldner continued to deny any
intention to secrete H&W’s funds away from the reach of its creditors, a fact which
he stipulated to be true in his plea agreement. “[A] defendant who falsely denies, or
frivolously contests, relevant conduct that the court determines to be true has acted in
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a manner inconsistent with acceptance of responsibility.” Id. at comment. (n.1(a)).
This is not one of those extraordinary circumstances in which an offense level increase
for obstruction of justice applies as well as a decrease for acceptance of
responsibility.
Thus, the district court properly calculated Waldner’s offense level at 30. With
a Criminal History Category I, his advisory Guidelines range was 97 to 121 months
imprisonment. With the statutory maximum of 120 months, see 18 U.S.C. 152, this
became an advisory range of 97 to 120 months imprisonment.
The district court then made a number of what it called “upward departures” to
the advisory sentencing range of 97 to 120 months imprisonment: (1) causing extreme
psychological injury under USSG §5K2.3; (2) causing property loss or damage not
taken into account within the Sentencing Guidelines under USSG §5K2.5; (3)
committing the offense in order to facilitate or conceal the commission of another
offense under USSG §5K2.9; and (4) dismissed and uncharged conduct under USSG
§5K2.21. Based on these “departures,” the district court recalculated Waldner’s
advisory Guidelines range to be 120 months.
The government concedes that the first of these “upward departures,” extreme
psychological injury under USSG §5K2.3, was found in error. Notwithstanding this
concession, district courts are to use “upward departures” to justify implementing a
specific sentence above the authorized Guidelines range, not to narrow a properly-
calculated Guidelines range. See USSG §§5K2.3; 5K2.5; 5K2.9; and 5K2.21.
Accordingly, the district court committed significant procedural error when it
purported to use these “departures” to calculate a new advisory Guidelines range of
120 months. See USSG §5K2.0(a)(1)(A) (“The sentencing court may depart from the
applicable guideline range if . . . there exists an aggravating or mitigating
circumstance . . . of a kind, or to a degree, not adequately taken into consideration by
the Sentencing Commission . . . .”); Irizarry v. United States, 128 S. Ct. 2198, 2202
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(2008) (“‘Departure’ is a term of art under the Guidelines and refers only to
non-Guidelines sentences imposed under the framework set out in the Guidelines.”).
While “[a] failure to properly calculate the advisory Guidelines range is a
significant procedural error, [only] a non-harmless error in calculating the
[G]uidelines range requires a remand for resentencing.” United States v. Tomac, 567
F.3d 383, 385-86 (8th Cir. 2009). After considering the section 3553(a) factors, the
district court determined that 120 months was the appropriate sentence. Furthermore,
the district court stated that “[i]n the event that the court was mistaken about the
propriety of all its upward departures and the Defendant’s advisory Sentencing
Guidelines range were 97 to 120 months . . . instead of 120 months of imprisonment,
the court would nonetheless have imposed a sentence of 120 months imprisonment.”
Sentencing Mem. 50-1, Waldner, No. 2:06-cr-01019-LRR; see United States v.
Johnson, 572 F.3d 449, 455 (8th Cir. 2009) (“Even assuming that the district court
procedurally erred . . . any such error would be harmless [because] . . . [t]he district
court explained that had it not granted the upward departure . . . it still would have
imposed [the] sentence . . . based on the § 3553(a) factors.”). We presume a sentence
within the properly calculated Guidelines range to be reasonable. United States v.
James, 564 F.3d 960, 964 (8th Cir. 2009). In this case, the range was 97 to 120
months. Thus, as the sentence was within the properly calculated advisory Guidelines
range, we affirm as substantively reasonable the district court’s sentence of 120
months imprisonment.
III.
Waldner also appeals the district court’s award of restitution in the amount of
$1,722,717.61 to H&W’s bankruptcy estate.6 The Mandatory Victims Restitution Act
(“MVRA”) mandates, in pertinent part, that a trial court award restitution when
6
This amount reflects the amounts transferred to Solace, $1,262,973.05, and
Nationwide, $459,744.56.
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sentencing a defendant convicted of “an offense against property under [Title 18], . . .
including any offense committed by fraud or deceit[.]”7 18 U.S.C.
§ 3663A(c)(1)(A)(ii).
First, Waldner argues that these transfers were legitimate transactions and,
therefore, cannot be counted as losses incurred by the H&W’s creditors. This
argument fails for the same reason Waldner’s challenge to the 16-level enhancement
for causing a loss in excess of $1 million failed. His claim that these transactions were
legitimate is refuted by the fact that he stipulated in his plea agreement that he
intended to defraud H&W’s creditors when he attempted to hide the amounts
transferred to Solace and Nationwide.
Second, Waldner argues that the specific conduct for which he was convicted
did not cause the loss. See Hughey v. United States, 495 U.S. 411, 413 (1990)
(holding that under the Victim and Witness Protection Act, the predecessor of the
MVRA, a trial court is authorized to make “an award of restitution only for the loss
caused by the specific conduct that is the basis of the offense of conviction”).
“However, we take a broad view of what conduct and related loss amounts can be
included in calculating loss.” United States v. DeRosier, 501 F.3d 888, 896 (8th Cir.
2007). Although the two acts of bankruptcy fraud were not the sole causes of the loss,
as other acts were required by Waldner and associates to shield H&W’s assets from
its creditors, they were undertaken with the intention of, and did in fact contribute to,
the furtherance of the scheme. Thus, the district court properly awarded restitution.
7
The MVRA applies because Waldner pled guilty to two counts of committing
fraud in violation of 18 U.S.C. § 152(3).
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IV.
Accordingly, we affirm the district court’s sentence of 120 months
imprisonment and its award of restitution in the amount of $1,722,717.61.
BRIGHT, Circuit Judge, concurring separately.
The district court imposed the maximum possible penalty under the law (ten
years). I would note that Waldner is a first-time offender, a good wage earner in his
earlier positions, and apparently a good father and husband.
The sentence does appear heavy but it was within the discretion of the district
court. Thus, I concur.
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