United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 09-1452
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United States of America, *
*
Appellee, *
*
v. *
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Robert Statman, *
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Appellant. *
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Appeals from the United States
No. 09-1767 District Court for the
___________ Eastern District of Arkansas.
United States of America, *
*
Appellee, *
*
v. *
*
Joel Rund, *
*
Appellant. *
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Submitted: December 14, 2009
Filed: May 4, 2010
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Before RILEY,1 Chief Judge, WOLLMAN and MELLOY, Circuit Judges.
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RILEY, Chief Judge.
Joel Rund, Robert Statman, and Gary Kleinman (collectively, the defendants)
each pled guilty to conspiracy to commit wire fraud, in violation of 18 U.S.C. § 371.
The district court2 sentenced Rund to 18 months imprisonment, Statman to 33 months
imprisonment, and Kleinman to probation. The district court also ordered the
defendants to make restitution, jointly and severally, in the amount of $1,740,073.51.
Rund and Statman appeal their sentences. Rund also appeals the district court’s
restitution order. We affirm.
I. BACKGROUND
In March 2005, a grand jury indicted the defendants with one count of
conspiracy to commit wire fraud, in violation of 18 U.S.C. § 371; five counts of wire
fraud, in violation of 18 U.S.C. §§ 1343 and 2; and seven counts of money laundering,
in violation of 18 U.S.C. §§ 1957(a), (d)(1) and 2. The indictment also charged Rund
with making a false statement, in violation of 18 U.S.C. § 1001(a)(2). The charges
arise from the defendants’ purchase of a bakery business with funding deceptively
obtained from the Arkansas Development Finance Authority (ADFA).
The defendants each pled guilty to one count of conspiracy to commit wire
fraud pursuant to written plea agreements. The defendants also agreed to certain
stipulations with the government, including a loss amount of more than $1,000,000,
1
The Honorable William Jay Riley became Chief Judge of the United States
Court of Appeals for the Eighth Circuit on April 1, 2010.
2
The Honorable William R. Wilson, Jr., United States District Judge for the
Eastern District of Arkansas.
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but less than $2,500,000. In exchange, the government agreed to move to dismiss the
remaining counts in the indictment.
The district court held a sentencing hearing on February 20, 2009. Rund was
unable to attend the hearing due to his poor health. Rund’s counsel appeared on
Rund’s behalf. During the hearing, the parties litigated the proper amount of
restitution to be paid by the defendants, and the district court sentenced Kleinman and
Statman. The district court sentenced Rund on March 30, 2009.
Rund and Statman (collectively, Appellants)3 appeal their sentences, arguing
their sentences are procedurally and substantively unreasonable. Rund also argues the
district court erred by (1) relying on uncorroborated victim testimony in determining
restitution, and (2) “adopting the government’s methodology in calculating the
amount of restitution to impose.”
II. DISCUSSION
A. Procedural Error
An “appellate court must review [each] sentence under an abuse-of-discretion
standard.” Gall v. United States, 552 U.S. 38, 51 (2007). In conducting our analysis,
we “must first ensure that the district court committed no significant procedural error,
such as . . . failing to consider the § 3553(a) factors, selecting a sentence based on
clearly erroneous facts, or failing to adequately explain the chosen sentence.” Id.
A sentencing court should first accurately calculate a defendant’s advisory
United States Sentencing Guidelines (U.S.S.G. or Guidelines) range and provide both
parties with an opportunity to explain their desired sentence. See id. at 49-50. The
district court must then consider all of the § 3553(a) factors and conduct an
individualized assessment to determine what sentence is appropriate given the facts
3
Kleinman did not appeal.
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in the particular case. See id. “[A] district court is not required to provide a ‘full
opinion in every case,’ but must ‘set forth enough to satisfy the appellate court that
he has considered the parties’ arguments and has a reasoned basis for exercising his
own legal decisionmaking authority.’” United States v. Robinson, 516 F.3d 716, 718
(8th Cir. 2008) (quoting United States v. Rita, 551 U.S. 338, 356 (2007)).
1. Statman’s Sentence
During Statman’s sentencing hearing, the district court stated it would “consider
the factors in 18 United States Code Section 3553 and the sentencing guidelines.” The
district court accurately calculated Statman’s Guidelines range, finding, based upon
Statman’s offense level of 19 and criminal history category of I, Statman’s Guidelines
range was 30 to 37 months imprisonment. The district court provided Statman with
an opportunity to argue for his desired sentence. Statman’s counsel asked for a
“sentence that does not involve incarceration,” citing Statman’s advanced age (69) and
physical impairments. The district court reviewed the medical documentation
Statman’s counsel provided, and indicated “they have real good medical facilities in
the Federal Correction Institution, so . . . unless someone is in a steep dive with regard
to their health, I go ahead and let them be treated in the institution.” The district court
sentenced Statman to 33 months imprisonment and three years supervised release, and
ordered Statman to make joint and several restitution in the amount of $1,740,073.51.
Statman argues the district court procedurally erred by “fail[ing] to explain its
reasons for the sentence.” However, “[n]othing in § 3553(a) or in the Booker[4]
remedy opinion requires ‘robotic incantations’ that each statutory factor has been
considered.” United States v. Lamoreaux, 422 F.3d 750, 756 (8th Cir. 2005) (quoting
United States v. Crosby, 397 F.3d 103, 113 (2d Cir. 2005) (rejected on other grounds
by United States v. Pirani, 406 F.3d 543, 552 (8th Cir. 2005) (en banc))). We are
satisfied the district court “‘considered [Statman’s] arguments and ha[d] a reasoned
4
United States v. Booker, 543 U.S. 220 (2005).
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basis for exercising his own legal decisionmaking authority.’” Robinson, 516 F.3d
at 718 (quoting Rita, 551 U.S. at 356). We therefore find no procedural error as to
Statman’s sentence.
2. Rund’s Sentence
Rund also argues the district court erred in failing to explain his sentence and
discuss the § 3553(a) factors. Rund concedes he failed to object at the time of
sentencing, and therefore, we may only review the issue for plain error. See, e.g.,
United States v. Miller, 557 F.3d 910, 916 (8th Cir. 2009) (citation omitted)
(“Procedural sentencing errors are forfeited, and therefore may be reviewed only for
plain error, if no objection was raised in the district court.”).
During Rund’s sentencing hearing, the district court stated, “I’ll work through
the guidelines and the factors listed in 18 United States Code Section 3553 and come
up with a sentencing guideline range, and I’ll sentence within that range, unless there
is a reasonable ground not to.” The district court correctly calculated Rund’s advisory
Guidelines range, finding, based upon Rund’s offense level of 19 and criminal history
category of I, Rund’s Guidelines range was 30 to 37 months imprisonment. The
district court then heard testimony from Floyd Hancock, the senior investigator of the
Federal Public Defender’s Office, who offered a declaration from Rund’s treating
physician documenting Rund’s various medical conditions (heart and diabetes) and
stating Rund’s physical condition was “getting progressively worse.” Rund’s counsel
emphasized Rund’s lack of criminal history and asked for a sentence of probation, or
“any non[-]prison sentence.”
The district court noted, “This is not a case where . . . Rund and the others got
into a business and it started going bad and [they] started robbing Peter to pay Paul.
There was a larceny in their hearts to begin with, and I still believe that deterrence is
crucially important.” The district court then sentenced Rund to 18 months
imprisonment, three years supervised release, and joint and several restitution in the
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amount of $1,740,073.51. The district court recognized Rund’s poor health and
recommended Rund be incarcerated in “an institution where they have medical
facilities sufficient to treat his illnesses which [the court] consider[ed] quite serious.”
The district court considered the relevant factors and provided a reasoned basis for its
sentence. See Robinson, 516 F.3d at 718. The district court committed no procedural
error, and certainly no plain error.
B. Substantive Reasonableness
Appellants also challenge the substantive reasonableness of their sentences.
“‘We review a challenge to the reasonableness of a sentence for abuse of discretion.’”
United States v. Price, 542 F.3d 617, 622 (8th Cir. 2008) (quoting United States v.
Starr, 533 F.3d 985, 1003 (8th Cir. 2008)).
Because Statman’s sentence is within his advisory Guidelines range, “we accord
it a presumption of reasonableness.” United States v. Harris, 493 F.3d 928, 932 (8th
Cir. 2007) (citing Rita, 551 U.S. at 347), cert. denied, 128 S. Ct. 1263 (2008). The
only argument Statman presents in support of his claim that his within-Guidelines
sentence is unreasonable is that the district court did not adequately take into
consideration Statman’s advanced age and poor health in sentencing. During
Statman’s sentencing hearing, the district court stated it would consider the § 3553(a)
factors; it had reviewed Statman’s medical documentation; and there were good
facilities within the Bureau of Prisons where inmates may receive medical treatment.
The district court sufficiently considered Statman’s health and age in conducting its
analysis, and Statman failed to rebut the presumption that his within-Guidelines
sentence is substantively reasonable.
The district court varied below the bottom of Rund’s Guidelines range by
twelve months. When a district court gives a sentence outside the Guidelines range,
we “must give due deference to the district court’s conclusion that the § 3553(a)
factors, on a whole, justify the extent of the variance.” Gall, 552 U.S. at 51. “The fact
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that the appellate court might reasonably have concluded that a different sentence was
appropriate is insufficient to justify reversal of the district court.” Id.
Rund challenges his below-Guidelines sentence, claiming this court cannot
defer to the district court’s judgment because the district court failed to conduct an
adequate analysis. We disagree. During Rund’s sentencing, the district court stated
it would consider the § 3553(a) factors. The sentencing court then heard testimony
about Rund’s medical condition and permitted a declaration from Rund’s treating
physician to be admitted into evidence. After Rund’s counsel asked for a non-prison
sentence, the district court replied by emphasizing the severity of the crime and the
need for deterrence. The district court then imposed an 18-month prison sentence and
recommended Rund be held in an institution which would have sufficient medical
facilities to treat Rund’s various illnesses. The record reflects the district court
conducted an adequate analysis, taking into consideration the evidence Rund
presented. Rund’s below-Guidelines sentence is not substantively unreasonable.
C. Restitution
Rund argues the district court erred by (1) relying on uncorroborated testimony
in determining the amount of restitution, and (2) “adopting the government’s
methodology in calculating the amount of restitution to impose.” We review de novo
the district court’s interpretation of the Mandatory Victims Restitution Act of 1996
(MVRA), 18 U.S.C. §§ 3663A-3664. See United States v. Farish, 535 F.3d 815, 826
(8th Cir. 2008). We review for clear error the district court’s factual determinations
underlying an order for restitution, see United States v. DeRosier, 501 F.3d 888, 896
(8th Cir. 2007), as well as “the district court’s finding as to the proper amount of
restitution.” United States v. Stennis-Williams, 557 F.3d 927, 930 (8th Cir. 2009).
“The burden is on the government to prove the amount of restitution based on a
preponderance of the evidence.” DeRosier, 501 F.3d at 896. The government
satisfies this standard when it demonstrates “the existence of a fact is more probable
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than its nonexistence.” In re Winship, 397 U.S. 358, 371 (1970) (Harlan, J.,
concurring) (internal marks omitted).
1. Testimony
Rund pled guilty to wire fraud and stipulated the amount of loss his offense
caused was more than $1,000,000, but less than $2,500,000. The district court
conducted a restitution hearing. The government elicited testimony from Gene Eagle,
who had worked as an employee of ADFA for 24 years, and was ADFA’s acting Vice
President for Development Finance. Eagle explained “ADFA is a multipurpose bond
issuer for the state of Arkansas,” and described, in detail, the defendants’ fraud.
The defendants’ fraud centered around a bakery located in Sherwood, Arkansas.
The bakery was owned by the Koehler family, which began to suffer financial
difficulties, so the Koehlers sought help from ADFA. ADFA decided to work with
the family and hoped to keep the plant operational, because the plant provided
employment to a large number of people. ADFA issued the Koehler family a bond
in the amount of $2,185,000. The Koehler family pledged collateral for the bond,
including three parcels of property owned by the family and the rent proceeds the
family received from the property. The family also pledged the bakery, the bakery
property, and the bakery equipment. Despite ADFA’s bond issue to the Koehlers, the
bakery remained in financial distress.
During the summer of 2000, ADFA and the Koehlers began looking for
someone to purchase the bakery. The defendants expressed interest in purchasing the
bakery, and ADFA entered into negotiations with the defendants to purchase the
bakery and assume the bond issue from the Koehlers. The defendants presented their
business plan, to manufacture a type of fruit-filled pastry, and agreed to assume the
$2,185,000 bond issue. In April 2001, the agreement was finalized. ADFA agreed
to provide the defendants an additional $1,700,000—$1 million to be spent on
equipment and $700,000 for working capital—and the defendants agreed to inject an
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additional $1.5 million of equity capital into the business, which would also be used
for the purchase of equipment and serve as added security for the funds ADFA
provided.
To close the deal, the defendants presented ADFA with a signed and notarized
document, purportedly from an investor who had agreed to provide the $1.5 million
equity capital. The defendants then sought the agreed upon funding from ADFA by
presenting documentation to ADFA which indicated how the money would be used.
This documentation included statements for the purchase of equipment, in which
ADFA would obtain a security interest. The bakery continued operations for about
six months until approximately February 2002, when the bakery closed. The
defendants failed to pay employees, vendors, and a roofing company that performed
repair work for the bakery. The roofing company placed a lien on the property which
ADFA had to pay before the property could be sold.
After the bakery closed, ADFA conducted an inspection and discovered the
equipment the defendants claimed to have purchased with ADFA funds had not
actually been purchased, but had been leased from another company. As a result, the
funding ADFA provided the defendants for the purchase of equipment was completely
unsecured. ADFA also learned the signed and notarized document the defendants
used to induce ADFA to provide the defendants funding, which purported to be from
an investor who had agreed to provide $1.5 million in equity capital, was fraudulent.
After describing the defendants’ fraud, Eagle explained the amount of loss
ADFA suffered as a consequence of the fraud. Eagle provided exhibits demonstrating
the actual dollar amounts expended by ADFA as a result of the fraud, such as the $1.7
million bond principal; interest on the unpaid bond principal in the amount of
$84,327.84; the foreclosure expenses; the cost of extinguishing the original
$2,185,000 bond issued to the Koehlers; and other interest ADFA paid in the course
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of extinguishing the bonds. Eagle also provided specific information regarding the
dollar amounts regained by ADFA during and after the fraud, such as the sale of the
foreclosed property and rent proceeds from the Koehlers’ pledged collateral. Eagle
then presented ADFA’s proposed restitution figure of $1,740,073.51, by subtracting
the amount of money ADFA recouped from the amount of money ADFA expended.
The government also presented the testimony of Charles Lynch, a commercial
development officer who had been employed by ADFA for more than nine years.
After the fraud, Lynch was responsible for attempting to recoup and sell the collateral
originally pledged for the property at issue. As a result, Lynch was able to testify, in
more detail, about the monies regained by ADFA after the foreclosure sales, which
ADFA then subtracted from its loss. Rund’s counsel did not present any evidence to
counter the figures ADFA presented, but merely joined in another attorney’s argument
that ADFA used an improper methodology in its calculation.
The district court adopted the government’s proposed restitution figure. We
conclude the district court did not clearly err in relying on the detailed testimony of
ADFA employees, or in adopting the government’s proposed restitution figure. See
Stennis-Williams, 557 F.3d at 930.
2. Restitution Calculation
Because Rund was absent from the restitution hearing, the district court
refrained from making a specific finding as to the amount of restitution to be paid by
Rund. Instead, the district court asked Rund’s counsel and the government to brief the
issue, and provide any additional evidence which would be relevant in the district
court’s restitution determination. Rund’s counsel replied by requesting “the least
amount of restitution in comparison to the other defendants in this case.” The district
court issued another order asking Rund’s counsel, “Do you plan on relitigating my
February 20, 2009, ruling that the total amount of restitution due is $1,740,073.51?”
Rund’s counsel emailed the response, “No.” As a consequence, the government
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informed the district court that the government would not bring any ADFA
representatives to testify at Rund’s hearing, which was scheduled to take place in San
Diego, California, to accommodate Rund’s health problems.
During Rund’s sentencing hearing, Rund’s counsel re-entered a continuing
objection to the $1,740,073.51 restitution figure the district court had adopted, despite
Rund’s counsel’s statements that he would not relitigate the total amount of restitution
owed, and Rund’s stipulation that the amount of loss caused by his offense was more
than $1,000,000 and less than $2,500,000. Rund now appeals the district court’s
restitution calculation, claiming he preserved the issue by his objection. “Rund
submits the district court erred because the loss to ADFA should not have been
calculated based on the alleged foreclosure sale price but [, instead, on] the assessed
value of the properties.”
During the February 20, 2009 restitution hearing, Eagle and Lynch testified that
after the fraud, ADFA was forced to initiate foreclosure proceedings to regain control
of the property which was fraudulently obtained by the defendants. During the
foreclosure process, ADFA incurred various costs, including attorney fees, advertising
costs, utility bills, insurance costs, auction expenses, and repair bills. Eventually,
ADFA was able to sell the property, but the sale was delayed due to the actions of a
co-conspirator.5 As a result of the delay, ADFA lost potential buyers for the property
and acquired even more expenses than it otherwise would have. In conducting its loss
calculation, ADFA included the expenses ADFA incurred as a result of the fraud, and
subtracted the amount of money ADFA recouped, including the monies ADFA
received from the sale of the foreclosed property.
5
Statman placed the defendants’ business into bankruptcy the day before the
foreclosure auction was to occur.
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The MVRA provides a “court shall order restitution to each victim in the full
amount of each victim’s losses as determined by the court.” 18 U.S.C.
§ 3664(f)(1)(A). When an offense involves the loss of property, the restitution order
shall require the defendant to return the property, or if return of the property is
inadequate, the defendant shall pay the greater of (1) “the value of the property on the
date of the damage, loss, or destruction; or” (2) “the value of the property on the date
of sentencing,” less the value of any part of the property which is returned. 18 U.S.C.
§ 3663A(b)(1). The MVRA does not provide a specific methodology to employ when
valuing property. See United States v. Boccagna, 450 F.3d 107, 114 (2d Cir. 2006)
(explaining “[t]he statute is silent . . . on the question of how the referenced property
is to be valued”). “Rather, the law appears to contemplate the exercise of discretion
by sentencing courts in determining the measure of value appropriate to restitution
calculation in a given case.” Id.
In Boccagna, the Second Circuit Court of Appeals conducted an analysis of the
exact issue now before us, “whether the MVRA requires property to be valued by
reference to fair market value.” Id. The Second Circuit noted, “nowhere does the
[MVRA] reference fair market value as the only measure to be used in making the
restitution calculations contemplated by § 3663A(b)(1)(B).” Id. (internal marks
omitted). The Boccagna court concluded, “because the law recognizes a number of
reasonable measures of property value, we construe ‘value’ as used in the MVRA to
be a flexible concept to be calculated by a district court by the measure that best serves
Congress’s statutory purpose.” Id. at 115 (internally citing cases adopting various
measures of valuing property). See also United States v. James, 564 F.3d 1237, 1245-
47 (10th Cir. 2009) (agreeing with Boccagna and collecting cases where “courts have
specifically recognized or used the foreclosure sale price as a reasonable method of
determining the amount of the restitution award under § 3663A”). We agree.
Rund would have this court use the appraised value of the foreclosed property
to calculate the loss amount, which would result in a lower restitution payment to
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ADFA. “The ‘primary and overarching goal’ of the MVRA ‘is to make victims of
crime whole, to fully compensate these victims for their losses and to restore these
victims to their original state of well-being.’” United States v. Balentine, 569 F.3d
801, 806 (8th Cir. 2009) (quoting United States v. Gordon, 393 F.3d 1044, 1053 (9th
Cir. 2004)). “The ‘intended beneficiaries’ of the MVRA’s procedural mechanisms
‘are the victims, not the victimizers.’” Id. (quoting United States v. Grimes, 173 F.3d
634, 639 (7th Cir. 1999)). Under the circumstances of this case, the district court’s
use of the foreclosure sale price provided a fair and adequate representation of
ADFA’s loss and satisfied the overarching goal of the MVRA, to make ADFA whole.
The district court did not err.
III. CONCLUSION
We affirm the district court’s judgment.
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