FILED
United States Court of Appeals
Tenth Circuit
April 26, 2011
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 10-1223
v. (D.C. No. 09-CR-00067-CMA-1)
(D. Colo.)
DAVID GWIN,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before KELLY, HARTZ, and HOLMES, Circuit Judges. **
Defendant-Appellant David Gwin appeals his sentence after pleading guilty
to wire fraud, arguing that the district court calculated his criminal history
category based on clearly erroneous facts. We have jurisdiction under 28 U.S.C.
§ 1291, and we affirm.
*
This order and judgment is not binding precedent, except under the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.
**
After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
Background
In February 2009 a federal grand jury indicted Mr. Gwin on eleven counts
of wire fraud, three counts of using the proceeds of wire fraud in a monetary
transaction, and one count seeking forfeiture of the unlawfully obtained property.
1 R. 15. Pursuant to a plea agreement, Mr. Gwin pleaded guilty to counts one,
thirteen, and fifteen, and the government dropped the remaining counts. Id. at
132, 156; 2 R. 13. The district court ordered restitution and sentenced Mr. Gwin
to 96 months’ imprisonment and 3 years’ supervised release. 1 R. 194-97. The
sentence was based on a criminal history category of VI, which included two
points for commencing the fraudulent scheme while on parole for a prior felony.
Id. at 200, 2 R. 31.
Discussion
We review for clear error factual findings that form the basis for the district
court’s calculation of a defendant’s criminal history category. United States v.
Caldwell, 585 F.3d 1347, 1353 (10th Cir. 2009) (citation omitted). Factual
findings are clearly erroneous if they are without support in the record or if,
“after reviewing all the evidence, we are left with a definite and firm conviction
that a mistake has been made.” Plaza Speedway, Inc. v. United States, 311 F.3d
1262, 1266 (10th Cir. 2002) (internal quotation marks, brackets, and citation
omitted).
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Both parties agree that Mr. Gwin was on parole for a prior felony until
October 30, 2003. See 2 R. 29, 3 R. 22. The district court found that Mr. Gwin
commenced the fraudulent scheme on either October 11 or 20, 2003, before his
parole ended. 3 R. 113. On appeal, Mr. Gwin challenges this factual finding.
See Aplt. Br. 5-6. He does not challenge the district courts’ legal conclusions or
interpretation of the sentencing guidelines.
Mr. Gwin argues that there is no evidence in the record to support the
district court’s conclusion that the fraudulent scheme began before his parole
ended on October 30, 2003. Although at sentencing the government presented
testimony that Asset Funding Solutions, Inc. (“ASFI”), Mr. Gwin’s employer,
received money from an investor that was never repaid, Mr. Gwin argues that
there is no evidence that ASFI received that money as a result of Mr. Gwin’ s
misrepresentations or that he acted with fraudulent intent at the time. Id. at 9.
We disagree. The record reveals ample evidence in support of the district
court’s conclusion. Although the government argues that this issue was waived or
forfeited due to stipulations in the plea agreement and Mr. Gwin’s failure to
object until sentencing, the district court in its discretion elected to hear the issue
on the merits and render a decision, as do we. 3 R. 58.
The indictment alleged that Mr. Gwin’s wire fraud began “at least as early
as October 2003.” 1 R. 8. More specifically, the plea agreement stated that the
scheme began “on or about October 20, 2003.” Id. at 139. Mr. Gwin stipulated
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that the facts in the plea agreement were correct. Id. at 153. Likewise, the
presentence report (“PSR”) noted that Mr. Gwin received payments pursuant to
his fraudulent scheme starting on October 20, 2003. 2 R. 14. Mr. Gwin did not
object to this portion of the PSR. See 2 R. 5.
At the sentencing hearing, the government produced a witness, Janet
Hukill, who testified that Mr. Sorenson, a victim of Mr. Gwin’s fraud, contacted
Mr. Gwin on October 11, 2003. 3 R. 65, 67. Mr. Sorenson sought funding for a
planned development. Id. at 67. Mr. Gwin indicated that ASFI could easily
obtain the funding, and that half of the up-front fees would be returned if funding
fell through. Id. at 67-68. On October 20, 2003, Mr. Sorenson paid $15,000 to
ASFI in up-front fees. Id. at 69. ASFI never funded Mr. Sorenson’s project, and
never returned half of the up-front fees, despite its prior promise to do so. Id. at
71. The government also introduced documentary evidence supporting Ms.
Hukill’s testimony. Id. at 68-70.
This evidence supports the district court’s conclusion that the fraudulent
scheme began before October 30, 2003, while he was still on parole. Although
there was no direct evidence of fraudulent intent, the evidence was sufficient for
the district court to infer that Mr. Gwin intended to defraud Mr. Sorenson. See
United States v. Schuler, 458 F.3d 1148, 1152 (10th Cir. 2006). Further, the
similarity between the conduct described by Ms. Hukill and that which formed the
core of the indictment supports the conclusion that Mr. Gwin’s actions were part
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of the same fraudulent scheme. See 1 R. 9-10. Indeed, Mr. Sorenson’s proposed
project—the Poudre River Ranch—was specifically cited in the indictment as an
instance of fraud. See id. at 10. Finally, Mr. Gwin himself stipulated that the
scheme began on October 20, 2003. Id. at 139, 153. Given this record, we cannot
say that the district court’s findings were clearly erroneous.
AFFIRMED.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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