FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
TENTH CIRCUIT August 14, 2015
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 14-3169
(D. Kansas)
MANJUR ALAM, (D.C. No. 6:13-CR-10057-MLB-1)
Defendant - Appellant.
ORDER AND JUDGMENT*
Before, HARTZ, TYMKOVICH, and BALDOCK, Circuit Judges.
Defendant Manjur Alam pleaded guilty in the United States District Court for the
District of Kansas to one count of conspiracy to commit wire fraud for his involvement in
a mortgage-fraud scheme. See 18 U.S.C. §§ 1343, 1349. Defendant appeals, challenging
his sentence as procedurally and substantively unreasonable. He argues that the court
*
After examining the briefs and appellate record, this panel has determined unanimously
to honor the parties’ request for a decision on the briefs without oral argument. See Fed.
R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without
oral argument. This order and judgment is not binding precedent, except under the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.
erred in calculating the loss amount and abused its discretion in varying upward from the
guidelines sentencing range. We have jurisdiction under 28 U.S.C. § 1291 and affirm.
I. BACKGROUND
Defendant was convicted in 2006 of conspiracy to defraud the United States
Department of Housing and Urban Development. He was sentenced to 12 months’
probation. While on probation he implemented a new scheme to defraud mortgage-
lending institutions. Between 2006 and April 2008 he recruited and organized
unqualified buyers to submit home-loan applications that included false representations.
He submitted supporting documentation for the applicants that included false
verifications of rent and false letters of credit. The buyers defaulted on the loans and the
lenders eventually sold the properties for less than the original loan amounts.
Defendant was indicted and pleaded guilty to a superseding indictment. At
sentencing in July 2014, the district court calculated a loss of $485,192.70, which
resulted in a total offense level of 22. When combined with a criminal-history category
of II, the advisory guidelines range was 46 to 57 months. The court varied upward to 72
months’ imprisonment based on factors set forth in 18 U.S.C. § 3553(a).
II. DISCUSSION
“We review sentences under an abuse of discretion standard for procedural and
substantive reasonableness.” United States v. Washington, 634 F.3d 1180, 1184 (10th
Cir. 2011). “Procedural review asks whether the sentencing court committed any error in
calculating or explaining the sentence.” United States v. Alapizco-Valenzuela, 546 F.3d
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1208, 1214 (10th Cir. 2008). “Substantive review involves whether the length of the
sentence is reasonable given all the circumstances of the case in light of the factors set
forth in 18 U.S.C. § 3553(a).” Id. at 1215 (internal quotation marks omitted).
A. Loss Calculation
Under the guidelines the base offense level applicable to a crime involving fraud
depends on the amount of loss. See USSG § 2B1.1(b)(1) (2013). Loss “is the greater of
actual loss or intended loss,” and actual loss is “the reasonably foreseeable pecuniary
harm that resulted from the offense.” Id. § 2B1.1 cmt. n.3(A). “In a case involving
collateral pledged or otherwise provided by the defendant, the amount the victim has
recovered at the time of sentencing from disposition of the collateral” is deducted from
loss. Id. cmt. n.(3)(E)(ii). “Where a lender has foreclosed and sold the collateral, the net
loss should be determined by subtracting the sales price from the outstanding balance on
the loan.” Washington, 634 at 1184. “[F]actual findings regarding loss calculations are
reviewed for clear error and loss calculation methodology de novo.” Id.
The district court followed the methodology approved in Washington by deducting
the sales price from the outstanding balance on the loan. Nonetheless, Defendant argues
that the district court should have used the price paid by the lending institution at an
auction required under state foreclosure law, not the price the property sold for following
the auction. But his argument is contrary to Washington, where the sales price used was
the amount recovered in sales on the open market following the lenders’ acquisition of
the properties at auction. See id. at 1183.
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Defendant also argues that the district court should have used the fair market value
of the properties rather than the sales price. But fair market value independent of the
sales price is to be considered only when the property has not been sold by the time of
sentencing. See USSG § 2B1.1 cmt. n.3(E)(ii). He further argues that the court should
have considered the manner in which the lending institution managed and sold the
property, which may have decreased the amount recovered. But Defendant does not
identify any impropriety—any unreasonable action—in the open-market sales by the
lenders, nor does he suggest that any lender held a property as an investment after
foreclosure.
B. Upward Variance
Much of Defendant’s criticism of the variance repeats his complaints about the
loss calculation, which we need not revisit. To the extent that he also raises a challenge
to the substantive reasonableness of the sentence, we review the district court’s
application of the § 3553(a) factors for abuse of discretion. See Alapizco-Valenzuela,
546 F.3d at 1216. We “must give due deference to the district court’s decision that the
§ 3553(a) factors, on a whole, justify the extent of the variance.” Id. (internal quotation
marks omitted).
Defendant argues that the facts relied on by the district court impermissibly
“duplicate points already added to the base guideline level.” Aplt. Br. at 23. But “district
courts have broad discretion to consider particular facts in fashioning a sentence under
18 U.S.C. § 3553(a), even when those facts are already accounted for in the advisory
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Guidelines range.” Alapizco-Valenzuela, 546 F.3d at 1222. The district court considered
the seriousness and scope of the offense. It emphasized that Defendant committed the
offense while on probation from a conviction for “essentially the same conduct,” R.,
Vol. 3 at 228, and concluded that “there is very little evidence that he respects the law,”
id. at 229. It also considered that his “crimes required thorough planning, deliberate
dishonesty and the recruitment of others,” and were “not merely incidental ‘mistakes’ in
an otherwise lawful life.” Id. The court did not abuse its discretion in varying upward.
Finally, Defendant points out that his codefendants received only probation.
“Disparate sentences, however, are permissible when the disparity is explicable by the
facts of the particular case.” Alapizco-Valenzuela, 546 F.3d at 1223. The district court
said that the disparity was “hardly unwarranted given the nature of the case,
[D]efendant’s involvement and the other factors . . . covered.” R., Vol. 3 at 230.
Defendant has not challenged this statement with any description of the roles of the
codefendants who were sentenced less severely.
II. CONCLUSION
We AFFIRM Defendant’s sentence.
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
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