                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         JUN 16 1998
                                   TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                            No. 97-8082
 v.                                                    (D.C. No. 96-CR-75-J)
                                                             (D. Wyo.)
 JOHN HENRY FIVAZ, a/k/a James Hardway,

          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before SEYMOUR, BRORBY, and BRISCOE, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.



      Mr. John H. Fivaz, a/k/a John Hardway, appeals his sentence imposed after


      *
        This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
his guilty plea to conspiracy to commit mail fraud in violation of 18 U.S.C. § 371.

We exercise jurisdiction under 28 U.S.C. § 1291, and affirm.



      Mr. Fivaz participated in an extensive Ponzi scheme whereby he and others

collected at least $7 million from 929 investors in return for promised yields of

four percent to seven percent per month. Nearly all representations made to

investors enticing them to invest were false. Instead of applying the funds as

represented, Mr. Fivaz and others used the money from recent investors to pay

"interest" payments to earlier investors. They encouraged potential investors to

contact earlier investors who received substantial interest payments as a lure to

investing in their scheme. Meanwhile, Mr. Fivaz siphoned substantial funds for

his own use.



      After his arrest, Mr. Fivaz entered into a plea agreement with the

Government. In this agreement, the parties agreed the fraudulent conduct

involved $7 million.



      The calculation of Mr. Fivaz' sentence in his Pre-Sentence Investigation

Report ("PSR") included a fourteen-level increase under United States Sentencing

Guidelines Manual ("U.S.S.G.") § 2F1.1(b)(1)(O), because the total loss involved


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in the fraudulent conduct was between $5 million and $10 million. After taking

into account other adjustments and the impact of the plea agreement, Mr. Fivaz'

total offense level was 19, with a criminal history category of III, resulting in a

recommended sentence between thirty-seven to forty-six months. Mr. Fivaz made

several written objections to the PSR, but he did not object to the loss calculation

under § 2F1.1(b)(1)(O).



      Just prior to Mr. Fivaz' sentencing hearing, at the court's request, the

Government submitted a restitution memorandum showing a reported actual net

loss of $589,846.50. The Government calculated this amount from the reports of

sixty-nine victims.



      At sentencing, Mr. Fivaz objected to the fourteen-level increase under

U.S.S.G. § 2F1.1(b)(1)(O), arguing the appropriate loss under the Guideline

should be the amount of restitution, $589,846.50, not the total amount of money

involved in his fraudulent conduct, $7 million. The district court overruled Mr.

Fivaz' objection. It found, based on the plea agreement, the PSR, and the

restitution memorandum, the total loss was in the neighborhood of approximately

$7 million. Applying the fourteen-level increase under § 2F1.1(b)(1)(O), the

court sentenced him to forty months incarceration followed by two years of


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supervised release. Mr. Fivaz was also ordered to pay restitution of $589,846.50.



      On appeal, Mr. Fivaz renews his argument that the district court

erroneously used the total amount involved in his fraudulent scheme, $7 million,

to compute the fraud loss for purposes of U.S.S.G. § 2F1.1(b)(1)(O), instead of

the amount of restitution ordered, $589,846.50. 1 We review the district court's

legal interpretation of U.S.S.G. § 2F1.1 de novo. See United States v. Kunzman,

54 F.3d 1522, 1531 (10th Cir. 1995). Under U.S.S.G. § 2F1.1(b)(1) (1995), 2 the

base offense level for a fraud offense is increased according to the amount of loss

to the victims. The Guidelines clearly do not limit the § 2F1.1 loss to the amount

of restitution. Unlike restitution, which must be measured by the actual losses

sustained by victims as of the sentencing date, see 18 U.S.C. § 3663(b)(1), the

loss calculation under § 2F1.1 measures "the magnitude of the crime at the time it

was committed." United States v. Janusz, 135 F.3d 1319, 1324 (10th Cir. 1998);



      1
          The Government claims Mr. Fivaz waived this issue because he failed to
raise it until the sentencing hearing. Although we encourage objections to be
made prior to sentencing, objections to a PSR may be made at the hearing without
waiving the issue on appeal. See United States v. Deninno, 29 F.3d 572, 580
(10th Cir.) (ruling failure to object to PSR prior to sentencing or at the hearing,
waives the issue for appeal), cert. denied, 513 U.S. 1158 (1994). Consequently,
Mr. Fivaz did not waive this issue.

      2
          The 1995 edition of the Guidelines Manual was used in this case.


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see also United States v. Messner, 107 F.3d 1448, 1455 (10th Cir. 1997)

(distinguishing between the amount of loss for restitution orders from "loss" for

purposes of sentencing).



      Mr. Fivaz also contends the district court incorrectly calculated the loss for

purposes of § 2F1.1 because the $7 million figure was not reduced for payments

made back to investors to reflect the net value of the loss. It is within the district

court's discretion to determine the method of loss calculation it will use when

calculating a loss for purposes of § 2F1.1. See U.S.S.G. § 2F1.1, comment. (n.8)

(permitting the court to consider a number of factors in estimating the loss). We

review the district court's factual determination for § 2F1.1 under the clearly

erroneous standard, giving due deference to the district court's application of the

Guidelines to the facts. Janusz, 135 F.3d at 1324.



      The parties do not dispute that out of the $7 million invested, $6 million

was paid to Mr. Fivaz, his co-conspirators, and investors. Nonetheless, relying on

the plea agreement and the PSR, the district court concluded the intended loss was

the $7 million since "all we have is the investment that was made by all of these

individuals and the fact that everyone has acknowledged that funds returned to

victims were not principal of the investment, but rather income." A court may


                                          -5-
appropriately refuse to deduct interest payments paid to investors in calculating

the investors' loss if it also chooses not to increase the loss for promised interest.

See Kunzman, 54 F.3d at 1532. Mr. Fivaz claims he never stipulated that the

funds returned to investors constituted interest. However, the district court relied

on Mr. Fivaz' plea agreement, where Mr. Fivaz agreed the preliminary loss for

purposes of § 2F1.1(b)(1) was approximately $7 million. The court also relied on

the PSR, which indicated the $6 million withdrawn from the funds invested

"includes monies used for alleged 'interest' payments made to lull investors into

further participation in the [fraudulent] scheme as well as monies used to pay the

salesmen/initiators commissions." Under these circumstances, the district court's

conclusion the money returned to investors was interest was not unreasonable.



      Furthermore, we note the district court relied on the restitution

memorandum, which listed sixty-nine victims' net losses, out of 929 victims, as

$589,846.50, to support its finding that over $7 million was invested. In light of

the § 2F1.1 commentary, which allows the court to consider the number of victims

and the average loss as to each victim, and the information contained in Mr.

Fivaz' plea agreement and PSR, the court could have reasonably found a loss of

$7 million. See U.S.S.G. § 2F1.1, comment. (n.8). Hence, we conclude the




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district court's loss calculation was not clearly erroneous.



      Accordingly, we AFFIRM.


                                        Entered for the Court


                                        WADE BRORBY
                                        United States Circuit Judge




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