                             PUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 15-4322


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

MICHAEL T. RAND,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.     Robert J. Conrad,
Jr., District Judge. (3:10-cr-00182-RJC-DSC-1)


Argued:   May 12, 2016                    Decided:   August 26, 2016


Before GREGORY, Chief Judge, and NIEMEYER and HARRIS, Circuit
Judges.


Affirmed by published opinion.    Chief Judge Gregory wrote the
opinion, in which Judge Niemeyer and Judge Harris joined.


ARGUED: Seth Paul Waxman, WILMER CUTLER PICKERING HALE AND DORR
LLP, Washington, D.C., for Appellant. Amy Elizabeth Ray, OFFICE
OF THE UNITED STATES ATTORNEY, Asheville, North Carolina, for
Appellee.   ON BRIEF: Stephen D. Councill, ROGERS & HARDIN LLP,
Atlanta, Georgia; Claire J. Rauscher, WOMBLE CARLYLE SANDRIDGE
AND RICE LLP, Charlotte, North Carolina; Brent J. Gurney,
Jeannie S. Rhee, Kelly P. Dunbar, Matthew Guarnieri, WILMER
CUTLER PICKERING HALE AND DORR LLP, Washington, D.C., for
Appellant.    Jill Westmoreland Rose, United States Attorney,
Maria K. Vento, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.
GREGORY, Chief Judge:

       Michael Rand was convicted of conspiracy, in violation of

18   U.S.C.     §§    371     and   1349,     and    obstruction    of    justice,    in

violation       of    18    U.S.C.     §    1512(b)(3),        (c)(1),    and    (c)(2),

following his involvement in earnings mismanagement and improper

accounting transactions while acting as chief accounting officer

at Beazer Homes USA, Inc.                  Rand appeals several aspects of his

convictions and sentence.             Finding no error, we affirm.



                                             I.

       In     2010,     the     government          charged     Michael    Rand      with

accounting fraud based on his work at Beazer Homes USA, Inc.

(“Beazer”), a home-building company, from 2000 to 2007 and with

obstructing an investigation into Beazer’s mortgage origination

practices.        Rand, a certified public accountant, was Beazer’s

controller and later its chief accounting officer from 1999 to

2007.       He reported to Beazer’s CEO and CFO.

       The     government’s         accounting       charges     concerned       earnings

management:          it believed that Rand attempted to adjust Beazer’s

reported earnings over time so that Beazer would hit consensus—

that    is,     the     quarterly      earnings       amount     that     Wall     Street

predicted.       This practice involved “cookie jar” accounting with

respect to Beazer’s reserve accounts, where funds are set aside

for future expenditures or revenue.                     It is generally accepted

                                              2
that the amount put into a reserve account is what the company

reasonably anticipates needing to meet the expected expense.                    It

is    not   appropriate   to   increase    or   decrease   funds    in   reserve

accounts to understate or inflate its actual earnings.                   Instead,

if a company determines that it does not need the reserve funds,

those funds “are to be taken back as income as soon as [the

company] know[s] that they are no longer required.”                J.A. 1260.

       The government attempted to prove that Rand manipulated the

accounting to reduce earnings when Beazer was beating consensus.

E.g., J.A. 3720 (“If you have more than 100k extra, hide it.”);

id. at 3722 (“To achieve the ‘goal’ $ for this year, let’s

squirrel $ away in places which will turn around in the next

year; not be so ‘open.’”); id. at 1982-83 (“We may have $5

million to squirrel away, so if you have ant [sic] ideas, let me

know.       Joavan’s cookie jar has no more room.”).            This practice

resulted in a misrepresentation of Beazer’s earnings in many

quarters, including each quarter in fiscal year 2006.

       The government also alleged that Rand improperly accounted

for transactions involving model homes Beazer sold to and leased

back from GMAC, an investment company.              In 2005, Beazer sought

to enter into model-home sale-leaseback agreements.                Under these

agreements, Beazer would sell model homes to investors and rent

the    homes   back   from   the   investors    until   the   subdivision    was

complete and the model home could be sold to a third party.

                                       3
      Generally, a seller cannot count the transaction as a sale

and recognize revenue until “all risks and rewards of ownership”

are transferred to the buyer.          J.A. 2056.     A seller may not have

any   “continuing    involvement”      with   the   property   for    it   to   be

counted as a sale.         Id.   A transaction is not counted as a sale

if the seller retains the ability to share in the appreciation

of the home after it is sold.

      Deloitte   &    Touche      (“Deloitte”)      served     as      Beazer’s

auditors.    Rand consulted with Deloitte senior manager, Corbin

Adams, about a potential sale-leaseback arrangement with GMAC.

In December 2005, Rand sent Adams a draft Master Sale and Rental

Agreement (“MSRA”) that did not include any provision for Beazer

to benefit from later appreciation in the value of the homes.

He later confirmed that Beazer would not be able to “participate

in    appreciation    of    [the]   leased     assets.”        Id.    at   2074.

Meanwhile,   Rand    was    assuring    Beazer’s    employees       that   Beazer

would share in the upside—the future profits from appreciation

in value before GMAC eventually sold them.              The same day Beazer

entered into the MSRA, a Property Management Agreement (“PMA”)

between GMAC entities was executed, providing that Beazer would

share in the upside of any consumer transactions.                   In the next

nine months, Beazer entered into two more MSRAs, followed by

PMAs, agreeing that Beazer would share in appreciation when the



                                        4
model homes sold.             Beazer received $117 million for the model

homes it sold and reported $24.8 million in total profit.

       Finally,     Rand      was    charged     with   obstruction          of     justice

stemming from his allegedly deleting emails following a grand

jury    subpoena.        In    March    2007,     the   FBI    began       investigating

Beazer for mortgage fraud.               On March 23, 2007, a federal grand

jury issued a subpoena requiring Beazer to retain all documents,

including emails, related to mortgages or home sales.

       On March 28, Beazer initiated an “email dumpster,” which

would    save     all      deleted       emails     from      permanent           deletion.

Beginning      March    29,    all     deleted    emails      were    caught       in    this

dumpster    without      the    employee’s       knowledge.          At    2:58    p.m.    on

March 30, Beazer’s CEO Ian McCarthy sent a memorandum to Rand

and    other    senior     management      notifying       them      that    Beazer       was

providing documents in response to the subpoena and would be

providing an updated document-retention memorandum.                          Around 4:20

p.m., Deborah Danzig, an in-house attorney, sent an email to all

employees in the corporate office, including Rand, with this

memorandum, instructing them not to destroy any records.                               Danzig

also testified that she told Rand directly that “he was required

to keep everything and destroy nothing.”                   Id. at 975.

       Between 5:55 p.m. on March 29 and 5:45 p.m. on March 30,

2007,   Rand    deleted       nearly    6,000     emails    dating        back    to    1999.

Some of the emails were responsive to the grand jury’s subpoena

                                           5
and contained evidence of mortgage fraud.                            Other emails that

Rand deleted were related to the cookie-jar accounting scheme.

Others still appeared irrelevant to either set of charges.

      Shortly      after       the    subpoena      was    issued,      Beazer’s     audit

committee    hired       the    law    firm       Alston   &    Bird    to     conduct    an

internal investigation.              Mike Brown, a partner at Alston & Bird,

interviewed Rand as part of that investigation.                               On June 15,

2007, during their first interview, Rand told Brown that he had

not   destroyed     or     deleted      any   documents         or   emails     since    the

investigation had begun.               On June 26, 2007, Brown met with Rand

again.     Brown had learned that the email dumpster had recovered

thousands of emails that Rand had attempted to delete.                             At that

meeting,    Rand    initially         provided      that   he    did    not    delete    any

emails, but he eventually admitted that he might have deleted “a

couple of emails” to reduce the size of his mailbox.                               Id. at

1072.      On further questioning, Rand said that he deleted “a

series of emails” from one particular coworker on March 30.                              Id.

at 1073.

      Beginning     July       2008,    the   FBI     conducted        between    six    and

eight interviews with Rand as part of a proffer.                              During these

interviews, conducted by FBI Agent Douglas Curran and others,

Rand admitted to manipulating Beazer’s earnings, admitted that

that was illegal, and expressed remorse.                        Curran testified that

he also asked Rand about the GMAC transaction, and Rand admitted

                                              6
that   there       was    a    “verbal    side     agreement        to   share     in    the

appreciation of the model homes when they were ultimately sold.”

Id. at 2780.

       Curran also asked Rand about the email deletions.                            Curran

testified that Rand admitted that “he was certain that by March

27th   he    was    for   sure     at   the    latest   aware       that   there    was    a

federal investigation in Charlotte.”                    Id. at 2784.          Rand also

admitted that he had spoken with Danzig and understood that the

document-retention memorandum applied to him, when he “went back

to his office and started performing mass deletions of emails.”

Id. at 2784-85.           Explaining that he was “essentially in a state

of panic,” he deleted the emails because “[t]here were a lot of

stressful events going on in his life at that time, and on top

of that he was aware of the federal grand jury investigation

that   was    focused         in   Charlotte      and   he    did    not   want     to    be

associated with that investigation in any way.”                            Id. at 2785.

Rand admitted that he “understood that he was deleting evidence

pertinent to the investigation” and “[h]e knew it was wrong.”

Id. at 2786.

       Rand went to trial twice.                  Before the first trial, Rand

sought leave to subpoena computer forensic evidence of Rand’s

email deletions and records from Beazer’s accounting system to

show   Rand’s      accounting       was   reasonable         and    justified      and    to



                                              7
contextualize and refute the prosecution’s accounting records.

The district court denied both requests.

     In the first trial, the government presented evidence of

emails relevant to the grand jury’s investigation into Beazer’s

mortgage division and that Rand deleted from his Beazer email

account.     Aaron Philipp, a computer forensics expert, testified

that based on Beazer’s backup tapes, 3,272 emails were deleted

between March 23 and 28, while another 5,936 were deleted on

March 30, after the email dumpster was put into place. 1

     The jury deliberated for twenty hours and returned a split

verdict, convicting Rand on seven counts and acquitting on four.

A new trial was later granted due to juror misconduct.

     In    advance    of   the   second     trial,   Rand    again    sought   to

subpoena Beazer to obtain records from its accounting system.

Again, the district court denied the request.                 Rand also tried

again to get the backup tapes from Beazer of the March 23-28

email deletions, and this time, the court granted the request.

Rand’s     expert    examined    the   data    on    the    backup   tapes     and

concluded that approximately 2,500 of the approximately 3,200

emails    that   Philipp    testified       during   the    first    trial   were

     1 To be clear, these are two categories of email deletions:
the backup tape analysis is separate from the electronic
dumpster records.    The backup tapes were relevant to alleged
deletions that occurred between March 23 and 28, which were not
charged in the second trial; the dumpster was put into place on
March 28 and captured all deletions beginning March 29.


                                        8
deleted      between    March     23   and    March   28,    2007   (prior    to    the

dumpster being in place), were not, in fact, deleted, explaining

that    “there     [were]     various        technical   explanations        why     Mr.

Philipp could not find them on the tape the first time.”                       Id. at

719.

       The     government     dropped    Philipp      from    its   witness        list,

halted all efforts to prove the March 23-28 deletions, and moved

to strike parts of the indictment relating to those deletions.

The    government      also   moved     to    preclude   Rand   from   introducing

evidence or mentioning the false accusations at the retrial.

The    court    granted     the   prosecution’s       request   ruling   that        the

evidence was irrelevant and excludable under Federal Rule of

Evidence 403 as distracting or confusing because the prosecution

was no longer seeking to prove the March 23-28 deletions.

       In addition to dropping the count tied most closely to the

March 23-28 deletions, the government also abandoned its effort

to prove Rand had committed securities fraud.                   It thus proceeded

only with the conspiracy counts (counts 1 and 2), in violation

of 18 U.S.C. § 371 (conspiracy) and 18 U.S.C. § 1349 (wire fraud

conspiracy), and three obstruction of justice counts (counts 6,

9, and 11), in violation of 18 U.S.C. § 1512(b)(3), (c)(1), and

(c)(2).      Rand was ultimately convicted on all five counts.

       Prior to sentencing, Rand’s probation officer calculated a

total offense level of 43 and an advisory guideline range of

                                             9
life based, in part, on the finding that the loss reasonably

foreseeable to Rand was between $100 and $200 million.                           Rand

objected      to   this   loss     calculation,      and     the    district    court

conducted a full-day sentencing hearing.                     During the hearing,

both    parties    presented       expert    testimony       on    the    appropriate

calculation of loss under U.S. Sentencing Guideline § 2B1.1 and,

in particular, the effect on the value of Beazer’s stock of

three separate announcements Beazer made to the market related

to Rand’s offense conduct.

       The district court adopted the government’s expert’s most

“conservative methodology” and found a loss of $135 million.

Id. at 3279.         Based in part upon that finding, the district

court calculated the total offense level of 51, resulting in an

adjusted offense level of 43 and an advisory guideline sentence

of life in prison.         After considering the appropriate sentencing

factors under 18 U.S.C. § 3553(a), the district court sentenced

Rand to 120 months in prison.

       This appeal followed.



                                        II.

       Rand    first      argues     that     the    exclusion           of   evidence

surrounding        the    false      email        accusations       hampered      his

constitutional      right    to    present    a    defense    in    three     distinct

ways:    he was prevented from explaining the circumstance of his

                                        10
confession; he was unable to show that certain statements were

not   misleading;    and   he   could    not   effectively       cross-examine

certain witnesses.

      We “review[] evidentiary rulings implicating constitutional

claims de novo.”      United States v. Williams, 632 F.3d 129, 132

(4th Cir. 2011).       Thus we review Rand’s claim regarding the

circumstances of a confession under this standard.               See Crane v.

Kentucky, 476 U.S. 683 (1986).

      Nevertheless, “a defendant’s right to present a defense is

not   absolute:     criminal    defendants     do   not   have    a   right   to

present evidence that the district court, in its discretion,

deems irrelevant or immaterial.”         United States v. Prince–Oyibo,

320 F.3d 494, 501 (4th Cir. 2003); see also Crane, 476 U.S. at

689–90 (noting that the “Constitution leaves to the judges who

must make these decisions wide latitude to exclude evidence that

is repetitive . . ., only marginally relevant or poses an undue

risk of harassment, prejudice, [or] confusion of the issues”

(citation and internal quotation marks omitted)).                 Thus, as to

Rand’s other two arguments, we review for abuse of discretion,

as they are “better framed” as “evidentiary argument[s].”                     See

United States v. Malloy, 568 F.3d 166, 177 (4th Cir. 2009).

While his argument is “couched in terms of his due process right

to defend himself, the crux of his complaint is that he was not



                                    11
allowed to present a particular defense.”            Id. (citing United

States v. Uzenski, 434 F.3d 690, 708–09 (4th Cir. 2006)).

     Ultimately, harmless error review applies:            “[Arizona v.]

Fulminante[, 499 U.S. 279 (1991),] enumerated the wide variety

of constitutional errors subject to harmless error analysis,”

including the “erroneous exclusion of a defendant’s testimony

regarding the circumstances of a confession.”         Sherman v. Smith,

89 F.3d 1134, 1137 (4th Cir. 1996) (en banc) (citing Crane, 476

U.S. at 691).      “That analysis requires a reviewing court to

quantitatively assess the effect of the error ‘in the context of

other   evidence   presented’   at   trial.”   Id.    at   1138   (quoting

Fulminante, 499 U.S. at 308).

     Here, the district court did not permit testimony that some

of the March 23-28 email deletion accusations turned out to be

false, concluding that such evidence was irrelevant or confusing

or distracting for the jury, as the government would not be

presenting evidence as to that timeframe.       Rand argues that this

unconstitutionally impinged his ability to present a complete

defense.     Had he been allowed, Rand would have introduced the

following:

     At the June 26 interview, Rand acknowledged deleting
     some junk emails, as well as innocuous emails with a
     colleague.  He also truthfully denied deleting emails
     with high-level Beazer personnel.     However, Brown,
     having just learned of the forensic analysis by
     Philipp, accused Rand of “false[ly]” denying mass
     email deletions.  Beazer in turn fed that information

                                     12
        to the prosecution.   In a later reverse proffer, the
        prosecution told Rand it had forensic evidence that he
        had deleted accounting-related emails.    It was that
        reverse proffer and the weight of alleged evidence
        purportedly showing Rand had mass-deleted deleted
        emails the week following the subpoena that prompted
        Rand’s statements to the government.

Rand       Br.    23      (internal     citation    omitted)    (alteration    in

original).         We find no error, constitutional or otherwise, in

the district court’s ruling to exclude this evidence.

        First, Rand was not “stripped of the power to describe to

the     jury      the   circumstances       that   prompted    his   confession.”

Crane, 476 U.S. at 683. 2             While a case may “stand or fall on [the

defendant’s] ability to convince the jury that the manner in

which       the    confession         was   obtained   casts    doubt    on   its

credibility,” id. at 689, the district court did permit Rand to

“testify as to why he was induced into proffering,” J.A. 2664.

He was allowed to “truthfully respond to what was in his mind at

the time.”          Id.     The only thing Rand could not do was make

“reference to the fact that years later some of the information



       2
       The government argues that Crane is inapplicable, as Rand
is not asserting that his will was overborne by deliberately
coercive behavior.   We find this argument unavailing as such a
reading of Crane is too narrow.     In Crane, the Supreme Court
held that “the blanket exclusion of the proffered testimony
about the circumstances of petitioner’s confession deprived him
of a fair trial.” 476 U.S. at 690.      The Court provided that
“entirely independent of any question of voluntariness,” a
defendant may introduce the same evidence at trial “to convince
the jury that the manner in which the confession was obtained
casts doubt on its credibility.” Id. at 689.


                                            13
he was confronted with turned out to be false.”                     Id.      Rand did

ultimately delete nearly 7,000 emails, including the 800 emails

deleted between March 23 and 28, despite their not being at

issue in the second trial.              Further, as the government argues,

only a few slides of the PowerPoint that they presented to Rand

during the reverse proffer dealt with email deletion, and even

fewer contained any incorrect information.

       Rand      also       argues   that    the     district      court’s     ruling

specifically impacted Count 9, which charged him with “knowingly

and corruptly engag[ing] in misleading conduct” during the June

26, 2007, interview with Brown. 3                  Rand Br. 31-32 (citing J.A.

52).       Rand relies on his view of the government’s theory of

Count      9   from   the    first   trial—that     is,   before   the    government

discovered that the bulk of the March 23-28 emails were not

deleted.        Under this view, Rand explains that the government’s

“original theory of count 9” was that Rand told Brown that he

had deleted some emails that “he believed were largely junk,

‘similar to advertisements for the drug Viagra,’ as well as some

emails from particular ‘non-essential’ Beazer employees.”                         Id.

at 32 (citing J.A. 38).               After the interview, Brown received

information that Rand had deleted “a large number of e-mails


       3
       Rand notes that Count 11 incorporated by reference these
allegations, and so this argument also applies as exculpatory as
to Count 11.


                                            14
involving” the current and former CFOs and the CEO.                                     J.A. 322-

323.         On    receiving           this     information,          Brown       returned       and

confronted        Rand     with    this       information,          but    Rand       “offered    no

corrections.”         Id.       As Counts 9 and 11 required proof of corrupt

intent, 18 U.S.C. § 1512(b)(3), (c)(2), Rand argues that “[h]ad

the jury learned that [he] truthfully denied the March 23-28

email deletions at the interview, the jury may have concluded,

in view of Rand’s overall conduct at the interview, that Rand

did    not   intend        to    mislead        Brown   or     to    hinder       a    grand   jury

investigation.”          Rand Br. 33.

       We agree with the government that Rand’s argument falls

short   here.         At    the        second    trial,       Brown       was   only     asked    to

testify about the deletions on March 30, which “unquestionably

occurred.”         Gov’t Br. 49 (referring to J.A. 1070).                              And again,

even if not as in as great a number as previously thought, Rand

did still delete a certain number of emails between March 23-28.

Thus    we    do     not        find    that     the    district          court       abused     its

discretion in excluding this evidence based on its relevance

weighed      against        potential         juror     confusion—the             evidence       was

“irrelevant to the crime charged.”                      See Malloy, 568 F.3d at 177.

Moreover,         during    both        trials,       Brown    testified          about    Rand’s

constantly         shifting        position.            E.g.,       J.A.        1072-73    (“[H]e

initially said that he did not delete any emails); id. at 1073

(“When we asked him about the week of the 23rd, I think he told

                                                 15
us that he might have deleted a couple of emails in this manner

[to clear out his inbox].              Mostly related to Viagra or some type

of -- sort of spam emails, but nothing else.”); id. at 1074

(describing how Rand “revise[d] his answers” and eventually told

Brown that “he deleted a series of emails from Cory Boydston

during one of those two weeks”).                        We can hardly say with any

certainty that a jury would have found Rand’s “overall conduct”

during the interview did not show an intent to mislead. 4

       Finally,        we    find     any      error        harmless.             While      any

harmlessness assessment should be sensitive to the “indelible

impact      a   full    confession       may       have     on    the   trier      of     fact,

Fulminante, 499 U.S. at 313 (Kennedy, J., concurring), we do not

find   that     Rand’s      explanation       as    to     the   circumstances          of   his

confession      would       have    countered       the    charges      in   light      of   the

overwhelming evidence at trial.                     Rand did in fact delete the

vast       majority    of     the    emails        he     was    accused     of    deleting,

including one quarter of those during March 23 to 28.                                Rand had

the opportunity to present a vigorous defense, cross-examine the

       4
       Rand also argues that the excluded evidence went to
Brown’s credibility and bias, as Brown had a leading role in the
investigation and “had a substantial personal stake in ensuring
that his own mistakes . . . did not derail the prosecution.”
Rand Br. at 33.   He also argues that the evidence was relevant
because he would have cross-examined other witnesses about their
knowledge of the veracity of his “confession,” and exclusion
prevented him the opportunity to ask whether and how these false
accusations biased their views.     We find these arguments too
speculative to survive harmless error review.


                                              16
government’s witnesses, and, albeit in a slightly limited way,

explain “what was in his mind” during his various interviews.

J.A. 2664.         We do not find that Rand was ultimately prejudiced

by the omission.



                                             III.

      Rand next argues that several of the district court’s other

evidentiary        rulings     were    improper.       The   Court   reviews       these

decisions for abuse of discretion.                  United States v. Richardson,

607   F.3d    357,     368    (4th    Cir.     2010)   (citing   United       States    v.

Fowler,      932   F.2d      306,    311     (4th   Cir.   1991)).       An   abuse    of

discretion can occur “when the court uses an erroneous legal

standard or bases its decision on clearly erroneous facts.”                            Id.

(citing United States v. Under Seal (In re Grand Jury), 478 F.3d

581, 584 (4th Cir. 2007)).

      Rand     first      argues      that    the    district    court    abused       its

discretion in quashing his Federal Rule of Criminal Procedure

17(c) subpoena to Beazer.                  Rule 17(c) permits a defendant to

issue a subpoena duces tecum to compel the production at trial

of “books, papers, documents, data, or other objects.”                          Fed. R.

Crim. P. 17(c)(1).            A district court “may quash or modify” the

subpoena “if compliance would be unreasonable or oppressive,”

Fed. R. Crim. P. 17(c)(2).



                                              17
       Rule 17(c) “is not intended to provide a means of pretrial

discovery; rather, its primary purpose is simply ‘to expedite

the trial by providing a time and place before trial for the

inspection of subpoenaed materials.’”                Richardson, 607 F.3d at

368    (quoting   United   States    v.     Nixon,    418   U.S.    683,   689-99

(1974)).    In United States v. Nixon, the Supreme Court held that

the requesting party bears the burden of showing

       (1) that the documents are evidentiary and relevant;
       (2) that they are not otherwise procurable reasonably
       in advance of trial by exercise of due diligence; (3)
       that the party cannot properly prepare for trial
       without such production and inspection in advance of
       trial and that the failure to obtain such inspection
       may tend unreasonably to delay the trial; and (4) that
       the application is made in good faith and is not
       intended as a general “fishing expedition.”

418 U.S. at 699-700 (footnote omitted).                  The Court distilled

this    showing   into   three   requirements:          “(1)      relevancy;     (2)

admissibility;     [and]   (3)      specificity.”           Id.    at   700;     see

Richardson, 607 F.3d at 368.

       Rand argues that the Nixon test applies only to subpoenas

issued to the prosecution not to those issued to third parties.

Instead, Rand contends that the standard explicit in the rule

itself—unreasonable or oppressive—is the proper standard.                      While

the Nixon Court noted that the special prosecutor suggested that

the    “evidentiary   requirement”     of    the     heightened     standard     did

“not apply in its full vigor” for subpoenas to third parties,

418 U.S. at 700 n.12, the Court determined that it “need not

                                      18
decide whether a lower standard exists” because the district

court’s refusal to quash the subpoena was proper regardless.

Id.

      We have previously applied the Nixon test to third-party

subpoenas, e.g., Richardson, 607 F.3d 357; In Re Martin Marietta

Corp.,     856    F.2d     619,     621   (4th   Cir.   1988),   but   have   not

specifically considered how the evidentiary requirement should

apply in that context.              Thus, the issue appears to be one of

first impression.          See Legal Servs. Corp. v. Velasquez, 531 U.S.

533, 557 (2001) (“Judicial decisions do not stand as binding

‘precedent’ for points that were not raised, not argued, and

hence not analyzed.”).            No circuit court appears to have applied

the explicit standard apart from the Nixon standard, and Rand

cites only a handful of district courts that have done so.                    See

United States v. Al-Amin, No. 1:12-CR-50, 2013 WL 3865079, at *8

(E.D. Tenn. July 25, 2013) (noting that application of the lower

standard    “is    a     distinct    minority    view”).    Nonetheless,      Rand

argues that the purpose for the heightened standard as to the

government—to not allow bypass of Rule 16 through Rule 17—does

not apply in the case of third parties.                 And application of the

higher standard is inconsistent with Rule 17(c)’s basic purpose

of “implement[ing] the Sixth Amendment guarantee that an accused

have compulsory process to secure evidence in his favor.”                  In Re

Martin Marietta Corp., 856 F.2d at 621 (citing California v.

                                           19
Trombetta, 467 U.S. 479, 485 (1984)).                             Rand contends that in

document-intensive cases such as this one, requiring a defendant

to specify precisely what he wants hinders this guarantee.

      We    decline       to     adopt      a   lower       standard          for      third-party

subpoenas       under    Rule     17(c)     and      find       that    the       district        court

applied    the        correct    standard.           In     Nixon,          the   Supreme         Court

reiterated that the subpoena duces tecum “was not intended to

provide a means of discovery for criminal cases.”                                      418 U.S. at

698 (citing Bowman Dairy Co. v. United States, 341 U.S. 214, 220

(1951)).        Importantly, the Court did not cabin this purpose to

discovery from the government.                  See id.          Moreover, Rule 17(c) is

available to both the defense and prosecution.                                        As to Rand’s

argument that the defense is hampered by the application of the

Nixon    standard,        one    court      has      noted,       “The       right         to    defend

oneself does not extend to using the power of the Court to

compel third parties to provide information that may not even be

admissible       at     trial        or   at    a    hearing           or     that         is    merely

‘investigatory.’”               Al-Amin,        2013       WL     3865079,            at    *7     n.3.

Finally,        the     Nixon        standard        is     not        at     odds         with       our

interpretation of the explicit standard in Rule 17.                                        A subpoena

should     be    quashed        as    unreasonable          or     oppressive              if    it    is

“irrelevant; abusive or harassing; overly vague; or excessively

broad.”     In re Grand Jury, John Doe No. G.J.2005-2, 478 F.3d at

585   (internal         citations         omitted)        (considering            a    grand       jury

                                                20
subpoena and citing in part United States v. Loe, 248 F.3d 449,

466 (5th Cir. 2001), which applied this standard in the context

of a third-party trial subpoena).                  These map on quite well to

the Nixon standard of relevance, admissibility, and specificity.

See Nixon, 418 U.S. at 700.

     As    we    find    that   the    district    court     applied      the   correct

standard, we also find that the ruling was not an abuse of

discretion.       Rand’s request to Beazer was to produce “accounting

entries,    budgets,       budget     entries,     and    financial       reports     for

seven categories of reserve accounts over an eight-year period—

the timeframe of the alleged conspiracy.”                  Rand Br. 43-44.           Rand

argues that these reports would have enabled him to show the

reasonableness of the reserve adjustments looking more broadly

at Beazer resources and over a period of time.                        We find that the

district court did not abuse its discretion in finding that Rand

failed     to    limit    his   request     to     entries       in    issue    in    the

prosecution’s case and to justify his broad request, instead

finding it more of a fishing expedition, frowned upon by Nixon.

     We further decline to find error as to Rand’s other two

evidentiary claims.         First, the district court did not abuse its

discretion       in      prohibiting      Rand’s     accounting          expert      from

testifying about work papers prepared by Beazer’s independent

auditors    at    Deloitte.         The   district       court   permitted      him    to

“offer his own opinion as to the legitimacy of [the] entries,”

                                          21
but that he could not “bootstrap that opinion by the Deloitte

and Touche work papers which the court [did] not find reliable,”

as the court found that the Deloitte witness, Adams, said that

“he    was   not    provided      sufficient      information”      to    make    those

conclusions himself.             J.A. 2475, 2479-80.           The district court

did not abuse its discretion, especially where not all evidence

relating to the Deloitte work papers was excluded and Rand was

“free to call any of the auditors who did the work” to have them

testify about their findings.             See Gov’t Br. 55.

       Additionally, the district court did not err in allowing

the government to have Beazer employees testify as lay witnesses

about the propriety of complex accounting transactions without

calling an accounting expert to testify.                    Citing Federal Rules

of Evidence 701 and 702, Rand contends that lay witnesses may

not    offer   opinions         about   matters    of     “technical”     or     “other

specialized        knowledge”       requiring     expert    proof   and    that     the

government     needed      an    expert   to    explain    accounting     principles

such as setting reserve levels and analyzing historical costs

and projections of future costs.

       We have previously affirmed the admission of lay-opinion

testimony in a securities-fraud case.                   United States v. Offill,

666 F.3d 168, 177 (4th Cir. 2011).                Under plain error review, we

held    that   the       district    court     “acted   well    within    its     broad

discretion”         in     admitting      testimony        including      that      the

                                          22
defendant’s         actions          were            “fraudulent,”              “securities

manipulation,”      and      “illegal.”             Id.   at    177-78.         While    Rand

attempts     to    distinguish        Offill         by   pointing        out     that   the

government presented expert testimony in addition to the lay

witnesses who testified, here, Rand had opportunity to cross-

examine these lay witnesses to expose the apparent falsity of

their    testimony,     as    well     as      having     his    own     expert    testify.

Furthermore, “[i]f the government proves that a defendant was

responsible       for     financial         reports       that     intentionally         and

materially    misled      investors,        the      statute      is    satisfied.       The

government is not required in addition to prevail in a battle of

expert witnesses over the application of individual [Generally

Accepted Accounting Practice] rules.”                     United States v. Ebbers,

458 F.3d 110, 125-26 (2d Cir. 2006).



                                            IV.

      Rand takes issue with the government’s statements in its

rebuttal     closing      argument        concerning           Rand’s    wealth,     Rand’s

decision not to testify, and the government’s vouching for its

own   witness.      See      Griffin      v.    California,        380    U.S.    609,   615

(1965)    (unconstitutional          to     comment       on    defendant’s       silence);

United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 239 (1940)

(class prejudice); United States v. Lewis, 10 F.3d 1086, 1089

(4th Cir. 1993) (bolstering).

                                               23
     As this issue raises questions of law, we review it de

novo.      United States v. Collins, 415 F.3d 304, 307 (4th Cir.

2005). 5    Nevertheless, the claims are still subject to harmless

error review.          Chapman v. California, 386 U.S. 18, 22 (1967);

Sherman,    89    F.3d     at   1137    (noting    that   harmless        error   review

applies     to    errors     such      as   improper    comment      on    defendant’s

silence).        That is, “[w]ith respect to claims of prosecutorial

misconduct,       an   appellant        must     show   that   the    remarks      were

improper and that they ‘prejudicially affected the defendant’s

substantial rights so as to deprive the defendant of a fair

trial.’”     United States v. Baptiste, 596 F.3d 214, 226 (4th Cir.

2010) (alteration in the original) (quoting United States v.

Adam, 70 F.3d 776, 780 (4th Cir. 1995)).                       We have previously

laid out factors to consider in determining whether improper

remarks require reversal:

     (1) the degree to which the prosecutor’s remarks have
     a tendency to mislead the jury and to prejudice the
     accused; (2) whether the remarks were isolated or

     5 The government argues that plain-error review applies as
not all of these issues were raised contemporaneously to the
alleged error.   See United States v. Brainard, 690 F.2d 1117,
1123 n.7 (4th Cir. 1982) (“A motion for a mistrial after the
summation is not, however, a substitute for an objection at the
time the prejudicial comments are made.”).       But see United
States v. Williams, 106 F.3d 1173, 1176 (4th Cir. 1997) (noting
that either a “contemporaneous objection to the prosecutor’s
statements and [a] motion for a mistrial” will suffice). Here,
Rand objected to the prosecution’s bolstering of Curran and made
a timely motion for a mistrial based on class prejudice and
Rand’s silence.


                                            24
       extensive; (3) absent the remarks, the strength of
       competent proof introduced to establish the guilt of
       the   accused;    (4)   whether   the   comments   were
       deliberately   placed  before   the   jury  to   divert
       attention to extraneous matters [; ] . . . (5) whether
       the prosecutor’s remarks were invited by improper
       conduct of defense counsel [;] . . . and (6) whether
       curative instructions were given to the jury.

Id. (quoting United States v. Wilson, 135 F.3d 291, 299 (4th

Cir. 1998)) (alterations in original).                On all three of these

potential    misconduct    claims,    Rand     makes     little     attempt   to

contend with any of these factors and fails to argue that any

error was not harmless.        Accordingly, we affirm the district

court’s denial of a mistrial.

       As to Rand’s class prejudice argument, Rand acknowledges

that in closing, his counsel made reference to a bag of gold:

       “You remember the story about the Emperor With No
       Clothes?   In that story a weaver said to the Emporer
       [sic], if you give me a bag of gold, I will make you
       an invisible suit of clothes. . . . That’s what this
       case is like, accounting entries, after accounting
       entries whizzing by that you can’t put together, and
       don’t add up.”

J.A.    3008-09.    Rand    argues,        however,    that   the    government

impermissibly expanded the analogy in rebuttal.

       At the outset of its rebuttal, the government referred to

Rand’s wealth:     “You just heard a story alright.            It took a lot

of gold.    A lot of gold.    The defendant’s lawyers, all of them,

his experts, a lot of gold.”         Id. at 3010; see also id. at 3012

(referring to Rand as “rich” in discussing testimony from Rand’s



                                      25
wife); id. at 3019 (referring to Rand’s experts as being paid

$650 an hour to provide testimony helpful to Rand); id. at 3023

(“So you can go live in the story like the Emporer [sic] with no

clothes and listen to the story that was bought with gold, or

you can look at the facts.”).

       We   cannot    find,        as   the    government      urges,       that    no   error

occurred as the remarks were not a reference to Rand’s wealth,

only to the fact that Rand’s case was “built on the testimony of

compensated        expert    witnesses,         none    of    whom    had    any     personal

knowledge of what Rand did or did not do.”                       Gov’t Br. 62.           These

conclusions are but two sides of the same coin.                                See United

States      v.   Farinella,        558   F.3d       695,     700-01   (7th     Cir.      2009)

(finding prosecutorial misconduct where the government argued to

the jury about not “let[ting] the defendant and his high-paid

lawyer buy his way out of this”).

       Nonetheless,         considering        the     factors   above,       we     conclude

that any error did not affect Rand’s substantial rights.                                   The

remarks may not have been “isolated,” Baptiste, 596 F.3d at 226,

and no curative instructions were given, id.                            But we find no

evidence that the remarks were deliberately made to focus on

“extraneous matters,” id.; instead they were founded in, and

even     inspired     by,      Rand’s         closing—even       if    they        ultimately

exceeded     the    scope     of    that      context.        Furthermore,         given   the

strength of the evidence presented throughout the trial, we do

                                               26
not find that the comments overly misled the jury or prejudiced

Rand.    Id.

     Considering           Rand’s   second      argument        that    the    prosecution

improperly commented on his decision not to testify, the right

of a defendant in a criminal trial “to remain silent unless he

chooses to speak in the unfettered exercise of his own will” is

guaranteed by the Fifth Amendment, Malloy v. Hogan, 378 U.S. 1,

8   (1964);     see    U.S.     Const.     amend.        V;    and     the    Constitution

“forbids    either      comment     by    the     prosecution          on    the    accused’s

silence    or   instructions         by    the    court        that    such    silence      is

evidence of guilt,” Griffin, 380 U.S. at 615.                           We ask, “Was the

language    used      manifestly     intended       to    be,    or     was    it    of   such

character that the jury would naturally and necessarily take it

to be a comment on the failure of the accused to testify?”

United    States      v.    Francis,      82     F.3d    77,     78    (4th    Cir.       1996)

(quoting United States v. Anderson, 481 F.2d 685, 701 (4th Cir.

1973)).

     Here again, we affirm the district court.                               In explaining

Rand’s     earlier     confession,         the     government          described      Rand’s

argument as “[t]he FBI is lying.                   And I [Rand] lied to the FBI

because I was desperate.”                J.A. 3010.           Returning to this idea,

the government said,

          “But then he also said, but wait, I also lied to
     the FBI because I was desperate. How those things fit


                                            27
       together I [the prosecutor] didn’t understand, maybe
       you did.

            So I heard that the FBI lied, I also heard that
       Mr. Rand lied because he was desperate.    Why was he
       desperate?    He didn’t say.    Nor could he really,
       because your lawyer can’t talk about your own beliefs,
       they can just make arguments.”

Id. at 3012.       The district denied the motion for a mistrial, as

it    found   that    the      jury    could     conclude    that      the   “he”    was

referring     to   Rand’s       counsel’s      silence,     as   counsel     had    just

spoken and claimed in argument that Rand made the confession

only because Rand was desperate.                We do not find this conclusion

in error.     While Rand argues that the jury would have understood

that the “he” was referring to Rand as “[t]he rebuttal argument

repeatedly     referred         to    Rand’s     theory     about      why   Rand    was

desperate,” Rand Br. 55 (referencing the government’s repeated

use   of   “I”),     we   do    not    find    this   to    be   the    “necessar[y]”

conclusion the jury would draw.                See Francis, 82 F.3d at 78.

      Finally, Rand argues that the government improperly vouched

for Curran’s credibility.               In rebuttal, the government argued

that if Curran lied, “he’s risking perjury.                       He’s risking the

loss of his career.            There’s a federal judge sitting right there

going to put him in jail--.”                    J.A. 3011.          Rand immediately

objected to this argument, and the district court sustained the

objection, but Rand contends that this was insufficient as the

court did not direct the jury to disregard it or give a curative



                                          28
instruction.          Cf. United States v. Forlorma, 94 F.3d 91, 95 (2d

Cir. 1996) (considering one of various factors and finding “we

cannot    be     confident         that    the     judge’s       unexplained       ruling

dispelled       the    misperception       that     was    likely      caused     by     the

baseless argument”).              The government importantly notes, however,

that    although      he    objected,     Rand     did    not   ask    for   a    curative

instruction, either at the time or later in the jury charge.

       Again,     we       find     any    error     harmless.           Rand     himself

acknowledges that Curran was “extensively cross-examined about

discrepancies between his trial testimony, his contemporaneous

notes    of   Rand’s       proffer    sessions,     and    his    later      write-up     of

those notes.”          Rand Br. 56.         While Rand argues that, had the

jury doubted Curran’s testimony, it might have found reason to

doubt Rand’s confession as well, we do not find that the jury’s

determination         of   guilt     or   innocence      “hinged      entirely     on    the

credibility” of Curran such that any improper remarks affected

Rand’s substantial rights.                 See United States v. Gracia, 522

F.3d 597, 606 (5th Cir. 2008).                Instead, given the overwhelming

evidence,      including      Curran’s      testimony,      supported        in   part    by

Brown’s testimony and the physical evidence in the record, we

find the context of the error harmless.




                                            29
                                               V.

      Rand       finally      challenges           his    sentence       as        procedurally

unreasonable,         arguing          that    the       district       court        erred     in

determining       the      loss    calculation           by    failing        to    apply    the

principles from Dura Pharmaceuticals, Inc. v. Broudo, 544 U.S.

336 (2005).          As Rand objected at sentencing, the Court reviews

improper     calculation          of    a   guideline         range    de    novo.         United

States      v.    McManus,        734       F.3d    315,       318    (4th     Cir.        2013).

Meanwhile, “[t]he determination of loss attributable to a fraud

scheme is a factual issue for resolution by the district court,

and we review such a finding of fact only for clear error.”

United      States    v.     Keita,      742   F.3d      184,    191    (4th        Cir.    2014)

(citation omitted).

      U.S. Sentencing Guideline § 2B1.1 sets the offense level

for certain fraud offenses and requires an increase based on the

loss caused by the offense conduct, in accordance with a table

in § 2B1.1(b)(1).            An application note instructs that “in a case

involving the fraudulent inflation or deflation in the value of

publicly traded security,” loss should be calculated based on

how   the    price      of   a    security         changed,     “after       the     fraud   was

disclosed to the market.”                     U.S.S.G. § 2B1.1 Application Note

3(F)(ix).




                                               30
     At sentencing, the parties debated which of Beazer’s three

public disclosures qualified as the date on which the “fraud was

disclosed to the market”:

     June 27, 2007:     Beazer announced that Rand had been
     fired   for   “destroy[ing]   documents”   and that   an
     investigation     was    ongoing    involving   mortgage
     origination and “related matters.” J.A. 4624.

     August   10,    2007: Beazer   announced  that   its
     investigation “has discovered that [Rand] may have
     caused reserves . . . to have been recorded . . . in
     excess of amounts that would have been appropriate,”
     but that the “investigation is ongoing” and that
     Beazer did not “believe that the amounts . . . are
     quantitatively material.” Id. at 4626.

     October 11, 2007: Beazer summarized the findings of
     its investigation, quantified the effects of Rand’s
     reserve adjustments, explained the GMAC issue, and
     informed the public that Beazer would restate its
     financials. Id. at 4606-07.

     The court determined that the fraud was disclosed in June

and August and that the loss to investors following those dates

was $135 million.      Accordingly, the district court calculated an

offense level of 51 for a guidelines range of life imprisonment,

capped by the statutory maximum.         The parties agreed that if the

October date were used, the resulting loss would be $0.               Had the

district   court   used   the    loss    amount   following     the   October

disclosure,   Rand’s   offense   level    would   have   been   19,   with   a

range of 30 to 37 months.        The court ultimately varied downward

from the guidelines range of life imprisonment and imposed a

ten-year sentence.



                                    31
      Drawing      from      principles       in    civil   securities          cases,    Rand

argues    that        the    proper    date        to    consider    was    the     October

disclosure.        In the civil context, the Supreme Court has held

that to sustain a damages claim for civil securities fraud under

15 U.S.C. §§ 78j(b) and 78u–4, a plaintiff must show “a causal

connection between the material misrepresentation and the loss.”

Dura Pharms., 544 U.S. at 342.                     In so holding, the Dura Court

rejected the notion that stock overvaluation resulting from so-

called     “fraud-on-the-market”               may       form     the     basis      for     a

plaintiff’s damages award in a private securities action.                                  Id.

at 341–43.       That is, a shareholder’s claim that he bought stock

at a price that was artificially inflated due to fraud does not

state a claim for loss.           Id.

      The Second and Fifth Circuits have suggested that the Dura

loss-causation         principles          apply   to    criminal       securities       fraud

cases.     In United States v. Olis, 429 F.3d 540 (5th Cir. 2005),

the Fifth Circuit indicated, “The civil damage measure should be

the     backdrop       for    criminal        responsibility         both       because    it

furnishes       the    standard       of    compensable         injury    for    securities

fraud    victims       and     because       it     is    attuned    to     stock    market

complexities.”          429 F.3d at 526 (citing Dura Pharms., 544 U.S.

at 341–43).        Olis cited several out-of-circuit cases, including

various “cook the books” scenarios, and noted with approval that

“each    case    takes       seriously       the    requirement      to    correlate       the

                                              32
defendant’s      sentence     with     the   actual    loss        caused        in    the

marketplace, exclusive of other sources of stock price decline.”

Id. at 547 (citing United States v. Snyder, 291 F.3d 1291 (11th

Cir. 2002); United States v. Bakhit, 218 F. Supp. 2d 1232, 1238

(C.D. Cal. 2002); United States v. Grabske, 260 F. Supp. 2d 866,

869-71 (N.D. Cal. 2002)).              In United States v. Rutkoske, 506

F.3d 179 (2d Cir. 2007), the court stated, “[W]e see no reason

why considerations relevant to loss causation in a civil fraud

case should not apply, at least as strongly, to a sentencing

regime    in   which   the   amount    of    loss   caused    by    a    fraud        is   a

critical determinant of the length of a defendant’s sentence.”

506 F.3d at 179; cf. United States v. Nacchio, 573 F.3d 1062,

1078 (10th Cir. 2009) (“Courts in criminal cases have sought

guidance from civil damage measures in considering an estimate

of loss from the defendant’s unlawful conduct.” (citing Kevin P.

McCormick, Untangling the Capricious Effects of Market Loss in

Securities Fraud Sentencing, 82 Tul. L. Rev. 1145, 1153 (2008)

(“Faced with a myriad of new issues never encountered before in

the   criminal     context,      the     courts     have     turned         to        civil

jurisprudence      for       answers.”)))       (considering            profits         for

sentencing). 6


      6 The Fifth and Second Circuits nevertheless cautioned
against a strict application of Dura.    E.g., United States v.
Gushlak, 728 F.3d 184, 196 n.9 (2d Cir. 2013) (“Although we rely
(Continued)
                                        33
      Meanwhile,   the   Third,    Sixth,   and    Ninth      Circuits   have

declined to apply Dura in the context of criminal sentencing.

The   Ninth   Circuit,   for   example,   has   found   the    Dura   Court’s

concern not relevant in criminal sentencing:

      [I]n a private civil fraud action, a court gauges loss
      from the perspective of the plaintiff-victim, i.e.,
      whether the plaintiff can show the amount and cause of
      loss he sustained.    Because a civil plaintiff bears
      the burden to show loss, it is logical to require that
      the plaintiff show that any loss he sustained was
      attributable   directly   to  devaluation  caused   by
      revelation of the defendant’s fraud.      It likewise
      follows that a plaintiff’s mere allegation that he
      purchased overvalued stock is insufficient to state a
      claim, because the allegation does not by itself
      establish that the plaintiff personally incurred loss
      commensurate with the overvaluation.

      In criminal sentencing, however, a court gauges the
      amount of loss caused, i.e., the harm that society as
      a whole suffered from the defendant’s fraud.    Whether
      and to what extent a particular individual suffered
      actual loss is not usually an important consideration
      in criminal fraud sentencing.    Therefore, where the
      value   of   securities   have been    inflated  by   a
      defendant’s fraud, the defendant may have caused
      aggregate loss to society in the amount of the fraud-
      induced overvaluation, even if various individual
      victims’   respective   losses  cannot    be  precisely
      determined or linked to the fraud.    As a result, the
      principle underlying the Dura Pharmaceuticals Court’s
      reluctance to allow mere overvaluation as a basis for
      establishing loss is generally not present in the
      criminal sentencing context, and we are not persuaded
      that it would be appropriate to expand the Dura




on authorities from each of these contexts to establish certain
general principles, we are mindful of important differences that
counsel against using authorities from these different contexts
interchangeably.”).


                                    34
       Pharmaceuticals       rule     to        the     criminal     sentencing
       context.

United States v. Berger, 587 F.3d 1038, 1044 (9th Cir. 2009)

(internal      citations     omitted);          see     also    United       States     v.

Georgiou, 777 F.3d 125, 146 (3d Cir.), cert. denied, 136 S. Ct.

401 (2015); United States v. Peppel, 707 F.3d 627, 644-45 (6th

Cir. 2013).

       We find the reasoning of the Berger court convincing and

adopt   it    here.     Accordingly,        we     decline      to   adopt    the     Dura

principles in the criminal context.                     The district court thus

committed no clear error in determining the loss amount, and we

affirm the sentence.

       Even assuming we found Dura’s principles applicable, the

district     court’s   finding      would       still   stand.       In    Peppel,     the

Sixth   Circuit   affirmed     the    amount-of-loss            determination       where

class actions had been filed alleging false inflation, newspaper

articles reported the allegations, and “less than a month later,

an    announcement     was   made    informing          the    investing     public     as

follows:      ‘MCSi . . . today announced that it has learned of an

investigation of the Company by the [SEC] and has received a

subpoena from the SEC seeking production of documents . . . .’”

Peppel, 707 F.3d at 644 (alterations and omission in original).

The   court    determined    that     “[i]nformation           concerning      Peppel’s

fraud was thus generally available to the investing public.”


                                           35
Id.        Similarly      here,    we   find    that     Beazer’s     June     and    August

announcements sufficiently put investors on notice of fraud.                               We

are unmoved by Rand’s invocation of Loos v. Immersion Corp., 762

F.3d       880,   890    (9th   Cir.    2014),      as   amended      (Sept.    11,    2014)

(considering a motion to dismiss for failure to state a claim in

a     civil       case    and     holding      that      “the   announcement          of   an

investigation, without more, is insufficient to establish loss

causation”).             As in Peppel, here “it does not take a strong

inference to connect the publication of this information to the

near-immediate”           losses     to     investors.          707     F.3d    at     644. 7

Accordingly, we affirm the loss finding and Rand’s sentence as

procedurally reasonable.



                                             VI.

       For the foregoing reasons, the district court is

                                                                                AFFIRMED.




       7
       We are unpersuaded by the government’s alternative theory
for affirming based on a rebuttable presumption in place at the
time of Rand’s sentencing.       When Rand was sentenced, the
guidelines provided that loss to investors should be calculated
based on stock changes in a 90-day period after the fraud was
disclosed. U.S.S.G § 2B1.1 cmt 3(F)(ix). As this is no longer
the presumption in the current guidelines, and both parties,
their experts, and the district court agreed that such a method
was unreliable in this case, we decline to use this approach.


                                               36
