                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

                                    File Name: 15a0733n.06

                                       Nos. 14-1159/1160

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                          FILED
UNITED STATES OF AMERICA,                           )                  Nov 03, 2015
                                                                   DEBORAH S. HUNT, Clerk
                                                    )
         Plaintiff-Appellee,                        )
                                                    )      ON APPEAL FROM THE UNITED
                                                    )      STATES DISTRICT COURT FOR
v.                                                  )      THE EASTERN DISTRICT OF
                                                    )      MICHIGAN
                                                    )
SUE A. WILSON; GARY L. WILSON,                      )      OPINION
                                                    )
         Defendants-Appellants.                     )
                                                    )

BEFORE: NORRIS, ROGERS, and WHITE, Circuit Judges.

         PER CURIAM. The Wilsons were convicted after a jury trial for their participation in a

fraudulent payroll scheme. On appeal, they assert that the evidence was insufficient to support

their convictions and that the district court erred (1) when it refused to allow Defendants’

accountant to testify in support of a “good faith reliance” defense, and (2) in applying certain

sentencing enhancements. For the reasons outlined below, we vacate the judgment of the district

court.

                                               I.

         Sue and Gary Wilson, together with co-defendants Maxine and Robert Pochmara, owned

a NAPA auto parts store in Rogers City, Michigan. From 1998 to 2009, Robert Pochmara

worked at the NAPA store while simultaneously receiving disability retirement benefits from the

Railroad Retirement Board, a federal agency (the “RRB”). As a condition to receiving benefits,
                                                                                United States v. Wilson
                                                                                    Nos. 14-1159/1160

Robert Pochmara was obligated to report any employment to the RRB, whether or not he was

compensated for the work. The RRB sent annual notices to Mr. Pochmara reminding him of his

obligation to report that information; additionally, in 2008 Mr. Pochmara signed and submitted a

form to the RRB affirmatively stating that he had not worked since being awarded disability

benefits in 1991.

       In order for Mr. Pochmara to work at the NAPA store and simultaneously collect

disability benefits, from 1998 to 2009 the Wilsons caused the wages earned by Mr. Pochmara to

be paid to Maxine Pochmara, and caused his earnings and tax information to be reported to the

government using her name and social security number. In addition, Maxine Pochmara opted out

of social security at the job where she actually worked, instead participating in that employer’s

private social security alternative. If the fraudulent wage scheme had not been discovered, Ms.

Pochmara would have been able to draw retirement benefits from both her employer’s plan and,

based on the NAPA store wages, Social Security.

       In late 2012, the Wilsons and the Pochmaras were each indicted for violation of 18

U.S.C. § 371 (Conspiracy to Defraud the United States) and 42 U.S.C. § 408(a)(6) (False

Information to Social Security). The Pochmaras pleaded guilty to those two counts, plus a third,

while the Wilsons elected to go to trial.

       Before the trial, the Wilsons indicated their intention to offer as a defense that they relied

in good faith on advice from their accountant as to how they paid and reported Mr. Pochmara’s

earnings. The accountant purportedly would have testified that the money paid to Maxine

Pochmara was a return on her capital investment in the store, rather than wages. The government

objected to the defense and admission of the testimony, asserting that the testimony lacked

foundation and stating that the government considered the accountant an unindicted co-



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conspirator. The district court refused to allow the accountant’s testimony unless the Wilsons

testified or otherwise established a foundation for the accountant’s testimony. United States v.

Wilson, No. 12-20607, 2013 WL 2048308, at *3 (E.D. Mich. May 14, 2013). The Wilsons

elected not to testify or call any witnesses.

       During the trial, the government called witnesses including an agent from the RRB, an

Internal Revenue Service agent, and several lay witnesses who testified that Robert Pochmara

worked regularly at the store and Maxine Pochmara did not. The government conclusively

proved, and the Wilsons do not dispute, that Robert Pochmara worked at the NAPA store, that all

wages were paid to Maxine Pochmara, and that all wages were reported to various government

agencies (including the Internal Revenue Service and the Social Security Administration) under

Maxine Pochmara’s name and social security number.

       The jury convicted the Wilsons on both counts. In calculating the sentencing guidelines

range, the district court applied an obstruction of justice sentencing enhancement for each of the

Wilsons for filing false financial disclosures with the probation office, plus another obstruction

of justice enhancement for Gary Wilson for attempting to intimidate two government witnesses.

Finally, the district court applied a sentencing enhancement for Gary Wilson based on his

leadership role in the offense. The sentencing guidelines after all enhancements was fifty-one to

sixty-three months’ imprisonment for Gary Wilson, and thirty-three to forty-one months’ for Sue

Wilson.

       At sentencing, the district court granted each of the Wilsons a downward variance under

18 U.S.C. § 3553(a)(1) based on “the nature and circumstances of the offense and the history and

characteristics” of the Wilsons. In the end, the district court sentenced Gary Wilson to thirty-six

months’ imprisonment, and Sue Wilson to twenty months’ imprisonment, and ordered restitution



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                                                                                    Nos. 14-1159/1160

to the RRB in the amount of $226,194.35. Because of the large amount of restitution, owed

jointly and severally with the Pochmaras, the district court waived the imposition of a fine.

                                                 II.

       The Wilsons appeal (1) the sufficiency of the evidence supporting their convictions,

(2) the district court’s pre-trial ruling that the Wilsons could not present a defense of “good faith

reliance” on their accountant’s advice, (3) the false financial disclosures sentencing enhancement

for each of them, (4) the additional obstruction of justice sentencing enhancement for Gary

Wilson for intimidating two witnesses, and (5) the sentencing enhancement for Gary Wilson

based on a leadership role in the offense. We will address each of the claims in turn. Although

we conclude that issue two requires we vacate the convictions, we nevertheless address the

sentencing issues in the interest of judicial economy because they are likely to recur if the

Wilsons are convicted again on remand.


   A. Sufficiency of the Evidence

       “When reviewing a criminal conviction for sufficiency of the evidence, we ask ‘whether,

after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact

could have found the essential elements of the crime beyond a reasonable doubt.’” United States

v. Tragas, 727 F.3d 610, 617 (6th Cir. 2013) (quoting Jackson v. Virginia, 443 U.S. 307, 319

(1979)). “‘All reasonable inferences and resolutions of credibility are made in the jury’s favor.’”

Id. (quoting United States v. Washington, 702 F.3d 886, 891 (6th Cir. 2012)). “A convicted

defendant bears ‘a very heavy burden’ to show that the government’s evidence was insufficient.”

Id. (quoting United States v. Kernell, 667 F.3d 746, 756 (6th Cir. 2012)).

       The Wilsons were convicted on two counts. Count one was conspiracy to defraud the

United States:


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                                                                                   Nos. 14-1159/1160

       If two or more persons conspire . . . to defraud the United States, or any agency
       thereof in any manner or for any purpose, and one or more of such persons do any
       act to effect the object of the conspiracy, each shall be fined under this title or
       imprisoned not more than five years, or both.

18 U.S.C. § 371. Count two was providing false information to the Social Security

Administration:

       Whoever . . . willfully, knowingly, and with intent to deceive the Commissioner
       of Social Security as to his true identity (or the true identity of any other person)
       furnishes or causes to be furnished false information to the Commissioner of
       Social Security with respect to any information required by the Commissioner of
       Social Security in connection with the establishment and maintenance of [wage
       records].

42 U.S.C. § 408(a)(6).

       The Wilsons concede that Robert Pochmara worked at the NAPA store, and that they

caused all of his paychecks and related reports to the government to use Maxine Pochmara’s

name and social security number. Nevertheless, the Wilsons contend that the government never

established that they knew about Robert Pochmara’s pension or knew that the objective of the

payment scheme was to defraud the RRB. The Wilsons reason that without knowing the purpose

behind the Pochmaras’ desire to be paid in this manner, they could not be have been culpable

participants in any conspiracy.

       However, there is nothing in the conspiracy statute that would require the Wilsons to

fully understand Robert Pochmara’s earnings restrictions or reporting obligations under his RRB

pension. Even accepting for the sake of argument that the Wilsons were wholly unaware of Mr.

Pochmara’s disability income, there was ample evidence that by intentionally paying Maxine

Pochmara for Robert Pochmara’s work the Wilsons took steps to defraud other agencies of the

federal government, namely the Internal Revenue Service and the Social Security

Administration.



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                                                                                     Nos. 14-1159/1160

       Turning to the filing of false information with the Social Security Administration, the

analysis is similar. The Wilsons argue that the government failed to prove that the wages paid to

Maxine Pochmara were not for work she actually performed at the NAPA store, and further, as

minority co-owner Maxine Pochmara had the right to direct how she was paid and how it was

reported. The jury disagreed. Several witnesses testified at trial that Robert Pochmara worked at

the store and Maxine Pochmara did not. The government provided sufficient evidence that the

Wilsons caused deceptive wage reports to be filed with the Internal Revenue Service and Social

Security Administration for a rational jury to find guilt beyond a reasonable doubt as to both of

the Wilsons, on both of the counts.


   B. Good Faith Reliance Defense

       In a pre-trial ruling, the district court refused to allow the Wilsons to call their accountant

in support of the defense that they relied in good faith on his advice.

       We generally review a district court’s evidentiary rulings for an abuse of discretion.

United States v. Yu Qin, 688 F.3d 257, 261 (6th Cir. 2012). “We will find that a district court has

abused its discretion when we are ‘left with the definite and firm conviction that the district court

committed a clear error of judgment in the conclusion it reached upon a weighing of the relevant

factors.’” Id. (quoting United States v. Jenkins, 345 F.3d 928, 936 (6th Cir. 2003)).

       Before trial, the Wilsons indicated their intention to call only one witness, the accountant,

who purportedly would testify that the amounts paid to Maxine Pochmara were properly reported

as a return on her investment in the store, rather than as wages. The district court was skeptical,

since Robert Pochmara received nothing at all for his labor, and Maxine Pochmara was said to

have received a return on her investment, although it had been reported in the form of W-2

wages. The government objected to permitting the defendants to raise the defense solely on the


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                                                                                   Nos. 14-1159/1160

accountant’s testimony that the income was a return on Maxine Pochmara’s investment and,

perhaps, that he had so advised defendants. The government further expressed concern that, since

it believed the accountant was an unindicted co-conspirator in the fraudulent scheme, if he were

called to testify he might invoke his Fifth Amendment right not to incriminate himself.

       After the parties briefed the issue, the district court ruled that:

       [T]he “elements of a ‘reliance defense’ include: (1) full disclosure of all pertinent
       facts, and (2) good faith reliance on the accountant’s advice.’” United States v.
       Rozin, 664 F.3d 1052, 1060 (6th Cir. 2012) (quoting United States v. Duncan, 850
       F.2d 1104, 1116 (6th Cir. 1988)). Where a defendant “either did not provide full
       information to those he supposedly relied upon, or he had reason to believe that
       the advice provided by these individuals was incorrect,” that defendant cannot
       “mount a credible good faith reliance defense.” Rozin, 664 F.3d at 1060. . . .
       ....
       . . . It is unclear whether [the accountant’s] testimony alone could satisfy the
       Wilsons’ burden of demonstrating he possessed all of the pertinent information
       when he provided the advice. What is clear, however, is that his testimony,
       without more, will not be enough to show that the Wilsons actually, and in good
       faith, relied upon him. . . . There must be evidence they provided him all the
       pertinent facts for making disclosures to the government, and evidence to
       demonstrate they relied upon his advice in good faith. Unless the Wilsons can
       provide this evidence, either through their testimony or that of another, there is no
       foundation for [the accountant’s] testimony.

Wilson, 2013 WL 2048308, at *3 (footnote omitted).

       At the conclusion of the government’s case, the district court asked the Wilsons whether

either of them wished to testify, and both declined. The court then reiterated its ruling about the

conditions under which the Wilsons’ accountant could testify, and the Wilsons reaffirmed their

intention not to testify or put on any witnesses.

       In ruling on the Government’s motion in limine, the district court held that the Wilsons’

accountant could not testify because his testimony alone could not establish the second element

of the good faith defense, which is that “the Wilsons actually, and in good faith, relied upon [the

accountant].” However, the accountant’s testimony could have established both elements of the

defense. First, to find that the Wilsons disclosed all pertinent facts to the accountant, the jury
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                                                                                  Nos. 14-1159/1160

could have compared the information provided to the accountant with the Government’s

evidence. Second, the jury could have also found that the Wilsons acted in good faith reliance

on the accountant’s advice based on the fact that the Wilsons provided information to the

accountant and acted in accordance with his advice.

       Moreover, the accountant should not have been barred from testifying on the basis that

the Wilsons’ pre-trial proffer was inadequate. A party must make a proffer sufficient only to

inform the court of the substance of the evidence, and need not make a formal offer of proof.

Fed. R. Evid. 103(a)(2); see also Griffin v. Finkbeiner, 689 F.3d 584, 597–98 (6th Cir. 2012);

United States v. Ganier, 468 F.3d 920, 924 (6th Cir. 2006).

       In this case, the Wilsons made an adequate proffer because their attorney discussed the

substance of the accountant’s testimony at the final pre-trial conference. At that hearing, the

court stated that “the defense in th[is] case is related to the fact that advice was sought from a

certified public accountant who said that both the tax reporting and the responses to the pension

board were correct and in accord with the law.” The Wilsons’ attorney responded “[t]hat’s

correct,” and then elaborated that he “expected [the accountant] to say that [the payment to

Maxine Pochmara] was a return on investment, using those words.” When the court further

questioned the attorney about how the payment was a return on an investment, the attorney stated

that he did not want to answer that question “in th[e] open courtroom prior to trial.” The

following exchange then occurred:

       THE COURT: But the accountant says, this is an appropriate way in which to
       structure this and your clients relied on it. That’s your suggestion.
       MR. JACOBS: Yes, sir.
       THE COURT: So the question that we’ve got at this stage is whether that reliance
       provides your client a defense as opposed to a co-defendant.




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         MR. JACOBS: I believe so. I think the Court has correctly stated the issue as the
         ability to rely on the accountant and the ability to use that reliance as somehow a
         defense to a criminal charge.

These exchanges make clear that the court knew the substance of the accountant’s proposed

testimony. Because an accountant’s testimony alone may establish both elements of a good faith

defense and because the Wilsons’ pre-trial proffer was adequate, the accountant should have

been allowed to testify at trial.1


    C. Obstruction of Justice Enhancements

         The sentencing guidelines provide for a two-level enhancement where “the defendant

willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice

with respect to the investigation, prosecution, or sentencing of the instant offense of conviction.”

U.S.S.G. § 3C1.1.

         “Although we apply a clearly-erroneous standard of review to the district court’s findings

of fact, the determination of whether specific facts actually constitute an obstruction of justice is

a mixed question of fact and law that we review de novo.” United States v. Bazazpour, 690 F.3d

796, 805 (6th Cir. 2012) (citing United States v. Vasquez, 560 F.3d 461, 473 (6th Cir. 2009)); see

also United States v. Kamper, 748 F.3d 728, 744 (6th Cir. 2014).


             1. Misleading Financial Disclosures by Both Gary Wilson and Sue Wilson

         The district court applied an obstruction of justice sentencing enhancement to each of the

Wilsons based on their alleged concealment of assets in a pre-sentence financial report to the

probation office in connection with fashioning the restitution and fine part of their respective



1
  The question whether the accountant’s testimony would have provided a foundation for an instruction on the good
faith defense is a separate issue not raised by the facts in this appeal. See United States v. Lindo, 18 F.3d 353, 356
(6th Cir. 1994).

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                                                                                    Nos. 14-1159/1160

sentences. The two main misrepresentations cited were the value of the NAPA store as an asset

and failing to report certain retirement accounts.

       In 2013, the Wilsons reported to the probation office that the value of the NAPA store

was negative $82,113.75 ($60,000 in assets and $142,113.75 in liabilities), while in a 2009 loan

application the Wilsons represented that the business was worth in excess of $436,000. Further,

the Wilsons reported assets in one small retirement account but omitted multiple other, larger

accounts.

       The Wilsons contend on appeal that the value of the NAPA store included in the loan

application was optimistic, and assumed continued involvement and hard work by the Wilsons,

while the pessimistic valuation as part of their sentencing was based on the closing of the store

and the liquidation of the inventory. There is some logic to this argument. If we accept that

(i) the value of a business can be calculated myriad ways, (ii) the loan application to the bank

was optimistic, bordering on puffery, and (iii) the valuation provided to the probation office was

based on the store closing and its contents liquidated, then it is possible that the valuations could

differ by such a large margin. However, this possibility does not help the Wilsons. First and

foremost, they offer no explanation for failing to report several retirement accounts, and that

omission alone supports the obstruction of justice enhancement. Second, there are facts in the

record that support the district court’s factual conclusion that the negative store valuation was

intentionally deceptive. The district court’s application of an obstruction of justice enhancement

for deceptive financial disclosures was not erroneous.


            2. Intimidation of Witnesses by Gary Wilson

       In addition to the obstruction of justice enhancement for false financial disclosures, Gary

Wilson was assessed a two-level enhancement for obstruction of justice because he attempted to


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                                                                                     Nos. 14-1159/1160

intimidate two of the government’s witnesses. Obstruction of justice under the guidelines can

include “threatening, intimidating, or otherwise unlawfully influencing a co-defendant, witness,

or juror, directly or indirectly, or attempting to do so.” U.S.S.G. § 3C1.1 cmt. n.4(A).

           On appeal, Mr. Wilson advances two arguments on this issue. As an initial matter, he

asserts that it is never proper under the guidelines to apply two separate obstruction of justice

enhancements. On this, he is mistaken. See, e.g., United States v. Vaught, 133 F. App’x 229, 235

(6th Cir. 2005) (approving the aggregation of two obstruction of justice sentencing

enhancements and collecting cases from other circuits).

           Factually, Mr. Wilson admits talking to government witnesses before the trial, and telling

them that there could be legal consequences for testifying against him and hurting his business.

Mr. Wilson maintains, however, that his intention was only to make certain the witnesses told the

truth and to warn the witnesses against lying about him or his company. Because witness

testimony did not corroborate his assertion, the district court did not err in finding that Mr.

Wilson attempted to intimidate the two witnesses and applying the second obstruction of justice

enhancement.


    D. Leadership Role Enhancement for Gary Wilson

           The sentencing guidelines allow for an enhancement of two levels for an aggravating role

in the offense if “the defendant was an organizer, leader, manager, or supervisor” of criminal

activity. U.S.S.G. § 3B1.1. Mr. Wilson disputes the district court’s application of this

enhancement, noting that he did not organize or lead the fraudulent scheme, nor did he profit

from it.

           “We review challenges to the reasonableness of a sentence for abuse of discretion.”

Kamper, 748 F.3d at 739 (citation omitted). “Our first task in evaluating the reasonableness of


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                                                                                    Nos. 14-1159/1160

the district court’s sentence is to ‘ensure that the district court committed no significant

procedural error, such as failing to calculate (or improperly calculating) the Guidelines

range . . . .’” United States v. Lalonde, 509 F.3d 750, 769 (6th Cir. 2007) (quoting Gall v. United

States, 552 U.S. 38, 51 (2007)). “[W]here a district court makes a mistake in calculating a

guidelines range for purposes of determining a sentence under section 3553(a), we are required

to remand for resentencing ‘unless we are certain that any such error was harmless—i.e. any

such error did not affect the district court’s selection of the sentence imposed.’” United States v.

Duckro, 466 F.3d 438, 446 (6th Cir. 2006) (quoting United States v. Hazelwood, 398 F.3d 792,

801 (6th Cir. 2005)).

       “The government bears the burden of proving that [a role] enhancement applies by a

preponderance of the evidence.” United States v. Vandeberg, 201 F.3d 805, 811 (6th Cir. 2000)

(citing United States v. Martinez, 181 F.3d 794, 797 (6th Cir. 1999)). In reviewing whether a

defendant’s role justifies a role enhancement under U.S.S.G. § 3B1.1, we review factual findings

underlying a district court’s decision for clear error and accord deference to the district court’s

legal conclusion. See United States v. Washington, 715 F.3d 975, 982-83 (6th Cir. 2013).

       In describing when a sentencing enhancement under §3B1.1 for a defendant’s role in the

offense is appropriate,

       We have explained that “a defendant must have exerted control over at least one
       individual within a criminal organization for the enhancement of § 3B1.1 to be
       warranted.” United States v. Vandeberg, 201 F.3d 805, 811 (6th Cir. 2000)
       (quoting United States v. Gort–Didonato, 109 F.3d 318, 321 (6th Cir. 1997)). In
       determining whether a defendant qualifies as a leader, organizer, manager, or
       supervisor, a district court should consider a number of factors including, but not
       limited to, “the exercise of decision making authority, the nature of participation
       in the commission of the offense, the recruitment of accomplices, the claimed
       right to a larger share of the fruits of the crime, the degree of participation in
       planning or organizing the offense, the nature and scope of the illegal activity, and
       the degree of control and authority exercised over others.” U.S.S.G. § 3B1.1, cmt.
       (n.4). See also Moncivais, 492 F.3d at 660. “Merely playing an essential role in

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                                                                                     Nos. 14-1159/1160

       the offense is not equivalent to exercising managerial control over other
       participants and/or the assets of a criminal enterprise.” Vandeberg, 201 F.3d at
       811 (citing United States v. Albers, 93 F.3d 1469, 1487 (10th Cir. 1996)).

Lalonde, 509 F.3d at 765.

       Each of the pre-sentence reports prepared in this case state that “Maxine C. Pochmara

would have directed Gary L. Wilson and Sue A. Wilson with respect to the fraudulent acts;

therefore, a role enhancement does not seem applicable.” Notwithstanding that statement, in

calculating the guideline sentencing range each report also applies a two-level enhancement for

being “an organizer, leader, manager, or supervisor” of the criminal activity.

       After the parties submitted sentencing memoranda and the court held an evidentiary

hearing, the district court issued an Order Summarizing Advisory Guidelines Conclusions.

Despite the apparent internal inconsistency of the reports, the district court stated that the reports

“appropriately scored the Wilsons for their role in the offense.” The court did not otherwise refer

to “role in the offense” for either Gary or Sue Wilson, nor did it refer to a role-related sentence

enhancement for either of them, but concluded by stating that the guidelines range for Gary

Wilson was fifty-one to sixty-three months. The guidelines range for Gary Wilson, with the

obstruction of justice enhancements but without a role enhancement, would have been forty-one

to fifty-one months. At the sentencing hearing, counsel for Gary Wilson questioned the apparent

discrepancy. The government interjected that it was due to a leadership role enhancement, and

the district court simply agreed with the government without explanation.

       At sentencing, the district court did not describe the factual basis or reasoning to support

applying a leadership enhancement. The court did find that Mr. Wilson’s role was “essential,”

and that he had the ability to end the scheme at any point, but that alone is not sufficient to

support a leadership enhancement. See Vandeberg, 201 F.3d at 811. One notable (though not

dispositive) factor in determining leadership in a criminal enterprise is whether the purported
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                                                                                      Nos. 14-1159/1160

leader claimed a right to a larger share of the fruits of the crime. See, e.g., United States v. Kelly,

204 F.3d 652, 658 (6th Cir. 2000) (finding leadership role where defendant kept 25% of the

profits leaving the other seven participants to split the rest); United States v. Taniguchi, 49 F.

App’x 506, 520 (6th Cir. 2002) (finding leadership enhancement where defendant “took a larger

share of the proceeds than the other members”). Here, the district court acknowledged that

during the lengthy fraudulent scheme neither of the Wilsons received any financial benefit but

rather were guilty of facilitating a scheme that benefited the Pochmaras.

        “When a district court fails to articulate the factual basis for an enhancement, it either

compels this Court to review the record de novo, or runs the risk that this Court will have to

remand the case for insufficient findings and reasoning.” Vandeberg, 201 F.3d at 810 (citation

omitted). Here, as in Vandeberg, a remand for further findings is unnecessary because we have

searched the record and it clearly fails to support a two-level enhancement for Mr. Wilson based

on his role in the offense. See id. at 811.

                                                 III.

        Accordingly, we vacate the judgment of the district court and remand for further

proceedings consistent with this opinion.




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