                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 12a0965n.06
                                                                                            FILED
                                             No. 11-3625
                                                                                       Aug 31, 2012
                           UNITED STATES COURT OF APPEALS                        LEONARD GREEN, Clerk
                                FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                                  )
                                                           )       ON APPEAL FROM THE
       Plaintiff-Appellee,                                 )       UNITED STATES DISTRICT
                                                           )       COURT FOR THE
v.                                                         )       SOUTHERN DISTRICT OF
                                                           )       OHIO
GREGORY S. CHEW,                                           )
                                                           )                 OPINION
       Defendant-Appellant.                                )
                                                           )



       BEFORE: NORRIS, McKEAGUE and KETHLEDGE, Circuit Judges.

       McKEAGUE, Circuit Judge. Defendant was convicted after a two-week jury trial of

various fraud-related offenses for his participation as a “facilitator” in a scheme to obtain money by

fraudulent pretenses from mortgage lenders during a five-year period. He was sentenced to sixty

months’ imprisonment. On appeal, defendant challenges his conviction on two grounds, contending

his speedy trial rights were violated and the verdict is not supported by sufficient evidence. He also

contends his sentence is procedurally unreasonable in three respects. For the reasons that follow we

affirm the judgment of the district court.

                                       I. BACKGROUND

       Defendant Gregory S. Chew describes himself as “a rehabber of older typically dilapidated

homes.” His modus operandi in the Dayton area during the relevant period included: (1) identifying

a suitable property; (2) approaching the owner with the idea of selling; (3) reaching a sale price
No. 11-3625
United States v. Chew

agreement with the owner; (4) hiring contractors to make improvements to the property; (5) finding

and referring a prospective purchaser (with mortgage broker) to the owner; (6) “fronting” the

required down payment money to the purchaser prior to closing; and (7) upon closing the sale,

receiving payment from the seller, consisting of the remainder of the ultimate purchase price (after

the seller was paid the agreed-to price and contractors were paid for their services). In connection

with each of the five transactions principally at issue in this case, Chew worked with a mortgage

broker, co-defendant Richard Confer. Confer was responsible for preparing the loan applications

for the prospective purchasers referred by Chew. On each of the subject loan applications, signed

by Confer, the borrower was identified as the source of the down payment on the purchase price.

Confer knew, however, that Chew had actually provided the funds with which each purchaser made

the down payment. Confer did not disclose this fact to the lenders.

       It was this practice essentially—Chew’s surreptitious gifting of down payment monies to

purchasers to enhance their credit-worthiness and facilitate approval of their loan applications (and

Confer’s failure to disclose this fact to lenders)—that became the focus of a federal criminal

investigation and prosecution in the Southern District of Ohio. In the first superseding indictment,

filed July 15, 2009, defendant Chew was charged in relevant part with one count of money

laundering, twenty-four counts of unlawfully structuring financial transactions, one count of

conspiracy to launder money, five counts of mail fraud, and three counts of wire fraud. Confer was

also charged as a co-defendant under the conspiracy, mail fraud and wire fraud counts. In addition,

Chew’s wife, Peggy Pierson, was charged under the conspiracy and wire fraud counts. Shortly

before trial began in February 2010, the court dismissed, on the government’s motion, one of the

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United States v. Chew

financial structuring counts and two of the mail fraud counts against Chew. Also on the eve of trial,

Confer entered into a plea agreement, pleading guilty to one count of conspiracy to launder money.

Confer agreed to cooperate with the government in exchange for dismissal of all other charges

against him and the government’s agreement to recommend that no term of incarceration be imposed

as part of the sentence.

       After the jury was selected on February 22, 2010, two weeks of trial ensued, with Confer

playing the lead witness role for the prosecution. On March 5, at the close of the proofs, defendants

having called no witnesses, the court granted defendant Pierson’s Rule 29 motion for judgment of

acquittal as to two of the wire fraud charges against her, but denied Chew’s Rule 29 motion in its

entirety. The jury began deliberations on March 9 and returned its verdict on March 15. The jury

found Pierson not guilty on the remaining two counts against her, and found Chew not guilty of the

financial structuring charges. However, the jury found Chew guilty of money laundering, conspiracy

to launder money, and three counts each of mail fraud and wire fraud.

       After defendant Chew’s renewed Rule 29 motion for judgment of acquittal was denied, the

district court conducted an evidentiary hearing on February 4, 2011 to determine the loss attributable

to Chew’s conduct. On May 23, 2011, sentence was imposed. The court determined the loss to be

$1 million and sentenced Chew to sixty months’ imprisonment on each of the eight convicted counts,

to be served concurrently. Chew raises five issues on appeal.




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United States v. Chew

                                          II. ANALYSIS

       A. Speedy Trial Rights

       Chew contends that pretrial delays in this case violated both his constitutional and statutory

speedy trial rights. He contends the district court erred when it denied his pretrial motion to dismiss

the indictment on speedy trial grounds. In connection with both challenges, we review rulings of law

de novo and findings of fact for clear error. See United States v. Young, 657 F.3d 408, 413-14 (6th

Cir. 2011) (Sixth Amendment); United States v. Sobh, 571 F.3d 600, 602 (6th Cir. 2009) (Speedy

Trial Act).

       1. Constitutional Right

       The standard governing Chew’s constitutional challenge was recently summarized in Young

as follows:

               The Supreme Court has specified four factors for evaluating a Sixth
       Amendment speedy-trial claim: (1) length of delay, (2) the reason for the delay, (3)
       the defendant's assertions of his right, and (4) prejudice to the defendant. Barker v.
       Wingo, 407 U.S. 514, 530 (1972). None of the factors is “a necessary or a sufficient
       condition to the finding of a deprivation of the right of speedy trial,” but the factors
       are related and “must be considered with such other circumstances as may be
       relevant” in “a difficult and sensitive balancing process.” Id. at 533.

               ****

               The first Barker factor—the length of the delay—serves as a threshold or
       “triggering mechanism” for a speedy-trial analysis. Id. at 530. The length is
       measured from the earlier of the date of arrest or the date of indictment. United
       States v. Bass, 460 F.3d 830, 836 (6th Cir. 2006) (citing Maples v. Stegall, 427 F.3d
       1020, 1026 (6th Cir. 2005)).

               ****



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               A court need only consider the other Barker factors if there has been
       “uncommonly long” delay. Id. This court has held that a delay of more than one year
       is presumptively prejudicial and triggers application of the remaining three factors.
       Id.

657 F.3d at 414.

       Here, the period of delay after indictment, on April 28, 2009, until trial commenced on

February 22, 2010, was less than ten months. This hardly seems “uncommonly long,” but there is

authority for the proposition that a delay of as little as eight months may be considered

“presumptively prejudicial,” triggering consideration of the other Barker factors. See United States

v. Brown, 498 F.3d 523, 530 (6th Cir. 2007). Most of the delay in this case occurred after the return

of the first superseding indictment, in July 2009, which added new charges against Chew and two

new defendants, Confer and Pierson. Both of the newly added defendants moved for and were

granted, without objection by Chew, an ends-of-justice continuance of the trial until February 2010.

Chew did not complain about the delay and did not assert his speedy trial rights until he filed his

motion to dismiss on the eve of trial. Delay occasioned by the ends-of-justice continuance cannot

be blamed on the government. To the extent the delay occasioned by the ends-of-justice continuance

was indirectly caused by the filing of the superseding indictment, Chew’s speedy trial claim would

be strengthened only if the record showed abuse of prosecutorial discretion, such as dilatory purpose

or bad faith. Chew has not made this showing. He has not shown that the superseding indictment

was groundless or that it was filed to gain some impermissible tactical advantage. Nor has he shown

the sort of “substantial prejudice” that would warrant relief for a Sixth Amendment speedy trial

violation.


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       Accordingly, balancing the Barker factors, we conclude that the district court did not err in

rejecting Chew’s Sixth Amendment challenge to the pretrial delay.

       2. Speedy Trial Act

       Under the Speedy Trial Act, 18 U.S.C. § 3161, Chew was entitled to be brought to trial

within seventy days after the date of the indictment or arraignment, whichever is later, subject to

certain enumerated delay exclusions. Sobh, 571 F.3d at 602. Chew acknowledges that the filing of

the superseding indictment naming new defendants would ordinarily be deemed to restart the speedy

trial clock, 18 U.S.C. § 3161(h)(7), and that his speedy trial clock would ordinarily have been

extended by the ends-of-justice continuance granted to his co-defendants. United States v.

Blackmon, 874 F.2d 378, 380 (6th Cir. 1989). He contends that courts have recognized exceptions,

however, where the delay occasioned by a superseding indictment is shown to be unreasonable, the

product of bad faith, or a pretext to avoid the requirements of the Speedy Trial Act.

       The problem for Chew is that the cases he relies on in support of a such an exception are

readily distinguishable and he has not even made a prima facie case that the government acted

unreasonably or in bad faith in its prosecution of the case. Chew has not made out a violation of his

rights under the Speedy Trial Act.

       We therefore affirm the district court’s denial of Chew’s pretrial motion to dismiss. Chew

has failed to show that the ten-month delay between the filing of the original indictment and

commencement of trial was uncommonly long, was caused by the government for improper

purposes, or resulted in substantial prejudice.



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       B. Sufficiency of the Evidence

       Defendant Chew contends the district court erred when it denied his Rule 29 motions for

judgment of acquittal. He insists the government’s proofs lacked evidence that he knew it was

unlawful for him to fail to disclose to the lending institutions that he provided down payment monies

to borrowers and that he specifically intended to defraud the lenders.

       “A defendant challenging the sufficiency of the evidence bears a very heavy burden.” United

States v. Warshak, 631 F.3d 266, 308 (6th Cir. 2010) (quoting United States v. Prince, 214 F.3d 740,

746 (6th Cir. 2000)). The relevant question is “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.” Id. (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)

(emphasis in original)). A judgment will be reversed for insufficiency of the evidence only if it is

shown not to be supported, on the record as a whole, by competent and substantial evidence. Id.

       1. Elements of the Offenses

       In evaluating Chew’s arguments that the evidence was insufficient to sustain the convictions,

we begin our “any rational trier of fact” assessment with reference to the elements of the charged

offenses and definitions given in the jury instructions. Chew has not challenged the jury instructions

on appeal. In the excerpts provided below, the elements that are the focus of Chew’s appellate

arguments are highlighted.

       (a) Money Laundering

       As to the elements of the count 1 money laundering charge, the district court instructed the

jury as follows:

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               Count 1 of the superseding indictment charges the Defendant, Gregory S.
       Chew, with engaging in a monetary transaction in violation of Federal law. For you
       to find the Defendant, Gregory S. Chew, guilty of this crime you must find that the
       Government has proved each and every one of the following elements beyond a
       reasonable doubt. First, that the Defendant Gregory S. Chew knowingly engaged in
       a monetary transaction. Second, that the monetary transaction was in property
       derived from a specific unlawful act, namely, mail fraud or wire fraud. Third, that
       the property had a value greater than $10,000, fourth that the Defendant knew that
       the transaction was in criminally derived property, fifth, that the monetary
       transaction took place within the United States.

R. 139, Trial Tr. vol. X, Page ID ## 2893-94 (emphasis added).

       (b) Mail Fraud

       The district court gave the jury the following instruction on the elements of mail fraud:

              With regard to Counts 28, 29, and 30, the mail fraud counts, the Defendant,
       Gregory S. Chew, is charged with the crime of mail fraud in Counts 28, 29 and 30.
       For you to find the Defendant guilty of mail fraud on either of Counts 28, 29 or 30
       you must find the Government had proved each and every one of the following
       elements beyond a reasonable doubt. First, that the Defendant, Gregory S. Chew,
       knowingly participated in, devised and intended to – participated in devised,
       intended to devise a scheme to defraud in order to obtain money or property.
              Second, that the scheme included a material misrepresentation or a
       concealment of a material fact.
              Third, that the Defendant, Gregory S. Chew, had the intent to defraud.
              And fourth that the Defendant, Gregory S. Chew used the mail or caused
       another to use the mail, mail in furtherance of the scheme.

Id. at Page ID # 2910 (emphasis added).

       (c) Wire Fraud

       As to the wire fraud offenses charged in counts 32, 33 and 34, the district court

instructed:

              For you to find . . . Defendant guilty of wire fraud you must find that the
       Government has proved each and every one of the following elements beyond a
       reasonable doubt. That the Defendant( ) Gregory S. Chew . . . knowingly participated

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United States v. Chew

       in, devised and intended to devise a scheme to defraud in order to obtain money or
       property. That the scheme included a material misrepresentation or concealment of
       a material fact, and that the Defendant had the intent to defraud. And that the
       Defendant used wire communications, caused another to use wire communications
       in interstate commerce in furtherance of the scheme.

Id. at Page ID ## 2916-17 (emphasis added; references to co-defendant Pierson omitted).

       (d) Conspiracy

                A conspiracy is a kind of criminal partnership. For you to find . . . the
       Defendant( ) guilty of the conspiracy charge the Government must prove each and
       every one of the following elements beyond a reasonable doubt.
                First, that from or on about July 15th, 2003 and continuing up to and
       including July 15th of 2009 two or more persons conspired or agreed to commit the
       crime of money laundering with the intent to promote, the carrying on of a specified
       unlawful activity, namely, mail fraud, wire fraud or money laundering in violation
       of 18 United States Code, 1956, (a) (1) (A) (i) and 18 United States Code 2,
       knowingly engage in a monetary transaction, with the United States in property
       within the United States in property with a greater value than $10,000 which was
       derived from making false statements on loan applications, mail fraud and wire fraud,
       all in violation of 18 United States Code 1957.
                Second, that Gregory S. Chew . . . knowingly and voluntarily joined the
       conspiracy.

Id. at Page ID ## 2901-02 (emphasis added; references to co-defendant Pierson omitted).

       2. Evidence of Intent to Defraud

       Chew correctly argues that proof of his participation in mail fraud or wire fraud is a necessary

predicate of the alleged money laundering offense, which is the object of the alleged conspiracy

offense. He also correctly contends that both of these predicate offenses require proof of intent to

defraud. Chew further argues that evidence that he gave down payment monies to borrowers does

not make out a criminal offense and does not, in itself, tend to show intent to defraud. Evidence that

the source of the borrowers’ down payment monies was known to co-defendant Richard Confer but


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United States v. Chew

not disclosed to the lenders is relevant, he contends, only if there was a legal duty to disclose. And

although there was evidence that Confer knew of his duty, as mortgage broker, to disclose such

information, there is no evidence that he communicated such knowledge to Chew or that Chew

otherwise knew of Confer’s duty. Absent evidence that he knew of such a duty, Chew contends the

record fails to substantiate the finding that he concealed the information for the purpose of

defrauding the lenders.1

       The record evidence, whether direct or circumstantial, tending to show Chew intended to

defraud lending institutions by surreptitiously providing down payment monies to borrowers is not

overwhelming. However, when the record is viewed as a whole in the light most favorable to the

prosecution—with particular attention to Confer’s testimony—a picture begins to emerge that would

warrant a rational jury finding that Chew acted with intent to defraud.

       Confer testified that he, as mortgage broker, and Chew, as “facilitator,” collaborated on more

than sixty loan transactions during a five-year period. He testified about the importance of the

amount and source of the borrower’s down payment, required to be reported in the standard Form

1003 mortgage loan application. This information tells the prospective lender about the extent of

the borrower’s interest in the subject property, i.e., the borrower’s “equity” or “skin in the game.”

Confer knew—because Chew told him so—that Chew had provided the down payment money to



       1
         In addition, Chew makes a one-sentence argument regarding the conspiracy conviction,
contending “no one testified that the borrowers or Mr. Confer conspired with Mr. Chew.”
Appellant’s brief at 52. The argument is not developed and merits no further attention. See United
States v. Winkle, 477 F.3d 407, 421 (6th Cir. 2007) (“Issues adverted to in a perfunctory manner,
unaccompanied by some effort at developed argumentation, are deemed waived.”).

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United States v. Chew

prospective borrowers. In these transactions, Confer knew that the loan applications submitted to

the lenders did not disclose that Chew was the source of the down payment funds. Confer

considered the omission of this information to be an act of deceit, a misrepresentation, but he

presented the applications anyway because he wanted the applications to be approved so he would

make his one-to-five percent broker fee. Similarly, when the sales transactions were closed,

settlement papers were produced which also failed to disclose Chew’s provision of the down

payment monies, and failed to accurately disclose the fees paid by sellers to Chew for his services.

Confer said that all sixty or so mortgage transactions that he and Chew had collaborated on were

marked by such omissions—omissions that he considered to be deceitful misrepresentations. Confer

also explained that he had, in relation to these transactions with Chew, pleaded guilty to conspiracy

to launder money. He pleaded guilty because he was in fact guilty—guilty of conspiring with Chew

to launder money—and he wanted to put this matter behind him.

       The government’s proofs also included the testimony of representatives from several of the

lending institutions. Marta McCall was responsible for risk management and quality control at

American Mortgage Network, the lender that issued the mortgage on one of the subject properties.

McCall explained that American Mortgage Network would rely on the accuracy of the down

payment information reflected in the Form 1003 loan application as reflecting the borrower’s equity,

i.e., the borrower’s incentive to repay the loan. She testified that if American Mortgage had known

that the borrower’s down payment money had been provided to the borrower 24 to 48 hours prior

to the closing, the loan would have been denied—not even a close question.



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United States v. Chew

       Kevin Walsh, of CIT Group (which had also provided a mortgage on one of the subject

properties), corroborated McCall’s testimony regarding the importance of the borrower’s “skin in

the game.” In fact, Walsh explained that the importance of this factor is magnified in relation to

investment property. Whereas the mortgagor of owner-occupied property has two reasons to repay

the loan—avoiding financial loss and avoiding homelessness—Walsh explained that the investment

property borrower is only concerned to avoid financial loss. Hence, it is that much more important

to the lender, in gauging risk, that the down payment on the purchase of investment property come

from the borrower’s own funds.

       Finally, Stephen Newcomb was employed by Argent Mortgage Company as a repurchase title

claims manager. He testified regarding Argent’s issuance of mortgages on two of the subject

properties. He testified that if Argent had known that the borrowers had not actually paid any of the

down payment monies, the loans would have been denied.

       The contours of the transactional context were defined and corroborated by additional

testimony as well—all undisputed. Granted, the record does not appear to include evidence that

Chew made any affirmative misrepresentations about the source of down payment monies. Nor is

there evidence that Confer expressly advised Chew that his practice—i.e., “fronting” down payment

monies to buyers so that he could be reimbursed by the sellers, with a dividend, when the mortgage

was improved—was unlawful. Yet, when the record is viewed as a whole, a picture emerges from

which a rational trier of fact could reasonably conclude that the “intent to defraud” element of each

of the convicted offenses was proved. As explained below, we find a few salient jury instructions

and legal standards defining the elements of the offenses to be of particular significance.

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United States v. Chew

       3. Applying Law to Facts

       First, in relation both to mail fraud and wire fraud, there is no technical or precise definition

of an unlawful “scheme to defraud.” “The standard is a reflection of moral uprightness, of

fundamental honesty, fair play and right dealing in the general and business life of members of

society.” United States v. Daniel, 329 F.3d 480, 486 (6th Cir. 2003) (internal quotation marks and

citation omitted); Carpenter v. United States, 484 U.S. 19, 25 n.6 (1987) (noting that mail and wire

fraud statutes share the same language in relevant part and that the same legal analysis applies to

both offenses). An unlawful scheme to defraud may consist of “concealment of a material fact.”

R. 139, Trial Tr. vol. X, Page ID # 2910. Further, as the district court instructed:

                A scheme to defraud includes any plan or course of action by which someone
       intends to deprive another of money or property by means of false or fraudulent
       pretenses, representations or promises. The term false or fraudulent pretenses,
       representations or promises means any false statements or assertions that concern a
       material aspect of the matter in question that were either known to be untrue when
       made or made with reckless indifference to their truth. They include actual direct
       false statements, as well as half truths and the knowing concealment of material facts.
                An act is knowingly done if it is done voluntarily and intentionally and not
       because of mistake or some other innocent reason.
                A misrepresentation or concealment is material if it has a natural tendency to
       influence or is capable of influencing the decision of a person of ordinary prudence
       and comprehension.

Id. at 2911.

       The district court defined “intent to defraud” as “intent to deceive or cheat for the purpose

of either causing a financial loss to another or bringing about a financial gain to one’s self [or] to

another person.” Id. at 2911-12. To satisfy this element, the evidence had to show not only that

there was a material misrepresentation or knowing omission of material fact, but also that the


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misrepresentation or omission was made with the purpose of inducing the victim to part with money

or property or to undertake some action that would not otherwise have been undertaken. Daniel, 329

F.3d at 487.

       Significantly, the jury was also instructed that Chew could be found guilty of mail fraud

and/or wire fraud as an aider and abettor, without having “personally committed the crime,” if he

was found to have “intentionally helped or encouraged someone else to commit the crime.” R. 139,

Trial Tr. vol. X, Page ID ## 2912-13, 2919-20.

       Given the undisputed testimony of the lending institution representatives about the

materiality and importance of information regarding the borrowers’ equity in the property purchased

in assessing risk and approving loan applications; and given Confer’s testimony about his knowing

and deceptive concealment or nondisclosure of Chew’s practice of surreptitiously gifting down

payment monies to borrowers just prior to the closings to enhance the borrowers’ apparent

creditworthiness and improve the likelihood of mortgage approval; and given the extent of Chew’s

collaboration with Confer in more than sixty such transactions, it is apparent that a rational juror

could reasonably conclude beyond a reasonable doubt that Chew had intentionally helped or

encouraged Confer to obtain money from lenders by a scheme that included half-truths and

omission/concealment of material facts. The record thus includes sufficient evidence to establish

the required “intent to defraud” element of the predicate mail fraud and wire fraud offenses. Chew’s

only sufficiency-of-the-evidence challenge therefore fails.

       Although the evidence against Chew was not overwhelmingly strong on all essential

elements, considering the broad nature of some elements of the charged offenses and the deferential

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United States v. Chew

standard of review, Chew has failed to carry his heavy burden of demonstrating insufficiency of the

evidence to support the convictions. It follows that all eight convictions, on one count of money

laundering, one count of conspiracy to launder money, and three counts each of mail fraud and wire

fraud, must be affirmed.

       C. Sentencing Issues

       The court reviews the judgment of sentence under the abuse-of-discretion standard. Gall v.

United States, 552 U.S. 38, 46, 51 (2007). A sentence may be vacated under this standard only if

it is found to be procedurally or substantively unreasonable. Id. at 51-52; United States v. Peebles,

624 F.3d 344, 347 (6th Cir. 2010). Chew contends the sentence imposed is procedurally

unreasonable in three respects. A sentence may be deemed procedurally unreasonable if the district

court failed to calculate or improperly calculated the applicable advisory Sentencing Guidelines

range, treated the Guidelines as mandatory, failed to consider the factors prescribed at 18 U.S.C. §

3553(a), selected the sentence based on erroneous facts, or failed to adequately explain the sentence.

Gall, 552 U.S. at 51; Peebles, 624 F.3d at 347. In evaluating the correctness of the district court’s

calculation of the advisory Guidelines range, factual findings are reviewed for clear error and legal

conclusions are reviewed de novo. United States v. Lalonde, 509 F.3d 750, 763 (6th Cir. 2007).

       1. Loss Calculation

       Chew contends the district court committed procedural error in finding that the loss

attributable to Chew’s misconduct amounted to $1 million. The sentencing court’s determination

of the amount of loss attributable to a defendant is reviewed for clear error, but the methodology for



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United States v. Chew

calculating the loss is reviewed de novo. Warshak , 631 F.3d at 328. An error in calculating the loss

“is a procedural infirmity that typically requires remand.” Id.

       At sentencing, the district court initially determined that Chew’s base offense level was 7

under § 2B1.1(a)(1) of the Sentencing Guidelines. In applying § 2B1.1(b)(1), the district court

increased Chew’s base offense level by 14 levels based on the finding that Chew’s offense conduct

had caused loss in the estimated amount of $1 million—i.e., falling within the range of more than

$400,00 but not more than $1 million, prescribed at U.S.S.G. § 2B1.1(b)(1)(H). R. 171, Sentencing

Tr., Page ID ## 3736-37. This finding was made after the court conducted a lengthy evidentiary

hearing on February 1, 2011, and received proposed findings and conclusions from both sides. The

court explained this finding in relevant part as follows:

               Note 3 to U.S.S.G. 2B1.1 discusses the determination of the amount of loss.
       As a general rule, the loss is the greater of actual or intended loss. The actual loss is
       the reasonably foreseeable pecuniary harm that resulted from the offense. The
       intended loss means the pecuniary harm that was intended to result from the offense
       and includes intended pecuniary harm that would have been impossible or unlikely
       to occur. Pecuniary harm is harm that is monetary or that otherwise is readily
       measurable in money. Reasonably foreseeable pecuniary harm is pecuniary harm that
       the defendant knew, or reasonably should have known, was a potential result of the
       offense. Finally, the gain that resulted from the offense is used as an alternative
       measure of loss only if there is a loss but it reasonably cannot be determined.
               A court need only to make a reasonable estimate of the loss, and the court’s
       determination of the amount of the loss is entitled to appropriate deference.

               ****

               The estimated loss is to be reduced by the money returned, the fair market
       value of the property returned and the services rendered by the defendant to the
       victim before the offense was discovered. In a case involving collateral, such as this
       one, the amount the victim has recovered at the time of sentencing from disposition
       of the collateral, or if the collateral has not been disposed of by that time, the fair
       market value of the collateral as the time of sentencing.

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                ****

                The Court accepts and adopts the Presentence Investigation Report’s
        conclusion that Chew was responsible for 61 properties being sold due to fraudulent
        activity. The Court also accepts and adopts the Government’s evidence that the loss
        attributed to these 61 properties was $2,016, 873.20. This amount is calculated by
        subtracting the loan amounts for the 61 sales that Chew was involved in from the
        later sale price or, if there was no later sale, from the 2010 Montgomery County
        100% assessed value.
                However, the Court finds it necessary to adjust the loss attributable to Chew
        based upon the turmoil in the real estate market at the time, the mortgage “crisis” that
        existed at the time and the deplorable state of the economy at the time. After
        adjustment, the Court finds that Chew is responsible for $1,000,000 in loss.

R. 151, Order Finding Loss, at Page ID ## 3167-68, 3171.

        Chew objected to this loss determination and maintains on appeal that the government did

not carry its burden of proving loss by a preponderance of the evidence. Chew insists the

government presented no evidence of actual loss suffered by any of the supposed lending institution

victims. He also contends the government’s evidence of the fair market value of the sixty-one

collateral properties was unreliable.

        The government’s proposed loss calculation was based on a chart presented by IRS Special

Agent Marcia Gross. The chart represents a compilation of information regarding sixty-one

properties. The chart illustrates two methodologies for calculating loss:

        [First,] the amount of the original mortgage loan less the price generated by any
        resale, or if there was no subsequent sale, the assessed value of the property the year
        of the original fraudulent transaction, resulting in an estimated loss of $2,550,257.80;
        and [second,] the same formula substituting 2010 for the year assessed value, which
        resulted in a loss of $2,691,057.80.

Appellee’s Brief at 57. As Chew points out, his expert, real estate appraiser Douglas Fink, explained

at the loss calculation hearing that assessed values are not accurate and have limited reliability. Fink

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No. 11-3625
United States v. Chew

did not otherwise take issue with the accuracy of the figures in the chart, but explained that the

diminution in value of mortgaged properties in the Dayton area between 2005 and 2010 was

attributable to the downturn in the real estate market, meaning that the government’s proposed

estimates do not reflect an accurate assessment of loss attributable to Chew’s participation in the

scheme.

       In reconciling the parties’ approaches, the district court gave partial weight to both. The

court used the government’s chart as its starting point and found that Chew was responsible for the

losses sustained by fifteen lenders in sixty-one transactions.       The court also accepted the

government’s proposed methodology for calculating loss. Yet, the court gave weight to Fink’s

opinion that much of the loss yielded by the government’s methodology was attributable to market

conditions and not Chew’s criminal conduct. Hence, the court calculated the loss to be less than half

the amount substantiated by the government’s chart and methodology.

       Although the government is obliged to prove loss by a preponderance of the evidence, fraud

losses need not be determined with precision; a reasonable estimate will do. United States v. Ashe,

47 F.3d 770, 776 (6th Cir. 1995); U.S.S.G. § 2B1., Application Note 3(C). The estimate of loss

must be based on available information, however, and, if it is, the district court’s determination is

entitled to appropriate deference. U.S.S.G. § 2B1.1, Application Note 3(C). The methodology here

proposed by the government and accepted by the district court is facially plausible; it represents an

estimate of loss based on available information. Yet, while the district court purportedly accepted

the methodology, it did not adopt the results yielded by the methodology. The court clearly and

justifiably took Fink’s testimony into account in reducing the loss estimate. See United States v.

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No. 11-3625
United States v. Chew

Crandall, 525 F.3d 907, 915 (9th Cir. 2008) (recognizing that there is little logic in increasing or

decreasing a defendant’s sentence as a result of such wholly independent and unpredictable factors

as the fluctuating values in the volatile real estate market). But Fink stopped short of proposing a

different loss estimate and Chew argued simply that the loss should be calculated to be zero and his

base offense level should not be increased. Considering all these circumstances, reviewing for abuse

of discretion, and deferring to the district court’s assessment of the available information, we uphold

the loss calculation as not having been shown to be procedurally unreasonable.2

       2. Number of Victims

       In his next claim of error, Chew contends the district court’s determination of the number of

victims of his misconduct was procedurally unreasonable. In applying § 2B1.1(b)(2) of the

Guidelines, the district court determined that Chew’s offense conduct involved fifteen lending

institution victims (i.e., more than nine, but less than fifty victims), warranting a two-level increase

in the base offense level.       In making this determination, the district court adopted the

recommendation of the presentence report (“PSR”) over Chew’s objection.                      The PSR

recommendation, in turn, was based on trial testimony of Special Agent Marcia Gross, who had

prepared spreadsheets detailing sixty-one mortgage transactions during the charged period, from

which Chew had received payments out of disbursements from fifteen different lending institutions.


       2
         This result is buttressed by harmless error analysis. That is, even if the district court’s
calculation of loss were deemed to be technically wanting, we would nonetheless find no injury to
Chew’s substantial rights because Chew’s sentence would be favorably affected only if the loss
sustained by these fifteen lenders as a result of these sixty-one transactions were shown to be
$400,000 or less. See United States v. Hooker, 456 F. App’x 549, 555 (6th Cir. 2012). The record
presented to the district court simply cannot be read as supporting that conclusion.

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No. 11-3625
United States v. Chew

A “victim” is defined as “any person who sustained any part of the actual loss determined under

subsection (b)(1).” U.S.S.G. § 2B1.1(b)(2), Application Note 1. Chew contends the government

failed to show that any of the fifteen lenders sustained actual loss as a result of his participation in

the scheme to defraud.

        This claim of error falls with resolution of the foregoing issue. Because we find no error in

the district court’s loss calculation (methodology and finding), its determination that the fifteen

lenders sustained cognizable injury will be upheld. We find no error in the determination that the

fifteen lending institutions from which Chew’s scheme fraudulently obtained funds were “victims.”

        3. Acceptance of Responsibility

        Finally, Chew argues the district court erred by denying him credit for acceptance of

responsibility. At sentencing, Chew argued that his exercise of his right to trial did not automatically

preclude credit for acceptance of responsibility under U.S.S.G. § 3E1.1. He cited the fact that he was

acquitted of numerous charges and contended that he had expressed remorse after the jury found him

guilty of some offenses. The district court summarily overruled the objection citing the rationale

given in the PSR:

        Pursuant to U.S.S.G. § 3E1.1, Application Note 2, this adjustment is not intended to
        apply to a defendant who puts the government to its burden of proof at trial by
        denying the essential factual elements of guilt, is convicted, and only then admits
        guilt and expresses remorse. Application Note 2 further notes that conviction by trial,
        however, does not automatically preclude a defendant from consideration for such
        a reduction. In rare situations a defendant may clearly demonstrate an acceptance of
        responsibility for his criminal conduct even though he exercises his constitutional
        right to trial. This may occur, for example, where a defendant goes to trial to assert
        and preserve issues that do not relate to factual guilt ( e.g., to make a constitutional
        challenge to a statute or a challenge to the applicability of a statute to his conduct).


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No. 11-3625
United States v. Chew

       In each such instance, however, a determination that a defendant has accepted
       responsibility will be based primarily upon pre-trial statements and conduct.

PSR, ¶ 46. On appeal, Chew conclusorily argues that the district court erred. He contends that he

was entitled to credit for acceptance of responsibility because he was truly remorseful.

       The district court’s denial of credit for acceptance of responsibility is reviewed with great

deference; only if it is shown to be clearly erroneous will it be disturbed. United States v. Genschow,

645 F.3d 803, 813 (6th Cir. 2011); United States v. Bacon, 617 F.3d 452, 456 (6th Cir. 2010). Chew

has presented no basis for finding clear error. That he “was truly remorseful” after being found

guilty, even if accepted as true, does not make out the “rare situation” where a defendant should be

granted credit despite having put the government to its proofs. We therefore uphold the district

court’s denial of credit for acceptance of responsibility.

                                        III. CONCLUSION

       We thus reject all five of defendant Chew’s claims of error. The district court’s judgment

is AFFIRMED.




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