                                                                               FILED
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                                       PUBLISH
                                                                          April 28, 2015
                     UNITED STATES COURT OF APPEALS
                                                                       Elisabeth A. Shumaker
                                                                           Clerk of Court
                                  TENTH CIRCUIT



 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

 v.                                                         No. 14-1075

 ROGER KEITH HOWARD,

       Defendant - Appellant.



           APPEAL FROM THE UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLORADO
                     (D.C. No. 1:12-CR-00039-RBJ-1)


Elizabeth L. Harris, Law Office of Elizabeth L. Harris, LLC, Denver, Colorado, for
Defendant -Appellant.

Paul Farley, Assistant United States Attorney (John F. Walsh, United States Attorney,
with him on the brief), Denver, Colorado, for Plaintiff - Appellee.



Before KELLY, LUCERO, and HARTZ, Circuit Judges.


HARTZ, Circuit Judge.
         Defendant Roger Howard pleaded guilty to three counts of wire fraud, see

18 U.S.C. § 1343, and one count of money laundering, see id. § 1957, arising from his

participation in three mortgage-fraud schemes. His participation included identifying

property buyers, arranging for their applications for mortgage loans to overstate assets

and incomes, and obtaining inflated property appraisals and kickbacks to himself and

some buyers. All buyers defaulted on their mortgage notes. Some notes had been sold

by the original lenders to downstream lenders, who may themselves have resold the

notes.

         The United States District Court for the District of Colorado sentenced Defendant

to 108 months’ imprisonment and ordered him to pay $8,862,191.18 in restitution. He

argues that the district court made two errors in imposing the sentence: (1) it improperly

increased his offense level by miscomputing the loss to the mortgage lenders, see USSG

§ 2B1.1; and (2) it awarded restitution to alleged victims without evidence of their actual

losses. Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742, we affirm

the determination of loss under USSG § 2B1.1, which was calculated in accordance with

our precedents, but we largely agree with Defendant’s restitution argument and therefore

reverse the restitution order and remand for further proceedings.

I.       LOSS UNDER USSG § 2B1.1(B)(1)

         Under the sentencing guideline for fraud, the offense level is based on the amount

of loss. See USSG § 2B1.1(b)(1). The district court calculated the loss caused by


                                              2
Defendant to be $8,961,191.18. For losses exceeding $7 million but less than $20

million, the offense level is 20. See id. § 2B1.1(b)(1)(K).

       In mortgage-fraud cases like this, “[a]ctual loss” under USSG § 2B1.1 cmt.

n.3(A)(i) “is the unpaid portion of the loan as offset by the value of the collateral.”

United States v. Crowe, 735 F.3d 1229, 1241 (10th Cir. 2013) (internal quotation marks

omitted), cert. denied, 134 S. Ct. 1565 (2014). “[S]o long as it is foreseeable that loans

will be sold or repackaged, both the original lenders and downstream lenders are

foreseeable victims of the fraud, and the general formula applies.” United States v.

Smith, 705 F.3d 1268, 1276 (10th Cir. 2013). “That is so because any gains or losses

sustained by the original lender will be offset by a corresponding loss or gain by the

downstream lender, leaving the total loss to equal mortgage balance minus foreclosure

price.” Id. As a result, “the number of lenders involved and the amount of profit made

[or loss suffered] by the original lender or any intermediate lenders is mathematically

irrelevant to the calculation of the total loss caused by the fraud.” Id. (emphasis and

internal quotation marks omitted).

       Defendant does not dispute that the district court’s method of calculating loss was

the method dictated by our precedents. Instead, he challenges the loss amount based on

three arguments not raised below: (1) the government’s evidence was insufficient to

prove $709,588 in losses on eight loans included in the loss amount; (2) the court should

have reduced the loss amount by $973,935 to account for interest payments made on the

loans; and (3) the court should not have included $313,261 in losses to a downstream
                                              3
noteholder that purchased three loans after the buyers had defaulted. Based on these

arguments, he concludes that the correct total loss amount is $6,964,407 (instead of

$8,961,191). See Aplt. Br. at 27. Because his offense level and guidelines range remain

the same unless the net actual loss is $7 million or less, see USSG § 2B1.1(b)(1)(K),

Defendant cannot prevail if we reject any argument challenging more than $35,593.

       When the defendant objects to the loss calculation below, we review the district

court’s factual findings for clear error and calculation methodology de novo. See Crowe,

735 F.3d at 1235‒36. But because Defendant failed to object below on the grounds

argued here, we review only for plain error. See id. at 1242. Relief is available under the

plain-error standard only if Defendant establishes four elements: “(1) the district court

committed error; (2) the error was plain—that is, it was obvious under current well-

settled law; (3) the error affected the Defendant’s substantial rights; and (4) the error

seriously affected the fairness, integrity, or public reputation of judicial proceedings.”

United States v. Gantt, 679 F.3d 1240, 1246 (10th Cir. 2012) (brackets and internal

quotation marks omitted). Defendant must establish all four elements. See id. “[T]he

failure of any one will foreclose relief and the others need not be addressed.” Id.

       Defendant argues that the district court committed plain error by counting losses

on certain loans totaling $709,588. Among those losses are the amounts of five second-

mortgage loans totaling $422,588. The court calculated the losses from printouts from

UTLS Default Services. The printouts showed the amounts of the loans and named the

noteholders. Defendant asserts that the amounts cannot be believed because each
                                              4
printout is indisputably wrong in naming the holder of the first-mortgage note on the

property. This challenge to the loss calculation raises solely a question of fact—was

there a second mortgage in the amount stated on the printout? But “factual disputes

regarding sentencing not brought to the attention of the district court do not rise to the

level of plain error.” United States v. Lewis, 594 F.3d 1270, 1288 (10th Cir. 2010)

(brackets and internal quotation marks omitted).

       Defendant relies on United States v. Goode, 484 F.3d 676, 681 (10th Cir. 2007),

for the proposition that sufficiency of the evidence can be reviewed for plain error.

Goode, however, involved a challenge to the sufficiency of the evidence of guilt at a

criminal trial, where different considerations are in play than with sentencing.1 More

importantly, the issue raised by Defendant is one of admissibility of evidence—was the

printout sufficiently reliable to be used to establish the amount of the second mortgage

notes?—not sufficiency. Because Defendant failed to object to the evidence below, there

was no need for the government to explain why the printout was likely to be accurate.

Defendant has given us no reason to believe that the government could not present

reliable evidence on remand of the amount of the second-mortgage loans. See Lewis, 594

1
 For example, if the appellate court determines that there was insufficient evidence of
guilt, the Double Jeopardy Clause forbids the government from gathering more evidence
and subjecting the defendant to a second trial, see Burks v. United States, 437 U.S. 1,
14‒17 (1978); but the Double Jeopardy Clause does not apply to noncapital sentencing,
see Monge v. California, 524 U.S. 721, 728‒29 (1998). As a result, only in the
sentencing context does an appellate court reviewing for plain error consider whether
anything ultimately would be accomplished by a remand for further proceedings. See
Lewis, 594 F.3d at 1288.

                                              5
F.3d at 1288. We are not disposed to ignore our binding precedents regarding the scope

of plain-error review of sentencing determinations.

II.    RESTITUTION

       The award of restitution in this case is governed by the Mandatory Victims

Restitution Act of 1996 (MVRA), which “requires certain offenders to restore property

lost by their victims as a result of the crime.” Robers v. United States, 134 S. Ct. 1854,

1856 (2014). Defendant’s principal challenge is to the method of calculating the loss to

downstream lenders—that is, lenders who did not originate the mortgage loan but

purchased it from the original lender or an earlier downstream lender. Because we agree

with this challenge and remand for further proceedings, we need not address his other

challenges, which had not been raised below and can be considered on remand.

       The MVRA requires that a defendant convicted of an offense against property,

including any offense committed by fraud or deceit, be ordered to pay restitution to

victims of the offense. See 18 U.S.C. § 3663A(a)(1), (c)(1)(A)(ii). Payment is to be

made to “an identifiable victim or victims [who] suffered . . . pecuniary loss.” Id.

§ 3663A(c)(1)(A)(ii), (B). A victim is “a person directly and proximately harmed as a

result of the commission of an offense for which restitution may be ordered.” Id.

§ 3663A(a)(2). “Restitution must not unjustly enrich crime victims or provide them a

windfall.” United States v. Ferdman, 779 F.3d 1129, 1132 (10th Cir. 2015). District

courts thus “may not order restitution in an amount that exceeds the actual loss caused by

the defendant’s conduct, which would amount to an illegal sentence.” Id. (internal
                                             6
quotation marks omitted); see also United States v. Griffith, 584 F.3d 1004, 1019 (10th

Cir. 2009) (“a district court that orders restitution in an amount greater than the total loss

caused by the offense thereby exceeds its statutory jurisdiction and imposes an illegal

sentence”) (internal quotation marks omitted)).

       In disputes over the amount of a victim’s loss, the government bears the burden of

persuasion by a preponderance of the evidence. See 18 U.S.C. § 3664(e). The district

court “may consider hearsay evidence that bears minimal indicia of reliability so long as

the defendant is given the opportunity to refute the evidence.” United States v.

Rodriguez, 751 F.3d 1244, 1261 (11th Cir. 2014) (internal quotation marks omitted), cert.

denied, 135 S. Ct. 310 (2014); cf. United States v. Sunrhodes, 831 F.2d 1537, 1544 (10th

Cir. 1987) (admission of hearsay testimony with substantial indicia of reliability in

restitution proceeding did not violate hearsay rule or Confrontation Clause). We review

the restitution order for an abuse of discretion, which requires us to review factual

findings for clear error and application of the MVRA de novo. See Ferdman, 779 F.3d at

1131; United States v. Battles, 745 F.3d 436, 460 (10th Cir. 2014), cert. denied,

135 S. Ct. 355 (2014); cf. Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405 (1990)

(reviewing sanction under Fed. R. Civ. P. 11: “A district court would necessarily abuse

its discretion if it based its ruling on an erroneous view of the law or on a clearly

erroneous assessment of the evidence.”).

       The “victim” identified for each loan was the holder of the note when the property

went into foreclosure. The district court calculated the restitution amount for each
                                               7
identified victim using the same method it employed in calculating loss under

USSG § 2B1.1—by adding the unpaid principal balances on each loan held by the victim

and subtracting the amounts recovered from sales of the properties securing the loans.

(The total restitution amount was $99,000 less than the loss under § 2B1.1 because the

noteholder on one loan had not been identified.)

       Defendant contends that the court “applied an incorrect methodology for

computing restitution.” Aplt. Br. at 10. He argues that the MVRA limits restitution to

“actual, out-of-pocket losses,” id., and that the measure of actual loss to a downstream

lender is “the difference between what the successor lender paid for the loan . . . and

proceeds obtained from payments and sale of collateral,” id. at 10‒11. The method used

to calculate restitution in this case—subtracting the amounts recovered through

foreclosure sales from the unpaid principal balances on the loans—does not reflect actual

loss to downstream noteholders, he says, because they could have paid less than the

unpaid balance to acquire the notes. See id. at 11, 30‒31.

       Defendant’s argument is correct. Although the total-loss calculation under

USSG § 2B1.1 does not depend on which lender in the chain of title of a mortgage note

suffered what loss, that information is necessary to avoid windfalls in awarding

restitution. A hypothetical example illustrates why. Say, the original mortgage note was

for $500,000; the original noteholder sold the note to a downstream lender for $200,000;

the borrower made no payments on the note; and foreclosure on the property netted

$100,000. Under the district court’s methodology, Defendant would have to pay the
                                             8
downstream lender restitution of $400,000 ($500,000 less $100,000 from the foreclosure

sale), although its loss was only $100,000. That would create an unlawful windfall for

the downstream lender.

       Other circuits agree with this analysis. The Ninth Circuit has noted that

“[b]ecause the value of [the] loan is not necessarily its unpaid principal balance, but may

vary with the value of the collateral, the credit rating of the borrower, market conditions,

or other factors, the loan purchaser may have purchased the loan for less than its unpaid

principal balance.” United States v. Yeung, 672 F.3d 594, 602 (9th Cir. 2012), overruled

in part on other grounds by Robers, 134 S. Ct. 1854. As a result, it said, “To calculate a

victim’s restitution award using the outstanding principal balance of the loan, if the

victim only paid a fraction of that amount to obtain the loan on the secondary market,

would cause the victim to receive an amount exceeding its actual losses.” Id.; see United

States v. Chaika, 695 F.3d 741, 748 (8th Cir. 2012) (“The ultimate foreclosure sale price

is irrelevant to an initial lender who sold the loan, while the purchasing secondary lender

may not be a victim, and if it is, actual loss will turn on its purchase price in the

secondary market, whether it remained on the loan all the way to foreclosure, and perhaps

other factors.”); United States v. v. Beacham, 774 F.3d 267, 278‒79 (5th Cir. 2014)

(following Chaika and Yeung).

       The government contends that this point was not raised below, but we disagree.

Defendant’s sentencing memorandum argued that the restitution calculations in the

probation office’s presentence report were flawed because they did not examine the
                                               9
purchase prices paid by downstream holders of the mortgage notes, and he reminded the

district court of the issue at the sentencing hearing. Once that objection to the

government’s methodology was clear, Defendant was not also required to object to the

evidence offered in reliance on the challenged methodology. He gave ample notice that

he objected to a restitution calculation that did not identify the specific losses of

individual noteholders in the chain of title of a mortgage note. When the government did

not put on such evidence, it took the risk that we would agree with Defendant’s legal

argument.

       We recognize that the government may be able to explain (on remand) why the

restitution calculation is “a reasonable estimate of the loss,” United States v. James, 564

F.3d 1237, 1248 (10th Cir. 2009) (internal quotation marks omitted); but it did not

provide such an explanation in the district court and, equally important, the court itself

made no finding on the point. See Ferdman, 779 F.3d at 1133 (district courts may not

“dispense with the necessity of proof as mandated by the MVRA and simply ‘rubber

stamp’ a victim’s claim of loss based upon a measure of value unsupported by the

evidence,” and restitution awards may not be based on “[s]peculation and rough justice”

(internal quotation marks omitted)). The presentence report stated that the victims it

identified had not responded to correspondence from the probation office. The FBI agent

who testified at the sentencing hearing about the losses caused by Defendant said that he

did not know whether original lenders had suffered losses on any loans sold, and that he

had no information about the amounts paid by downstream noteholders to purchase the
                                              10
loans. He never testified that the information was not available and, for all the record

reveals, he never asked for it. Neither the failure of a victim to respond to a request for

evidence of actual loss nor the government’s unexplained failure to obtain the necessary

proof suffices to justify a restitution award. There is no public interest served by

requiring that restitution be paid to an alleged victim who declines to cooperate in

providing the evidence necessary to establish its loss.

        In short, although the impact of sales of mortgage notes to downstream lenders is

generally irrelevant to the total-loss calculation under USSG § 2B1.1, it is highly relevant

in calculating restitution under the MVRA. See United States v. James, 592 F.3d 1109,

1116 n.6 (10th Cir. 2010) (“the calculation of loss for sentencing purposes does not

necessarily establish loss for the purpose of awarding restitution under the MVRA”). We

remand with instructions that the district court vacate its restitution order and redetermine

the amount of actual loss to identified downstream-noteholder victims. Should the court

find the existing record to be insufficient to permit a proper calculation of a victim’s

actual loss, the court may “(1) ask the Government to submit additional evidence,

(2) hold an evidentiary hearing, or (3) decline to order restitution.” Ferdman, 779 F.3d at

1133.

III.    CONCLUSION

        We AFFIRM the district court’s calculation of loss under USSG § 2B1.1 and

REMAND with instructions that the court VACATE its restitution order for

redetermination of the amount of actual loss to apparent victims.
                                             11
