                                                                    NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                               ________________

                                      No. 17-2241
                                   ________________

                            UNITED STATES OF AMERICA

                                             v.

                                 JONATHAN SNYDER,

                                                        Appellant
                                   ________________

                      Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                     (D.C. Criminal Action No. 2-15-cr-00248-002)
                       District Judge: Honorable Juan R. Sanchez
                                   ________________

                      Submitted Under Third Circuit L.A.R. 34.1(a)
                                   January 7, 2019

             Before: AMBRO, SHWARTZ, and FUENTES, Circuit Judges

                            (Opinion filed: January 30, 2019)

                                   ________________

                                       OPINION*
                                   ________________

AMBRO, Circuit Judge




*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
       Defendant-appellant Jonathan Snyder appeals the sentence for his four-count

conviction of wire fraud under 18 U.S.C. §§ 2 & 1343. His sentence was 37 months’

imprisonment, three years of supervised release, a special assessment of $400, and

restitution of $305,000. Snyder claims the District Court erred by misapplying the

Sentencing Guidelines and declining to grant a downward variance. We perceive no

error and thus affirm.

       I.     Background

       Snyder and another man, Trevor Summers, were co-owners of two companies,

Resound, LLC and StrawAds, Inc. Each man owned a substantial interest and exercised

substantial control over both companies, though Summers had overriding authority when

he and Snyder disagreed. The business plan for Resound was to develop a process for

printing food-grade advertisements on drinking straws, hold the patents for the process,

and collect royalties when other companies used the patents. The business plan for

StrawAds was to produce drinking straws using the patented Resound process. Investors

in Resound would be paid from royalties on its patents and investors in StrawAds would

be paid from proceeds from straw sales. Between March 2010 and August 2011,

Summers and Snyder obtained $485,000 in investment capital for the companies and

hired several employees.

       To entice and retain these employees and investors, Summers and Snyder made

false representations about their companies’ ownership of patents, machinery, and

purchase-contracts from big-name customers. With these and other falsehoods, they

maintained for a while the illusion of a promising venture. But the companies never

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came close to turning a profit. As they slipped into financial distress, relations broke

down among Snyder, Summers, their employees, and their investors. In the end, the

employees lost their jobs, the investors lost their money, and Snyder and Summers were

indicted as co-defendants for six counts of wire fraud. Each of the counts was linked to a

specific investment in the companies or a specific email sent by Summers or Snyder.

         Summers pled guilty but Snyder went to trial. He was convicted of four counts

and acquitted of two. The convicted counts related to a $110,000 wire transfer from

“J.C.” in September 2010, a $50,000 wire transfer from “B.M.” in October 2010, a

$10,000 wire transfer from “P.O.” in December 2010, and an email from Snyder to

“K.F.” in March 2011. The acquitted counts related to a $15,000 wire transfer from

“P.D.” in November 2010 and an email from Summers to “K.F.” in March 2011.

         At sentencing the District Court adopted the facts and Guidelines calculations in

Snyder’s pre-sentence report. It established a base offense level of seven, plus a twelve-

level enhancement under U.S.S.G. § 2B1.1 because the “actual loss” attributable to

Snyder was $305,000, plus a two-level enhancement under U.S.S.G. § 2B1.1(b)(2)(A)(i)

because the offense involved more than ten victims. It thus calculated an adjusted

offense level of 21, which yielded an advisory Guidelines range of 37 to 46 months’

imprisonment. After considering his various objections, the Court sentenced Snyder as

noted above. He appeals the sentence to us.1




1
    We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
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       II.    Discussion

       Snyder contends the District Court erred by denying his request for a mitigating-

role adjustment, calculating a loss amount of $305,000 (he says it should have been

$240,000), and denying his request for a downward variance. We address each argument

in turn.

              A. Mitigating Role

       The mitigating-role Guideline “provides a range of adjustments for a defendant

who plays a part in committing the offense that makes him substantially less culpable

than the average participant.” U.S.S.G. § 3B1.2 cmt. 3(A). To determine whether a

defendant qualifies for a mitigating-role adjustment, the sentencing court must assess the

relative culpability of the defendant compared to participants in the overall criminal

activity in which the defendant was involved. See United States v. Isaza–Zapata, 148

F.3d 236, 238–39 (3d Cir. 1998). We have identified several factors that should guide

this determination, see United States v. Headley, 923 F.2d 1079, 1084 (3d Cir. 1991), and

the Sentencing Commission has issued further guidance in comments to the

Guideline, see U.S.S.G. § 3B1.2 cmt. 3. So long as the sentencing court employs the

correct inquiry, we review the denial of a mitigating-role adjustment for clear error.

See United States v. Self, 681 F.3d 190, 200 (3d Cir. 2012).

       The District Court addressed Snyder’s request for a mitigating-role adjustment by

engaging in a detailed comparative analysis between his conduct and that of Summers.

The Court expressly noted that Snyder understood the scope of the criminal scheme,

participated directly in decision-making relevant to the scheme, exercised decision-

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making authority over important aspects of it, and stood to benefit personally from its

success.

       Snyder claims he should have received a mitigating-role adjustment because his

business partner, Summers, was the driving force behind the scheme. But even if

Summers made a greater contribution to that scheme than did Snyder, that does not mean

the Court was required to grant him a mitigating-role adjustment. See United States v.

Brown, 250 F.3d 811, 819 (3d Cir. 2001). That determination is not so rigid; rather, it

gives a district court “broad discretion in applying” the adjustment, Isaza-Zapata, 148

F.3d at 238, so long as it engages in the required comparison and considers relevant

factors. The District Court did that here, and we perceive no error in its analysis.

Although Snyder may have been less culpable than Summers, he nonetheless was

actively involved in forming and managing the businesses, making written and oral

representations to investors and employees, and profiting financially (at least

temporarily) from the various falsehoods he and Summers made. On this factual record

we cannot say the Court’s denial of a mitigating-role adjustment was clearly erroneous.

              B. Loss Amount

       For certain economic offenses, including wire fraud, the Guidelines provide

upward enhancements based on the amount of loss attributable to a defendant’s offense.

U.S.S.G. § 2B1.1. The Guidelines require an individualized inquiry into the amount of

loss attributable to a specific defendant. See United States v. Metro, 882 F.3d 431, 439,

441 (3d Cir. 2018). To calculate the loss attributable to Snyder, the District Court started

from the total $485,000 he and Summers received for their businesses from outside

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investors. It then excluded $180,000 invested by S.K. ($150,000), S.C. ($20,000), and

T.A. ($10,000), yielding a loss amount of $305,000. That resulted in a twelve-level

enhancement because it is greater than $250,000 and not greater than $550,000. U.S.S.G.

§ 2B1.1(b)(1)(G)–(H). The Court declined Snyder’s request to exclude investments

made by B.C. ($50,000) and P.D. ($15,000). Had it excluded those investments,

Snyder’s loss amount would have been $240,000 and his adjusted offense level would

have been two levels lower. See id. § (b)(1)(F)–(G).

       Snyder contends the District Court should have excluded the $50,000 investment

by B.C. in August 2011 because, by that time, Snyder was extricating himself from the

relationship with Summers and had no intention of seeking further investment. In other

words, Snyder argues that B.C.’s investment was not “(i) within the scope of [his] jointly

undertaken criminal activity, (ii) in furtherance of that criminal activity, and (iii)

reasonably foreseeable in connection with that criminal activity,” as would be required to

impute the investment to him under the Guidelines. See U.S.S.G. § 1B1.3(a)(1)(B). But

the District Court rejected these arguments at sentencing based on its factual finding that

Snyder was still involved in the companies as a partner when B.C. made the investment.

We review that application of the Guidelines to Snyder’s specific factual circumstances

for abuse of discretion, see Metro, 882 F.3d at 437, and we perceive none. The Court

was within its discretion to reject Snyder’s contention that he had so extricated himself

from the companies’ affairs by August 2011 that he was no longer a participant in the

fraudulent scheme or was unable to foresee that Summers would continue the companies’

practice of obtaining investment to shore up declining finances.

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      Snyder also contends the Court should have excluded the $15,000 investment by

P.D. in November 2010 because, according to him, he could not reasonably have

foreseen it. To support this argument, he emphasizes that the jury acquitted him of Count

Three of the indictment, which was premised on the $15,000 investment by P.D. His

theory is that the jury must have concluded he was not responsible for P.D.’s investment,

which, he says, precludes the sentencing court from including that investment in his loss

amount. But the jury’s acquittal on the fraud count related to P.D.’s investment does not

compel the Court to disregard that investment at sentencing and cannot be interpreted to

mean the jury made any specific factual finding. See United States v. Ciavarella, 716

F.3d 705, 735–36 (3d Cir. 2013) (“‘[A] jury’s verdict of acquittal does not prevent the

sentencing court from considering conduct underlying the acquitted charge so long as that

conduct has been proved by a preponderance of the evidence.’” (quoting United States v.

Watts, 519 U.S. 148, 157 (1997))). To the contrary, the District Court had discretion at

sentencing to include P.D.’s investment in Snyder’s loss amount under the

preponderance-of-the-evidence standard. See id. Given the record evidence of Snyder’s

ownership, control, and management of the companies, as well as his direct involvement

in soliciting investment from the man who brought in P.D.’s investment, the Court was

within its discretion to conclude that investment was reasonably foreseeable to Snyder.

      In summary, the District Court did not abuse its discretion in declining Snyder’s

request to exclude from his loss amount the investments by B.C. and P.D.




                                            7
              C. Downward Variance

       Snyder claims the District Court erred by denying his request for a downward

variance. To make this argument, he invokes the general rule that a sentence under

18 U.S.C. § 3553(a) must be “‘sufficient, but not greater than necessary,’ to accomplish

the goals of sentencing.” Kimbrough v. United States, 552 U.S. 85, 101 (2007) (quoting

18 U.S.C. § 3553(a)). We review the District Court’s denial of a downward variance for

abuse of discretion. Id. at 111.

       Snyder says he should have received a sentence of 24 months of house arrest

without any term of imprisonment. In making this argument, he essentially disputes the

weight the Court gave to various sentencing considerations. He claims it should have

shown more leniency in light of his lack of criminal history, his family’s reliance on him,

his need to continue working to pay restitution, his good character as attested by various

witnesses, his low likelihood of reoffending, and his charitable work in the community.

But Snyder does not suggest the Court failed entirely to consider these factors or

otherwise commit any procedural error under § 3553(a). Accordingly, he cannot

establish that it erred in denying the variance unless he shows that “no reasonable

sentencing court” would have done so. See United States v. Harris, 751 F.3d 123, 129

(3d Cir. 2014) (quoting United States v. Tomko, 562 F.3d 567, 568 (3d Cir. 2009) (en

banc)). And he fails to make that showing here. The record shows the Court carefully

considered each of the mitigating factors Snyder now highlights and carefully weighed

the relevant factors under § 3553(a). The sentence may have been greater than what

Snyder requested, but it was at the bottom of the Guidelines range. See United States v.

                                             8
Woronowicz, 744 F.3d 848, 852 (3d Cir. 2014) (“Sentences within the Guidelines range

are more likely to be reasonable than those that fall outside this range.” (quotation

omitted)). Indeed it was a lenient sentence given that Snyder was convicted of four

counts of wire fraud based on falsehoods he told for his own financial gain, with more

than ten victims and more than $300,000 in financial loss. Under these circumstances we

cannot conclude the Court abused its discretion in declining to grant Snyder a downward

variance from the Guidelines range.

                               *      *       *      *      *

       We sustain none of the errors Snyder claims on appeal and thus affirm.




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