                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                    April 26, 2011
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                    Clerk of Court
                                   TENTH CIRCUIT


 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                         No. 10-1223
 v.                                            (D.C. No. 09-CR-00067-CMA-1)
                                                          (D. Colo.)
 DAVID GWIN,

          Defendant - Appellant.


                              ORDER AND JUDGMENT *


Before KELLY, HARTZ, and HOLMES, Circuit Judges. **


      Defendant-Appellant David Gwin appeals his sentence after pleading guilty

to wire fraud, arguing that the district court calculated his criminal history

category based on clearly erroneous facts. We have jurisdiction under 28 U.S.C.

§ 1291, and we affirm.




      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
                                    Background

      In February 2009 a federal grand jury indicted Mr. Gwin on eleven counts

of wire fraud, three counts of using the proceeds of wire fraud in a monetary

transaction, and one count seeking forfeiture of the unlawfully obtained property.

1 R. 15. Pursuant to a plea agreement, Mr. Gwin pleaded guilty to counts one,

thirteen, and fifteen, and the government dropped the remaining counts. Id. at

132, 156; 2 R. 13. The district court ordered restitution and sentenced Mr. Gwin

to 96 months’ imprisonment and 3 years’ supervised release. 1 R. 194-97. The

sentence was based on a criminal history category of VI, which included two

points for commencing the fraudulent scheme while on parole for a prior felony.

Id. at 200, 2 R. 31.



                                     Discussion

      We review for clear error factual findings that form the basis for the district

court’s calculation of a defendant’s criminal history category. United States v.

Caldwell, 585 F.3d 1347, 1353 (10th Cir. 2009) (citation omitted). Factual

findings are clearly erroneous if they are without support in the record or if,

“after reviewing all the evidence, we are left with a definite and firm conviction

that a mistake has been made.” Plaza Speedway, Inc. v. United States, 311 F.3d

1262, 1266 (10th Cir. 2002) (internal quotation marks, brackets, and citation

omitted).

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      Both parties agree that Mr. Gwin was on parole for a prior felony until

October 30, 2003. See 2 R. 29, 3 R. 22. The district court found that Mr. Gwin

commenced the fraudulent scheme on either October 11 or 20, 2003, before his

parole ended. 3 R. 113. On appeal, Mr. Gwin challenges this factual finding.

See Aplt. Br. 5-6. He does not challenge the district courts’ legal conclusions or

interpretation of the sentencing guidelines.

      Mr. Gwin argues that there is no evidence in the record to support the

district court’s conclusion that the fraudulent scheme began before his parole

ended on October 30, 2003. Although at sentencing the government presented

testimony that Asset Funding Solutions, Inc. (“ASFI”), Mr. Gwin’s employer,

received money from an investor that was never repaid, Mr. Gwin argues that

there is no evidence that ASFI received that money as a result of Mr. Gwin’ s

misrepresentations or that he acted with fraudulent intent at the time. Id. at 9.

      We disagree. The record reveals ample evidence in support of the district

court’s conclusion. Although the government argues that this issue was waived or

forfeited due to stipulations in the plea agreement and Mr. Gwin’s failure to

object until sentencing, the district court in its discretion elected to hear the issue

on the merits and render a decision, as do we. 3 R. 58.

      The indictment alleged that Mr. Gwin’s wire fraud began “at least as early

as October 2003.” 1 R. 8. More specifically, the plea agreement stated that the

scheme began “on or about October 20, 2003.” Id. at 139. Mr. Gwin stipulated

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that the facts in the plea agreement were correct. Id. at 153. Likewise, the

presentence report (“PSR”) noted that Mr. Gwin received payments pursuant to

his fraudulent scheme starting on October 20, 2003. 2 R. 14. Mr. Gwin did not

object to this portion of the PSR. See 2 R. 5.

      At the sentencing hearing, the government produced a witness, Janet

Hukill, who testified that Mr. Sorenson, a victim of Mr. Gwin’s fraud, contacted

Mr. Gwin on October 11, 2003. 3 R. 65, 67. Mr. Sorenson sought funding for a

planned development. Id. at 67. Mr. Gwin indicated that ASFI could easily

obtain the funding, and that half of the up-front fees would be returned if funding

fell through. Id. at 67-68. On October 20, 2003, Mr. Sorenson paid $15,000 to

ASFI in up-front fees. Id. at 69. ASFI never funded Mr. Sorenson’s project, and

never returned half of the up-front fees, despite its prior promise to do so. Id. at

71. The government also introduced documentary evidence supporting Ms.

Hukill’s testimony. Id. at 68-70.

      This evidence supports the district court’s conclusion that the fraudulent

scheme began before October 30, 2003, while he was still on parole. Although

there was no direct evidence of fraudulent intent, the evidence was sufficient for

the district court to infer that Mr. Gwin intended to defraud Mr. Sorenson. See

United States v. Schuler, 458 F.3d 1148, 1152 (10th Cir. 2006). Further, the

similarity between the conduct described by Ms. Hukill and that which formed the

core of the indictment supports the conclusion that Mr. Gwin’s actions were part

                                         -4-
of the same fraudulent scheme. See 1 R. 9-10. Indeed, Mr. Sorenson’s proposed

project—the Poudre River Ranch—was specifically cited in the indictment as an

instance of fraud. See id. at 10. Finally, Mr. Gwin himself stipulated that the

scheme began on October 20, 2003. Id. at 139, 153. Given this record, we cannot

say that the district court’s findings were clearly erroneous.

      AFFIRMED.

                                       Entered for the Court


                                       Paul J. Kelly, Jr.
                                       Circuit Judge




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