                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 12a0168n.06

                                           Nos. 10-1413, 10-1415

                              UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT
                                                                                              FILED

UNITED STATES OF AMERICA,                                        )                       Feb 13, 2012
                                                                 )                LEONARD GREEN, Clerk
        Plaintiff-Appellee,                                      )
                                                                 )
v.                                                               )    ON APPEAL FROM THE
                                                                 )    UNITED STATES DISTRICT
DANIEL VANDERZWAAG and                                           )    COURT FOR THE WESTERN
PATRICIA VANDERZWAAG,                                            )    DISTRICT OF MICHIGAN
                                                                 )
        Defendant-Appellants.                                    )



Before: BOGGS and WHITE, Circuit Judges; and BERTELSMAN, District Judge.*

        BOGGS, Circuit Judge. Daniel and Patricia VanderZwaag, husband and wife, obtained two

mortgages on the same piece of property, 2121 Oak Hollow Drive in Jenison, Michigan. For the first

mortgage of $175,000, obtained from Accredited Home Finance, Daniel supplied false information

about his employment history and earnings. For the second mortgage of $137,250, obtained from

Option One, Daniel supplied false information about his employment history and earnings, and failed

to disclose to the lender that the same property had already been pledged as collateral to the first

mortgage. These two acts served as the basis for counts 1 and 2 of the second superseding

indictment. Count 1 alleged a violation of the mail-fraud statute, 18 U.S.C. § 1341. Count 2 alleged




        *
           The Honorable W illiam O. Bertelsman, United States District Judge for the Eastern District of Kentucky,
sitting by designation.
Nos. 10-1413, 10-1415
United States v. Daniel VanderZwaag, et al.

a violation of the wire-fraud statute, 18 U.S.C. §§ 1343. Both counts also alleged a violation of the

aiding-and-abetting statute, 18 U.S.C. § 2.

         The government alleges that Patricia transferred part of the loan proceeds from the Option

One mortgage from one of her bank accounts to another. The government charged in count 3 of the

indictment that this act violated the money-laundering statute, 18 U.S.C. § 1957. The government

further alleges that Patricia applied for a mortgage from National City Bank on another property,

4233 Creek View Drive in Hudsonville, Michigan, and supplied a false social security number and

false earning and income statements. For this, the government brought count 4 of the indictment,

alleging a violation of the bank-fraud statute, 18 U.S.C. § 1344(1).

         Daniel and Patricia, who are represented by the same attorney on appeal—and were

represented by the same attorney during trial, though the transcript of the proceeding where any

conflicts of interest were waived seems to be curiously absent from the record1—collectively raise

five issues on appeal. First, Daniel and Patricia each contend that the convictions on counts 1 and

2 should be reversed because the indictment and jury instructions improperly stated that each

defendant could be found guilty both as a principal and as an aider and abettor. Second, Daniel and

Patricia contend that there was insufficient evidence to convict them on counts 1 and 2. Third,

Patricia contends that there was insufficient evidence to convict her on count 3. Fourth, Patricia


1
  Defendants characterize the missing transcript in this manner: “W hile Defendant VanderZwaag has ordered every
transcript in this matter, he has yet to be provided the transcript for this arraignment where the parties allegedly waived
their various conflicts of interest involving defense attorney Charles Rominger. Further, there are some financial
difficulties in paying for the preparation of the transcripts. However, Defendant-Appellant, through family and friends,
is attempting to obtain the transcript from this hearing so that it can be available for this court’s review.” Appellant
Daniel Br. at 7 n. 1. Further it seems the trial attorney was under investigation for tax fraud by the government at the
time of his representation. Id. at 16.

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United States v. Daniel VanderZwaag, et al.

contends that there was insufficient evidence to convict her on count 4. Fifth, Patricia alleges that

the sentencing guidelines were improperly calculated, the loss was improperly calculated, her

criminal history level over-stated her past crimes, the district court gave undue weight to the

guidelines, and the district court failed to consider the factors set forth in 18 U.S.C. § 3553(a). We

affirm the opinion of the lower court on all issues.

                                                    I

        Both Daniel and Patricia challenge the indictment and the jury instruction stating that each

could be found guilty as both a principal and as an aider and abettor. Daniel asserts that he could

only be found guilty as a principal, and not an aider and abettor. Because he “applied for the loans,”

Daniel argues, “he could not be found guilty as an aider and abettor.” Appellant Daniel Br. at 18.

Conversely, Patricia asserts that she could only be found guilty as an aider and abettor, and not as

a principal: “Daniel VanderZwaag was the only person who had a legal duty to provide accurate and

truthful information to the companies issuing the mortgages in those two counts.” Appellant

Patricia Br. at 21. In effect, both defendants concede they committed crimes in one of the roles

alleged in counts 1 and 2—Daniel as a principal, and Patricia as an aider and abettor—but argue that,

due to the conjunctive, rather than disjunctive, nature of the indictment, jury instructions, and verdict

form, the convictions must be reversed.

        Patricia further argues that because she had no legal relationship with either of the lenders,

she had no legal duty to provide accurate information, and thus could not be found “guilty of fraud

either as an aider and abettor or as a principal.” Appellant Patricia Br. at 26. Patricia also contends

that “[g]iven that she did not apply for either the Accredited or Option One loans, any ‘fraud’ she

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Nos. 10-1413, 10-1415
United States v. Daniel VanderZwaag, et al.

committed must be as an aider and abettor.” Id. at 29. These two preceding statements seem to be

contradictory. Finally, Patricia argues that “the Indictment, Jury Instructions, and Verdict Form were

insufficiently specific as to the theory of criminal liability, creating the possibility she was found

guilty of the offense as a principal or that the verdict was not unanimous on the theory of criminal

liability.” Id. at 26 .

         With respect to Daniel’s appeal, the government counters that “there was evidence in the

record supporting the defendant’s guilt under both theories, as there was proof that he did not

personally provide the false information submitted in connection with the loans.” Appellee Daniel

Br. at 13. Further, the district court’s failure to require “the jury to return a special verdict indicating

the theory of culpability it relied on to convict the defendant” did not constitute plain error. Ibid.

With respect to Patricia’s appeal, the government contends that “an aiding and abetting theory is

always available to the prosecution, whether or not it is explicitly stated in the charges.” Appellee

Patricia Br. at 20. And, as with Daniel, “there was no need to ask the jury . . . to specify what theory

it based its guilty verdicts upon.” Ibid.

                                                          II

Trial counsel made no objection to the indictment or the jury instructions. Because these alleged

errors were not preserved at trial, plain error analysis applies.2 In such situations, this court has held

that a defendant’s conviction must be upheld unless “the record is devoid of evidence pointing to


2
  Daniel mentions almost in passing that his 6th Amendment right to effective assistance of counsel was violated,
Appellant Daniel Br. at 17, and that this ineffective assistance may have resulted in the failure to preserve issues on
appeal. Id. At 19. The government does not address this issue, which does not seem to be relevant, or properly before
the court.

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United States v. Daniel VanderZwaag, et al.

guilt.” United States v. Frazier, 595 F.3d 304, 306 (6th Cir. 2010) (citing United States v. Mack, 159

F.3d 208, 216 (6th Cir. 1998)). We review a challenge to jury instructions “as a whole to determine

whether they fairly and accurately inform the jury of relevant considerations and explain the

applicable law.” United States v. Prince, 214 F.3d 740, 760-61 (6th Cir. 2000).

                                                 III

       In short, defendants argue that the indictment, jury instructions, and verdict form were

improper because they did not specify upon which theory of liability each could be convicted. Count

one of the Second Superseding Indictment, labeled “Mail Fraud,” charges Patricia and Daniel with

each violating both 18 U.S.C. § 1341 and 18 U.S.C. § 2. Likewise, count two of the Second

Superseding Indictment, labeled “Wire Fraud,” charges Patricia and Daniel with each violating both

18 U.S.C. § 1343 and 18 U.S.C. § 2. The verdict form for Counts 1 and 2 of the indictment reads

as follows:

1. As to Count 1, charging defendants with mail fraud, we find the defendants:

               A. Patricia VanderZwaag         ____ Not Guilty                ______ Guilty

               B. Daniel VanderZwaag           ____ Not Guilty                ______ Guilty

2. As to Count 2, charging defendants with wire fraud, we find the defendants:

               A. Patricia VanderZwaag         ____ Not Guilty                ______ Guilty

               B. Daniel VanderZwaag           ____ Not Guilty                ______ Guilty

       The court gave the jury the following instruction with respect to the aiding and abetting

offense:



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United States v. Daniel VanderZwaag, et al.

       For you to find the defendants guilty of each of the crimes charged in Counts One
       and Two of the Superseding Indictment, it is not necessary for you to find that he or
       she personally committed the crime. You may also find him or her guilty if he or she
       intentionally helped someone else to commit the crime. A person who does this is
       called an aider and abettor. But for you to find the defendants guilty as an aider and
       abettor, you must be convinced that the government has proved each and every one
       of the following elements beyond a reasonable doubt: First, that the particular crime
       charged was committed. Second, that the defendant helped to commit the crime.
       And third, the defendant intended to help commit the crime. Proof that the defendant
       may have known about the crime, even if he or she was there when it was committed,
       is not enough for you to find him or her guilty. You can consider this in deciding
       whether the government has proved that he or she was an aider and abettor, but
       without more, it is not enough. What the government must prove is that the
       defendant did something to help the crime with the intent that the crime was-- that
       the crime be committed. If you are convinced the government has proved all of these
       elements, say so by returning a guilty verdict on this charge. If you have a reasonable
       doubt about any one of these elements, then you cannot find the defendant guilty as
       an aider and abettor.

       As a logical matter, defendants make a fair point—how can one person be both a principal,

and at the same time an aider and abettor? However, this hypothesis is not supported by the case law:

the government is not required to choose one theory, and stick with it. “[T]he fact that the

government charges violation of a statute by both principal liability and liability for aiding and

abetting does not render an indictment duplicitous.” United States v. Banks, 27 F. App’x 354, 359

(6th Cir. 2001); United States v. Dean, 969 F.2d 187, 195 (6th Cir.1992) (same). This court has held

that a single defendant “may be indicted for the commission of a substantive crime as a principal

offender and convicted of aiding and abetting its commission although not named in the indictment

as an aider and abettor without violating federal due process.” Hill v. Perini, 788 F.2d 406, 407 (6th

Cir. 1986). In United States v. Hopper, this court upheld a conviction where two defendants “were

charged both as principals under §§ [18 U.S.C.] 111(a) and 924(c)(1)(A)(ii) and under 18 U.S.C. § 2


                                                -6-
Nos. 10-1413, 10-1415
United States v. Daniel VanderZwaag, et al.

as aiders and abettors.” 436 F. App’x 414, 421 (6th Cir. 2011). Even if the aider and abettor theory

is not charged, a defendant can still be found to violate 18 U.S.C. § 2. See United States v. McGee,

529 F.3d 691, 695 (6th Cir. 2008). The Sixth Circuit has interpreted aiding and abetting as a theory

of liability “embodied in every federal indictment, whether specifically charged or not,” and not a

distinct substantive crime. United States v. Floyd, 46 F.App’x 835, 836 (6th Cir. 2002).

       Defendants cite cases from other circuits for the proposition that for certain crimes, a person

cannot be found guilty as an aider and abettor. See e.,g., United States v. Shear, 962 F.2d 488 (5th

Cir. 1992); United States v. Falletta, 523 F.2d 1198 (5th Cir. 1975); United States v. Southard, 700

F.2d 1 (1st Cir. 1983). These cases are inapposite, and refer to specific statutes where courts have

carved out exceptions whereby a person cannot be found guilty as an aider and abettor. Defendants

even concede that “the cited cases do not directly address whether a person can be found guilty as

an aider and abettor when the principal defrauds a loan company”—precisely the question in this

case. Appellant Patricia Br. at 28-29.

       The underlying offenses for Count 1 and Count 2, 18 U.S.C. §§ 1341 and 1343—contrary

to defendant’s protestations—are not “limited to a certain category of Defendant,” and thus the “the

law does . . . allow liability to attach under an aiding and abetting theory.” Id. at 29. The statutes

speak generally and broadly—both § 1341 and § 1343 begin with “Whoever, having devised or

intending to devise any scheme or artifice to defraud, or for obtaining money or property by

means . . . .” Neither mentions specific roles in the offense, such as principals, aiders, or abettors.

Because Congress did not “specify[] the kind of individual who is to be found guilty,” we cannot

infer that Congress intended to exclude those acting in other roles—such as aiders and

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United States v. Daniel VanderZwaag, et al.

abettors—from being found guilty. United States v. Southard, 700 F.2d 1, 19-20 (1st Cir. 1983).

Cf. United States v. Amen, 831 F.2d 373, 381-82 (2d Cir. 1987) (“[w]hen Congress assigns guilt to

only one type of participant in a transaction, it intends to leave the other unpunished for the

offense”).

        Additionally, there is no requirement that the jury receive a special verdict form unless the

charge is complex or there is a fear of jury confusion. United States v. Algee, 599 F.3d 506, 514 (6th

Cir. 2010). This court has specifically held that district courts are “not required to give a special

‘unanimity instruction’” for aiding and abetting charges. United States v. Holt, 108 F. App’x 325,

327 (6th Cir. 2004).

        Here, Daniel and Patricia were both put on notice that the government was pursuing an

aiding-and-abetting theory by the inclusion of 18 U.S.C. § 2 in Counts 1 and 2 of the indictment, and

by the request for an aiding-and-abetting jury instruction. While Daniel concedes liability as a

principal but disputes liability as an aider or abettor, his subjective understanding of his role in the

offense is largely irrelevant. The government can choose to indict him under both roles, and request

instructions for both roles. Likewise, even though Patricia asserts that she could not have been a

principal in the offense, it is not duplicative to indict the same person in two different roles.

        While it is impossible to determine whether the jury convicted Daniel or Patricia or either

as a principal or as an aider or abettor, or both—and the district court may have been warranted in

issuing such a verdict form if trial counsel had so requested—there is no requirement that the district

court provide the jury with a special verdict form for an aiding and abetting charge. This omission

can only constitute plain error where “the record is devoid of evidence pointing to guilt.” United

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Nos. 10-1413, 10-1415
United States v. Daniel VanderZwaag, et al.

States v. Frazier, 595 F.3d 304, 306 (6th Cir. 2010) (citing United States v. Mack, 159 F.3d 208, 216

(6th Cir. 1998)). This is not the case, as an ample factual record exists to provide the jury with

grounds to find guilt. Defendants fail to allege any procedural-due-process or other constitutional

violations. The indictment, jury instructions, and verdict form were appropriate as to counts 1 and

2 for Daniel and Patricia.

                                                  IV

       Both Daniel and Patricia contend that there was insufficient evidence to convict them on

counts 1 and 2. Daniel argues that the material statements that he made about his earnings to the

loan companies were truthful, and that no contrary evidence was presented as to Count 1 and 2.

Specifically, he claims the loans in question were “stated” loans, such that only a person’s actual

credit history is relevant to the approval of the loan—not the (false) information provided on the

application. Effectively, whatever income Daniel reported to the mortgage company—whether true

or false—was not relevant to the approval of the loan. Thus, Daniel argues that his statements could

not be considered material.

       Patricia’s argument regarding the sufficiency of counts 1 and 2 blurs somewhat with her

earlier argument about her conviction as a principal and an aider or abettor. Patricia contends that

there was sufficient evidence to justify a conviction as an aider or abettor, but insufficient evidence

to support a conviction as a principal. As discussed earlier, the failure to supply the jury with a

special verdict form—the only means by which the court could have determined on which theory of

liability Patricia was convicted on counts 1 and 2—was not error. Next, the sufficiency of the



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United States v. Daniel VanderZwaag, et al.

evidence is considered to determine whether any rational trier of fact could find the elements of the

crime proven beyond a reasonable doubt, under either theory.

        Specifically, Patricia argues that “[g]iven that she did not apply for either the Accredited or

Option One loans, any ‘fraud’ she committed must be as an aider and abettor.” Appellant Br.

Patricia at 33. “[B]ecause Daniel VanderZwaag, and only Daniel VanderZwaag, applied for the

loans, only he had any duty to provide accurate and truthful information to the lenders.” Appellant

Br. Patricia at 29. Further, neither lender had the “right to rely on any information provided by an

outside person not part of the contractual loan information”—namely Patricia. Id. at 30. As a matter

of law, she argues, only Daniel could be found guilty. Additionally, Patricia argues that as “a

principal, none of her ‘acts’ or ‘statements’ could have a natural tendency to influence a person of

ordinary prudence or comprehension, because she had no obligation to provide any information,

truthful or otherwise, to the loan companies. If the loan officers chose to listen to her, as an outsider

to the contractual relationship, that decision was foolish and certainly not reasonable.” Appellant Br.

Patricia at 34. Patricia also concurs with her co-defendant that Daniel’s “material statements were

not fraudulent and, he, as principal, did not commit the substantive offense.” Id. at 35.

        The government contends that it proved Daniel, either as a principal or as an aider and

abettor, made material false statements in connection with the loans. The government proved

materiality through testimony showing that “wage and employment information is always important

to lenders,” that “the information was required by lenders and could affect the outcome of the loan

decision,” and that “borrower’s employment information influences the lending decision because it



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Nos. 10-1413, 10-1415
United States v. Daniel VanderZwaag, et al.

bears on the borrower’s ability to repay the loan.” Appellee Br. Daniel [United States’s Appellee

brief to Daniel’s Appellant brief] at 20-21.

        With respect to Patricia, the government argues that “record here shows that she was deeply

involved in the fraudulent scheme, and took the lead in supplying false information on loans

obtained by Daniel VanderZwaag.” Appellee Br. Patricia at 25. Specifically, the government

introduced testimony that Patricia “was the one who first contacted the mortgage broker who handled

the Accredited mortgage,” served “as the person who kept in contact with him during the loan

process,” and “presented false employment verifications.” Id. at 25-26. The government asserts that

the “jury was entitled to conclude that she intended to take these actions to assist the fraud because

the money obtained from Accredited paid off a debt she owed, and she used the Option One funds

to pay other bills.” Ibid.

        Trial counsel never made a motion for a judgment of acquittal under Federal Rule of

Criminal Procedure 29. In such cases, a conviction must be upheld unless “the record is devoid of

evidence pointing to guilt.” United States v. Frazier, 595 F.3d 304, 306 (6th Cir. 2010) (citing

United States v. Mack, 159 F.3d 208, 216 (6th Cir. 1998)). Under this standard, defendants do not

prevail. The government put forth sufficient evidence to show that Daniel’s false statements would

be capable of affecting the outcome of the loan decision, even if the loan decision was based purely

on Daniel’s credit score. See, e.g., United States v. Daniel, 329 F.3d 480, 486 (6th Cir. 2003)

(holding actual reliance is not required to satisfy the materiality requirement). See also United States

v. McAuliffe, 490 F.3d 526, 531 (6th Cir. 2007) (citations omitted). With respect to Patricia, there

was more than enough testimony adduced at trial to permit a rational finder of fact to determine that

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United States v. Daniel VanderZwaag, et al.

she was guilty. Her actions in presenting false information and procuring the loan are sufficient to

meet all of the elements of the crime. Even with some conflicts of testimony between the

government witnesses, and the defendants’ witnesses it cannot be said that “the record is devoid of

evidence pointing to guilt.” Frazier, 595 F.3d 304, 306 (6th Cir. 2010) (citing Mack, 159 F.3d at

216). There was sufficient evidence to support the convictions of Daniel and Patricia on counts 1

and 2.

                                                   V

         Patricia further contends that there was insufficient evidence to support a conviction on

count 3 of the indictment, the money-laundering charge. As discussed above, because trial counsel

never moved under Federal Rule of Criminal Procedure 29 for a judgment of acquittal, the

conviction must be upheld unless “the record is devoid of evidence pointing to guilt.” Frazier, 595

F.3d at 306. Patricia’s argument for count 3 is premised on our resolution of her sufficiency

argument for count 2—“[i]f this Honorable Court finds that there was insufficient evidence to

convict Daniel VanderZwaag and/or Patricia VanderZwaag of the accusations in Count 2, then

Defendant-Appellant’s conviction on Count 3 must be reversed.” Appellant Br. Patricia at 36.

         By her own admission, if we reject her argument on count 2, her argument for count 3 falls.

As previously discussed, there was sufficient evidence to justify the conviction of Count 2. This

argument, by Patricia’s own concession, must fail. Notwithstanding this concession, as the

government notes, Patricia “played an active, intentional role in supplying false information to

Option One,” “provided the mortgage broker with false earnings information related to Daniel,” and

falsely indicated that the property had no liens on it. Appellee Br. Patricia at 30. In any event, these

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United States v. Daniel VanderZwaag, et al.

fraudulent statements contributed to the loan awarded from Option One bank. Patricia subsequently

wired this money from one bank account into another. This evidence at trial is sufficient to support

a conviction for money laundering.

                                                 VI

       Next, Patricia challenges the sufficiency of the evidence for count 4 of her indictment, the

bank-fraud conviction. Patricia argues that any false statements she made to National City Bank to

obtain a loan—including providing a false social security number —were not material. Appellee Br.

Patricia at 37. Further, there was “insufficient evidence on whether she intended to defraud National

City.” Ibid. Defendant’s concession—that she knowingly provided a false social security

number—seems to undercut her sufficiency argument. She knowingly and intentionally gave a false

social security number to a bank to obtain a mortgage. Witnesses during trial from National City

Bank testified that the social security number was important to the loan decision, and would impact

the decision to grant her the loan. Providing a false social security number is patently material.

Certainly a rational juror could find that the record has at least some evidence pointing to guilt.

Because this error was not preserved, and is reviewed under a deferential standard, this clam fails.

                                                VII

       With respect to sentencing, Patricia raises a host of issues: her guidelines were not correctly

calculated, the amount of loss was not properly calculated, her criminal history over-stated the

seriousness of her criminal past, the court gave undue deference to the guidelines, and the court

failed to consider the factors provided in 18 U.S.C. § 3553(a). When reviewing the reasonableness



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United States v. Daniel VanderZwaag, et al.

of sentences, this court employs an abuse-of-discretion standard. United States v. Moon, 513 F.3d

527, 539-40 (6th Cir. 2008).

                                                  A

       Patricia finds fault in the district court’s calculation of the amount of loss under USSG

§ 2B1.1 at approximately $231,000. During sentencing, the district court made the following

somewhat-complicated calculation of losses (with explanatory calculations italicized in brackets):

       As it relates to calculation of loss, the Court believes that the government has
       sustained its burden to show a loss of $231,000 or $232,000 and in the manner in
       which the Court calculates that is as follows: $25,500 approximately to Merrill Lynch
       [representing the shortfall Merrill Lynch, the first lien holder experienced on the first
       mortgage Daniel obtained from Accredited Home Finance on 2121 Oak Hollow
       Drive], $35,000 to Citi Group [representing the shortfall Citi Group—the second lien
       holder on 2121 Oak Hollow Drive— experienced; the note was never released].
       $137,162 to Option One [the second mortgage that Daniel took on 2121 Oak Hollow
       Drive]. And the National City Bank loan [for the mortgage Patricia took on the
       property at 4233 Creek View Drive] is the one that is most perplexing to the Court
       to try to come to some appropriate loss figure for that particular loan. The
       government's suggestion that I depreciate the appraisal by 15 percent, the Court will
       accept that as an accurate appraisal of the house based on the testimony. We are in
       the State of Michigan. The State of Michigan is at the bottom of the economic wrung
       [sic] in the country on most measurement, and certainly real estate has taken a
       significant hit across the state, including communities such as Hudsonville. So I
       think a 15 percent depreciation is appropriate from the appraisal of $240,000 [the
       assessed price at the time National City Bank made the loan was $240,000; the
       depreciated price of the house at the time of sentencing was $204,000 (240,000 –
       (240,000 * 0.15))]. At the time that the loan was made [in 2007], the loan amount
       is $237,500, resulting in a loss of $33,500 if the house was sold at the time [that is
       the difference between $237,500 (the price of the loan in 2007) and $204,000 (the
       depreciated price of the house in 2009); in other words, the property lost $33,500 in
       value]—at the adjusted appraised value, of course, sales are made by willing buyers
       and willing sellers, and the fact that the house is still in foreclosure and apparently
       has not been sold, makes it difficult, but I think the government's suggestion and the
       government's proofs are satisfactory. As far as the Citi Group loan is concerned
       [$35,000], what was originally from Accredited [Home Finance], there has been no


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United States v. Daniel VanderZwaag, et al.

        release of lien. Accordingly, the Court concludes, based on the inferences and the
        testimony, as well as the proofs at trial, that the appropriate amount to apply there is
        $35,000. So the loss is calculated, as I've said, will be set at $231,000 [the court
        arrived at this number by adding $25,500 from the Merrill Lynch lien, $35,000 from
        the Citi Group lien, $137,162 from the Option One mortgage, and $33,500
        representing the loss due to depreciation from the mortgage from National City
        Bank, totaling $231,162] or $232,000 that really doesn't—that $1,000 doesn't make
        a difference because the cut is at $200,000 and $400,000, so the Court will apply
        twelve levels at Paragraph 24 resulting in, and then—right, twelve levels at
        Paragraph 24. Sent. Tr. 56-57 (emphasis added).

        Patricia disputes a total of $68,490.20 from the total amount of $231,162 the district court

calculated: “worse [sic] case scenario, summarizing the ‘actual loss’ suffered or giving credit for

‘credits against loss,’ the banks/mortgage lenders have suffered losses in the amounts of $137,162.30

(Lawyers Title Insurance) plus $25,510.50 (Merrill Lynch) on the Oak Hollow Drive property,

totaling $162,672.80” (231,162-162,672.80=68,489.20) Appellant Br. Patricia at 40. It is unclear

if Patricia includes this “worst case scenario” as a hypothetical, or as a calculation that can constitute

a waiver.

        Patricia does not specifically break down this $68,490.20, but we presume that she disputes

the $35,000 from the Citi Group lien, and the $33,500 from the loss due to depreciation from the

National City Bank mortgage on the Creek View Drive property—they total $68,500, close enough

to $68,490.20. It is not clear from her brief why Patricia disputes the inclusion of Citi Group’s lien

for $35,000. Ibid. With respect to the $33,500 discounted due to depreciation of the Creek View

Drive property, Patricia makes two related arguments—one empirical, one legal. First, she asserts

that the government failed to meet its burden of proof about the present-day value of the property.




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United States v. Daniel VanderZwaag, et al.

Patricia would impose on the government the burden of obtaining an appraisal of the Creek View

Drive property.

         Over protest from defense counsel, Sent. Tr. 31, 33, the court relied on a 2009 GRAND

RAPIDS PRESS article that illustrated the depreciation rates of Michigan real estate. Id. at 57. While

the court did not take judicial notice of the article, a district court is responsible for making a

“reasonable estimate of the loss.” United States v. Parish, 565 F.3d 528, 534-35 (8th Cir. 2009).

Reasonableness does not require exact computation. Further, there is no obligation imposed by the

case law for the government to obtain an independent appraisal of the property—the approach

Patricia requested—in order to calculate the value of a property. For purposes of sentencing, in the

absence of a recent appraisal, reliance on the article was a reasonable means to calculate the present

value.

         Second, Patricia asserts that the loss from the National City Bank loan secured by an interest

in the Creek View Drive property should be calculated based on “actual” loss, rather than the

intended loss. Appellant Br. Patricia at 39. The sentencing court, she argues, should have given

credit for the amount of secured interest that the bank had against the value of the loan. “Since that

property has not yet been sold, there is a valid legal mortgage against the Creek View Drive property

and therefore there cannot be an ‘intended’ loss.” Id. at 41. Finally, Patricia contends that she

should be “entitled to a ‘credit’ based on the value of the home.” Ibid.

         Patricia cites several cases in this circuit that reflect an older version of USSG § 2B1.1,

previously designated as § 2F1.1 (the two sections were consolidated in 2001) to support an “actual”

loss method of calculation—where a bank loan is secured by an interest in real property, any loss

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calculation should be based on “actual” loss. See United States v. Lavoie, 19 F.3d 1102, 1105 (6th

Cir. 1994) (“This Court has explicitly recognized that the loss calculation of USSG. § 2F1.1(b) in

cases of fraudulently induced bank loans should be based on the ‘actual’ or ‘expected’ loss rather

than on the face value of the total amount of the loan proceeds.”); United States v. Chichy, 1 F.3d

1501 (6th Cir. 1993); and United States v. Moored, 38 F.3d 1419 (6th Cir. 1994).

        The government prefers the approach of the Eighth Circuit that interprets the current USSG

§ 2B1.1. “As recognized by the Guidelines, the damage wrought by fraud is sometimes difficult to

calculate.” United States v. Parish, 565 F.3d 528, 534 (8th Cir. 2009) (quoting United States v.

Agboola, 417 F.3d 860, 870 (8th Cir. 2005)). The Parish court held that a district court is

responsible making a “reasonable estimate of the loss,” and approved of the district court’s method

of measuring loss by starting with the amount loaned as a result of the fraud, reduced by the value

of the collateral pledged. Parish, 565 F.3d at 534-535. The government does not cite any cases from

this circuit to the contrary.

        Comment 3(a) to USSG § 2B1.1 provides that “loss is the greater of actual or intended loss.”

When a district court is not able to calculate the loss, the commentary to the guidelines permit the

court to base the punishment on the defendant’s gain. USSG § 2B1.1 n.3(B). Where the fraud

occurs in connection with collateral pledged for a mortgage, the defendant is entitled to a reduction

in the loss amount as a result of the sale of the collateral, or the fair market value at the time of

sentencing. USSG § 2B1.1 n.3(E)(ii).

        The district court calculated the actual loss, rather than the intended loss. Patricia’s reliance

on Lavoie and its progeny—which support the district court’s decision—to argue to the contrary is

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United States v. Daniel VanderZwaag, et al.

misplaced. By depreciating the price of the property, the court made a “reasonable estimate,” Parish,

at 534, of the actual loss of the property value between 2007 and 2009. This is not an intended, or

expected loss calculation, as Patricia claims. To arrive at the actual loss the district court considered

lengthy sentencing memoranda, and held an evidentiary hearing. In any event, it cannot be said that

the court clearly erred.

                                                   B

        Patricia objects to a two-level enhancement under USSG § 3C1.1 for obstruction of justice.

First, she argues that she did not make any statements during trial. This argument is unavailing, as

the enhancement permits consideration of conduct that occurred outside of trial. Alternatively, she

contends that any “alleged false statements [made during the original interview with Special Agent

Gilligan] were neither material nor did they seriously impede or obstruct the investigation in this

case.” Appellant Br. Patricia at 47. During the sentencing hearing, Special Agent Gilligan testified

at length that Patricia made false statements to her—Patricia told her that the Social Security

Administration issued her a new social security number because of identity theft. This never

happened. The false information led Gilligan on a wild-goose chase, as she spent time and resources

investigating the supposed issuance of a social security number that did not exist. The district court

accepted Gilligan’s testimony. Patricia provides no plausible reason why this finding of fact—the

basis of the enhancement—was clearly erroneous.

                                                   C

        Beyond the loss calculation and obstruction enhancement, Patricia asserts an amalgam of

sentencing challenges that blend together. She faults the district court’s decision not to vary from

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United States v. Daniel VanderZwaag, et al.

the guideline ranges due to policy considerations, citing the steep increase in the base offense level

for fraud cases over the last twenty years. Appellant Patricia Br. at 42. Patricia objects to the fact

that “any loss in excess of $30,000.00. . . . call[s] for a prison term (Zone D).” Id. at 46. She claims

that the court’s sentence did not meet the goals of 18 U.S.C. § 3553(a)(2). Ibid. Patricia also argues

that her criminal history was overstated, id. at 48, and contends that the court should have varied

from the Guidelines range because “only one victim suffered a substantial loss in excess of

$137,000.00.” Id. at 50. Each of these arguments is unavailing.

        The district court, citing its authority under Kimbrough v. United States, 552 U.S. 85 (2007),

made clear that it recognized that it had the ability to disregard the guidelines; yet, it chose not to

exercise that discretion. A sentence is not unreasonable merely because the district court declines

to vary on policy grounds. United States v. Guest, 564 F.3d 777, 780 (6th Cir. 2009); United States

v. Ultsch, 578 F.3d 827, 830-31 (8th Cir. 2009) (“While the district court may have been free to vary

from the guideline based on policy concerns, the Supreme Court's recent decisions ‘do not hold that

a district court must disagree with any sentencing guideline, whether it reflects a policy judgment

of Congress or the Commission’s ‘characteristic’ empirical approach.’”) (quoting United States v.

Barron, 557 F.3d 866, 871 (8th Cir. 2009)).

        Likewise, the district court considered Patricia’s argument to reduce the criminal history

category, but rejected it in light of the fact that a number of her convictions—which were related to

fraud and theft—were not counted. The district court noted that it was “dumb struck” by the great

number of prior convictions, all for theft and fraud offenses. Sent. Tr. at 74. Finally, the failure to



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vary downward was not error, as the court fully explored the 3553(a) factors during the lengthy

colloquy.



                                              VIII

       The judgments and sentences of the district court are AFFIRMED.




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