                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 16a0619n.06

                                         Case No. 15-4070

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                   FILED
                                                                             Nov 21, 2016
UNITED STATES OF AMERICA,                            )                   DEBORAH S. HUNT, Clerk
                                                     )
       Plaintiff-Appellee,                           )
                                                     )       ON APPEAL FROM THE UNITED
v.                                                   )       STATES DISTRICT COURT FOR
                                                     )       THE SOUTHERN DISTRICT OF
THOMAS JACKSON,                                      )       OHIO
                                                     )
       Defendant-Appellant.                          )
                                                     )       OPINION
                                                     )


BEFORE: GRIFFIN, WHITE, and DONALD, Circuit Judges.

       BERNICE BOUIE DONALD, Circuit Judge.                    A federal jury convicted Thomas

Jackson of wire fraud, money laundering, and conspiracy to commit wire fraud and money

laundering. Jackson’s applicable Guidelines range was 97–121 months, based on an offense

level of 30 and a criminal history category of I, but the district court sentenced him below that

range, to a prison term of eighty-three months. On appeal, Jackson challenges the effectiveness

of his trial counsel, the procedural and substantive reasonableness of his sentence, and the district

court’s failure to provide him with substitute court-appointed counsel. For the reasons that

follow, we AFFIRM Jackson’s convictions and sentence.
Case No. 15-4070
United States v. Thomas Jackson

                                      I.     BACKGROUND

       Jackson and his business partner, Preston Harrison (“Harrison”), founded Imperial

Integrative Health and Research Development, LLC (“Imperial”) to develop and market a sports

beverage called “OXYwater.” Jackson was the founder and CEO of Imperial, while Harrison

was the president and founder. In 2010, Jackson and Harrison began looking for investors for

OXYwater. Toward the beginning of their search for investors, Jackson and Harrison met with

Robert Smith (“Smith”), who at the time owned a consulting company called Investors Capital

Edge. Smith’s job involved consulting with clients on how to build proper business plans,

corporate credit, etcetera.    During the initial meeting with Smith, Jackson told Smith that

OXYwater was oxygen-enhanced, and that their goal was to raise about $8.5 million in capital.

Jackson and Harrison initially contracted with Smith for him to perform consulting services for

Imperial and OXYwater. Upon joining Imperial, Smith suggested that they increase the start-up

amount to $9.5 million and recommended other changes to the Private Placement Memorandum

(“PPM”)—the document that provided the overview of Imperial, how funds would be raised, and

how much each share would cost. Smith subsequently took on the more formal role of Chief

Financial Officer of Imperial, where his focus was primarily on recruiting investors for

OXYwater.

       The PPM, which was given to a number of Imperial’s investors, contained false

information. The PPM listed as National Sales Manager Daniel Couts, a former employee of

Coke and Vitaminwater, and also listed Kevin Waddle, Michael Skelton, and Matthew Godsey,

all former Coke and Vitaminwater employees, as members of the OXYwater sales team, and

included their resumes.       None of these individuals, however, were ever employed by or

associated with Imperial. The PPM further included a section on celebrity endorsements that


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United States v. Thomas Jackson

listed OXYwater’s official endorsers as well-known athletes, Manny Pacquiao and Gregory

Jennings. These athletes were never officially affiliated with OXYwater or Imperial. Even

further, the PPM indicated that in the first year, Jackson would receive a salary of $90,000 and

Harrison a salary of $60,000. These numbers were subject to increase in subsequent years.

Contrary to these representations, Jackson and Harrison were never officially on Imperial’s

payroll. Rather, Jackson used the Imperial accounts for his personal use, funneling significantly

higher amounts than disclosed in the PPM to himself and Harrison. Finally, the PPM stated that

the funds raised would be used for marketing, inventory, payroll, office warehouse lease, and to

purchase machinery and commercial vehicles for local delivery to retail accounts. While some

of the funds were used for legitimate business purposes, bank records indicated that the invested

funds were also used by Jackson and Harrison for personal expenses.               Based on the

misrepresentations in the PPM and other oral communications, Jackson and Harrison received

approximately $9.3 million in investments for Imperial and OXYwater.

       In 2011, Jackson—who controlled all of Imperial’s finances—transferred over one

million dollars from Imperial accounts into an account listed under the name of ForeverNow,

LLC (“Forever Now”).       Forever Now listed Harrison and his wife, Lovena, as the only

signatories to the account. The Harrisons used the Forever Now account as their personal

account, purchasing personal items and paying for home improvement projects out of the

account.

       Following a joint investigation by the Federal Bureau of Investigation and the Internal

Revenue Service, a federal grand jury, in May 2014, returned an indictment against Jackson and

Harrison on various counts of wire fraud and money laundering. The grand jury also indicted




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United States v. Thomas Jackson

Preston and Lovena Harrison for tax fraud and tax fraud conspiracy, and indicted Lovena for

structuring currency transactions to evade reporting requirements.

       Jackson was tried in an eight-day joint trial with co-defendants Preston and Lovena

Harrison.   In its case in chief, the prosecution presented evidence from twenty witnesses,

including six investor victims. Following the prosecution’s case, the defense rested without

presenting any proof. The jury convicted Jackson of one count of wire fraud conspiracy, in

violation of 18 U.S.C. § 1349; eight counts of wire fraud, in violation of 18 U.S.C. § 1343; one

count of money laundering conspiracy, in violation of 18 U.S.C. § 1956(h); and twelve counts of

money laundering, in violation of 18 U.S.C. § 1957. The district court sentenced him to eighty-

three months in prison and ordered restitution in the amount of $8,840,706.

                           II.    APPOINTMENT OF NEW COUNSEL

       Jackson first argues that the district court erred in denying his motion for a new court-

appointed attorney, effectively forcing him to be represented by a lawyer with whom he had a

conflict. For the reasons below, we hold that the district court properly denied Jackson’s motion.

                                               A. FACTS

       On the first day of Jackson’s trial, counsel for co-defendant Harrison, Mr. Gatterdam,

informed the district court that they had just learned that Jackson had filed a disciplinary

complaint against his counsel, Ms. Menashe, and that Jackson did not want to proceed with her

as counsel. Ms. Menashe stated that she had not received a copy of the complaint, and that she

had no prior knowledge of it. In response to questions from the court, Jackson stated that while

he had only filed the disciplinary complaint approximately a week before, he felt like he had not

had adequate counsel from the start. Jackson stated that there was a lack of communication

between him and Ms. Menashe and that he had lost trust in her. Particularly, Jackson stated that


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United States v. Thomas Jackson

he believed Ms. Menashe thought that he was guilty because of the way she spoke to him, that

she was refusing to investigate and introduce financial information that would give him

“credibility in terms of the company financials,” and that he thought she was working with the

prosecution against him because of a plea agreement that she presented him within a week of his

arraignment.

       Upon inquiry by the court, Ms. Menashe stated that while she received a plea offer early

on in the case, it was not within a week of the arraignment, and that it was submitted so early

because the AUSA assigned to the case at the time was leaving the office and there were time

constraints. Ms. Menashe also stated that she has an “aggressive personality” and that while she

tends to not use the most flowery language, she had never told Jackson that she was “going to

nail his butt.” With respect to the breakdown in communication, Ms. Menashe stated that while

verbal communication had slowed down, she had exchanged voluminous emails with Jackson,

Harrison, and Mr. Gatterdam. According to Ms. Menashe, she would have liked to discuss with

Jackson certain documents produced by the prosecution and whether he should testify, but in the

past week Jackson had skipped a planned meeting and stopped returning her calls. Regardless,

Ms. Menashe stated that there was ample time to do those things before the defense would have

to present its case, and that she believed she was prepared to go forward with trial despite the

communication issues. Finally, Ms. Menashe stated that with regards to the ledgers and financial

documents that Jackson referred to, she did not believe that she could ethically introduce those

documents because she could not properly authenticate them.

       Mr. Gatterdam, Harrison’s lawyer, also spoke to the court. Importantly, he noted that he

too had concerns with introducing the ledgers, which were supposedly prepared by Mr. Kevin

Foster, who at one point was going to be considered an unindicted co-conspirator, and who was


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United States v. Thomas Jackson

also a named defendant in a related civil suit. Mr. Gatterdam also noted that he had been in

meetings with Ms. Menashe and the defendants, and while she was direct, he did not believe that

she had ever been unprofessional.

       The court also heard from the prosecution that it had “devoted tremendous resources to

getting this case ready to go today” and that the prosecution believed that Jackson’s complaint

was a ploy to not go forward at that time. Following the prosecution’s statement, the district

court made the following findings:

               Well, as many cases have stated in the past in Court of Appeals decisions,
       the right to counsel of choice, unlike the right to counsel, is not absolute. And the
       [c]ourt generally goes through several considerations when this issue arises. And
       the first one is the timeliness of any motion or request. And this comes the
       morning of trial. The timeliness of this is, first of all, dilatory and, second of all,
       suspect.

               From, or, with regard to what it is that the defendants are complaining of,
       well, my notes indicate that they believe they’re, whatever this means,
       underrepresented or they believe that their attorneys believed that they were guilty
       from the start; there was this issue concerning plea agreements; that there have
       been harsh words as far as dialogue between counsel and the defendants are
       concerned. They indicate – defendants indicate that communication has broken
       down, that there has been a lack of investigation. And then there is this issue of
       financial ledgers. That seems to encapsulate that which the defendants are
       complaining of here this morning.

               First of all, with regard to the defendants feeling guilty – feeling that their
       attorneys believe they were guilty from the start, that’s not an unusual position for
       defendants to find themselves in when they discuss matters with their counsel. In
       fact, I’d be surprised if many times that doesn’t happen simply because counsel
       has to be critical with regard to the presentation of their case to make sure that
       they don’t fall into a trap.

              With regard to the plea agreements, well – yeah. I’m glad to know that
       counsel has presented the plea agreements as they come along to counsel, or, to
       the defendants. The fact that those plea agreements were not accepted kind of
       speaks to itself, but the bigger problem I’ve had in the past is when plea
       agreements and negotiations from the government to defense counsel have not
       been forwarded to the defendants. And that’s not the case here. In fact, I don’t
       see any issue here with regard to these plea agreements being presented to the
       defendants.

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               On the other hand, I find that they have – the defense counsel has tried to
       get these to counsel and to the defendants in a timely manner because they were
       under a deadline, apparently to get an answer.

               With regard to the dialogue between the defendants and counsel, I’m
       familiar with all three counsel, all three defense counsel. I’m very familiar with
       Ms. Menashe and Mr. Gatterdam’s representation of clients not only in the state
       court proceedings but in federal court proceedings. I have had them appear before
       me, for probably the last 15 years, in different cases, including murder cases.

               I consider the two of them, [Ms.] Menashe and Mr. Gatterdam, to be two
       of the best criminal attorneys, defense attorneys, in central Ohio. I have noticed
       in the past, but I don’t find this to be a criticism, that they are very blunt with
       regard to their representation of the defendants because they have to be. And
       whether the defendants like that dialogue or not is of little consequence here
       today.

              Let me just say defense counsel are not – are not to be lackeys for the
       defendants.

               With regard to the breakdown in communication, I find this to be almost
       laughable. The breakdown of the communication has been self imposed [sic].
       The defendants, themselves, have stopped talking to the defense counsel. I don’t
       see that as a problem here. I mean, I see that as a problem, but it’s not a problem
       of counsel.

               There seems to be this whole issue of corporate financial ledgers. I will
       say, just for the defendants’ sake, there are issues involved with regard to
       evidentiary matters. And I’m not sure what these ledgers are or what we’re
       referring to, but I trust defense counsel when they tell me that there are issues in
       their mind with regard to the presentation of these corporate financial ledgers.
       They are schooled and trained in the rules of evidence. The defendants are not.

              So, I have tried to go through each of these complaints, if you want to call
       them that, that the defendants have made; and I don’t see where this is a problem
       of defense counsel. I think there is more of an issue here involving the self-
       imposed communication breakdown that the defendants have created. And I
       would suggest that they begin to communicate with their counsel in this matter.

              I have to balance the public’s interest in a prompt and efficient
       administration of justice. And that balance tips in favor of not granting any
       request of the defendants for new counsel at this time.

              As Mr. Young [counsel for the government] has stated, you have
       witnesses coming in from all over the United States. The parties have worked
       hard, and that includes the defense counsel. I’m aware of that because I have
       reviewed their exhibit books, their witness lists and so forth, and I understand that

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United States v. Thomas Jackson

       they have met on several occasions with the government to discuss evidentiary
       issues and try to resolve some of those.

               But what I’m getting at is, we’re set for trial today. We have prospective
       jurors, many more than I normally have, ready to go here. And we have witnesses
       coming in and matters lined up for the next two weeks. I have to balance that
       against the defendants’ what appears to be a right to counsel of choice, and the
       balance tips quickly and convincingly on behalf of proceeding here today.

              The request, if that’s what this is, and I believe it is – the request of the
       defendants for a continuance to obtain new counsel is denied.

(R. 139, PageID # 3522–26.)

                                              B. ANALYSIS

       We review a district court’s denial of a motion to substitute counsel for abuse of

discretion. United States v. Marrero, 651 F.3d 453, 464 (6th Cir. 2011) (citing United States v.

Mooneyham, 473 F.3d 280, 291 (6th Cir. 2007)). The Court will consider the following four

factors to determine if a reversal is warranted:

       (1) the timeliness of the motion, (2) the adequacy of the court’s inquiry into the
       matter, (3) the extent of the conflict between the attorney and client and whether it
       was so great that it resulted in a total lack of communication preventing an
       adequate defense, and (4) the balancing of these factors with the public’s interest
       in prompt and efficient administration of justice.

United States v. Trujillo, 376 F.3d 593, 606 (6th Cir. 2004) (quoting United States v. Mack,

258 F.3d 548, 556 (6th Cir. 2001)).

       All four factors weigh heavily against Jackson and in favor of the district court’s decision

to deny substitution of counsel. First, timeliness: Jackson filed his disciplinary complaint against

counsel approximately a week before the first day of trial. However, he did not inform the court

or his counsel about this complaint. Instead, Jackson waited until the day of trial to inform the

court that he wanted substitute counsel.       This Court has repeatedly upheld the finding of

untimeliness in cases involving longer periods than is present here. See, e.g., Trujillo, 376 F.3d

at 606–07 (finding that a motion for substitution of counsel filed three days before the start of
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United States v. Thomas Jackson

trial was untimely); United States v. Williams, 176 F.3d 301, 314 (6th Cir. 1999) (upholding a

finding of untimeliness where the defendant requested new counsel two weeks before trial);

United States v. Jennings, 83 F.3d 145, 148 (6th Cir. 1996) (concluding that a motion for

substitution of counsel, filed the day before trial, was untimely). Jackson attempts to justify the

delay in requesting substitute counsel by stating that he did not know until the eve of trial that his

lack of communication with his attorney would have an unfavorable impact on his case.

(Appellant Br., at 46.) This argument is unpersuasive for two reasons: (1) Jackson informed the

district court that he felt like he had not had adequate counsel from the start; and (2) even after

filing the disciplinary complaint, Jackson still waited over a week to inform the court of his

dissatisfaction with counsel. Despite appellate counsel’s laudable attempt at oral argument to

minimalize the failure to satisfy this factor, it is clear that the district court did not abuse its

discretion in finding that the motion was untimely.

       Second, the Court looks at the adequacy of the district court’s inquiry into the matter.

“[T]o meet this requirement, the district court simply must allow a defendant the opportunity to

explain the attorney-client conflict as he perceives it.” Marrero, 651 F.3d at 465 (citing United

States v. Vasquez, 560 F.3d 461, 467 (6th Cir. 2009)). The record indicates that the district court

engaged in a lengthy discussion with Jackson and gave him the opportunity to detail the alleged

conflict between him and his attorney and his concerns with her representation of him. The

district court also heard from Jackson’s attorney, co-defendant Harrison, and Harrison’s attorney.

During these exchanges, Jackson was given the opportunity to air his grievances and counsel was

given an opportunity to respond. It appears from the record before the Court that the district

court satisfied its obligation to inquire into Jackson’s complaint.




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United States v. Thomas Jackson

       The Court next looks at the nature of the conflict between the attorney and the client.

Jackson listed, as reasons for his dissatisfaction with counsel, lack of communication and trust

stemming from his belief that his counsel thought he was guilty, her use of harsh words to him,

her presentation of a plea agreement to him early on in the case, and her refusal to introduce

evidence at trial that he wanted her to.      The district court addressed each of defendant’s

complaints, finding it was not unusual for defendants to feel like their lawyers believe they are

guilty; that because defense counsel are not supposed to be lackeys for defendants, counsel’s

blunt nature is not a reason for substitution of counsel; and that because counsel are schooled in

matters of evidence, Ms. Menashe’s and Mr. Gatterdam’s conclusions regarding the ledgers

defendants wanted them to introduce were persuasive. Ultimately, the district court discounted

defendant’s claim of a breakdown in communication, finding that it was completely self-

imposed. This Court has previously held that “a lack of communication resulting from a

defendant’s refusal to cooperate with his attorney does not constitute good cause for substituting

counsel.” Marrero, 651 F.3d at 466 (citation omitted). The district court’s conclusions here

were not unreasonable or an abuse of discretion.

       Finally, the Court must weigh the first three factors against the public’s interest in the

prompt and efficient administration of justice. That Jackson loses in this balancing of factors is

clear. Given that the motion was made on the day trial was set to begin, the jurors were already

present and the prosecution had already expended resources to have witnesses and members of

its prosecution team—who were not from Ohio—present and ready to begin trial. Even further,

Jackson’s counsel stated that she was prepared to proceed with trial, and that there was still

enough time for her and Jackson to complete their unfinished collaborative tasks, since it would

be a week before the defense presented its case in chief. As such, the district court did not abuse


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United States v. Thomas Jackson

its discretion in concluding that the public’s interest in the prompt efficient administration of

justice weighed in favor of denying the motion to substitute counsel. See Trujillo, 376 F.3d at

607. For these reasons, we find that the district court’s denial of Jackson’s motion to substitute

counsel was not an abuse of discretion.

                       III.    INEFFECTIVE ASSISTANCE OF COUNSEL

       Jackson next argues that his trial counsel was ineffective in two ways: (1) before trial for

failing to move for a severance; and (2) after trial for failing to file a motion for mistrial.

According to Jackson, the jury heard prejudicial evidence about Preston and Lovena that would

not have been admissible against him had he been tried separately.

       This Court, as a general rule, does “not consider on direct appeal whether defense

counsel’s performance constituted constitutionally ineffective assistance, primarily because

‘there has not been an opportunity to develop and include in the record evidence bearing on the

merits’ of that issue.” United States v. Herrera-Zuniga, 571 F.3d 568, 592 (6th Cir. 2009)

(quoting United States v. Wunder, 919 F.2d 34, 37 (6th Cir. 1990)). We have recognized an

exception to this general rule where “the parties have adequately developed the record.” United

States v. Foreman, 323 F.3d 498, 502 (6th Cir. 2003) (quoting United States v. Pierce, 62 F.3d

818, 833 (6th Cir. 1995)). This exception, however, is inapposite here. As it stands, the record

does not contain any factual basis that will allow the Court to do more than speculate. Because

we find that the record is not sufficiently developed, we decline to address this claim, without

prejudice to Jackson’s right to raise it in a proper post-conviction proceeding.

                                   IV.     LOSS CALCULATION

       Jackson argues that the district court erred in determining an amount of loss of

$9.3 million for two reasons: (1) the investment from Shaffer Smith should not have been


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United States v. Thomas Jackson

included in this amount because he did not rely on any of the materials prepared by Jackson, nor

did he have any direct communication with Jackson before deciding to invest; and (2) the

investments of the thirteen investor victims that did not testify at trial should not have been

included in the loss calculation because the prosecution did not provide any evidence that they

relied on false statements from Jackson, or on materials prepared by Jackson.

                                             A. FACTS

       At trial, the prosecution presented testimony from investors Kendrick Gregory, Aaron

Stumpf, Joseph Crispin, Shaun Stonerook, William Culman, and Shaffer Smith.              Kendrick

Gregory testified that he invested a total of $680,000; Aaron Stumpf invested $125,000; Joseph

Crispin invested a total of $175,000; Shaun Stonerook invested a total of $750,000; and William

Culman invested $500,000. These five investors testified that they relied on either the PPM or

communications with Jackson, Harrison, and/or Smith in making their investments.

       Shaffer Smith testified that he heard of OXYwater through his then business manager,

Kevin Foster. He further testified that at the time, he relied on Foster to manage his finances and

conduct due diligence into potential investments. Foster essentially told him that OXYwater was

going to overtake Vitaminwater, replace sugary drinks in schools, and become the official drink

of a certain basketball team. Based on Foster’s representations and recommendations about

OXYwater, Shaffer Smith invested a total of $2.5 million. The prosecution also introduced

evidence that in October 2012, Foster made an additional investment of $500,000 from Shaffer

Smith’s accounts without his knowledge or authorization.          Ultimately, IRS Agent David

Gosiewski testified that total amount of investments made into Imperial was approximately

$9 million.




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United States v. Thomas Jackson

       The presentence investigation report (“PSR”) found that Jackson was responsible for a

total loss to investors of $8,840,706, and that the scheme included a total of nineteen investor

victims. Based on these findings, the PSR increased Jackson’s base offense level by twenty

points—for an actual loss amount greater than $7 million, but less than $20 million—and by an

additional two points—for more than ten victims, but less than fifty.          During Jackson’s

sentencing hearing, the prosecution argued that since the trial, they had discovered more loss

which increased the total amount invested to $9,342,200. The prosecution further argued that

this amount was the proper loss amount because Jackson’s claims were “demonstrably rife with

fraud” and thus, “the minute any penny came in, it was ill-gotten gains because it was premised

on the fraud.”

       Following arguments from the defense and the prosecution, the district court concluded

that the increased amount was correctly calculated, but even so, it did not change the Guidelines

calculation.

                                          B. ANALYSIS

       Our review of the reasonableness of a sentence is for abuse of discretion. United States v.

Collins, 828 F.3d 386, 388 (6th Cir. 2016) (citing Gall v. United States, 552 U.S. 38, 51 (2007)).

“A district court abuses its discretion in the sentencing context if it ‘commits a significant

procedural error,’ ‘selects a sentence arbitrarily, bases the sentence on impermissible factors,

fails to consider relevant sentencing factors, or gives an unreasonable amount of weight to any

pertinent factor.’” Id. (quoting Gall, 552 U.S. at 51; United States v. Conaster, 514 F.3d 508,

520 (6th Cir. 2008)) (alterations removed). We review a challenge to the district court’s loss

calculation for clear error. United States v. Martinez, 588 F.3d 301, 326 (6th Cir. 2009) (citing

United States v. Blackwell, 459 F.3d 739, 772 (6th Cir. 2006)). The defendant has the burden of


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“demonstrating ‘that the court’s evaluation of the loss was not only inexact but outside the

universe of acceptable computations.’” Id. (citing United States v. Raithatha, 385 F.3d 1013,

1024 (6th Cir. 2004)).

       First, Jackson argues that the amount invested by Shaffer Smith should not be included in

the loss amount calculation. “When determining the amount of loss for sentencing purposes, ‘a

defendant will be held accountable for the actual or intended loss to a victim, whichever is

greater, or a combination thereof.’” Id. (citing Raithatha, 385 F.3d at 1024). Actual loss is

defined as “the reasonably foreseeable pecuniary harm that resulted from the offense.” USSG

§ 2B1.1 cmt. 3(A)(i). Intended loss, on the other hand, is “the pecuniary harm that the defendant

purposefully sought to inflict and includes intended pecuniary harm that would have been

impossible or unlikely to occur.” USSG § 2B1.1 cmt. 3(A)(ii). Additionally, “[t]he loss must be

‘caused’ by the defendant’s fraud.” United States v. Turner, 615 F. App’x 264, 268 (6th Cir.

2015) (quoting United States v. Rothwell, 387 F.3d 579, 583 (6th Cir. 2004)).

       At trial, Robert Smith testified that he, Jackson, and Harrison met with Foster in 2011 and

gave him a presentation on OXYwater, told him what they wanted to do with the product, and

how much capital they wanted to raise. Smith also testified that they provided Foster with the

same presentation that they typically showed investors—i.e., that the product was oxygen-

enhanced and that they had former Vitaminwater employees on their team. Foster then informed

them that he had a lot of “high-net-worth” clients and could raise all the money they needed.

Smith further testified that after meeting with Foster, they knew who some of Foster’s clients

were and knew that Shaffer Smith—award-winning recording artist known by the stage name

“Ne-Yo”—was one. Based on this, the district court did not err in including the investments

made by Shaffer Smith in the amount of loss calculation. Although Shaffer Smith did not have


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any direct interaction with Jackson, Harrison, or Smith, he was induced to invest by the false

representations made by them to his financial manager, Foster. Even further, Foster was given a

presentation about OXYwater with the intention of seeking investments from his clients. That

the amount invested by Foster on behalf of Shaffer Smith, both with and without his permission,

was a reasonably foreseeable pecuniary loss is clear.

       Jackson’s second argument concerns the district court’s inclusion of amounts invested by

non-testifying investors. Jackson argues that these amounts should not be included not just

because these investors did not testify at trial, but because the prosecution failed to prove that but

for Jackson’s misrepresentations, these investors would not have invested. However, when fraud

permeates an entire investment enterprise, a district court may find that the loss amount includes

the entire amount invested. See Turner, 615 F. App’x at 268–69; United States v. Healy, 553 F.

App’x 560, 565–67 (6th Cir. 2014). Such a finding is sufficiently supported by the record. The

testimony presented at trial indicated that Jackson began making fraudulent misrepresentations

very near the time he began soliciting investments. According to Robert Smith, Kendrick

Gregory, who testified at trial, was one of their first significant investors. At this point, Jackson

and Harrison were already making misrepresentations about the composition of OXYwater and

disseminating the materially false PPM. This Court has upheld amount of loss calculations such

as this where the defendant made fraudulent misrepresentations from the onset. See Healy,

553 F. App’x at 566; see also Turner, 615 F. App’x at 268.

       This conclusion is not changed by the fact that OXYwater was actually an existing

product and that it, in fact, incurred some legitimate business expenses. In Healy, this Court

noted that because the district court determined that the defendant intended to defraud his

investors from the outset, the entire amount was properly included, and none of the expenses


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could be described as “legitimate.”       553 F. App’x at 566–67.         This reasoning is equally

applicable here. Upon finding that the fraud permeated the entire enterprise from its inception, it

was within the district court’s discretion to find that the amount of loss included every amount

that was invested into the enterprise. In making loss estimates, “the ‘sentencing judge is in a

unique position to assess the evidence and estimate the loss based upon that evidence,’ and [] the

district court’s loss determination is due ‘appropriate deference.’” Turner, 615 F. App’x at 268

(quoting United States v. McCarty, 628 F.3d 284, 290 (6th Cir. 2010)). For all of the foregoing

reasons, the district court did not err in calculating the loss amount.

                 V.      SUBSTANTIVE UNREASONABLENESS OF SENTENCE

       Finally, Jackson argues that his sentence is substantially unreasonable because it is

overwhelmingly based on the loss amount, and because it is greater than necessary to achieve the

statutory goals of sentencing.

                                               A. FACTS

       Following the arguments from the defense and the prosecution at Jackson’s sentencing

hearing, the district court heard impact statements from three investor victims and one former

OXYwater employee, and heard statements from twelve people speaking on behalf of Jackson.

The court also heard a statement from Jackson. In a monologue spanning approximately seven

pages, the district court separately considered each of the seven 18 U.S.C. § 3553(a) factors

before announcing Jackson’s sentence.

       For the first factor, the court found that Jackson was convicted of very serious crimes

which were compounded by the fact that people lost their life savings as a result of his actions.

Although the court noted that Jackson had good characteristics and no criminal history, the court

found that the seriousness of the offenses outweighed any positive history. For the second


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factor, the court stated that Jackson did not need educational or correctional treatment and that he

had a low risk of recidivism; however, the court found that a severe sentence was necessary to

reflect the seriousness of the offense and promote general deterrence. The district court noted for

the third and fourth factors that a prison sentence was the only option, but also stated that it

would take into consideration that Jackson’s applicable Guideline range would be only 78–97

months under the forthcoming November 2015 Guidelines amendments.1                The fifth factor

required the court to take into consideration pertinent policy statements, and the court found that

the policy statements regarding family and children were considerably outweighed by the policy

statements involving the theft of money from other people and fraud. For the sixth factor, the

court found that a good example of similar conduct was co-defendant Harrison, and that his

conduct and resulting sentence were directly on point, so there were no unwarranted sentencing

disparities. Finally, the district court found that there was a need to make restitution to the

victims.

         Following these findings, the district court sentenced Jackson to a total term of eighty-

three months in prison with three years of supervised release, and ordered him to pay restitution

in the amount of $8,840,706. Jackson’s sentence was therefore fourteen months below the then-

applicable Guidelines range, and within the range established by the forthcoming Guidelines

amendments.

                                           B. ANALYSIS

         We review the substantive reasonableness of a sentence for abuse of discretion. United

States v. Jeter, 721 F.3d 746, 757 (6th Cir. 2013) (citing Gall, 552 U.S. at 46). “A sentence is

substantively unreasonable if the district court selects a sentence arbitrarily, bases the sentence


1
    Jackson’s sentencing hearing was held in October 2015.
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United States v. Thomas Jackson

on impermissible factors, fails to consider relevant sentencing factors, or gives an unreasonable

amount of weight to any pertinent factor.” Id. (quoting United States v. Shaw, 707 F.3d 666, 674

(6th Cir. 2013)).      A below-Guidelines sentence, like a within-Guidelines sentence, is

“presumptively reasonable.” United States v. Sierra-Villegas, 774 F.3d 1093, 1103 (6th Cir.

2014) (citing United States v. Curry, 536 F.3d 571, 573 (6th Cir. 2008) (per curiam)); United

States v. Graham, 622 F.3d 445, 464 (6th Cir. 2010) (citation omitted). And the presumption is

stronger for a below-Guidelines sentence than for a within-Guidelines sentence. Curry, 536 F.3d

at 573 (“[S]imple logic compels the conclusion that, if a [within-Guidelines sentence] would

have been presumptively reasonable in length, a defendant’s task of persuading us that the more

lenient [below-Guidelines sentence] is unreasonably long is even more demanding.”).

       18 U.S.C. § 3553(a) outlines the factors to be considered in imposing a sentence. The

statute further provides that “[t]he court shall impose a sentence sufficient, but not greater than

necessary, to comply with the purposes” of § 3553(a)(2). As outlined above, the district court

considered all seven factors set forth in § 3553(a) and thoroughly detailed the reasons for its

findings.

       It is true, as Jackson argues, that the district court placed emphasis on the amount of loss,

but the record does not indicate that this assignment of weight was unreasonable. The district

court reviewed the § 3553(a) factors, placing great weight on the severity of the offense, and the

fact that the effects of Jackson’s actions were far-reaching. The district court did not assign an

unreasonable weight to the amount of loss; instead, the record in its entirety indicates that the

district court considered the amount of loss along with the pertinent § 3553(a) factors and

concluded that the seriousness of the offense and the need for punishment required a sentence of

eighty-three months.


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United States v. Thomas Jackson

       This Court has upheld the reasonableness of sentences where the court did not explain

each § 3553(a) factor that it considered to arrive at a sentence. See, e.g., United States v.

Collington, 461 F.3d 805, 809 (6th Cir. 2006) (citing United States v. Vonner, 452 F.3d 560 (6th

Cir. 2006)) (“[A] reasonable sentence based on consideration of the factors does not require a

rote listing.”). The reasonableness of the sentence imposed is even more persuasive where, as

here, the district court thoroughly identified its reasoning on each factor, and then actually

imposed a sentence below the then-applicable Guidelines range. Jackson has not sufficiently

rebutted the presumption that his sentence is reasonable.

                                       VI.    CONCLUSION

       For the reasons detailed above, we AFFIRM Jackson’s convictions and sentence.




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