     Case: 13-20060      Document: 00512567970         Page: 1    Date Filed: 03/20/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit


                                    No. 13-20060                                FILED
                                  Summary Calendar                        March 20, 2014
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JON AUGUST HOLVERSON,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:11-CR-391-1


Before WIENER, OWEN, and HAYNES, Circuit Judges.
PER CURIAM: *
       Defendant-Appellant Jon August Holverson appeals the within-
guidelines sentence of 108 months of imprisonment imposed following his
guilty-plea conviction for (1) conspiracy to make false statements to a federal
agency, the Small Business Administration (SBA), to fraudulently obtain
major disaster benefits, and (2) fraud in connection with a major disaster. We
affirm.


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                   No. 13-20060

      Holverson first contends that the district court erred in applying a 14-
level enhancement under U.S.S.G. § 2B1.1(b)(1)(H) based on its finding of the
amount of the intended loss. We review factual determinations for clear error
and the application of the Guidelines de novo. United States v. Setser, 568 F.3d
482, 496 (5th Cir. 2009). Holverson asserts that the intended loss was zero
because he intended to repay the loan, and he pledged 11 properties as
collateral. Alternatively, he contends that the district court should have given
him credit for the fair market value of the encumbered properties based on an
appraisal he submitted or should have used different tax assessments.
Holverson also asserts that he should have received credit for repairs made to
the properties as of sentencing.
      Holverson submitted loan applications totaling $974,700 for repairs to
rental properties and $25,000 for repairs to his primary residence.            His
intention to divert funds from the government for unintended uses qualifies
the loan application amounts as the “intended losses.” United States v. Dowl,
619 F.3d 494, 502 (5th Cir. 2010). The district court’s determination that
Holverson did not show that he intended to repay the loans was amply
supported by the evidence of his conduct, including his submission of
fraudulent invoices and fraudulent cancelled checks totaling $685,731, in an
attempt to get the SBA to disburse the loan proceeds; his exploitation of his
former wife, his current wife, his brother, and employees of his company to
fabricate receipts and other documents; and his submission of misleading
appraisals of the properties pledged as collateral in an effort to reduce his
sentencing exposure.
      The district court also rejected Holverson’s claim that he should receive
credit for the aggregate amount of the repairs that he made to the properties
as of the date of sentencing, totaling $383,672.16. The district court was



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                                 No. 13-20060

entitled to rely on the facts in the Presentence Report (PSR), which stated that
the SBA investigation found that he had made only $10,330.31 in legitimate
repairs. See United States v. Scher, 601 F.3d 408, 413 (5th Cir. 2010). The
district court concluded that the evidence he submitted was “unbelievable” and
contained a great number of items that were totally unrelated to the instant
case. Holverson has not shown that he presented evidence sufficient to rebut
the information in the PSR. See United States v. Washington, 480 F.3d 309,
320 (5th Cir. 2007).
      Holverson has also failed to show that the district court erred in using
tax assessments in determining the fair market value of the properties. See
§ 2B1.1, comment. (n. 3(E) & (E)(iii)).        Moreover, as the district court
determined that, even if it accepted the figures offered by Holverson, the loss
amount would not have been reduced below $400,000 and, therefore, the 14-
level enhancement would still be applicable. See § 2B1.1(b)(1)(H). In short, we
discern no clear error in the district court’s determination of the loss amount.
      Next, Holverson contends that the district court erred in applying a two-
level sentencing enhancement under U.S.S.G. § 3C1.1 for obstruction of justice
because the appraisals he submitted were not false or fraudulent, he did not
commit perjury or make a false statement, and the district court failed to make
a finding of willfulness. We review this determination for clear error. See
United States v. Juarez-Duarte, 513 F.3d 204, 208 (5th Cir. 2008). The record
supports the conclusion that Holverson submitted inflated appraisals to his
attorney, the government, and the district court in an effort to reduce his
sentencing exposure, and that this constituted obstruction of justice. There
was no clear error.
      Holverson claims that, because the district court erred in applying the
obstruction of justice enhancement, it also erred in denying a three-level



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reduction   for   acceptance   of    responsibility   under   U.S.S.G.    §   3E1.1.
Alternatively, he asserts that the district court erred because he has admitted
his guilt and shown remorse. We will not reverse the denial of acceptance of
responsibility unless it is without foundation, a standard more deferential than
the clearly erroneous standard. United States v. Washington, 340 F.3d 222,
227 (5th Cir. 2003). The district court did not err in imposing the obstruction
of justice enhancement as discussed above. Further, Holverson has not shown
that his case is one of the extraordinary ones in which both §§ 3C1.1 and 3E1.1
may apply. See § 3E1.1, comment. (n.4); United States v. Thomas, 120 F.3d
564, 574-75 (5th Cir. 1997). In short, the district court’s determination was
not without foundation.
      In addition, Holverson claims that the district court erred in not
considering his requests for a downward departure. The district court’s refusal
to depart downward is not reviewable unless the court mistakenly believed
that it lacked the authority to do so. United States v. Lucas, 516 F.3d 316, 350
(5th Cir. 2008). This bar applies even when a district court summarily denies
a departure without explanation or implicitly denies a departure by imposing
a within-guidelines sentence. See United States v. Hernandez, 457 F.3d 416,
424 & n.5 (5th Cir. 2006). The district court heard Holverson’s arguments,
cited the 18 U.S.C. § 3553(a) factors, and determined that a sentence within
the advisory guidelines range was appropriate. Nothing in the record suggests,
and Holverson does not claim, that the district court misunderstood its
authority to depart downward. Therefore, we lack jurisdiction to review the
denial of a downward departure. See Hernandez, 475 F.3d at 424 & n.5.
      Finally, Holverson insists that the sentence was substantively
unreasonable because it did not account for all of the § 3553(a) factors,
including his strong community support, his good behavior during detention,



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his age, his lack of a prior conviction, and his history of community and
charitable work. The district court considered Holverson’s contentions before
imposing a within-guidelines sentence of 108 months of imprisonment. Given
the deference owed to the district court’s sentencing determination, see Gall v.
United States, 552 U.S. 38, 51-52 (2007), Holverson’s assertion that his
sentence is unreasonable is insufficient to rebut the presumption that the
within guidelines sentence is reasonable, see United States v. Gomez-Herrera,
523 F.3d 554, 565-66 (5th Cir. 2008).
      AFFIRMED.




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