                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                    July 12, 2011
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                    Clerk of Court
                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                     No. 10-6159
          v.                                           (W.D. Oklahoma)
 WILLIAM F. BLIND, JR.,                         (D.C. No. 5:08-CR-00294-C-1)

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before MURPHY, BRORBY, Senior Judge, and TYMKOVICH, Circuit Judges.



I. Introduction

      William Blind appeals his conviction of eight counts of embezzlement and

theft from an Indian tribal organization in violation of 18 U.S.C. § 1163 and his

resulting sentence. He argues there was insufficient evidence to sustain his

convictions and that the district court erred in calculating the amount of loss for

the purposes of sentencing, including restitution. Exercising jurisdiction pursuant

to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, this court AFFIRMS the judgment


      *
        This order and judgment is not binding precedent except under the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.
of conviction and AFFIRMS the sentence except as to restitution. The order of

restitution is REVERSED and the matter is REMANDED for resentencing only

as to restitution.

II. Background

       The Cheyenne and Arapaho Tribes (“Tribes”) operate a single government.

Under the Tribes’ Constitution in effect at all relevant times, the voting members

of the Tribes were divided into six districts. Four Cheyenne districts elected one

Business Committee member each and two Arapaho districts elected two members

each. The Business Committee members were the highest-ranked elected

officials, running the Tribes’ government and business activity. Blind was an

elected member of the Business Committee, representing the Arapaho 1 District

(“A-1 District”). Blind’s wife and co-defendant, Vinita Sankey, was also a

Business Committee member representing the A-1 District.

       The tribal government administered programs primarily with funding

received from the federal government and, more recently, with revenues from its

operation of casino gaming venues. The use of federal funds was closely

monitored by the Bureau of Indian Affairs (“BIA”) because the Tribes had been

placed on “high risk” status based on mismanagement. The Tribes’ expenditure

of gaming revenues was governed by the Indian Gaming Regulatory Act

(“IGRA”) and monitored by the National Indian Gaming Commission, rather than

the BIA. Under IGRA, profits from gaming may only be spent in five ways: 1) to

                                        -2-
fund tribal government; 2) to provide for the general welfare of the Tribes; 3) to

promote economic development; 4) to make charitable contributions; and 5) to

assist local governments with their operations. 25 U.S.C. § 2710(b)(2)(B).

      At the outset, gaming revenue was directed to the Tribes’ finance office,

which was a central office that processed checks for all Business Committee

members. Tribal checks, however, sometimes bounced. As a remedy, the

Business Committee passed a resolution directing the gaming revenues to be

apportioned and transferred directly to each district representative for

administration. Thereafter, Business Committee members, including Blind, had

complete control over the gaming revenues apportioned to them for their districts.

Gaming revenues funded, among other things, the Emergency Assistance (“EA”)

program, which provides financial assistance to tribal members for food, utilities,

and other specified emergency needs. The EA program was designed to comply

with the IGRA and a tribal resolution specified that checks for the disbursement

of EA funds were to be made out only to the vendor of services for which the

check was issued. There was high demand for EA funds because most tribal

members were extremely poor.

      In addition to the IGRA’s and BIA’s restrictions on the use of gaming and

federal funds, respectively, the Tribes had adopted many of their own procedures

and policies designed to prevent fraud or abuse, which applied to all tribal

expenditures. One such policy involved a resolution adopting the General

                                         -3-
Services Administration’s guidelines for travel authorization and reimbursement

requests. The Tribes also adopted procurement procedures under which purchases

under $200.00 did not require a bidding process, purchases between $200.00 and

$500.00 required three quotes from vendors, purchases between $500.00 and

$5,000.00 required a more formal bidding process, and purchases over $5,000.00

required a sealed bidding process. Purchases in excess of $15,000.00 also

required approval of the Tribal Council, a group that consisted of all adult tribal

members.

      In 2004, the FBI began investigating the use of gaming revenues by

Business Committee members. As a result of that investigation, Blind and

Sankey were indicted on conspiracy and embezzlement charges. Count One of

the indictment charged Blind and Sankey with conspiracy to embezzle tribal

monies. Counts Two through Six charged Blind with embezzling tribal funds by

engaging in the practice of negotiating cashier’s checks intended for his district

by depositing only a portion of each check in the district’s account and receiving

a portion back in cash. Counts Nineteen, Twenty-One, and Twenty-Two charged

Blind with purchasing automobiles with tribal funds and failing to return them to

the Tribes upon leaving office. Count Twenty-Four charged Blind and Sankey

with embezzling computer equipment.

      At the close of evidence, Blind moved for a judgment of acquittal on all

counts, arguing there was insufficient evidence to sustain a guilty verdict. The

                                         -4-
district court denied the motion in its entirety, and the jury convicted Blind on all

counts in the indictment except the count concerning embezzlement of a

computer. A Presentence Report (“PSR”) was prepared and it calculated the

amount of loss at $216,538.14. Blind objected to some of the items included in

that total and the district court addressed the objections at the sentencing hearing.

The court overruled some of Blind’s objections and sustained others, ultimately

reducing the loss amount for guidelines calculation purposes to $171,041.71.

Based on this amount, Blind’s base offense level of six was increased by ten

levels. See USSG § 2B1.1(b)(1)(F). His total offense level of sixteen and

criminal history Category I resulted in an advisory guidelines range of twenty-

seven to thirty-three months. The court sentenced him to thirty-three months’

imprisonment, the high end of the range. The court also ordered Blind to pay

$121,373.97 in restitution. On appeal, Blind challenges the sufficiency of the

evidence supporting his convictions for Counts Two through Six, Nineteen,

Twenty-One, and Twenty-Two, and corresponding denial of his motion for

acquittal; the district court’s calculation of the loss at sentencing which was used

to increase his base offense level; and the district court’s calculation of the

amount of restitution.

III. Discussion

      A. Sufficiency of the Evidence




                                          -5-
      This court reviews de novo whether the evidence was sufficient to allow a

rational jury to find a defendant guilty beyond a reasonable doubt. United States

v. Flanders, 491 F.3d 1197, 1207 (10th Cir. 2007). In so doing, however, all

evidence must be viewed in the light most favorable to the government and

reasonable inferences drawn in its favor. Id. An adverse ruling on a motion for a

judgment of acquittal is also reviewed de novo, using the standard that applies to

sufficiency challenges. United States v. Apperson, 441 F.3d 1162, 1209 (10th

Cir. 2006).

              1. Cashier’s Checks

      Blind first challenges his convictions on Counts Two through Six, which

charged him with embezzling money from the Tribes by retaining cash totaling

$14,468.87, representing portions of negotiated cashier’s checks intended for the

district. Blind admits the money was tribal money, but argues the government

failed to present any evidence the cash he received was used for anything other

than lawful tribal expenditures.

      To prove the allegations in these counts, the government presented bank

records of the cashier’s check transactions. As to Count Two, the records showed

Blind cashed a cashier’s check payable to “Cheyenne & Arapaho - Arapaho Dist.

1 William Blind” in the amount of $16,373.87, in return receiving $4,995.00 in

cash and a new cashier’s check in the amount of $11,373.87 payable to the same

payee. As to Count Three, the records showed Blind cashed the new cashier’s

                                         -6-
check for $11,373.87, receiving $2,400.00 in cash and a new cashier’s check for

$8,973.87. As to Count Four, the records showed Blind cashed the $8,973.87

cashier’s check, depositing $5,000.00 into the A-1 District payroll account and

taking $3,973.87 in cash.

      As to Count Five, the records showed Blind cashed a cashier’s check for

$6,383.88, made payable to “C & A Arapaho District 1 William Blind,” from

which $2,000.00 was deposited into the payroll account, $1,500.00 was taken in

cash, and the remaining $2,878.88 was used to purchase a new cashier’s check.

Finally, as to Count Six, the records showed Blind cashed the last cashier’s check

for $2,878.88, taking $1,600.00 in cash and purchasing a new cashier’s check

with the remaining $1,273.88. The government did not present any direct

evidence of how Blind spent the cash he retained from these transactions.

      Blind contends there was insufficient evidence to convict him of converting

the cash for improper or personal use. Specifically, he argues the cashier’s check

transactions were not themselves secretive or illegal in nature. Additionally, he

argues the government’s case against him was undermined by witnesses who

testified cash was often used by Blind’s district for a variety of legitimate tribal

functions, including emergency assistance, office expenses, and advances for

trips. Witnesses also explained that cash transactions were necessary in light of

the Tribes’ troubled financial history because many local businesses would not




                                          -7-
take tribal checks. Finally, Blind argues there was no evidence he lived an

extravagant lifestyle or had an expensive vice.

      Blind’s arguments ultimately fail because, although he presents one way

the jury could have viewed the evidence, it was not the only permissible view.

Although there was no direct evidence presented at trial concerning Blind’s use of

the cash retained from the cashier’s checks, there was sufficient circumstantial

evidence to allow a jury to find he embezzled the cash. See United States v.

Davila, 693 F.2d 1006, 1007 (10th Cir. 1982) (holding conviction can be founded

on circumstantial evidence and that as to embezzlement, often only circumstantial

evidence is available). The check-cashing scheme itself supports an inference of

conversion. One bank employee testified Blind’s actions were not “a normal way

of doing business.” In addition to being highly unusual, the transactions were

structured in such a way as to foreclose tracing subsequent use of the cash

obtained. The jury heard ample evidence of the Tribes’ procedures and

regulations designed to track tribal funds and ensure proper expenditures. In light

of those policies, Blind’s actions in structuring transactions in an inherently

untraceable way supports an inference Blind’s actions were designed to hide

conversion of tribal funds. See United States v. Baldridge, 559 F.3d 1126, 1141

(10th Cir. 2009) (explaining that unusual nature of transactions designed to avoid

detection can support a finding of an illegal intent). That Blind had access to and

actually used a legitimate district bank account for some purposes, rather than

                                          -8-
conducting all district business in this unusual fashion, further supports a

reasonable inference that the cashier’s check scheme was specifically structured

to embezzle tribal money.

      The essence of Blind’s claim is that, since it is possible he used the cash

for legitimate tribal purposes, the government was required to demonstrate

specifically how he used the cash for his own private gain. This court has

considered and rejected an identical argument before. In Davila, evidence that

the defendant was reimbursed for travel vouchers that were implausible and

sometimes falsified was sufficient circumstantial evidence the money was

embezzled for defendant’s own use, even though some other evidence suggested a

plausible legitimate use. 693 F.2d at 1007. This court explained that “[f]or a

case to meet the standard for sufficiency of the evidence it is not required that an

appellate court exclude every reasonable hypothesis, but only that it find that a

jury might reasonably have done so.” Id.

      Here, a jury might reasonably have excluded the possibility that Blind spent

the money legitimately. Blind contends uncontested evidence showed cash was

often used for legitimate district purposes such as the EA program. Although

there was such evidence, there was also ample competing evidence introduced at

trial. For instance, the Tribes’ resolution concerning the use of EA funds

specified “funds were to be used for limited purposes with proper

documentation,” and that “[a]ll checks will be made to the vendor only.”

                                          -9-
Witnesses testified that EA funds in Blind’s district, however, were routinely

distributed directly to tribal members and for purposes not enumerated in the EA

resolution. While failure to follow tribal procedures for administering the EA

program is not itself the conduct that forms the basis for the crime of

embezzlement, the failure to follow established procedures may permissibly

contribute to a finding that the cash was embezzled. Certainly, in light of

conflicting evidence, the jury was not required to conclude Blind used the cash

from the cashier’s checks solely for legitimate district expenditures.

      Blind’s other arguments are likewise unpersuasive. Although Blind’s

lifestyle may not have been extravagant compared to some, there was evidence it

was well above the standard in his community as demonstrated by the multiple

buildings and vehicles on his property and his frequent travels. In short, the jury

was presented with competing circumstantial evidence concerning Blind’s use of

the cash retained from the cashier’s checks, and evidence supporting a finding of

embezzlement was sufficient for a jury to convict Blind.

             2. Tribal Vehicles

      Blind next challenges the sufficiency of the evidence to support his

convictions on Counts Nineteen, Twenty-One, and Twenty-Two, which involved

the embezzlement of vehicles purchased with tribal funds. Blind argues there was

insufficient evidence he converted the vehicles for his own personal use.




                                         -10-
      Count Nineteen concerned a 2002 Lincoln Town Car, which Blind

purchased in the name of “Bill Blind & Cheyenne Arapaho Tribes of Oklahoma.”

Blind argues he legitimately purchased the Lincoln while a Business Committee

member and returned it to the Tribes when he left office. He points to testimony

that it was common practice for Business Committee members to purchase tribal

automobiles. He further explains that he registered the vehicle under “Cheyenne

and Arapaho Tribes, A-1,” indicating it was a tribal, not personal, vehicle and that

the vehicle was never registered or titled in his name alone. He also argues the

purchase was not kept secret; Blind’s successor on the Business Committee

testified he knew Blind had purchased the car and that “everybody” knew it.

Blind’s successor also testified that after he took over Blind’s position, he located

the Lincoln at the Enrollment Department of the Tribes and took possession of it,

using it until it was damaged in an accident. Blind also argues there was no

evidence he used the Lincoln for purposes other than tribal business.

      Again, Blind’s argument rests on reading the evidence most favorably to

him rather than, as we must, in the light most favorable to the government. The

government presented sufficient evidence to support a jury finding that Blind

embezzled the Lincoln. The manner in which Blind purchased the vehicle

supports an inference that he purposefully acted in contravention of tribal policy.

Blind purchased the car with five cashier’s checks: two for $15,000.00, two for

$2,000.00, and one for $379.00. From this evidence, a jury could find Blind

                                         -11-
intended to circumvent the requirement that purchases over $15,000.00 be

submitted to a full Tribal Council vote. An FBI agent testified that Blind told

him the other Business Committee members agreed to his purchasing the Lincoln,

but three other Business Committee members told the agent they knew nothing

about the car. These facts support a jury finding that Blind intended to conceal

the purchase of the Lincoln so he could use it for his own purposes rather than

tribal business.

      Evidence was also introduced that Blind’s use of the vehicle was out of the

ordinary. When Blind registered the Lincoln, Blind requested personal license

plates, rather than an official tribal tag as other Business Committee members did

for tribal vehicles. Evidence also indicated Blind had no legitimate tribal use for

the vehicle. Blind’s secretary testified he kept the purchase a secret from her and

she never saw him drive the Lincoln. Another tribal official who knew Blind also

testified she had never seen the Lincoln. That tribal employees who knew Blind

never saw him use the Lincoln supports a jury finding that the car was purchased

for personal, not tribal, use. Finally, the government presented evidence that

when Blind was voted out of office, he did not return the Lincoln until the Tribes

charged him in tribal court with embezzlement. Other Business Committee

members returned tribal vehicles when they left office. This evidence, viewed as

a whole, was sufficient to permit a jury to find Blind purchased the Lincoln with

tribal funds but then converted it for his own personal use.

                                         -12-
      Count Twenty-One charged Blind and Sankey with embezzling a 2004

Chrysler 300M automobile. As to this vehicle, Blind titled and registered it in the

name of “William Blind or Cheyenne Arapaho Tribes,” which the dealer

employee testified would allow either Blind or the Tribes to resell the vehicle.

Like the Lincoln, the Chrysler was purchased with multiple cashier’s checks, each

under $15,000.00. In addition to the cashier’s checks, a 2002 Dodge Intrepid

belonging to the Tribes was traded in for a credit toward the purchase price. The

dealer employee testified that the dealer did not go through a bidding process with

the Tribes for the sale of the Chrysler. Again, like the Lincoln, Blind did not

obtain an official tag for the car, but rather obtained a personal tag; on the

Chrysler he even requested a personalized license plate reading “USNVET.” He

did not return the car when he left office. It was located at his residence by the

FBI nearly two years later. This evidence, like the evidence concerning the

purchase of the Lincoln, was sufficient for the jury to find the Chrysler,

purchased with tribal money, was embezzled.

      Blind argues the Tribes’ name was always on the title of the Chrysler, and

use of a personalized tag would have no effect on the ownership. He further

argues there was nothing preventing the Tribes from coming to his residence and

reclaiming the vehicle, and that his failure to return it was a political statement

intended to protest his removal from office, which he viewed as illegitimate.

Ultimately, Blind’s position fails because, although he was certainly free to make

                                          -13-
these arguments to the jury, nothing compelled the jury to credit his account

instead of crediting the ample evidence indicating he embezzled the Chrysler.

      Count Twenty-Two charged Blind and Sankey with embezzling a 2003

Dodge 1500 Quad Cab pickup truck. The Dodge was purchased and used in much

the same way as the Lincoln and the Chrysler. As to the Dodge, Sankey

purchased the truck with multiple cashier’s checks; each was less than $15,000

and two were drawn on Blind’s district account. No bidding process was used to

purchase the vehicle. The car was titled and registered as “Vinita Sankey or

Cheyenne Arapaho Tribe” and was tagged with a personal, rather than an official

tag. When Sankey renewed the registration in 2004, she registered the truck

solely in her name and obtained personalized license plates reading “T-WATER.”

Once Blind and Sankey left office, Sankey re-registered the pickup with the state

in her own name, rather than with the tribal registration office. The pickup was

not returned to the Tribes when Blind and Sankey left their positions with the

Business Committee.

      Blind argues Sankey purchased the vehicle, not him, and that his name was

not on the title and there was no evidence he ever used it. He further contends the

evidence showed that the Tribes always knew where the truck was located and the

failure to return it was a political protest. Blind’s arguments fail. Evidence was

sufficient for a jury to find he was directly involved in the purchase of the Dodge:

half the funds for the purchase price came from Blind’s district account, Blind

                                        -14-
signed some of the paperwork associated with the vehicle, and the vehicle was

stored at Blind and Sankey’s joint residence. Even apart from his direct

involvement, the jury could have found him guilty based on his participation in a

conspiracy. Blind and Sankey were charged with conspiracy to embezzle tribal

funds, including by using tribal funds to purchase automobiles they did not return

when they left office. The jury convicted Blind and Sankey of the conspiracy and

specifically found them guilty of the act of embezzling vehicles. It is axiomatic

that a coconspirator is liable for the foreseeable acts of the other conspirators in

furtherance of the conspiracy. See United States v. Gillis, 942 F.2d 707, 711 &

n.1 (10th Cir. 1991). For all of these reasons, there was sufficient evidence to

sustain the jury’s verdict on this count.

      B.     Blind’s Sentence and Restitution Order

      Blind challenges his sentence as procedurally unreasonable, arguing the

district court erred in calculating the total amount of loss used to set his offense

level under the sentencing guidelines. He further argues the district court erred in

calculating the amount of restitution he was ordered to pay, incorporating by

reference his arguments concerning the guidelines loss calculation. Factual

findings of loss, when preserved by timely objection below, are reviewed for clear

error. United States v. Mullins, 613 F.3d 1273, 1292 (10th Cir. 2010). When a

defendant challenges a loss amount in the PSR, the government bears the burden

of proving that amount by a preponderance of the evidence. United States v.

                                            -15-
Griffith, 584 F.3d 1004, 1011 (10th Cir. 2009). The district court’s loss

calculations are entitled to deference under the guidelines, because it is in the best

position to estimate the loss based on the evidence before it. See USSG § 2B1.1

cmt. n.3(C) (“The sentencing judge is in a unique position to assess the evidence

and estimate the loss based upon that evidence.”). Review of a restitution order

under the Mandatory Victims Restitution Act (“MVRA”) is for an abuse of

discretion, although application of the MVRA is reviewed de novo and factual

findings for clear error. United States v. James, 564 F.3d 1237, 1242 (10th Cir.

2009). If a defendant fails to object to a restitution award before the district

court, the award is reviewed for plain error. Id. at 1242-43.

             1. Cashier’s Checks

      First, Blind challenges the $31,351.55 amount of loss the district court

adopted from the PSR attributed to the cashier’s check scheme. He argues that

$16,882.68 of this amount was not supported by any evidence at trial or

sentencing. As to the remaining $14,468.87, he argues the inclusion of that

amount, evidence of which was introduced at trial, was erroneous because

evidence did not show that he kept the cash for personal use, essentially

advancing the same arguments as he did in his challenge to the sufficiency of the

evidence supporting the cashier’s check convictions.

      Blind begins by arguing that, as a result of these alleged errors, the district

court used an incorrect loss amount to calculate his offense level. See USSG §


                                         -16-
2B1.1(b)(1)(F). The government argues at length that because Blind failed to

object to the amount of loss in the PSR attributable to the cashier’s checks, the

district court’s fact-finding obligation was not triggered. United States v.

Rodriguez-Delma, 456 F.3d 1246, 1253 (10th Cir. 2006) (explaining that a

defendant must object to the accuracy of specific facts in the PSR to invoke the

district court’s fact-finding obligation); see Fed. R. Crim. P. 32. There is no need

to decide whether Blind’s objection to the loss from the cashier’s check scheme

was adequate, however, because, as explained below, any error was harmless

because it did not affect his advisory guidelines range. See United States v.

Wilken, 498 F.3d 1160, 1169 (10th Cir. 2007) (“Even where we find an error in

calculating the Guidelines range, however, we need not vacate and remand the

sentence if the error was harmless.”).

      The district court did not clearly err in including the $14,468.87 loss,

evidence of which was introduced at trial and described above. For the same

reasons Blind’s sufficiency challenge as to the cashier’s check convictions on

Counts Two through Six fails, there was sufficient evidence for the district court

to attribute that loss to Blind’s conduct. As to the remaining $16,882.68, the

government agrees on appeal there was no evidence to support that portion of the

total loss amount and concedes it was improperly included. The district court,

however, found Blind’s total loss amount to be $171,041.71 and, under the

guidelines, the same increase to a defendant’s offense level applies to loss


                                         -17-
amounts between $120,000.00 and $200,000.00. See USSG § 2B1.1(b)(1). Had

the district court not included the erroneous $16,882.58, it would not have

reduced Blind’s total loss amount below the $120,000.00 cutoff for calculating his

total offense level. Any error, even if Blind preserved his objection, was

therefore harmless as to Blind’s advisory guidelines range.

      Based on the same factual allegations concerning the cashier’s checks in

the PSR, however, the district court also ordered Blind to pay $14,927.55 in

restitution. Again, of that, $14,468.87 was based on evidence introduced at trial

and Blind’s challenge to that amount is meritless for the reasons explained above.

The remaining $452.68, on the other hand, is a portion of the amount for which

the government concedes no evidence was presented. Under the MVRA, a

restitution order that the government concedes exceeds the loss caused by the

defendant is an illegal sentence that satisfies the plain error test. James, 564 F.3d

at 1243; United States v. Smith, 156 F.3d 1046, 1057 (10th Cir. 1998). Thus,

even if Blind did not preserve his objection to the restitution amount, as the

government argues, the inclusion of the $452.68 in the total amount is plain error

because the government concedes it was unsupported by evidence. See Smith,

156 F.3d at 1056 (vacating under plain error standard restitution amount as to

which government admits it did not present evidence below). The restitution

order is therefore reversed as to the $452.68 amount attributed to a cashier’s

check transaction.


                                         -18-
             2. Travel Reimbursements

      Next, Blind challenges the inclusion of $11,635.46 in his total loss amount

attributed to improper travel reimbursements from four separate trips. 1 The

government agrees Blind preserved his objection as to three of the trip-related

losses but argues he failed to object to the amount related to the fourth trip. As to

the three reimbursement amounts to which Blind objected below, the government

admits those amounts were erroneously included as the government did not

present evidence to support them.

      As to Blind’s challenge to the calculation of his advisory guidelines range,

even assuming he properly objected below, any error is harmless. If Blind’s loss

amount was reduced to $142,523.57 by deducting both the $11,635.46 from travel

reimbursements and the $16,882.68 of cashier’s check losses for which there was

no evidence, Blind’s total loss amount is still well above the $120,000.00 cutoff

used to calculate his offense level.

      For the purposes of restitution, however, the government’s concession that

no evidence supported three of the four travel reimbursement amounts requires

reversing the restitution award as to those trips. Although the government did not

expressly concede a lack of evidence as to the fourth trip, instead arguing the

issue was not preserved for appellate review, it identified no record evidence

      1
      The travel reimbursements were listed as pertaining to the National Indian
Education Conference, the Bingo World Conference, the National Congress of
American Indians, and the Global Gaming Expo.

                                        -19-
supporting the trip’s inclusion and none is apparent from the sentencing

transcript. Thus the district court plainly erred by ordering Blind to pay

$11,635.46 in restitution and the district court’s restitution order as to that

amount must be reversed. See id.

             3. Wire Transfer

      Blind challenges the district court’s inclusion of $8,339.00 in losses

attributed to a wire transfer of tribal funds to Las Vegas where he was attending a

training program. This loss amount was based on a manner and means allegation

in the conspiracy charge of the indictment, which alleged Blind “caused

$8,000.00 in tribal funds to be wire transferred from El Reno, Oklahoma, via

Western Union to Las Vegas, Nevada on January 28, 2003, for additional

expenses for [himself] and others.” 2 Blind argues the district court’s inclusion of

this loss amount was clearly erroneous because the jury did not specifically

identify which of the manner and means allegations substantiated the conspiracy

conviction and because evidence connected Sankey, but not him, to the fund

transfer.

      Contrary to Blind’s assertion, however, the jury’s verdict form not only

convicted Blind of the conspiracy count generally, but also included a special

verdict in which the jury unanimously found Blind had committed the specific



      2
        Evidence at trial showed the additional $339.00 represented the transfer
fee for the funds.

                                          -20-
acts alleged in the indictment, including the wire transfer. Furthermore, evidence

presented at trial was sufficient to support a finding that Blind was responsible

for this loss, including evidence that Blind was present when Sankey suggested

the transfer and that he received a portion of the money. Accordingly, the district

court’s finding of loss as to the wire transfer based on the trial evidence and

jury’s verdict was not clearly erroneous and its inclusion of that amount for

guidelines and restitution purposes was not error.

             4. Tribal Vehicles

      Blind further challenges the loss amount with respect to the vehicles

purchased with tribal funds. The district court used the value of the Chrysler at

the time Blind left office as the loss amount attributed to that vehicle for

guidelines and restitution purposes. Blind first argues the district court erred in

using the full purchase prices of the Lincoln and the Dodge pickup to determine

those loss amounts, rather than their values at the time he left office as it did for

the Chrysler. 3 Blind further argues the Lincoln was used for tribal purposes

      3
        Blind makes an oblique reference in his brief to three vehicles whose full
value was counted toward his total loss amount, in addition to the Chrysler’s
partial value. Blind names the Lincoln and the Dodge pickup as two of the three,
but fails to identify the third vehicle in his opening brief. Although the
government assumes the third vehicle is a Dodge Intrepid, which was traded into
the dealership for a credit toward the purchase of the Chrysler, the Dodge Intrepid
was not in Blind’s possession at the time he left office and it is therefore unclear
how Blind believes its value should have been calculated. Given that Blind does
not even identify the vehicle whose value he challenges until his reply brief, and
never makes any argument as to how the district court erred specifically with
                                                                        (continued...)

                                         -21-
during his time in office and that it was returned to the Tribes prior to the

indictment in this case. He therefore contends that no amount of loss should be

attributed to the Lincoln.

      The district court, however, assessed the loss attributable to the two

vehicles as their initial purchase prices based on its finding that neither vehicle

was purchased for or used for tribal purposes, but rather was purchased with the

intent to deprive the Tribes of full use from the outset. This finding is not clearly

erroneous, as there was evidence the vehicles were purchased in a covert manner

and against tribal policy, they were titled and registered in a way designed to hide

their ownership by the Tribes, individuals who knew Blind never saw him or

Sankey use these vehicles, and the Lincoln was returned only after Blind was

charged with embezzlement in tribal court. Given this last uncontested fact, the

district court was certainly justified in not deducting any residual value under the

guidelines for the returned Lincoln, as such credit applies only if a defendant

returns property “before the offense was detected.” See USSG § 2B1.1 cmt.

n.3(E)(i).




      3
       (...continued)
respect to its valuation, Blind has presented inadequate appellate argument to
preserve review of the loss calculation as to the third vehicle. See United States
v. Wooten, 377 F.3d 1134, 1145 (10th Cir. 2004) (“This Court will not consider
such ‘issues averted to in a perfunctory manner, unaccompanied by some effort at
developed argumentation’”).

                                         -22-
        Blind separately asserts the district court misapplied the MVRA in failing

to deduct from the restitution amount the value of any property returned or

returnable to the Tribes. Under the MVRA, a district court can either order a

defendant to return the property which caused the loss or, if return is “impossible,

impractical, or inadequate,” to pay the full value of the property “less the value

(as of the date the property is returned) of any part of the property that is

returned.” 18 U.S.C. § 3663A(b)(1). Blind argues that under this provision,

because the Lincoln was returned to the Tribes, either no restitution should have

been awarded as to it, or its value to the Tribes at the time of return should have

been deducted from the amount of restitution. He further asserts the district court

should have considered whether the Chrysler or Dodge pickup could be returned

and their present value deducted from the restitution amount.

        Blind wholly failed to raise these objections and arguments before the

district court. Although he objected to the inclusion of the value of the cars for

purposes of the loss calculations, he raised only the argument that the relevant

value was the value of the automobiles on the date he left office, rather than their

purchase price, which was addressed above. He never argued that the district

court should have ordered the return of the vehicles or deducted their residual

value upon return from the calculations. Accordingly, this court reviews the

district court’s application of the MVRA for plain error. See James, 564 F.3d at

1242.


                                          -23-
      As to the Chrysler and Dodge pickup, it is undisputed that neither was

returned. The MVRA instructs the district court either to order return of property

or, if return is impossible, impractical, or inadequate, to order payment of

restitution. 18 U.S.C. § 3663A(b)(1). By ordering a payment of restitution, the

district court implicitly determined that return of the Chrysler and Dodge pickup

was impossible, impractical, or inadequate. Although Blind points to evidence

suggesting return of the vehicles might have been possible some years prior to his

trial when a federal investigator located them on his property, Blind identifies no

evidence in the record that return of these vehicles was possible, practical, or

adequate at the time of sentencing. See 18 U.S.C. § 3663A(b)(1)(A)

(contemplating return of property as occurring after entry of a restitution order).

Accordingly, Blind cannot demonstrate the district court plainly erred in its

restitution order as to those two vehicles.

      As to the Lincoln, it is undisputed that it was returned. The value of

property for which a defendant owes restitution is a factual issue. See United

States v. Overholt, 307 F.3d 1231, 1253 (10th Cir. 2002). The PSR set forth

value of the Lincoln used to calculate the restitution Blind owed the Tribes.

When a defendant fails to raise an objection at sentencing to a factual assertion in

the PSR, there is no factual dispute requiring further resolution by the district

court. Id.; see also United States v. Barton, 366 F.3d 1160, 1166 (10th Cir. 2004)

(“Where . . . the PSR recommends restitution under the MVRA for an actual


                                         -24-
recoverable loss incurred by a victim of the defendant’s crime, and the defendant

does not object to that request, there is no need under the MVRA for a district

court to engage in any additional fact finding with respect ‘to the proper amount

or type of restitution,’ 18 U.S.C. § 3664(e).”); United States v. Johnson, 183 F.3d

1175, 1179 (10th Cir. 1999) (explaining that by “failing to challenge the court’s

[restitution] order on the grounds he now raises, Defendant stripped the district

court of its ability to make findings”). In such circumstances, adopting the facts

in the PSR will not constitute plain error. Overholt, 307 F.3d at 1253; see

Rodriguez-Delma, 456 F.3d 1246, 1254 (holding when a defendant fails to allege

any factual inaccuracy in the PSR, “it [is] not error for the district court to adopt

the uncontested facts in the PSR”). Moreover, even if the failure to reduce the

restitution attributed to the Lincoln by its value at the time of return was

erroneous, Blind has pointed to no evidence, much less uncontested facts, in the

record establishing the value of the Lincoln at that time and therefore cannot

demonstrate he was prejudiced. See James, 564 F.3d at 1242 (under plain error

review, defendant must demonstrate “clear or obvious error that affected his

substantial rights, and that seriously affected the integrity of the judicial

proceedings”).

             5. Computer Equipment

      Finally, Blind argues the district court’s finding of a $2,986.86 loss

attributable to computer equipment is clearly erroneous because the jury acquitted


                                          -25-
him of that charge. The district court concluded the evidence presented at trial

was sufficient to find the computer equipment purchase attributable to Blind.

That finding is not clearly erroneous. There was testimony at trial that: Blind

instructed his secretary to purchase the computer equipment, he did not follow

established procurement procedure, the equipment was delivered to Blind, and it

was never seen at the district office thereafter. Even if the loss related to the

computer equipment was erroneously included in the total loss, however, that

error would be harmless as, even if combined with other errors described above, it

would not decrease the total loss sufficiently to change Blind’s offense level. See

USSG § 2B1.1(b)(1). This loss amount was, moreover, not included in Blind’s

order to pay restitution.

V. Conclusion

      For the forgoing reasons, Blind’s convictions are AFFIRMED, his

sentence is AFFIRMED except as to restitution, and the restitution order is

REVERSED. The matter is REMANDED for resentencing as to restitution only.

                                                 ENTERED FOR THE COURT


                                                 Michael R. Murphy
                                                 Circuit Judge




                                          -26-
