                                                                   FILED
                                                       United States Court of Appeals
                        UNITED STATES COURT OF APPEALS         Tenth Circuit

                                     TENTH CIRCUIT                         August 14, 2015

                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court

    UNITED STATES OF AMERICA,

          Plaintiff - Appellee,

    v.                                                        No. 14-3169
                                                              (D. Kansas)
    MANJUR ALAM,                                   (D.C. No. 6:13-CR-10057-MLB-1)

          Defendant - Appellant.



                                  ORDER AND JUDGMENT*


Before, HARTZ, TYMKOVICH, and BALDOCK, Circuit Judges.



         Defendant Manjur Alam pleaded guilty in the United States District Court for the

District of Kansas to one count of conspiracy to commit wire fraud for his involvement in

a mortgage-fraud scheme. See 18 U.S.C. §§ 1343, 1349. Defendant appeals, challenging

his sentence as procedurally and substantively unreasonable. He argues that the court

*
  After examining the briefs and appellate record, this panel has determined unanimously
to honor the parties’ request for a decision on the briefs without oral argument. See Fed.
R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without
oral argument. This order and judgment is not binding precedent, except under the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.
erred in calculating the loss amount and abused its discretion in varying upward from the

guidelines sentencing range. We have jurisdiction under 28 U.S.C. § 1291 and affirm.

I.     BACKGROUND

       Defendant was convicted in 2006 of conspiracy to defraud the United States

Department of Housing and Urban Development. He was sentenced to 12 months’

probation. While on probation he implemented a new scheme to defraud mortgage-

lending institutions. Between 2006 and April 2008 he recruited and organized

unqualified buyers to submit home-loan applications that included false representations.

He submitted supporting documentation for the applicants that included false

verifications of rent and false letters of credit. The buyers defaulted on the loans and the

lenders eventually sold the properties for less than the original loan amounts.

       Defendant was indicted and pleaded guilty to a superseding indictment. At

sentencing in July 2014, the district court calculated a loss of $485,192.70, which

resulted in a total offense level of 22. When combined with a criminal-history category

of II, the advisory guidelines range was 46 to 57 months. The court varied upward to 72

months’ imprisonment based on factors set forth in 18 U.S.C. § 3553(a).

II.    DISCUSSION

       “We review sentences under an abuse of discretion standard for procedural and

substantive reasonableness.” United States v. Washington, 634 F.3d 1180, 1184 (10th

Cir. 2011). “Procedural review asks whether the sentencing court committed any error in

calculating or explaining the sentence.” United States v. Alapizco-Valenzuela, 546 F.3d
                                              2
1208, 1214 (10th Cir. 2008). “Substantive review involves whether the length of the

sentence is reasonable given all the circumstances of the case in light of the factors set

forth in 18 U.S.C. § 3553(a).” Id. at 1215 (internal quotation marks omitted).

       A.     Loss Calculation

       Under the guidelines the base offense level applicable to a crime involving fraud

depends on the amount of loss. See USSG § 2B1.1(b)(1) (2013). Loss “is the greater of

actual loss or intended loss,” and actual loss is “the reasonably foreseeable pecuniary

harm that resulted from the offense.” Id. § 2B1.1 cmt. n.3(A). “In a case involving

collateral pledged or otherwise provided by the defendant, the amount the victim has

recovered at the time of sentencing from disposition of the collateral” is deducted from

loss. Id. cmt. n.(3)(E)(ii). “Where a lender has foreclosed and sold the collateral, the net

loss should be determined by subtracting the sales price from the outstanding balance on

the loan.” Washington, 634 at 1184. “[F]actual findings regarding loss calculations are

reviewed for clear error and loss calculation methodology de novo.” Id.

       The district court followed the methodology approved in Washington by deducting

the sales price from the outstanding balance on the loan. Nonetheless, Defendant argues

that the district court should have used the price paid by the lending institution at an

auction required under state foreclosure law, not the price the property sold for following

the auction. But his argument is contrary to Washington, where the sales price used was

the amount recovered in sales on the open market following the lenders’ acquisition of

the properties at auction. See id. at 1183.
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       Defendant also argues that the district court should have used the fair market value

of the properties rather than the sales price. But fair market value independent of the

sales price is to be considered only when the property has not been sold by the time of

sentencing. See USSG § 2B1.1 cmt. n.3(E)(ii). He further argues that the court should

have considered the manner in which the lending institution managed and sold the

property, which may have decreased the amount recovered. But Defendant does not

identify any impropriety—any unreasonable action—in the open-market sales by the

lenders, nor does he suggest that any lender held a property as an investment after

foreclosure.

       B.      Upward Variance

       Much of Defendant’s criticism of the variance repeats his complaints about the

loss calculation, which we need not revisit. To the extent that he also raises a challenge

to the substantive reasonableness of the sentence, we review the district court’s

application of the § 3553(a) factors for abuse of discretion. See Alapizco-Valenzuela,

546 F.3d at 1216. We “must give due deference to the district court’s decision that the

§ 3553(a) factors, on a whole, justify the extent of the variance.” Id. (internal quotation

marks omitted).

       Defendant argues that the facts relied on by the district court impermissibly

“duplicate points already added to the base guideline level.” Aplt. Br. at 23. But “district

courts have broad discretion to consider particular facts in fashioning a sentence under

18 U.S.C. § 3553(a), even when those facts are already accounted for in the advisory
                                              4
Guidelines range.” Alapizco-Valenzuela, 546 F.3d at 1222. The district court considered

the seriousness and scope of the offense. It emphasized that Defendant committed the

offense while on probation from a conviction for “essentially the same conduct,” R.,

Vol. 3 at 228, and concluded that “there is very little evidence that he respects the law,”

id. at 229. It also considered that his “crimes required thorough planning, deliberate

dishonesty and the recruitment of others,” and were “not merely incidental ‘mistakes’ in

an otherwise lawful life.” Id. The court did not abuse its discretion in varying upward.

       Finally, Defendant points out that his codefendants received only probation.

“Disparate sentences, however, are permissible when the disparity is explicable by the

facts of the particular case.” Alapizco-Valenzuela, 546 F.3d at 1223. The district court

said that the disparity was “hardly unwarranted given the nature of the case,

[D]efendant’s involvement and the other factors . . . covered.” R., Vol. 3 at 230.

Defendant has not challenged this statement with any description of the roles of the

codefendants who were sentenced less severely.

II.    CONCLUSION

       We AFFIRM Defendant’s sentence.

                                           ENTERED FOR THE COURT


                                           Harris L Hartz
                                           Circuit Judge




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