                                                                 FILED
                                                     United States Court of Appeals
                               PUBLISH                       Tenth Circuit

               UNITED STATES COURT OF APPEALS                May 21, 2019

                                                         Elisabeth A. Shumaker
                     FOR THE TENTH CIRCUIT                   Clerk of Court
                   _________________________________

UNITED STATES OF AMERICA,

       Plaintiff-Appellee,

v.                                                No. 18-1134

WENDY MARIE YUREK,

       Defendant-Appellant.
                  _________________________________

             Appeal from the United States District Court
                     for the District of Colorado
                 (D.C. No. 1:15-CR-00394-WJM-2)
                  _________________________________

Robert S. Jackson, Oklahoma City, Oklahoma, for Defendant-Appellant.

Pegeen D. Rhyne, Assistant United States Attorney (Jason R. Dunn, United
States Attorney, with her on the brief), Denver, Colorado, for Plaintiff-
Appellee.
                    _________________________________

Before BACHARACH, BALDOCK, and EBEL, Circuit Judges.
               _________________________________

BACHARACH, Circuit Judge.
               _________________________________
     Mrs. Wendy Yurek and her husband, Mr. Daryl Yurek, were charged

with tax evasion and bankruptcy fraud. 1 After a joint jury trial, Mrs. Yurek

and her husband were convicted on both offenses. The district court then

sentenced Mrs. Yurek to a prison term of 27 months, leading her to appeal

the conviction and sentence.

     We affirm in part and reverse in part. We affirm Mrs. Yurek’s

conviction, but we vacate the sentence because the district court applied

the wrong test when deciding whether to grant a mitigating-role

adjustment.

I.   We reject Mrs. Yurek’s challenges to the sufficiency of the
     evidence on her conviction for tax evasion and bankruptcy fraud.

     We conclude that the evidence of Mrs. Yurek’s guilt was sufficient to

support her conviction for tax evasion and bankruptcy fraud.

     A.       We engage in de novo review over the sufficiency of the
              evidence.

     In considering the sufficiency of the evidence, we engage in de novo

review. United States v. Ramos-Arenas, 596 F.3d 783, 786 (10th Cir.

2010). We will reverse only if no rational factfinder could have found that

the government had proven all of the elements of an offense beyond a




1
      Mr. Yurek was also charged with making a false statement under oath
in a bankruptcy proceeding and willfully making false statements to the
IRS under penalty of perjury.

                                      2
reasonable doubt. United States v. Brown, 400 F.3d 1242, 1247 (10th Cir.

2005).

     Under de novo review, we view the trial evidence in the light most

favorable to the government. United States v. Boisseau, 841 F.3d 1122,

1125 (10th Cir. 2016). We do not reevaluate witness credibility or reweigh

the evidence. United States v. Smith, 133 F.3d 737, 742 (10th Cir. 1997).

     B.     The evidence was sufficient to convict on tax evasion.

     Mrs. Yurek was convicted of tax evasion, which consists of

“willfully attempt[ing] in any manner to evade or defeat any tax imposed

by [the Internal Revenue Code] or the payment thereof.” 26 U.S.C. § 7201.

To obtain a conviction on this offense, the government had to prove three

elements:

     1.     Mrs. Yurek owed a substantial tax to the IRS.

     2.     Mrs. Yurek committed “an affirmative act constituting an
            evasion or attempted evasion” of assessment or payment of the
            tax.

     3.     Mrs. Yurek willfully evaded or attempted to evade the
            assessment or payment of the tax. 2

United States v. Boisseau, 841 F.3d 1122, 1125 (10th Cir. 2016) (citing

Sansone v. United States, 380 U.S. 343, 351 (1965)); see United States v.


2
      Mrs. Yurek argues that the government did not establish that she and
her husband had the ability to pay their IRS tax debt. But the ability to pay
one’s taxes is not an element of tax evasion. See Boisseau, 841 F.3d at
1125.

                                      3
Thompson, 518 F.3d 832, 850 (10th Cir. 2008) (noting that the tax liability

must be “substantial”).

      Mrs. Yurek challenges the sufficiency of the evidence on the second

and third elements (an affirmative act and willfulness).

      1.    The evidence was sufficient to find an affirmative act.

      To establish an affirmative act, the government had to prove an act

designed to “mislead or conceal” within the six-year period of limitations.

United States v. Thompson, 518 F.3d 832, 852 (10th Cir. 2008); see United

States v. Anderson, 319 F.3d 1218, 1219 (10th Cir. 2003) (holding that

when a defendant commits a series of affirmative acts over multiple years,

the six-year period of limitations for tax evasion begins with the last

affirmative act). The government bore the burden to prove that Mrs. Yurek

had committed at least one affirmative act. United States v. Hoskins, 654

F.3d 1086, 1091 (10th Cir. 2011). The jury could have reasonably found

that the government had satisfied this burden.

      a.    “Affirmative acts” are broadly defined.

      We first consider what constitutes an affirmative act. Federal law

suggests an expansive definition, stating that tax evasion can be committed

by evading taxes “in any manner.” 26 U.S.C. § 7201; see Boisseau, 841

F.3d at 1125 (“[T]he type of affirmative conduct that can constitute an

affirmative act of evasion is broad.”). Affirmative acts thus include

           concealing assets,
                                      4
          covering up sources of income, and

          engaging in misleading or concealing conduct.

Boisseau, 841 F.3d at 1125. Affirmative acts may even consist of otherwise

lawful conduct if the acts are committed with an intent to evade taxes. Id.;

United States v. Gorrell, No. 18-5041, 2019 WL 1890971 at *5 (10th Cir.

Apr. 29, 2019).

     b.    The evidence sufficed for a finding that Mrs. Yurek had
           committed an affirmative act.

     Viewed in the light most favorable to the government, the trial

evidence allowed a reasonable jury to find affirmative acts involving (1)

payment of personal expenses from business accounts and (2) submission

of false tax documents to the IRS.

     i.    The jury could have reasonably found that Mrs. Yurek had
           committed affirmative acts by paying her and her husband’s
           personal expenses out of business accounts.

     Mrs. Yurek had authority to write checks on behalf of Bolder Venture

Partners and Veracity Credit Consultants, LLC, and she used that authority

to write business checks for her and her husband’s personal expenses. A

fact-finder could have reasonably viewed the writing of these checks as

affirmative acts to evade taxes.

     Some of these checks came from Bolder Venture Partners, where

Mrs. Yurek was a partner. For example, Mrs. Yurek signed a $2,309.68



                                      5
check from Bolder 3 to pay condominium-association dues for the loft where

she and her husband lived.

      Mrs. Yurek contends that her son, Mr. Justin Yurek, owned the loft.

But the trial evidence was sufficient to support findings that (1) Justin had

been a “straw purchaser” and (2) Mrs. Yurek and her husband were the true

owners of the loft. See United States v. Reese, 745 F.3d 1075, 1078 (10th

Cir. 2014) (explaining a straw purchase).

      Mrs. Yurek and her husband had been leasing the loft and living in it.

They had a contract to purchase the loft, but a tax lien prevented them

from obtaining a mortgage. So they assigned the contract to Justin, who

purchased the loft. Though Justin was the purchaser, Mrs. Yurek’s husband

negotiated the sale and used companies (over which he wielded significant

control) to fund more than $112,000 of the down payment.

      After Justin purchased the loft, Mrs. Yurek signed an affidavit on

Justin’s behalf, stating under oath that (1) the loft would serve as Justin’s

primary residence and (2) Justin had no intent to lease the loft or to make

the purchase as an investment. 4 But Justin never lived in the loft, and Mrs.




3
      Mrs. Yurek wrote the check for $2,309.68 within the six-year
limitations period.
4
      Despite the affidavit, Justin testified that he had bought the loft as an
investment.

                                       6
Yurek and her husband continued to live there while making only

infrequent rental payments.

      Mrs. Yurek not only used her role at Bolder to pay condominium-

association dues but also used her check-writing authority at Veracity

Credit Consultants, LLC to pay her husband’s country-club dues and

expenses. For example, she signed a Veracity check for $3,403.43 to pay

these expenses. 5

      Veracity also paid other expenses for Mrs. Yurek and her husband.

For example, Veracity paid the rent on two homes that Mrs. Yurek and her

husband used. Veracity’s former chief financial officer, Mr. Michael

Hennigan, testified that he knew of no business purpose for these rentals or

the country-club dues and expenses.

      Veracity also made mortgage payments on the loft where Mrs. Yurek

and her husband lived. The jury could reasonably infer that the Yureks

were trying to hide the source of these mortgage payments. For example,

they recorded the mortgage payments under an account designated as a

loan account for Mrs. Yurek’s husband, but Veracity did little to collect on

the purported loan.

      Bolder and Veracity paid these various personal expenses for Mrs.

Yurek and her husband while they

           owed substantial taxes and penalties to the IRS and

5
      This check was signed within the six-year period of limitations.
                                      7
           tried to settle with the IRS based on their inability to pay what
            they owed.

These payments continued through the bankruptcy proceedings, where Mrs.

Yurek and her husband tried to discharge their federal tax debt. But Mrs.

Yurek and her husband did not tell the IRS about these payments.

      Given this combination of evidence, the jury could have reasonably

found that Mrs. Yurek had committed an affirmative act to evade the

payment of taxes. See United States v. Farr, 701 F.3d 1274, 1285–86 (10th

Cir. 2012) (concluding that the defendant’s use of a corporate account to

pay for personal living expenses supported a factual finding that the

defendant had “willfully evaded [a tax penalty] and [had taken] affirmative

steps to do so”).

      ii.   A reasonable jury could also have found that Mrs. Yurek
            had committed affirmative acts by submitting false tax
            documents to the IRS.

      Along with her husband, Mrs. Yurek submitted tax forms to the IRS

in 2009 and 2010. On these forms, Mrs. Yurek and her husband reported

that their gross monthly income was $7,667. But this amount didn’t include

Bolder and Veracity’s payments for personal expenses. The jury could

reasonably have viewed these omissions as misleading or even false.




                                      8
      Mrs. Yurek’s submission of misleading or false tax documents to the

IRS could constitute affirmative acts. 6 See Sansone v. United States, 380

U.S. 343, 351–52 (1965) (“[I]t is undisputed that petitioner filed a tax

return and that the petitioner’s filing of a false tax return constituted a

sufficient affirmative commission to satisfy that requirement of § 7201.”);

United States v. Hoskins, 654 F.3d 1086, 1091 (10th Cir. 2011)

(concluding that submission of a false tax return “was sufficient to

establish an affirmative act under § 7201”).

      2.    The evidence was sufficient to find that Mrs. Yurek had
            acted willfully.

      To satisfy the willfulness requirement, the government had to prove a

specific intent to evade taxes. United States v. Payne, 978 F.2d 1177, 1182

(10th Cir. 1992); see Hoskins, 654 F.3d at 1090 (“Under § 7201,

‘willfulness’ means the ‘voluntary, intentional violation of a known legal

duty.’” (quoting Cheek v. United States, 498 U.S. 192, 201 (1991))).

      The government can ordinarily establish the willfulness requirement

through “circumstantial evidence or inferences arising from a defendant’s

conduct.” United States v. Boisseau, 841 F.3d 1122, 1127 (10th Cir. 2016).

The willfulness requirement is “closely connected” to the affirmative-act




6
      The government also argues that Mrs. Yurek’s filing of the
bankruptcy petition constituted an affirmative act. We need not address
this argument.

                                       9
requirement, for “‘[e]vidence of affirmative acts may be used to show

willfulness.’” Id. (quoting United States v. Romano, 938 F.2d 1569, 1572

(2d Cir. 1991)) (alteration in original).

      Viewed in the light most favorable to the government, the trial

evidence was sufficient in five ways to prove Mrs. Yurek’s specific intent

to evade taxes.

      First, a reasonable jury could have found that Mrs. Yurek had known

of her legal obligation to pay her federal tax debt. With this finding, the

jury could reasonably have concluded that Mrs. Yurek had committed the

affirmative acts with an intent to evade payment of her tax debt.

      Second, Mrs. Yurek represented to the IRS that she and her husband

couldn’t pay more than $75,000 of their tax liability based on “insufficient

assets and income” even though they had just signed a contract to pay $1.3

million for a loft. Supp. R., vol. 1, at 125, 185. Given the timing of Mrs.

Yurek’s representation to the IRS and the contract to purchase the loft, a

jury could rationally have found a specific intent to evade the tax debt.

      Third, the jury could reasonably have found that Mrs. Yurek had

arranged for Justin to purchase the loft in order to conceal her financial

interest in it. See pp. 6–7, above.

      Fourth, Mrs. Yurek reported to the IRS that she and her husband had

a gross monthly income of $7,667 in 2009 and 2010, but Bolder and



                                      10
Veracity paid monthly payments of more than $7,667 for the Yureks’

personal expenses.

     Fifth, Mrs. Yurek told Veracity’s accountant that her husband would

repay his loan account every year. He didn’t, so a jury could reasonably

have found that (1) Mrs. Yurek was misleading the accountant about her

husband’s intent to repay the loans and (2) the loan account served as a

sham to deceive the IRS.

     The jury thus could reasonably have found that Mrs. Yurek had a

specific intent to evade the payment of tax debt, and this finding would

satisfy the requirement of willfulness. See United States v. Guidry, 199

F.3d 1150, 1157 (10th Cir. 1999) (observing that willfulness can be

inferred from “concealment of assets or covering up sources of income”

(quoting Spies v. United States, 317 U.S. 492, 499 (1943))).

     Despite this evidence, Mrs. Yurek argues that she lacked expertise in

tax matters and depended on professionals. But the jury could reasonably

have discounted this argument and found that Mrs. Yurek had known that

she was giving false information to the IRS. For example, the jury could

have reasonably relied on Mrs. Yurek’s accounting experience, which

included handling Veracity’s payroll and accounts payable and helping to

prepare Bolder’s tax returns in 2005, 2006, and 2007. See United States v.

Guidry, 199 F.3d 1150, 1157 (10th Cir. 1999) (treating evidence of a

defendant’s accounting experience as support for a finding of willfulness).

                                     11
                                    * * *

      For these reasons, we reject Mrs. Yurek’s challenge to the

sufficiency of the evidence for her conviction on tax evasion. 7

      C.    The evidence was sufficient to convict Mrs. Yurek of
            bankruptcy fraud.

      Mrs. Yurek was also convicted of bankruptcy fraud. This crime

involves filing a bankruptcy petition with an intent to execute, conceal, or

attempt to execute or conceal “a scheme or artifice to defraud.” 18 U.S.C.

§ 157(1). To obtain a conviction on this offense, the government had to

prove three elements beyond a reasonable doubt:

      1.    Mrs. Yurek had devised or intended to devise a scheme to
            defraud or otherwise engage in a fraudulent scheme.

      2.    Mrs. Yurek had filed a bankruptcy petition with the purpose to
            execute or conceal the scheme or attempt to do so.

      3.    Mrs. Yurek had acted with the specific intent to defraud. 8
7
      Mrs. Yurek argues that her conviction cannot stand because the
government didn’t present expert testimony on “technical concepts such as
income or assets.” Appellant’s Op. Br. at 15. We disagree and conclude
that expert testimony was not necessary to assist the jury in understanding
the evidence.
8
      In its jury instructions on the first and third elements, the district
court referred to our circuit’s pattern jury instruction for mail fraud under
18 U.S.C. § 1341:
      A “scheme to defraud” is conduct intended to or reasonably
      calculated to deceive persons of ordinary prudence or
      comprehension and includes a scheme to deprive another of
      money or property. An “intent to defraud” means an intent to
      deceive or cheat someone.


                                      12
See United States v. Spurlin, 664 F.3d 954, 964 (5th Cir. 2011) (listing the

elements that the government must prove under § 157(1) as “(1) a specific

intent to defraud; (2) a scheme to defraud; and (3) filing a bankruptcy

petition to conceal or execute that scheme”). Mrs. Yurek argues that the

trial evidence was insufficient on the elements of bankruptcy fraud. 9 We

disagree.

      Viewed in the light most favorable to the government, the trial

evidence was sufficient for a jury to reasonably find satisfaction of each

element. That evidence showed six pertinent facts:

      1.    Mrs. Yurek and her husband had owed a substantial tax debt to
            the IRS.

      2.    Mrs. Yurek and her husband had filed a bankruptcy petition in
            order to discharge that debt.

      3.    When filing the bankruptcy petition, Mrs. Yurek and her
            husband had not told the court that Bolder and Veracity were
            paying the Yureks’ personal expenses.


R., vol. 2, at 121–22 (citing 10th Cir. Pattern Crim. Jury Instr. § 2.56 (mail
fraud)). As the district court noted, courts have used § 1341 for guidance
when interpreting 18 U.S.C. § 157(1). See United States v. Milwitt, 475
F.3d 1150, 1155 n.5 (9th Cir. 2007) (“Most of the few courts that have
interpreted 18 U.S.C. § 157 have looked to 18 U.S.C. §§ 1341 and 1343 for
guidance.”).
9
      Mrs. Yurek also relies on the fact that the IRS and the bankruptcy
trustee didn’t object to discharge of the Yureks’ tax debt. According to
Mrs. Yurek, the absence of an objection shows that the government did not
prove the elements of bankruptcy fraud. We disagree. The absence of an
objection could conceivably affect the weight of the evidence but not its
sufficiency to convict.

                                     13
      4.   Bolder and Veracity had continued to pay the Yureks’ personal
           expenses during the bankruptcy proceedings, but Mrs. Yurek
           and her husband never told the bankruptcy court about these
           payments.

      5.   Mrs. Yurek had been a partner at Bolder and was responsible
           for Veracity’s accounts payable and payroll.

      6.   Mrs. Yurek had participated in obtaining the checks from
           Bolder and Veracity for personal expenses.

Given the evidence of these six facts, we conclude that the jury could

reasonably have found all of the elements of bankruptcy fraud.

II.   We reject Mrs. Yurek’s challenges to the district court’s denials
      of her motions for severance and a new trial.

      We also reject Mrs. Yurek’s arguments that the district court should

have (1) severed her trial from her husband’s or (2) granted her a new trial.

      A.   The district court generally enjoyed discretion on these
           matters.

      On these issues, we apply the abuse-of-discretion standard. See

United States v. Pursley, 577 F.3d 1204, 1215 (10th Cir. 2009)

(severance); United States v. Patterson, 41 F.3d 577, 579–80 (10th Cir.

1994) (new trial). On the refusal to sever the trial, Mrs. Yurek needed to

show actual prejudice. See United States v. Hack, 782 F.2d 862, 870 (10th

Cir. 1986) (“To establish that a court abused its discretion, a defendant

must show actual prejudice to him resulting from a denial of his request for

severance.”).


                                     14
      To satisfy this burden, Mrs. Yurek needed to show a “serious risk”

that joinder would compromise a specific trial right or prevent a reliable

determination of guilt. Pursley, 577 F.3d at 1215. Mrs. Yurek argues both,

asserting that joinder

           created prejudice through a spillover effect from the evidence
            of her husband’s guilt and

           violated the Sixth Amendment and created further prejudice by
            preventing her from confronting her husband about his out-of-
            court statement in bankruptcy court. 10

In our review of her Sixth Amendment theory, we engage in de novo

review. United States v. Clark, 717 F.3d 790, 813 (10th Cir. 2013).

      B.    Mrs. Yurek has not shown actual prejudice from
            introduction of the evidence against her husband.

      Mrs. Yurek contends that her trial should have been severed from her

husband’s because

           the evidence against her was slim in comparison to the
            evidence against her husband and

           the jury could not have followed the district court’s instruction
            to separately consider the evidence against her and her
            husband.


10
      In a footnote, Mrs. Yurek also suggests that the government violated
Federal Rule of Evidence 403 by using her husband’s out-of-court
statement against her. Mrs. Yurek’s passing reference to Rule 403 does not
constitute adequate briefing of a distinct issue. See Adler v. Wal-Mart
Stores, Inc., 144 F.3d 664, 679 (10th Cir. 1998) (“Arguments inadequately
briefed in the opening brief are waived.”); COPE v. Kan. State Bd. of
Educ., 821 F.3d 1215, 1219 n.4 (10th Cir. 2016) (concluding that “passing
references” to an issue do not constitute adequate briefing).

                                     15
We conclude that the district court acted within its discretion by rejecting

these arguments.

      Federal courts generally prefer to jointly try defendants who were

indicted together. Zafiro v. United States, 506 U.S. 534, 537 (1993). This

preference is based on recognition that

           joint trials “promote efficiency and serve the interests of
            justice by avoiding the scandal and inequity of inconsistent
            verdicts” 11 and

           joint trials are ordinarily more efficient in cases where the
            evidence against multiple defendants is “overlapping and
            intertwined.” 12

      Mrs. Yurek tries to skirt this preference based on the alleged

spillover of evidence against her husband. But severance is not warranted

by “a mere allegation that defendant would have a better chance of

acquittal in a separate trial” or “a complaint of the ‘spillover effect’ from

the evidence that was overwhelming or more damaging against the co-

defendant than that against the moving party.” United States v. Hack, 782

F.2d 862, 870 (10th Cir. 1986); see United States v. Wardell, 591 F.3d

1279, 1300 (10th Cir. 2009) (“[T]he nearly insuperable rule in this circuit

is that a defendant cannot obtain severance simply by showing that the




11
      Zafiro, 506 U.S. at 537 (internal quotation marks omitted).
12
      United States v. Morales, 108 F.3d 1213, 1220 (10th Cir. 1997).


                                      16
evidence against a co-defendant is more damaging than the evidence

against herself.” (internal quotation marks omitted)). So Mrs. Yurek’s

complaints about the strength of the trial evidence against her husband do

not warrant severance.

      Coupled with the preference for joint trials is the district court’s

guidance to the jury. The court instructed the jury

           that it “must separately consider the evidence against each
            defendant and return a separate verdict for each” and

           that its “verdict as to one defendant . . . should not affect [its]
            verdict as to the other defendant.”

R., vol. 2, at 113. These instructions, which the jury presumably followed,

negated the risk of prejudice to Mrs. Yurek from the joint trial. See Weeks

v. Angelone, 528 U.S. 225, 234 (2000) (“A jury is presumed to follow its

instructions.”); Wardell, 591 F.3d at 1301 (noting that the district court’s

jury instruction “to give separate and individual consideration to each

charge against each defendant” and the district court’s other cautionary

statements to the jury “negated any risk of prejudice” to the defendant

from the joint trial). We thus conclude that the district court acted within

its discretion by denying Mrs. Yurek’s motions to sever the trial and to

grant a new trial.




                                      17
      C.    The district court’s refusal to sever the trial did not violate
            Mrs. Yurek’s right to confrontation because her husband’s
            out-of-court statement had not been testimonial.

      Mrs. Yurek contends that the refusal to sever the trial violated her

right to confrontation by allowing the government to use the husband’s

out-of-court statement against her. But the Sixth Amendment applies only

when the out-of-court statement is testimonial. 13 See United States v.

Clark, 717 F.3d 790, 815 (10th Cir. 2013) (observing that the Sixth

Amendment’s Confrontation Clause applies only if a statement is

“testimonial”). Statements in furtherance of a conspiracy are

nontestimonial, so they are admissible even when the defendants cannot

confront the declarants. United States v. Patterson, 713 F.3d 1237, 1247

(10th Cir. 2013); see Crawford v. Washington, 541 U.S. 36, 56 (2004)


13
      We have supplied “two possible definitions” for what constitutes a
“testimonial” statement:

      1.    “a formal declaration made by the declarant that, when
            objectively considered, indicates the primary purpose for which
            the declaration was made was that of establishing or proving
            some fact potentially relevant to a criminal prosecution” and

      2.    “[a] formal statement [such that] a reasonable person in the
            position of the declarant would objectively foresee that the
            primary purpose of the statement was for use in the
            investigation or prosecution of a crime.”

United States v. Clark, 717 F.3d 790, 816 (10th Cir. 2013) (alterations in
original) (quoting United States v. Smalls, 605 F.3d 765, 778 (10th Cir.
2010)).


                                     18
(observing that statements in furtherance of a conspiracy are not

testimonial).

      Prior to trial, the district court concluded that Mr. Yurek’s out-of-

court statement 14 was admissible against Mrs. Yurek as a statement by a

coconspirator. To qualify for admissibility as a coconspirator statement,

the statement must have been made during and in furtherance of a

conspiracy. Fed. R. Evid. 801(d)(2)(E).

      Mrs. Yurek does not challenge the district court’s admissibility

determination, so we regard the husband’s out-of-court statement as

nontestimonial. Introduction of this nontestimonial statement against Mrs.

Yurek did not violate the Sixth Amendment. See Patterson, 713 F.3d at

1247 (concluding that statements made in furtherance of a conspiracy were

properly admitted because they were nontestimonial).

      D.    Mrs. Yurek has not demonstrated that her husband would
            have been willing to testify at a severed trial.

      Mrs. Yurek also contends that if the trial had been severed, she could

have cross-examined her husband about his out-of-court statement. 15 But

Mrs. Yurek never presented evidence that her husband would have testified


14
     He made the statement in bankruptcy court; but for purposes of
admissibility, the pertinent court is the federal district court in Mrs.
Yurek’s trial.
15
      The parties dispute whether Mrs. Yurek preserved this argument. For
the sake of argument, we assume preservation.

                                      19
at a severed trial. Indeed, Mrs. Yurek concedes that she does not know

whether he would have done so. Appellant’s Op. Br. at 27. The resulting

uncertainty is fatal to Mrs. Yurek’s contention. See United States v.

Pursley, 577 F.3d 1204, 1216 (10th Cir. 2009) (upholding the denial of a

motion to sever because the defendant did not submit affidavits from his

co-defendants regarding their willingness to testify at a severed trial);

United States v. Dirden, 38 F.3d 1131, 1141 n.13 (10th Cir. 1994)

(upholding the denial of the defendant’s motion to sever based on the lack

of evidence that the co-defendant would have given exculpatory

testimony).

                                     * * *

       For these reasons, we conclude that the district court acted within its

discretion in denying Mrs. Yurek’s motions for severance and a new trial.

III.   We reject Mrs. Yurek’s challenge based on multiplicity.

       Mrs. Yurek insists that she was convicted of multiplicitous charges:

tax evasion and bankruptcy fraud. Charges are multiplicitous when they

cover the same criminal conduct. United States v. McCullough, 457 F.3d

1150, 1162 (10th Cir. 2006). On challenges involving multiplicity, we

generally engage in de novo review. United States v. McIntosh, 124 F.3d

1330, 1336 (10th Cir. 1997). But Mrs. Yurek did not raise the issue in a




                                      20
pretrial motion, so we review her argument only for plain error. Id. We

conclude that there was no error, plain or otherwise.

      The Fifth Amendment forbids convictions on multiplicitous charges.

McCullough, 457 F.3d at 1162. But under the Blockburger test, the same

conduct can trigger prosecution for multiple crimes “if each crime requires

proof of a fact that the other does not.” United States v. Berres, 777 F.3d

1083, 1090 (10th Cir. 2015); see Blockburger v. United States, 284 U.S.

299, 304 (1932) (“[W]here the same act or transaction constitutes a

violation of two distinct statutory provisions, the test to be applied to

determine whether there are two offenses or only one, is whether each

provision requires proof of a fact which the other does not.”). We thus

focus on whether the elements differ for Mrs. Yurek’s crimes of tax

evasion and bankruptcy fraud. See Illinois v. Vitale, 447 U.S. 410, 416

(1980) (analyzing the elements of the crimes of conviction when applying

the Blockburger test).

      A conviction for tax evasion requires proof of three elements:

      1.    The defendant owed a substantial tax to the IRS.

      2.    The defendant committed “an affirmative act constituting an
            evasion or attempted evasion” of assessment or payment of the
            tax.

      3.    The defendant willfully evaded or attempted to evade the
            assessment or payment of the tax.




                                      21
United States v. Boisseau, 841 F.3d 1122, 1125 (10th Cir. 2016) (citing

Sansone v. United States, 380 U.S. 343, 351 (1965)). A conviction for

bankruptcy fraud also requires proof of three elements:

      1.    The defendant devised or intended to devise a scheme to
            defraud or otherwise engage in a fraudulent scheme.

      2.    For the purpose of executing or concealing the scheme or
            attempting to do so, the defendant filed a petition under the
            Bankruptcy Code.

      3.    The defendant acted with the specific intent to defraud.

United States v. Spurlin, 664 F.3d 954, 964 (5th Cir. 2011). As Mrs. Yurek

admits, each crime requires proof of an element that the other crime does

not. We thus would not ordinarily consider the two counts multiplicitous.

      But Mrs. Yurek argues that the government’s theory essentially

required the same elements for both crimes because the government

characterized the bankruptcy fraud as a scheme to evade taxes. To support

this argument, Mrs. Yurek points to the indictment, contending that the

indictment shows that both counts stemmed from the same underlying

conduct. But the Blockburger test “focuses on the proof necessary to prove

the statutory elements of each offense, rather than on the actual evidence

to be presented at trial.” Illinois v Vitale, 447 U.S. 410, 416 (1980). Given

the focus of this test, Mrs. Yurek’s argument fails because the nature of the

charges does not alter the elements that the government needed to prove.




                                     22
      To argue that she was convicted of multiplicitous charges, Mrs.

Yurek also relies on United States v. McIntosh, 124 F.3d 1330 (10th Cir.

1997). In McIntosh we acknowledged that “Congress undoubtedly may

subject a defendant to multiple convictions and punishments for the same

act,” but we held that Congress did not intend to subject the defendant to

convictions for both 18 U.S.C. § 152(3) (making a false statement) and 18

U.S.C. § 152(7) (concealing assets). 124 F.3d at 1336–37.

      But Mrs. Yurek was not convicted of violating either § 152(3) or

§ 152(7), so McIntosh does not control. And unless Congress expresses a

contrary intent, “we presume . . . that Congress intended multiple

convictions and sentences for the same criminal behavior which violates

more than one statute when each statute requires proof of a fact that the

other does not.” United States v. Benoit, 713 F.3d 1, 12 (10th Cir. 2013).

      Mrs. Yurek has not pointed to any evidence that Congress expressed

an intent to preclude a conviction for both tax evasion and bankruptcy

fraud. Mrs. Yurek’s reliance on McIntosh is thus misguided, and we

conclude that the charges were not multiplicitous.

IV.   The district court erroneously calculated the guideline range by
      applying the wrong test for a mitigating-role adjustment.

      Mrs. Yurek contends that the district court

          should have applied Sentencing Guideline § 2T1.1 to her
           conviction for bankruptcy fraud,

          incorrectly calculated the loss attributable to her, and
                                     23
             applied the wrong test for a mitigating-role adjustment.

We agree that the district court erred in deciding whether to grant Mrs.

Yurek a mitigating-role adjustment. But the court did not otherwise err at

sentencing.

      A.      Sentencing Guideline § 2T1.1 does not apply to Mrs.
              Yurek’s conviction for bankruptcy fraud.

      To calculate the guideline range, the district court must select the

applicable guideline (if one exists) for the offense of conviction. U.S.S.G.

1B1.2(a) (2016). 16 Here the parties agree that the relevant offense of

conviction was bankruptcy fraud under 18 U.S.C. § 157(1). For this

offense, however, the Sentencing Commission has not expressly adopted a

guideline. When the Sentencing Commission has not specified the

applicable guideline, the district court must “apply the most analogous

offense guideline.” U.S.S.G. § 2X5.1 (2016). This process involves two

steps. The court begins by determining which guidelines are sufficiently

analogous; from these guidelines, the court then selects the most analogous




16
      The 2016 version was in effect at the time of Mrs. Yurek’s
sentencing. See U.S.S.G. § 1B1.11(a) (2016) (Ordinarily, “[t]he court shall
use the Guidelines Manual in effect on the date that the defendant is
sentenced.”).


                                       24
one. 17 Id. § 2X5.1 cmt.; United States v. Nichols, 169 F.3d 1255, 1270–71

(10th Cir. 1999).

     The district court assumed for the sake of argument that both § 2T1.1

and § 2B1.1 were “sufficiently analogous” to bankruptcy fraud under 18

U.S.C. § 157(1). The district court then concluded that § 2B1.1 was the

more analogous guideline.

     The parties agree that § 2B1.1 is sufficiently analogous to

bankruptcy fraud under 18 U.S.C. § 157(1). 18 But the parties disagree over

whether § 2T1.1 is also sufficiently analogous to bankruptcy fraud. To

determine whether § 2T1.1 is “sufficiently analogous” to bankruptcy fraud,

we compare the elements of bankruptcy fraud under 18 U.S.C. § 157(1)




17
     If there is not a sufficiently analogous guideline, 18 U.S.C. § 3553
would control. U.S.S.G. § 2X5.1 cmt. (2016).
18
      Section 2B1.1 covers crimes of fraud and deceit. Two of the crimes
covered by § 2B1.1 are mail fraud and wire fraud. See U.S.S.G. App’x A
(2016) (identifying 18 U.S.C. §§ 1341 and 1343 as covered by § 2B1.1).
The statutes for these crimes served as the model for § 157. See United
States v. Milwitt, 475 F.3d 1150, 1155 (9th Cir. 2007). Like § 157, both
mail fraud and wire fraud include as elements (1) a scheme or artifice to
defraud and (2) the specific intent to defraud. Compare United States v.
Spurlin, 664 F.3d 954, 964 (5th Cir. 2011) (listing the elements for
bankruptcy fraud under § 157(1)), with United States v. Welch, 327 F.3d
1081, 1104 (10th Cir. 2003) (listing the elements for mail fraud and wire
fraud).


                                     25
with the elements of the offenses covered by § 2T1.1. See United States v.

Nichols, 169 F.3d 1255, 1270 (10th Cir. 1999). 19

      Section 2T1.1 relates to matters of taxation. Thus, all of the crimes

expressly covered by § 2T1.1 involve taxation:

           evading taxes (26 U.S.C. § 7201),

           willfully failing to file a tax return, keep records, supply
            information, or pay a tax (26 U.S.C. § 7203),

           making false or fraudulent statements to the IRS (26 U.S.C.
            § 7206(1), (3), (4), and (5)),

           willfully filing a fraudulent return, statement, or other
            document (26 U.S.C. § 7207),

           making false statements to purchasers or lessees relating to a
            tax (26 U.S.C. § 7211), and

           attempting to interfere with the administration of the tax laws
            (26 U.S.C. § 7212(a)).

U.S.S.G. App’x A (2016).

      Because these crimes target taxation, they contrast starkly with

bankruptcy fraud. Bankruptcy fraud requires specific intent to defraud, 20

and the § 2T1.1 crimes require specific intent only with regard to the tax

laws. For example, tax evasion under 26 U.S.C. § 7201 requires proof that


19
       Because the district court didn’t decide this issue, we use our
independent judgment on this legal issue. Cf. Nichols, 169 F.3d at 1270
(stating that determination of the first step is “purely legal,” requiring de
novo review).
20
      United States v. Spurlin, 664 F.3d 954, 964 (5th Cir. 2011).

                                      26
a defendant had the “specific intent to evade taxes.” United States v.

Payne, 978 F.2d 1177, 1182 (10th Cir. 1992). A violation of 26 U.S.C.

§ 7203 occurs only if a defendant “willfully fails” to pay a tax, file a

return, keep tax records, or supply tax-related information. And a

conviction under 26 U.S.C. § 7206(4) requires the government to prove

that a defendant hid taxable property “with intent to evade or defeat the

assessment or collection” of a tax. So the specific-intent element for

bankruptcy fraud sweeps beyond the specific-intent elements found in

§ 2T1.1 crimes.

      Nor is there a match between § 2T1.1 and bankruptcy fraud’s first

element (scheme to defraud). See United States v. Spurlin, 664 F.3d 954,

964 (5th Cir. 2011). It is true that many of the crimes covered by § 2T1.1

target fraudulent conduct. But § 2T1.1’s fraud crimes again relate only to

the tax laws:

      1.    making false or fraudulent statements to the IRS (26 U.S.C.
            § 7206(1)),

      2.    making false statements regarding a tax to purchasers or lessees
            (26 U.S.C. § 7211),

      3.    filing false or fraudulent documents with the IRS (26 U.S.C.
            § 7207),

      4.    concealing taxable property from the IRS (26 U.S.C.
            §§ 7206(4) and 7206(5)), and

      5.    falsely or fraudulently executing or signing documents required
            by the provisions of the Internal Revenue Code or regulations
            issued under those provisions (26 U.S.C. § 7206(3)).

                                      27
See p. 26, above. Unlike these crimes, bankruptcy fraud targets a scheme to

defraud unrelated to taxation or the administration of the federal tax laws.

So the fraudulent conducted covered by bankruptcy fraud sweeps beyond

the fraudulent conduct covered by § 2T1.1.

      Because the elements of § 2T1.1 crimes are narrower than and largely

unrelated to the elements of bankruptcy fraud, we conclude that § 2T1.1 is

not sufficiently analogous to bankruptcy fraud. Thus the only potentially

applicable guideline was § 2B1.1, and the district court did not err by

applying this section.

      B.    The amount of intended loss attributable to Mrs. Yurek
            could reasonably be based on the amount of debt that Mrs.
            Yurek had tried to discharge in bankruptcy.

      At Mrs. Yurek’s sentencing, the district court applied Sentencing

Guideline § 2B1.1 to determine Mrs. Yurek’s base-offense level and

specific offense characteristics. For the specific offense characteristics,

§ 2B1.1 allowed the court to increase the base-offense level based on the




                                      28
amount of the intended loss attributable to a defendant. 21 See U.S.S.G.

§ 2B1.1(b)(1) (2016).

     To calculate the intended loss, the district court considered two

methodologies:

     1.    the amount of federal tax debt that Mrs. Yurek tried to
           discharge in bankruptcy and

     2.    the value of the assets that Mrs. Yurek concealed from the
           bankruptcy court.

The court found that under either approach, the intended loss was between

$550,000 and $1,500,000. Given this finding, the court overruled Mrs.

Yurek’s objection to the U.S. Probation Department’s recommendation of a

14-level enhancement.

     On appeal, Mrs. Yurek argues that the loss attributable to her was

less than $550,000 and that the district court erred in two ways when

calculating the intended loss:

     1.    The amount sought to be discharged in bankruptcy did not
           constitute an appropriate methodology.

     2.    The district court miscalculated the value of the assets that had
           been concealed from the bankruptcy court.

     We reject Mrs. Yurek’s challenge to the district court’s methodology

for calculating the intended loss. Determining this methodology involves a


21
     Under § 2B1.1, “loss is the greater of actual loss or intended loss.”
U.S.S.G. § 2B1.1 cmt. n.3(A) (2016). The parties agree that the applicable
measure of loss is intended loss because there was no actual loss.

                                     29
legal conclusion, so we engage in de novo review. See United States v.

Gordon, 710 F.3d 1124, 1160–61 (10th Cir. 2013) (stating that we engage

in de novo review of the district court’s methodology for calculating loss

under § 2B1.1(b)). Engaging in de novo review, we start with the

applicable guideline and related application notes. The application notes

for § 2B1.1 define “intended loss” as a loss that a defendant “purposely

sought to inflict.” U.S.S.G. § 2B1.1 cmt. n.3(A)(ii)(I) (2016); see United

States v. Manatau, 647 F.3d 1048, 1050 (10th Cir. 2011) (Gorsuch, J.)

(“Something is intended if it is done on purpose—not merely known,

foreseen, or just possible or potentially contemplated.”). 22 We must follow

this definition of intended loss because it is not plainly erroneous,

inconsistent with § 2B1.1, or violative of the U.S. Constitution or a federal

statute. United States v. Mojica, 214 F.3d 1169, 1171 (10th Cir. 2000).

      Applying this definition, we conclude that the intended loss equals

the monetary harm that Mrs. Yurek wanted to cause her creditors. See

United States v. Holthaus, 486 F.3d 451, 455 (8th Cir. 2007) (“When

determining intended loss [in the bankruptcy context], we look to the




22
       In Manatau, we interpreted the phrase “intended loss” in a prior
version of § 2B1.1 to mean “a loss the defendant purposely sought to
inflict.” Manatau, 647 F.3d at 1050 (emphasis in original). The Sentencing
Commission later amended § 2B1.1 to reflect this holding. See U.S.S.G.
amend. 792 (eff. Nov. 1, 2015), available at U.S.S.G. supp. to app. C 108–
12 (2016 ) .

                                      30
amount of loss a defendant actually intended to cause his creditors.”);

United States v. Bussell, 504 F.3d 956, 962 (9th Cir. 2007) (“When

determining intended loss [in the bankruptcy context], we must look to the

amount of loss that [the defendant] intended to cause her creditors.”).

     These creditors included the IRS, so the intended loss includes the

amount of federal tax debt that Mrs. Yurek tried to discharge in

bankruptcy. That discharge would have extinguished Mrs. Yurek’s federal

tax debt, causing a loss to the IRS. See United States v. Mutuc, 349 F.3d

930, 937 (7th Cir. 2003) (“A successful discharge in bankruptcy would

have left the creditors without recourse against Mutuc; it follows that

Mutuc intended a loss equal to the amount to be discharged in

bankruptcy.”).

     In similar circumstances, other circuits have ordinarily allowed

calculation of the intended loss based on the amount of debt that the

defendant was trying to discharge, though the circuits have taken somewhat

different approaches. For example, the Seventh Circuit has flatly stated

that it allows measurement of the intended loss based on the amount that

the defendant sought to discharge in bankruptcy. See United States v.

Arthur, 582 F.3d 713, 720–21 (7th Cir. 2009); United States v. Mutuc, 349

F.3d 930, 936–37 (7th Cir. 2003); United States v. Holland, 160 F.3d 377,

381 (7th Cir. 1998). On the other hand, the Ninth Circuit allows the district

court to consider the economic realities in each case and use discretion in

                                     31
determining whether to calculate the intended loss based on the entire

amount to be discharged or the value of concealed assets. See United States

v. Bussell, 504 F.3d 956, 961–62 (9th Cir. 2007). And the Eighth Circuit

has suggested that the intended loss can equal the entire amount that the

defendants are trying to discharge only if the fraud had created the illusion

of dischargeability. See United States v. Holthaus, 486 F.3d 451, 455 (8th

Cir. 2007).

      All of these approaches support the district court’s decision to

calculate the intended loss attributable to Mrs. Yurek based on the amount

of tax debt ($1.2 million) that Mrs. Yurek was trying to discharge in

bankruptcy. So regardless of whether we consider the economic realities or

the illusion of dischargeability, the district court did not err in calculating

the intended loss based on the amount that Mrs. Yurek had tried to

discharge in bankruptcy.

      Of course, Mrs. Yurek couldn’t succeed in causing this loss because

once she committed tax evasion, the entire tax debt became

nondischargeable. See 18 U.S.C. § 523(a)(1)(C). But a loss can be intended

even when it is improbable or impossible. U.S.S.G. § 2B1.1 cmt. n.3(A)(ii)

(2016). 23


23
      We have stated that a loss is intended only if (1) “the defendant
realistically intended a particular loss” or (2) such a loss was probable.
United States v. Swanson, 360 F.3d 1155, 1168 (10th Cir. 2004); United

                                      32
      Mrs. Yurek disagrees, relying on United States v. Holthaus, 486 F.3d

451 (8th Cir. 2002). There, however, the Eighth Circuit expressly

disavowed a blanket prohibition against calculation of intended loss based

on the amount that the defendant had tried to discharge in bankruptcy.

Holthaus, 486 F.3d at 455; see p. 32, above. Given the pinpoint citation in

Mrs. Yurek’s opening appeal brief, Mrs. Yurek is apparently intending to

rely on the Holthaus panel’s discussion of a prior opinion, United States v.

Wheeldon, 313 F.3d 1070 (8th Cir. 2002). There the Eighth Circuit

addressed the proper method for calculating intended loss when the amount

of the attempted discharge exceeds the value of the concealed assets.

Wheeldon, 313 F.3d at 1072. Applying the 2000 version of the U.S.

Sentencing Guidelines, the Eighth Circuit concluded that this situation

required the district court to calculate the intended loss based on the value

of the concealed assets. Id.

      In reaching this conclusion, the Eighth Circuit didn’t apply the term

“intended loss;” the court instead applied the term “probable intended




States v. Schild, 269 F.3d 1198, 1200 (10th Cir. 2001). We later
characterized the reference to “probable” loss as “dicta” based on
“questionable authority.” United States v. Baum, 555 F.3d 1129, 1134
(10th Cir. 2009). That “questionable authority” was United States v. Smith,
951 F.2d 1164 (10th Cir. 1991), which had relied on guideline language
that was later deleted. See Baum, 555 F.3d at 1134–35 (discussing the
origin of the language in Swanson and Schild and later changes to the
sentencing guidelines) .

                                     33
loss.” Id. But the Sentencing Commission amended the applicable

definition of “intended loss” in 2001, providing that a loss can be intended

even when it is unlikely or impossible. U.S.S.G. amend. 617 (eff. Nov. 1,

2001), available at U.S.S.G. app. C vol. II at 117 (2016) (“The amendment

resolves the conflict to provide that intended loss includes unlikely or

impossible losses that are intended, because their inclusion better reflects

the culpability of the offender.”); see p. 32 & note 23, above. Given the

change in definition, the nondischargeability of Mrs. Yurek’s tax debt does

not affect the available methods to calculate intended loss.

      Mrs. Yurek listed a tax debt of $1.2 million in her bankruptcy

petition, requesting that it be discharged. And her husband, who also

signed the bankruptcy petition, stated in bankruptcy court that he and his

wife had filed the bankruptcy petition in order to discharge their $1.2

million tax debt. Given this evidence, the court could calculate the

intended loss attributable to Mrs. Yurek based on the amount of tax debt

that she had tried to discharge.

                                    * * *

      We conclude that the district court appropriately calculated the

intended loss attributable to Mrs. Yurek based on the amount of tax debt

that she had tried to discharge in bankruptcy. Thus, the district court did

not err in applying the 14-level sentencing enhancement.



                                     34
         C.   The district court plainly erred by applying the wrong test
              for a mitigating-role adjustment.

         Mrs. Yurek also argues that the district court applied the wrong test

when deciding not to grant a downward adjustment for a mitigating role.

We agree.

         1.   Preservation and the Argument for Plain Error

         The government contends that Mrs. Yurek did not preserve the issue

for appeal. We agree.

         To preserve an appellate issue involving the district court’s

explanation for a sentence, the defendant must lodge a “contemporaneous

objection.” United States v. Romero, 491 F.3d 1173, 1177 (10th Cir. 2007);

see United States v. Lopez-Flores, 444 F.3d 1218, 1221 (10th Cir. 2006)

(“[T]he usual reasons for requiring a contemporaneous objection apply to

challenges to the district court’s method of arriving at a sentence.”). At

sentencing, the district court explained that it would deny Mrs. Yurek a

mitigating-role adjustment because her participation in tax evasion and

bankruptcy fraud had been “central and necessary for both . . . crimes to

take place.” R., vol. 5, at 1925; see also id. at 1925–26 (finding “ample

grounds to conclude that Ms. Yurek’s participation in these criminal

schemes was central and necessary and that her husband could not have

proceeded with either the tax evasion or the bankruptcy fraud without

her”).


                                        35
      Mrs. Yurek argues that the district court applied the wrong test. She

bases her argument on the district court’s explanation for denying a

mitigating-role adjustment, but she did not raise this issue in district court.

According to Mrs. Yurek, she preserved the issue by objecting to the

presentence report. But she is alleging an error in the district court’s

explanation, not in the content of the presentence report. So objecting to

the presentence report would not have alerted the district court to an error

in its explanation. See United States v. Mendoza, 543 F.3d 1186, 1195

(10th Cir. 2008); 24 see also United States v. Chavez-Morales, 894 F.3d

1206, 1213 (10th Cir. 2018) (concluding that a defendant’s sentencing

memorandum did not preserve an issue involving the adequacy of the

district court’s explanation). Because Mrs. Yurek did not preserve her

argument involving correctness of the legal standard for a mitigating-role




24
      In Mendoza, the government appealed the sentence, arguing that the
district court failed to provide written reasons for its downward variance.
543 F.3d at 1186. We concluded that the government had forfeited this
appeal point by failing to alert the district court to its failure to provide
written reasons. Id. at 1195. An objection to the presentence report didn’t
suffice for preservation: “Unlike other forms of sentencing error, which
can be preserved for appellate review through written objections to the
[presentence report] or an oral objection during the sentencing hearing,
failure to enter a written statement of reasons becomes apparent to the
parties only after the court enters its final judgment regarding the sentence
imposed.” Id.


                                      36
adjustment, any review would be confined to the plain-error standard.

Romero, 491 F.3d at 1178. 25

      But the government argues that Mrs. Yurek lost her opportunity to

urge plain error by waiting until her reply brief to do so. We disagree. Mrs.

Yurek appeared to assume in her opening brief that she had preserved her

challenge to the denial of a mitigating-role adjustment. After the

government challenged preservation, Mrs. Yurek argued in her reply brief

that the error would be considered plain even if she had forfeited the issue.

This approach was a permissible way to invoke plain-error review. See

United States v. Zander, 794 F.3d 1220, 1232 n.5 (10th Cir. 2015) (“We

hold that Defendant adequately addressed the issue of plain error review in

his reply to the government’s brief, after arguing in his opening brief that

his objections below were sufficiently raised to be preserved for review on

appeal.”). We thus apply the standard for plain error.

      2.    Mrs. Yurek is entitled to relief under the plain-error
            standard.

      For Mrs. Yurek to prevail under the plain-error test, she must show

      1.    that an error took place,




25
      Mrs. Yurek contends that the government induced the error by
arguing that she had played a central and necessary role in the crimes. But
the government never suggested to the district court that it apply the wrong
legal test. The government simply argued against a mitigating-role
adjustment. Presentation of this argument did not induce the court’s error.

                                        37
      2.    that the error was plain,

      3.    that it affected her substantive rights, and

      4.    that the error “seriously affects the fairness, integrity, or public
            reputation of judicial proceedings.”

United States v. Bustamante-Conchas, 850 F.3d 1130, 1137 (10th Cir.

2017) (en banc). Mrs. Yurek has satisfied each of these prongs.

      a.    The government properly conceded the first and second
            prongs.

      The government concedes the first two prongs of the plain-error test.

We agree that the first two prongs are satisfied.

      A defendant who was a minimal or minor participant in criminal

activity is eligible for a downward adjustment. See U.S.S.G. § 3B1.2

(2016). Finding that a defendant performed an “essential or indispensable

role . . . is not determinative” of eligibility for this adjustment. Id. § 3B1.2

cmt. n.3(C). The court instead must focus on whether the defendant “is

substantially less culpable than the average participant in the criminal

activity.” Id.; see United States v. Salazar-Samaniega, 361 F.3d 1271,

1277 (10th Cir. 2004) (noting that a § 3B1.2 reduction is available only for

“a defendant who plays a part in committing the offense that makes him

substantially less culpable than the average participant”); United States v.

Ayers, 84 F.3d 382, 383 (10th Cir. 1996) (“Section 3B1.2 vests the district

court with discretion to grant a base-offense level reduction if it finds a



                                        38
defendant is less culpable relative to other participants in a given offense.”

(internal quotation marks omitted)).

      But the district court did not consider Mrs. Yurek’s culpability

relative to other participants in the scheme. 26 The court instead found that

Mrs. Yurek’s role had been essential to the crimes and treated that finding

as determinative. By failing to consider Mrs. Yurek’s relative culpability,

the district court applied the wrong test when denying a mitigating-role

adjustment. As the government admits, the district court’s application of

the wrong test constitutes an error that was plain. Mrs. Yurek has thus

satisfied both the first and second prongs of the plain-error standard.




26
      In the criminal scheme, only two persons were named: Mrs. Yurek
and her husband. But the husband was not an “average participant” because
he had obtained a two-level enhancement for a leadership role in the
crimes. So in this scheme, it is impossible to compare Mrs. Yurek’s
culpability to another “average” participant.

      Given the absence of another “average” participant in this scheme,
the sentencing court must focus on (1) the degree of Mrs. Yurek’s
culpability relative to her husband’s and (2) the scope of the criminal
scheme. See United States v. Lopez, 545 F.3d 515, 517 (7th Cir. 2008)
(“[I]n situations where criminal activity involves only two participants
(and thus it is impossible to ascertain the culpability of an ‘average’
participant), the key inquiry is the degree of the defendant’s culpability
relative to the other participant’s and the scope of the criminal
enterprise.”). With this dual focus, the court should determine whether
Mrs. Yurek bore substantially less culpability than her husband. See id.;
see also United States v. Tholl, 895 F.2d 178, 1185–86 (7th Cir. 1990)
(concluding that under § 3B1.2, it was not enough for the defendant to
prove less culpability than the sole other participant, who had been the
“mastermind” behind the criminal scheme).
                                       39
     b.    Mrs. Yurek has satisfied the third prong of the plain-error
           test.

     Mrs. Yurek has also satisfied the third prong of the plain-error test.

Under this prong, Mrs. Yurek bears the burden to show prejudice. United

States v. Gonzales-Huerta, 403 F.3d 727, 732–33 (10th Cir. 2005). To

satisfy this burden, Mrs. Yurek must show a reasonable probability

sufficient to undermine confidence in the outcome at her sentencing.

United States v Bustamante-Conchas, 850 F.3d 1130, 1138 (10th Cir. 2017)

(en banc). Confidence in the outcome can be undermined even if Mrs.

Yurek’s showing would not satisfy the preponderance-of-the-evidence

standard. United States v. Dominguez Benitez, 542 U.S. 74, 83 n.9 (2004).

     Mrs. Yurek has shown prejudice from the district court’s application

of the wrong test. The crux of § 3B1.2 is a defendant’s relative culpability.

See pp. 38–39, above. After denying a mitigating-role adjustment to Mrs.

Yurek, the court considered her relative culpability and downplayed her

role in the scheme:

           It is true that the trial evidence established that the
     defendants used accountants and attorneys as tools to accomplish
     the bankruptcy fraud and tax evasion schemes for which they
     were convicted, but in the mitigation for this defendant, these
     accountants and attorneys unambiguously testified at trial that it
     was always Mr. Yurek, as opposed to his wife, who took the lead
     in communicating and strategizing with them in the perpetuation
     of these schemes.

           While it does not absolve her from her culpability for her
     crimes, in my judgment fairness requires me to temper the
     sentence I will impose on Ms. Yurek to reflect her passive and,

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      to some degree, submissive personality when compared to her
      husband, at least insofar as matters such as the complex criminal
      schemes in this case are concerned.

R., vol. 5, at 1969–70 (emphasis added). Given Mrs. Yurek’s lesser role in

the scheme, the district court varied downward to 27 months from the

guideline range of 41–51 months.

      The district court justified the downward variance based in part on

its view that Mrs. Yurek bore less culpability than her husband. If a

district court finds that a defendant is less culpable relative to other

participants in a crime and varies downward from the advisory guideline

range based partly on that determination, a reasonable probability exists

that the district court would have granted a mitigating-role adjustment

under the correct test. See United States v. Trujillo-Terrazas, 405 F.3d

814, 820 (10th Cir. 2005) (considering a district court’s comments at

sentencing when determining whether the plain error prejudiced the

defendant); see also United States v. Sierra-Castillo, 405 F.3d 932, 942

(10th Cir. 2005) (noting that a district court’s comments at sentencing can

help a defendant satisfy the third prong of the plain-error test).

      And if the district court had granted Mrs. Yurek a mitigating-role

adjustment, the district court’s starting point (the guideline range) would

have been lower. “When the court’s starting point is skewed a ‘reasonable

probability’ exists that its final sentence is skewed too.” United States v.



                                      41
Sabillon-Umana, 772 F.3d 1328, 1333 (10th Cir. 2014) (Gorsuch, J.). Mrs.

Yurek has thus satisfied the third prong of the plain-error test.

      c.    The fourth prong was also satisfied.

      To satisfy the fourth prong, Mrs. Yurek must show that the district

court’s error “seriously affects the fairness, integrity, or public reputation

of judicial proceedings.” United States v. Bustamante-Conchas, 850 F.3d

1130, 1137 (10th Cir. 2017) (en banc). We conclude that Mrs. Yurek has

met this burden.

      When an error affects the calculation of a defendant’s guideline

range, the fourth prong is ordinarily satisfied when the first three prongs

are satisfied. Rosales-Mireles v. United States, 138 S. Ct. 1897, 1908

(2018). After all, “what reasonable citizen wouldn’t bear a rightly

diminished view of the judicial process and its integrity if courts refused to

correct obvious errors of their own devise that threaten to require

individuals to linger longer in federal prison than the law demands?” Id.

(quoting United States v. Sabillon-Umana, 772 F.3d 1328, 1333–34 (10th

Cir. 2014) (Gorsuch, J.)).

                                     * * *

      We conclude that the district court plainly erred by applying the

wrong test for a mitigating-role adjustment.




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V.   Conclusion

     We affirm Ms. Yurek’s conviction, but we vacate her sentence and

remand for resentencing. At resentencing, the district court must

reconsider the possibility of a mitigating-role adjustment.




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