                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 16a0438n.06

                                 Case Nos. 16-5237, 16-5241

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                  FILED
                                                                             Aug 01, 2016
UNITED STATES OF AMERICA,                           )                    DEBORAH S. HUNT, Clerk
                                                    )
       Plaintiff-Appellee,                          )
                                                    )        ON APPEAL FROM THE
v.                                                  )        UNITED STATES DISTRICT
                                                    )        COURT FOR THE EASTERN
ROBERT HATTAWAY,                                    )        DISTRICT OF TENNESSEE
                                                    )
       Defendant-Appellant.                         )

                                                                                OPINION


BEFORE: MOORE, McKEAGUE, and DONALD, Circuit Judges.

       McKEAGUE, Circuit Judge. Robert Hattaway engaged in three different fraudulent

schemes involving farm benefits. For his actions, he was convicted of one count of bank fraud,

nineteen counts of making false statements to a crop insurance company, one count of mail

fraud, two counts of making false statements to the Farm Service Agency, and two counts of

using false documents. He appeals, claiming that there was insufficient evidence to support any

of his convictions and that his sentence of 37 months’ imprisonment is unreasonable. We

disagree, and so we AFFIRM his convictions and sentence. Hattaway also brings a claim that a

prior indictment should have been dismissed with prejudice. We DISMISS this claim for lack of

subject-matter jurisdiction.
Case Nos. 16-5237, 16-5241
United States v. Robert Hattaway

                                                I

         Loan from Homeland Community Bank. In 2005, Homeland Community Bank issued

Hattaway an agricultural loan for $160,000.         Hattaway sold crops to Kokomo Grain, and

Kokomo Grain issued checks made out to both Hattaway and Homeland as payment. From

September to October 2005, Hattaway brought six of these checks to Homeland and properly

negotiated the loan amount. On six following occasions, however, Kokomo issued checks to

Hattaway and Homeland, but the checks were subsequently cashed bearing only Hattaway’s

name. Hattaway’s conviction for bank fraud is for the last of these checks—on February 16,

2006, a check for $506.52 was cashed at Hullett’s Texaco listing only Hattaway as payee and

endorsed with only Hattaway’s signature.

         Insurance Claim with Hudson Insurance Company. Hattaway submitted a claim for over

$100,000 to Hudson Insurance Company for reimbursement for soybean losses in 2008. Hudson

paid Hattaway the amount requested, but it thereafter sought documentation to support the

claim.1 In response to Hudson’s request, Hattaway sent nineteen falsified receipts, which serve

as the bases for his convictions of nineteen counts of making false statements for the purpose of

influencing the Federal Crop Insurance Corporation in connection with an audit.

         Crop Benefits from the Farm Service Agency. Hattaway sought federal farming disaster

benefits and so submitted crop acreage reports for 2008 and 2009, claiming to have farmed

certain fields in Warren County. The county committee declared him ineligible for benefits after

determining that Hattaway was claiming to have farmed fields in 2009 that he did not actually

farm. Hattaway disagreed with this conclusion and sought a hearing with the Warren County

Farm Service Agency. The Farm Service Agency was unpersuaded, and so Hattaway appealed


1
    Any claim submitted to Hudson for an amount over $100,000 automatically triggered an audit.
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Case Nos. 16-5237, 16-5241
United States v. Robert Hattaway

to the United States Department of Agriculture’s National Appeals Division. During his appeal,

Hattaway mailed two falsified receipts to the National Appeals Division. He was convicted of

mail fraud, two counts of making false statements, and two counts of using false statements.

       Hattaway was sentenced to 37 months’ imprisonment followed by three years’ supervised

release. This timely appeal followed.

                                                 II

       Hattaway claims that there is insufficient evidence to support any of his twenty-five

convictions.   “This court reviews de novo a claim of insufficient evidence, assessing the

evidence ‘in the light most favorable to the prosecution to determine whether any rational trier of

fact could have found the essential elements of the crime beyond a reasonable doubt.’” United

States v. Mack, 808 F.3d 1074, 1080 (6th Cir. 2015) (quoting United States v. Campbell,

549 F.3d 364, 374 (6th Cir. 2008)). Thus, we make all reasonable inferences and resolve all

issues of credibility in favor of the jury’s verdict. Id.; Jackson v. Virginia, 443 U.S. 307, 319

(1979). A defendant challenging the sufficiency of the evidence has a “very heavy burden.”

United States v. Jackson, 473 F.3d 660, 669 (6th Cir. 2007) (quoting United States v. Abboud,

438 F.3d 554, 589 (6th Cir. 2006)). “Circumstantial evidence ‘is entitled to the same weight as

direct evidence . . . .’” Mack, 808 F.3d at 1080 (quoting United States v. Farley, 2 F.3d 645, 650

(6th Cir. 1993)). Circumstantial evidence alone is sufficient to sustain a conviction and “need

not remove every reasonable hypothesis except that of guilt.” Id. (quoting United States v.

Wettstain, 618 F.3d 577, 583 (6th Cir. 2010)).

          A.     Conviction Arising from Loan from Homeland Community Bank

       In 2005, Homeland Community Bank issued Hattaway an agricultural loan for $160,000.

The loan agreement involved Homeland, Hattaway, and Kokomo Grain. Hattaway agreed to sell


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Case Nos. 16-5237, 16-5241
United States v. Robert Hattaway

Kokomo Grain 50,000 bushels of corn and agreed to pay back the loan to Homeland in the span

of one year, pledging crops and equipment as collateral. Homeland sent Kokomo Grain a letter

indicating that they had an interest in any crops that Hattaway sold to Kokomo Grain, which

Kokomo Grain officially acknowledged. Kokomo Grain, in an effort to protect the bank’s

collateral, was to issue checks to both Hattaway and Homeland, which would require both

payees to negotiate and endorse checks for deposit. Hattaway was to bring the checks to

Homeland and pay on his loan account.

       From August 2005 to February 2006, Kokomo Grain issued the checks. 2 For each check,

Kokomo Grain retained a carbon copy. Their computer system would allow the entry of only

one payee for each check so, after printing the check with Hattaway’s name, a Kokomo Grain

employee would insert the check and the carbon copy into a typewriter and add Homeland as a

second payee. On six occasions in September and October 2005, Hattaway brought these checks

to Homeland and properly negotiated the payment amount. The following six times Kokomo

Grain issued checks to Hattaway and Homeland, Homeland was removed from the payee line

prior to deposit. For each of these last six checks, Hattaway was charged with a count of bank

fraud in violation of 18 U.S.C. § 1344. A person commits bank fraud if he “knowingly executes,

or attempts to execute, a scheme or artifice . . . to defraud a financial institution.” 18 U.S.C.

§ 1344(1).3 A jury convicted Hattaway of only the sixth count of bank fraud, for a check for

$506.52 cashed at Hullett’s Texaco on February 16, 2006.


2
  Kokomo Grain employee Bruce Brandon testified that Homeland was not listed on several
initial checks but that, beginning in September 2005, he consistently listed both Hattaway and
Homeland as co-payees.
3
  Although Hattaway was charged with violating 18 U.S.C. § 1344(1) & (2), the government
argues on appeal that “[t]he fraud in this case violated the portion of the bank fraud statute”
encompassed in § 1344(1). Appellee Br. 35.
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United States v. Robert Hattaway

       Knowingly Execute a Scheme to Defraud. Hattaway argues that no reasonable juror

could have found that he had knowingly executed a scheme to defraud because there was no

evidence presented at trial that he altered the check, that he signed the check, or that he cashed

the check. Circumstantial evidence, however, is sufficient to sustain a conviction. Kokomo

employee Bruce Brandon testified that the check had originally listed both Hattaway and

Homeland as payees. The carbon copy of the check confirmed this. Hattaway had previously

received checks from Kokomo Grain that listed both himself and Homeland as payees, and he

had brought these checks to Homeland and properly negotiated the payment amount. This

check, however, was not brought to Homeland—it was cashed at Hullett’s Texaco. And when it

was cashed, the check listed only Hattaway as payee. Although Hattaway claims that there was

no evidence presented at trial that he signed the check, the check bore a signature in his name,

his attorney expressly stated that he was not contesting whether Hattaway endorsed the check,

and the senior vice president and chief financial officer of Homeland testified that he had

compared the signatures in this case to a known signature of Hattaway and believed that

Hattaway had endorsed the check.

       Intent to Defraud. Hattaway also argues that no reasonable juror could have found that

he had intended to defraud a financial institution, as required by 18 U.S.C. § 1344(1), because

there was no evidence presented at trial that he intended to expose Homeland to any loss. On

February 2, 2006, a check for $506.52 from Kokomo Grain was cashed at Hullett’s Texaco

listing only Hattaway as payee and endorsed with Hattaway’s signature. Evidence was presented

at trial that the check was originally made out to Hattaway and Homeland. Hattaway had

previously brought checks from Kokomo Grain listing both himself and Homeland as payees to

Homeland to negotiate the payment amount. Hattaway’s $160,000 loan from Homeland had


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United States v. Robert Hattaway

matured on January 20, 2006, but Hattaway had not repaid the loan in full with interest as

agreed. Given this evidence, a rational trier of fact could have found that Hattaway had intended

to defraud Homeland Community Bank.

    B.      Convictions Arising from Insurance Claim with Hudson Insurance Company

         In 2008, Hattaway filed an insurance claim for soybean losses with Hudson Insurance

Company, a reinsurance company insured by the Federal Crop Insurance Corporation. The net

payable amount to Hattaway for this claim was $134,397. Because the claim was in excess of

$100,000, a certified letter was sent to Hattaway in February 2009 requesting production receipts

from 2005, 2006, and 2007 to determine an estimated potential yield of soybeans in 2008. Upon

receiving the letter, Hattaway called Hudson and stated that he had not planted soybeans in 2005.

He was instructed to submit information for 2006 and 2007 and was given an extended deadline

to do so.

         In March 2009, Hudson’s national review manager received an email from Hudson’s

agent’s employee Linda Hughes that stated “Robert Hattaway requested I forward the attached

file to you.” R. 207, Trial Tr. at 16, Page ID 2775. The attachments were nineteen receipts for

crop year 2006, including five receipts from Smith Grain and fourteen from Kokomo Grain. At

trial, a Smith Grain employee testified that the five purported Smith Grain receipts were not

issued by Smith Grain in 2006. He identified several legitimate Smith Grain receipts issued to

Hattaway in 2002 and explained that the purported 2006 receipts were identical to the legitimate

2002 receipts, other than a forged “2006.” Likewise, a Kokomo Grain employee testified that

the fourteen purported Kokomo Grain receipts were fraudulent. He testified that Kokomo did

not buy any soybeans from Hattaway in 2006 and that Kokomo Grain’s 2006 receipts used a

different form. He also noted that the sample numbers on the receipts should have been unique


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Case Nos. 16-5237, 16-5241
United States v. Robert Hattaway

but were the same on all of the purported receipts, and that they appeared to have been modified

from one legitimate receipt that Kokomo Grain issued to Hattaway in January 2009. Hattaway

was convicted of nineteen counts of making false statements to a crop insurance company in

violation of 18 U.S.C. § 1014, one for each of the receipts submitted to Hudson. A person

commits this crime if he:

       knowingly makes any false statement or report . . . for the purpose of influencing
       in any way the action of the . . . Federal Crop Insurance Corporation or a
       company the Corporation reinsures . . . , upon any application, advance, discount,
       purchase, purchase agreement, repurchase agreement, commitment, loan, or
       insurance agreement or application for insurance or a guarantee, or any change or
       extension of any of the same, by renewal, deferment of action or otherwise, or the
       acceptance, release, or substitution of security therefor.

18 U.S.C. § 1014.

       On appeal, Hattaway does not contest that a false statement in an insurance claim would

fall under the purview of 18 U.S.C. § 1014. Instead, he argues that, because the term “audit” is

not contained in § 1014, the nineteen false statements he made after Hudson requested

supporting documents for his insurance claim cannot serve as the basis of his false statements

convictions. We disagree. Hattaway’s attempts to distinguish such “audits”—by claiming that

the audit only “was to determine whether Hudson would be reinsured by [the Federal Crop

Insurance Corporation] and had nothing to do with Hattaway’s application,” Appellant Br. 38

(emphasis added)—are unpersuasive. Any distinction between a false statement in an insurance

claim and a false statement in supporting documents for the claim is a distinction without a

difference. The purpose of submitting the nineteen false receipts was to convince Hudson that

Hattaway was entitled to the insurance payment.

       Hattaway also argues that there was insufficient evidence to support these nineteen

convictions for making false statements because “[t]here was no testimony presented that proved


                                             -7-
Case Nos. 16-5237, 16-5241
United States v. Robert Hattaway

that Hattaway directed the allegedly falsified receipts be sent to Hudson as part of the audit.”

Appellant Br. 38. But there was sufficient circumstantial evidence by which a rational juror

could find that he had directed the false receipts to be submitted to Hudson. During the audit on

Hattaway’s insurance claim, Hudson sought documentation from Hattaway. Hudson mailed

Hattaway a letter in February 2009 asking for “copies of proof of the production that [he] would

have had from previous crop years” 2005, 2006, and 2007. R. 207, Trial Tr. at 25, Page ID

2784. The letter instructed Hattaway that he was expected to respond within one week, but

Hattaway called Hudson and received an extension. On March 10th, Hudson’s national review

manager received an email from Hudson’s agent’s employee Linda Hughes that read “Robert

Hattaway requested that I forward the attached file to you.” R. 207, Trial Tr. at 16, Page ID

2775. The attachments contained what purported to be Hattaway’s 2006 production records,

including falsified records of soybean sales to Smith Grain and Kokomo Grain. A rational

factfinder could find that Hattaway had directed that the false receipts be sent to Hudson based

off of this evidence.

  C.      Convictions Arising from Seeking Crop Benefits from the Farm Service Agency

       Hattaway sought federal farming disaster benefits for crop year 2009. To that end, he

submitted crop acreage reports for 2008 and 2009. The county committee determined that

Hattaway was claiming to have farmed fields in 2009 that he did not actually farm and that were,

in fact, farmed by others. Thus, the committee declared him ineligible for benefits. Hattaway

appealed this conclusion to the Warren County Farm Service Agency, but the Farm Service

Agency was unpersuaded.       Hattaway next appealed to the United States Department of

Agriculture’s National Appeals Division. Hattaway mailed documents to the National Appeals

Division in support of his claim, including materials that proved to be falsified: a receipt


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Case Nos. 16-5237, 16-5241
United States v. Robert Hattaway

purporting to show that he had purchased 1,550 bushels of wheat seed from C & C Farms, a

receipt purporting to show that he had paid Womack Seed Farms to have 1,550 bushels of wheat

cleaned, and a check purporting to show payment to Womack Seed Farms. Hattaway was

convicted of one count of mail fraud in violation of 18 U.S.C. § 1341, two counts of making

false statements to the Farm Service Agency in violation of 18 U.S.C. § 1014, and two counts of

using false documents in violation of 18 U.S.C. § 1001(a)(3).

                                       i.      Mail Fraud

       Hattaway was convicted of one count of mail fraud in violation of 18 U.S.C. § 1341.

“Mail fraud consists of (1) a scheme or artifice to defraud; (2) use of mails in furtherance of the

scheme; and (3) intent to deprive a victim of money or property.” United States v. Turner, 465

F.3d 667, 680 (6th Cir. 2006). Hattaway mailed to the National Appeals Division falsified

documents: a fake receipt that showed he had purchased 1,550 bushels of wheat seed from

C & C Farms and a fake receipt that claimed he had paid Womack Seed Farms to have 1,550

bushels of wheat cleaned.

       Hattaway argues on appeal that there was no scheme to defraud because his appeal to the

National Appeals Division was only to establish his eligibility to apply for benefits, not to

actually apply for benefits. This is, yet again, a distinction without a difference. One of the

threshold inquiries for agricultural disaster assistance is to be a qualifying producer and so

Hattaway’s fraudulent attempt to establish his eligibility was the first step in applying for

benefits. There was sufficient evidence by which a juror could find that Hattaway had submitted

false documents to the National Appeals Division in order to convince the Division that he had

farmed two pieces of land that he had not farmed. Hattaway argues that the receipts were “not

necessary to determine producer eligibility” and so submitting them to the National Appeals


                                               -9-
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United States v. Robert Hattaway

Division “could not be made with the intent to defraud.” Appellant Br. 42. It is irrelevant

whether the receipts were necessary. Submitting false documents to an agency for the purpose of

influencing its decision is acting with the intent to defraud that agency.        Thus, there was

sufficient evidence for the jury to have convicted Hattaway of mail fraud.

                       ii.    False Statements to the Farm Services Agency

           Hattaway was also convicted of two counts of making false statements to the Farm

Service Agency in violation of 18 U.S.C. § 1014. The two counts are for the two fake receipts

he submitted to the National Appeals Division. He maintains that he did not intend to influence

the agency to grant him benefits because the purpose of the proceeding was only to determine if

he was a qualifying producer. As discussed above, however, that inquiry was the threshold

question to his ability to apply for benefits. He also argues that the receipts were not necessary

to determine producer eligibility, but 18 U.S.C. § 1014 does not require that the statements to the

Farm Service Agency be necessary, only that they be false and made for the purpose of

influencing the agency.

           Hattaway next claims that the statements were not false. First, he argues that these

receipts do not contain factual assertions that are capable of being characterized as true or false,

citing Williams v. United States, 458 U.S. 279 (1982). Williams involved a check-kiting scheme.

The Supreme Court held that the checks were not factual assertions as to the amount of funds in

an account, but rather “served only to direct the drawee banks to pay the face amounts to the

bearer, while committing petitioner to make good the obligations if the banks dishonored the

drafts.”     Id. at 284.     Here, however, the statements are amenable to “confirmation or

contradiction.” United States v. Kurlemann, 736 F.3d 439, 445 (6th Cir. 2013) (citing Williams,

458 U.S. at 284). The first statement was a receipt dated October 26, 2008 showing that


                                               - 10 -
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United States v. Robert Hattaway

Hattaway had purchased 1,550 bushels of wheat seed for $10,075 from C & C Farms. The

second statement was a receipt dated October 28, 2008 showing that Hattaway had paid Womack

Seed Farms $1,937.50 to have 1,550 bushels of wheat cleaned. These statements could be

proven false if Hattaway had in fact not purchased 1,550 bushels of wheat seed from C & C

Farms on October 26, 2008 and had not paid Womack Seed Farms to have 1,550 bushels of

wheat seed cleaned on October 28, 2008. And, despite Hattaway’s protestations, a rational trier

of fact could have so found. Steve Stubblefield, who worked for the Warren County Farm

Service Agency, testified that he was unable to verify the C & C Farms receipt. Renee Clift

testified that she and her husband operated C & C Farms and that it was not a receipt from C & C

Farms, noting that the address listed the incorrect town and zip code, that C & C Farms did not

sell the specific type of wheat listed on the receipt, that Hattaway was not in their database as a

customer, and that they used a different format to generate receipts. As for the second receipt,

Darren Womack of Womack Seed Farms testified that he did not believe the receipt for seed-

cleaning was his because he does not clean the specific type of wheat listed and he did not

receive payment for it. Thus, there was sufficient evidence for the jury to have convicted

Hattaway of making false statements to the Farm Service Agency.

                                iii.    Use of False Documents

       Finally, Hattaway was convicted of two counts of using false documents in violation of

18 U.S.C. § 1001(a)(3), which holds criminally liable “whoever, in any matter within the

jurisdiction of the executive, legislative, or judicial branch of the Government of the United

States, knowingly and willfully . . . makes or uses any false writing or document knowing the

same to contain any materially false, fictitious, or fraudulent statement or entry.” Despite

Hattaway’s arguments to the contrary, there was an adequate basis for the jury to have found that


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United States v. Robert Hattaway

Hattaway acted willfully—there was evidence presented that Hattaway had fabricated the

receipts and then submitted them to the National Appeals Division in order to influence its

decision on whether he was eligible to apply for benefits. To the extent that Hattaway argues

that there was insufficient evidence of materiality, we disagree. The National Appeals Division

was determining if Hattaway was a crop producer in the year 2009, and Hattaway submitted two

falsified receipts purporting to show that he had purchased and cleaned wheat seed that year.

This is sufficient evidence for a juror to have found that the false documents were material. And,

as discussed above, there was sufficient evidence by which a rational juror could find that the

documents were false. Thus, there was sufficient evidence for the jury to have convicted

Hattaway of using false documents.

                                               III

       In addition to bringing claims challenging his convictions, Hattaway argues that his

sentence is both procedurally and substantively unreasonable. The district court calculated his

Guidelines range to be 30 to 37 months’ imprisonment and sentenced Hattaway to 37 months’

imprisonment followed by three years’ supervised release.

                              A.      Procedural Reasonableness

       We review the procedural reasonableness of a sentence for an abuse of discretion. Gall v.

United States, 552 U.S. 38, 51 (2007). The district court must correctly calculate the applicable

Guidelines range; must treat the Guidelines as advisory, not mandatory; must consider the

statutory sentencing factors set forth in 18 U.S.C. § 3553(a); may not select a sentence based on

clearly erroneous facts; and must adequately explain the chosen sentence to show that it has

considered the parties’ arguments and has a reasoned basis for the sentence. United States v.

Kamper, 748 F.3d 728, 739 (6th Cir. 2014); Rita v. United States, 551 U.S. 338, 356 (2007).


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Case Nos. 16-5237, 16-5241
United States v. Robert Hattaway

“We review the sentencing court’s legal conclusions de novo and its findings of fact for clear

error.” United States v. Cunningham, 669 F.3d 723, 728 (6th Cir. 2012).

       Courts are instructed to use the greater of actual or intended loss when calculating the

base offense level in fraud cases. U.S.S.G. § 2B1.1, cmt. (n.3(C)). Where losses are not easily

quantifiable, the district court need only make a reasonable estimate. Id. We review the district

court’s methodology for calculating loss de novo and its factual determination of the loss amount

for clear error. United States v. Collins, 799 F.3d 554, 592–93 (6th Cir. 2015); United States v.

Greco, 734 F.3d 441, 444 (6th Cir. 2013); United States v. Triana, 468 F.3d 308, 321 (6th Cir.

2006). “In challenging the court’s loss calculation, [a defendant] must carry the heavy burden of

persuading this Court that the evaluation of the loss was not only inaccurate, but outside the

realm of permissible calculations.” United States v. Gray, 521 F.3d 514, 542 (6th Cir. 2008)

(quoting United States v. Hamilton, 263 F.3d 645, 654 (6th Cir. 2001)) (alteration in original).

       The district court determined the applicable Guidelines range to be 30 to 37 months’

imprisonment. Hattaway claims that this was based off of an incorrect offense level because the

district court incorrectly calculated the amount of loss. The district court determined the loss to

be $506.52 for the loss to Homeland Community Bank and $134,397 for the loss to Hudson

Insurance Company. The loss was thus more than $95,000 but less than $150,000, and so it

triggered an eight-level increase in Hattaway’s base offense level. See U.S.S.G. § 2B1.1(b)(1).

       Loss to Homeland Community Bank. Hattaway was convicted of defrauding a financial

institution. The district court found the loss to Homeland Community Bank to be $506.52.

Hattaway claims that this loss is “purely speculative.” Appellant Br. 55. But Hattaway was

convicted of bank fraud for cashing a check for $506.52. The district court did not clearly err in

finding that the loss to Homeland was equal to the check amount.


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United States v. Robert Hattaway

       Loss to Hudson Insurance Company.          Hattaway submitted a claim for insurance to

Hudson Insurance Company. Hudson paid Hattaway, but then asked for supporting documents

to prove Hattaway’s claim. Hattaway submitted nineteen fraudulent receipts purporting to show

his 2006 soybean sales. Hattaway was convicted of nineteen counts of false statements. The

district court found the loss to Hudson Insurance Company to be $134,397, which represented

the total indemnity payment.       Hattaway argues that the loss should only have been “the

difference between what he would have received had he not provided any documents to Hudson

and what he actually received.” Appellant Br. 56. Thus, Hattaway argues, “Hudson Insurance

Company either owes Defendant $3,873.27 or $1,344.17 or, worse case scenario, Defendant

would owe Hudson $1,838.25.1 [sic].” Appellant Br. 59 (citations omitted). It strains credulity

for Hattaway to claim that, despite his fraud, the bank was not harmed and in fact owes Hattaway

more money. Hattaway argues that, had he sent his claim in without supporting documentation,

Hudson would have calculated the amount to pay out based off of the county’s average yield.

See 7 C.F.R. §§ 400.55, 1437.102; R. 207, Trial Tr. at 44, Page ID 2803. But he did not submit

his claim without supporting documentation. He submitted his claim with nineteen fraudulent

receipts in an effort to keep the $134,397 that Hudson had paid him. We also note that during its

investigation into Hattaway’s claim and these nineteen receipts, Hudson requested the indemnity

back but Hattaway did not return it. R. 207, Trial Tr. at 42–43, Page ID 2801–02. Therefore, the

district court did not err when it concluded that the entire indemnity payment was the appropriate

loss amount. Thus, Hattaway’s sentence is procedurally reasonable.4


4
  Hattaway argues without explanation that his “total offense level should be 7 and his advisory
guidelines range is 0–6 months.” Appellant Br. 62. This would imply that he is arguing that his
base offense level should not be increased at all for the amount of loss (discussed above), that he
should not have received a two-level increase for relocating a fraudulent scheme to another
jurisdiction to evade law enforcement (an argument he never mentions on appeal), and that his
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United States v. Robert Hattaway

                               B.      Substantive Reasonableness

       To qualify as substantively reasonable, a sentence “must be proportionate to the

seriousness of the circumstances of the offense and offender, and sufficient but not greater than

necessary, to comply with the purposes of § 3553(a).” United States v. Curry, 536 F.3d 571, 573

(6th Cir. 2008) (per curiam) (quoting United States v. Vowell, 516 F.3d 503, 512 (6th Cir.

2008)). “A sentence may be considered substantively unreasonable when the district court

selects a sentence arbitrarily, bases the sentence on impermissible factors, fails to consider

relevant sentencing factors, or gives an unreasonable amount of weight to any pertinent factor.”

United States v. Conatser, 514 F.3d 508, 520 (6th Cir. 2008) (citing United States v. Webb, 403

F.3d 373, 385 (6th Cir. 2005)). We review a sentence’s reasonableness for abuse of discretion.

Gall, 552 U.S. at 51; United States v. Smith, 516 F.3d 473, 477–78 (6th Cir. 2008).

       Hattaway’s within-Guidelines sentence of 37 months’ imprisonment is presumptively

reasonable. United States v. Jeter, 721 F.3d 746, 757 (6th Cir. 2013). Hattaway claims that he

should have received a below-Guidelines sentence of zero months’ imprisonment because

“[p]robation is a sentence ‘sufficient, but not greater than necessary’ to fulfill the purpose of the

sentencing.” Appellant Br. 63 (quoting 18 U.S.C. § 3553(a)). He brings only two arguments in

support of this: (1) his criminal history is overstated and (2) the non-violent nature of his

offenses. Hattaway has prior convictions for vandalism, domestic assault, aggravated perjury,

false reporting, and possession of a controlled substance with intent to deliver. Hattaway does

not contest this history, but rather argues that his criminal history category overstates the severity

of his prior offenses. The district court did not abuse its discretion in rejecting Hattaway’s

argument that his criminal history category of III overstated the severity of his criminal history.

criminal history category should be reduced from III to I because it overstates his criminal
history (a claim the district court did not abuse its discretion in rejecting).
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United States v. Robert Hattaway

Nor did the district court abuse its discretion in deciding that his convictions warranted a term of

imprisonment even though they were non-violent.            Thus, Hattaway has not overcome the

presumption that his within-Guidelines sentence of 37 months’ imprisonment is reasonable

                                                  IV

       Finally, we address Hattaway’s claim that the district court should have dismissed his

2011 indictment with prejudice. The district court dismissed that case without prejudice due to a

Speedy Trial Act violation on April 23, 2013. A dismissal of an indictment without prejudice

due to a Speedy Trial Act violation is not a final, appealable order. United States v. Yeager, 303

F.3d 661, 665 (6th Cir. 2002). The proper time to appeal the dismissal of the indictment without

prejudice is after a judgment of conviction under a second indictment. See Parr v. United States,

351 U.S. 513, 518–19 (1956); Yeager, 303 F.3d at 665.

       We must determine, then, if Hattaway’s convictions in the present case were a final

judgment as to the dismissal of his 2011 indictment. If not, we do not have subject-matter

jurisdiction to hear his claim that the indictment should have been dismissed with prejudice. See

Yeager, 303 F.3d at 665. Neither party has argued that we do not have jurisdiction to hear this

claim, but we have an independent obligation to determine our own subject-matter jurisdiction.

See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94 (1998) (“The requirement that

jurisdiction be established as a threshold matter ‘spring[s] from the nature and limits of the

judicial power of the United States’ and is ‘inflexible and without exception’” (quoting

Mansfield, C. & L.M. Ry. Co. v. Swan, 111 U.S. 379, 382 (1884)) (alterations in original));

Campanella v. Commerce Exch. Bank, 137 F.3d 885, 890 (6th Cir. 1998) (noting that “it is

beyond question that federal courts have a continuing obligation to inquire into the basis of

subject-matter jurisdiction to satisfy themselves that jurisdiction to entertain an action exists”).


                                                - 16 -
Case Nos. 16-5237, 16-5241
United States v. Robert Hattaway

       The 2011 indictment included five counts of making false statements to a crop insurance

company and four counts of mail fraud.         Hattaway’s convictions here, however, were for

different crimes than those alleged in his 2011 indictment. The five counts of false statements in

his 2011 indictment were for five instances of “false and fraudulent production worksheets” that

overstated crop failures to insurance companies. R. 1, Indictment at 3, Page ID 3 (2011). There

were two statements on December 20, 2007; one statement on July 24, 2008; and two statements

on October 9, 2008. He was not charged with these false statements in the 2014 indictment that

led to his convictions. The false statements in his 2014 indictment (for which he was convicted)

were for nineteen fraudulent receipts, all dated in 2006.

       The four counts of mail fraud in his 2011 indictment were for “knowingly caus[ing] to be

delivered by United States mail” four checks from reinsurance companies. Id. at 4, Page ID 4

(2011). He was not charged with these four counts in his 2014 indictment. The one count of

mail fraud in his 2014 indictment (for which he was convicted) was for Hattaway himself

mailing false documents to the National Appeals Division.

       We note too that even had his 2011 indictment been dismissed with prejudice, it would

not have barred his 2014 indictment. The Speedy Trial Act requires dismissal of only “such

charge against that individual contained in such complaint.” 18 U.S.C. § 3162(a)(1) (emphasis

added). It does not prevent later prosecution for different crimes even if the “subsequent charges

. . . arise from the same criminal episode as those specified in the original complaint or were

known or reasonably should have been known at the time of the complaint.” United States v.

Napolitano, 761 F.2d 135, 137–38 (2d Cir. 1985).

       Because his convictions were for different crimes than those alleged in his 2011

indictment, Hattaway’s convictions did not make the dismissal of his 2011 indictment a final,


                                               - 17 -
Case Nos. 16-5237, 16-5241
United States v. Robert Hattaway

appealable order. Therefore, we do not have jurisdiction over his claim that his 2011 indictment

should have been dismissed with prejudice.

                                       CONCLUSION

       Accordingly, we AFFIRM Hattaway’s convictions and sentence. We DISMISS for lack

of jurisdiction Hattaway’s appeal from the district court’s dismissal of his 2011 indictment

without prejudice.




                                             - 18 -
