                                  RECOMMENDED FOR FULL-TEXT PUBLICATION
                                       Pursuant to Sixth Circuit Rule 206
                                               File Name: 08a0376p.06

                         UNITED STATES COURT OF APPEALS
                                          FOR THE SIXTH CIRCUIT
                                            _________________


                                                    X
                               Plaintiff-Appellee, -
 UNITED STATES OF AMERICA,
                                                     -
                                                     -
                                                     -
                                                         No. 07-5696
         v.
                                                     ,
                                                      >
 BRUCESTAN T. JORDAN,                                -
                            Defendant-Appellant. -
                                                    N
                      Appeal from the United States District Court
                   for the Middle District of Tennessee at Nashville.
                  No. 06-00165—Aleta Arthur Trauger, District Judge.
                                          Argued: September 16, 2008
                                    Decided and Filed: October 15, 2008
              Before: MOORE and COLE, Circuit Judges; GRAHAM, District Judge.*
                                               _________________
                                                     COUNSEL
ARGUED: David L. Cooper, THE LAW OFFICE OF DAVID L. COOPER, Nashville, Tennessee,
for Appellant. William Lee Deneke, ASSISTANT UNITED STATES ATTORNEY, Nashville,
Tennessee, for Appellee. ON BRIEF: David L. Cooper, THE LAW OFFICE OF DAVID L.
COOPER, Nashville, Tennessee, for Appellant. William Lee Deneke, ASSISTANT UNITED
STATES ATTORNEY, Nashville, Tennessee, for Appellee.
                                               _________________
                                                   OPINION
                                               _________________
       KAREN NELSON MOORE, Circuit Judge. Defendant-Appellant, Brucestan T. Jordan
(“Jordan”), appeals his conviction for mail fraud (Count 1) in violation of 18 U.S.C. § 13411 and




         *
          The Honorable James L. Graham, United States District Judge for the Southern District of Ohio, sitting by
designation.
         1
           Section 1341 prohibits the use of the mail “to devise any scheme or artifice to defraud, or for obtaining money
or property by means of false or fraudulent pretenses, representations, or promises.” 18 U.S.C. § 1341.


                                                            1
No. 07-5696                      United States v. Jordan                                                        Page 2


aggravated identity theft (Count 2) in violation of 18 U.S.C. § 1028A(a)(1),2 as well as his sentence
to forty-eight months in prison on Count 1. Jordan makes several arguments before this court:
(1) that there was a violation of the Speedy Trial Act’s requirement that a defendant be indicted
within thirty days of his arrest; (2) that evidence was unlawfully seized from his vehicle incident to
a warrantless arrest without probable cause; (3) that the district court erred in refusing to appoint
standby counsel to assist Jordan’s pro se defense at trial; (4) that the district court failed properly
to exercise its discretion under Rule 16 of the Federal Rules of Criminal Procedure to grant adequate
remedies for alleged discovery violations by the government; (5) that the government failed to
provide timely notice under Federal Rule of Evidence 902(11) of its intent to offer certain records
into evidence; (6) that the evidence at trial was insufficient to support a conviction; and (7) that the
district court erred in sentencing Jordan on Count 1 in finding the amount of intended loss from
Jordan’s actions to be around $811,000. For the reasons explained below, we AFFIRM Jordan’s
conviction and sentence.
                                               I. BACKGROUND
A. Factual Background
        On July 13, 2006, Norma Browne, senior corporate-security investigator for AmerenUE, a
gas and electric utility based in St. Louis, discovered that someone had sent commercial customers
an unauthorized flyer containing AmerenUE’s corporate logo directing them to begin mailing their
payments to a new address. Joint Appendix (“J.A.”) at 130-33 (Trial Tr. at 81-84). The flyer told
customers to send payments to a post-office box with a Nashville zip code, and referred customers
with questions to a telephone number with a St. Louis area code. J.A. at 90 (Ex. 1). Browne was
put in contact with United States Postal Service (“USPS”) Inspector William Dorroh in Nashville,
who immediately began an investigation. J.A. at 133 (Trial Tr. at 84); J.A. at 206-07 (Trial Tr. at
239-40).
        Dorroh soon learned that the Nashville zip code on the flyer was controlled by Suntrust Bank
(“Suntrust”). J.A. at 207-08 (Trial Tr. at 240-41). Suntrust had assigned the post-office-box number
listed on the flyer, P.O. Box 440474, to a specific “lock box” account. J.A. at 135-37 (Trial Tr. at
100-02). A “lock box” is a system whereby a bank controls an entire zip code and assigns to
individual customers post-office-box numbers within that zip code; as checks are received at the
local post-office-box address, the bank automatically deposits them into the customer’s account.
On July 13, Dorroh met with Suntrust fraud investigator, Jim Dixon, who told Dorroh that the
account had been opened in the name of “Gerald Hurt,” doing business as “Ameren UE Billing
Company,” with a mailing address in Brentwood, Tennessee. J.A. at 137 (Trial Tr. at 102); J.A. at
208 (Trial Tr. at 241). Dixon told Dorroh that bank records indicated that a debit card for the
account had already been mailed to the Brentwood address. J.A. at 208 (Trial Tr. at 241). The
account had been initially funded with a $50 money order, a copy of which was obtained by Dorroh,
along with the corresponding deposit slip for $50. J.A. at 209-10 (Trial Tr. at 242-43); J.A. at 222-
23 (Trial Tr. at 255-56).
        On July 14, 2006, Dorroh followed up at the address in Brentwood, discovering that it was
a virtual office, or commercial mail receiving agency (“CMRA”), called Office Suites PLUS. J.A.



         2
          Section 1028A(a)(1) provides that “[w]hoever, during and in relation to any felony violation enumerated in
subsection (c), knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another
person shall, in addition to the punishment provided for such felony, be sentenced to a term of imprisonment of 2 years.”
18 U.S.C. § 1028A(a)(1). Subsection (c) includes mail, bank, and wire fraud among the enumerated offenses. Id.
§ 1028A(c)(5).
No. 07-5696                       United States v. Jordan                                                          Page 3


at 212-13 (Trial Tr. at 245-46).3 There, Dorroh met with the manager of the facility, Sara Bottoms,
who gave Dorroh a copy of the CMRA application that was used to open the account in question.
J.A. at 214-15 (Trial Tr. at 247-48). Dorroh testified at trial that his review of this application—a
standard USPS form required for such accounts—led him to believe that the account was fraudulent
and opened with a fraudulent New York driver’s license. Id. Bottoms testified at trial that the
process of opening4 the account had been initiated on June 15, 2006, when a man identifying himself
as “Gerald Hurt” called Bottoms seeking to open an account on behalf of AmerenUE Billing5
Company and provided an address in Hendersonville, Tennessee. J.A. 182-84 (Trial Tr. at 180-82).
Bottoms informed “Hurt” that before the account could be opened he would have to fill out a license
agreement and CMRA application, and following the phone conversation she mailed the forms to
the Hendersonville address. J.A. at 183 (Trial Tr. at 181). Bottoms also testified that on June 23,
2006, a man identifying himself as “Thomas Gordon” came into the office of Office Suites PLUS
to make an initial payment of $248, via money order, to open this account. J.A. 192-93 (Trial Tr.
at 190-91). At trial, Bottoms identified this man as Defendant-Appellant Jordan. J.A. at 194 (Trial
Tr. at 192).
         During Dorroh’s meeting with Bottoms at Office Suites PLUS on July 14, Dorroh began
inspecting the mail being held for AmerenUE Billing Company. J.A. at 215-16 (Trial Tr. at 248-49).
He suspected that one letter contained the debit card that Suntrust Bank had sent to the Office Suites
PLUS address, because, as he testified at trial, he “could feel the debit card in there.” J.A. at 216
(Trial Tr. at 249). Dorroh testified that he then left Office Suites PLUS “for a short period of time
in order to acquire assistance from fellow law enforcement agents.” J.A. at 218 (Trial Tr. at 251).
He soon returned to Office Suites PLUS, “sat down in the lobby and pretended to be a customer.”
Id. Dorroh testified that he then observed Jordan enter Office Suites PLUS, holding a check in an
awkward manner, which Dorroh believed was intended to prevent leaving fingerprints on the check.
J.A. at 218-19 (Trial Tr. at 251-52). Dorroh further testified that Jordan approached the receptionist
and said, “I am here to pay for the Ameren account.” J.A. at 219 (Trial Tr. at 252). After seeing
Bottoms take Jordan back to her office, Dorroh then exited the building and waited outside. Id.
Bottoms testified that Jordan—again identifying himself as “Thomas Gordon”—made a payment
of $102 then left the office. J.A. at 200-01 (Trial Tr. at 198-99).
        As Dorroh and his supervisor observed Jordan exiting Office Suites PLUS with a bundle of
mail and get into his car, they decided to arrest him. J.A. at 220 (Trial Tr. at 253). Dorroh testified
that as he approached the vehicle, he saw that Jordan had already opened the envelope that Dorrow
suspected contained the Suntrust debit card and that Jordan was looking at the debit card. Id.
        Jordan was arrested by Dorroh on July 14, 2006, and then held by state authorities until being
arrested on a federal complaint on July 18. J.A. at 41 (Arrest Warrant).




         3
           CMRAs, such as Mailboxes, Etc. and UPS Stores, offer various advanced mailing services, including
receiving all of a customer’s mail, signing for packages, accepting faxes, and providing other business services for a fee.
J.A. at 212-13 (Trial Tr. at 245-46).
         4
            The victim of identity theft in this case, the real Gerald Hurt, is a resident of New Jersey, who testified that
he had no dealings with Office Suites PLUS or AmerenUE, and no knowledge of the unauthorized use of his name, date
of birth, and social security number until being contacted by authorities. J.A. at 277-91 (Trial Tr. at 344-58).
         5
           Inspector Dorroh later discovered that the Hendersonville address was another CMRA facility, Pony Mail
Services. J.A. at 233 (Trial Tr. at 266).
No. 07-5696                 United States v. Jordan                                            Page 4


B. Procedural Background
         On July 18, 2006, the district court appointed counsel from the Federal Public Defender’s
Office to represent Jordan. J.A. at 40 (Appointment of Federal Public Defender). On July 20, a
magistrate judge held a probable cause and detention hearing and ordered Jordan detained pending
trial. J.A. at 43-46 (Order of Detention). Upon appeal of the magistrate judge’s detention order, on
August 30, 2006 the district court ordered Jordan to remain detained because he posed a risk of
flight and a danger to the community. J.A. at 48-49 (Appeal of Detention Order); J.A. 54 (Order).
        On August 9, 2006, the government filed a motion for leave to file a sealed document. J.A.
at 47. That same day the government filed a sealed ex parte motion requesting a thirty-day
extension of time in which to indict Jordan pursuant to 18 U.S.C. § 3161(h)(8)(A) of the Speedy
Trial Act. J.A. 347-51 (Ex Parte Motion). The district court granted that motion in a sealed order
on August 14, 2006, giving the government until September 15, 2006, to file an indictment. J.A.
at 352 (Sealed Order).
        On September 12, 2006, Jordan filed a pro se motion for “Failure to Indict” requesting
release from custody because the government had failed to file an indictment as of September 7,
2006. J.A. at 56 (Motion for Failure to Indict #1). That motion was denied by the district court on
September 18, 2006. J.A. at 60 (Order).
       On September 13, 2006, a grand jury indicted Jordan for one count of mail fraud in violation
of 18 U.S.C. § 1341. J.A. at 23-27 (Indictment). Also on September 13, Jordan filed a motion to
have his appointed counsel dismissed from the case. J.A. at 58-59 (Motion to Dismiss Federal
Public Defender). After a hearing on September 18, the district judge permitted Jordan’s initial
counsel, Douglas Thoresen, to withdraw, J.A. at 60 (Order), and appointed Michael Flanagan to
represent Jordan on September 19, J.A. at 64. On September 20, Jordan filed a second pro se motion
for “Failure to Indict” requesting release from custody because the government had not indicted
Jordan as of September 14, 2006. J.A. at 62 (Motion for Failure to Indict #2). The district court
denied this motion on September 21. J.A. at 65.
         Though then represented by Flanagan, on September 27, 2006, Jordan filed a pro se motion
for a speedy trial, J.A. at 66 (Motion). This motion was granted by the district court on October 3,
J.A. at 67, and Jordan’s trial date was set for November 28, 2006, J.A. at 68-69 (Order). On October
25, 2006, a grand jury charged Jordan in a superseding indictment with one count of mail fraud in
violation of 18 U.S.C. § 1341 and one count of aggravated identity theft in violation of 18 U.S.C.
§ 1028A(a)(1). J.A. at 28-31 (Superseding Indictment).
        Less than two weeks before trial, on November 16, 2006, Jordan filed a letter with the district
judge requesting removal of his appointed counsel, Michael Flanagan, and requesting appointment
of standby counsel to aid his pro se defense. J.A. at 77 (Letter). After a hearing on November 20,
2006, the district court granted Jordan’s request to relieve Flanagan from the case, but found that
Jordan had elected to forego the appointment of standby counsel by insisting on proceeding to trial
on November 28. J.A. at 83 (Order).
         The trial took place on November 28-30, 2006. At trial, the government introduced
numerous pieces of evidence recovered from Jordan’s car that connected him to the Suntrust lock-
box account and to the fraudulent flyer directing Ameren customers to send payments to the Suntrust
account. Linking Jordan to the Suntrust account were the following: (1) the SunTrust debit card
in the name of “Gerald Hurt,” which Dorroh testified Jordan was holding in his hand when he
approached Jordan’s car, J.A. at 220-21 (Trial Tr. 253-54); (2) the receipt from the $50 money order
that initially funded the Suntrust account, J.A. at 222-23 (Trial Tr. at 255-56); (3) printed-out Yahoo
driving directions from Lawrenceville, Georgia, where the Suntrust account was initially funded,
No. 07-5696                 United States v. Jordan                                            Page 5


to the Office Suites PLUS address in Brentwood, Tennessee, J.A. at 224-25 (Trial Tr. at 257-58);
(4) printed-out Yahoo driving directions from Office Suites PLUS in Brentwood to the
Hendersonville, Tennessee address of Pony Mail Service, which was the address given for
AmerenUE Billing Company on the Office Suites PLUS application, J.A. at 225 (Trial Tr. at 258);
J.A. at 233 (Trial, Tr. at 266).
        The government also introduced substantial evidence linking Jordan to the fraudulent flyer,
including the following: (1) a T-Mobile cell phone found in Jordan’s car that, when called, played
a recorded message and automated options purporting to be AmerenUE customer service, and was
reached by callers of the phone number on the fraudulent flyer, J.A. at 226-28 (Trial Tr. at 259-61);
(2) records from T-Mobile showing that the cell phone had been obtained by “Gerald Hurt,” with
the address of Pony Mail Services, the CMRA in Hendersonville, J.A. at 232-33 (Trial Tr. at 265-
66); (3) records from T-Mobile showing that the cell phone had been used to call Office Suites
PLUS on the morning of July 14, J.A. at 233 (Trial Tr. at 266), when Sarah Bottoms testified that
she had received a phone call from “Gerald Hurt,” J.A. at 199 (Trial Tr. at 197); (4) a gift card
recovered from Jordan that was used to pay for a Skype telephone number in June and July of 2006,
J.A. at 243-46 (Trial Tr. at 276-79); (5) records from Skype showing that this gift card, in the name
of “Gerald Hurt,” was used to pay for Skype service providing the telephone number used on the
fraudulent flyer, J.A. at 248-52 (Trial Tr. at 281-85); (6) Skype records showing that calls to this
Skype number (the one on the flyer) were automatically forwarded to the T-Mobile telephone found
in Jordan’s car containing the automated recording and options purporting to be AmerenUE
customer service, J.A. at 250 (Trial Tr. at 283).
         Following trial, on November 30, 2006, a jury convicted Jordan on both Counts 1 and 2. J.A.
at 91 (Verdict). After finding the intended loss to be around $811,000, the district court determined
the guideline range for Count 1 to be 87-108 months. J.A. 341-42 (Sentencing Tr. at 101-02). The
district court, however, granted a downward variance and sentenced Jordan to only 48 months on
Count 1, to run consecutively with a mandatory sentence of 24 months on Count 2. J.A. at 343
(Sentencing Tr. at 111); J.A. at 33-34 (Judgment). Jordan filed a timely notice of appeal.
                                          II. ANALYSIS
A. Speedy Trial Act
        We review de novo a district court’s legal interpretation of the Speedy Trial Act, 18 U.S.C.
§ 3161, and review for clear error the factual findings supporting a district court’s ruling. United
States v. DeJohn, 368 F.3d 533, 538 (6th Cir.), cert. denied, 543 U.S. 988 (2004).
         The Speedy Trial Act (“Act”) provides that “[a]ny . . . indictment charging an individual with
the commission of an offense shall be filed within thirty days from the date on which such individual
was arrested or served with a summons in connection with such charges.” 18 U.S.C. § 3161(b). But
the Act also contains various statutory exclusions under which certain periods of delay are not
counted toward the speedy-trial clock. See § 3161(h). As relevant here, the Act excludes from the
thirty-day clock “[a]ny period of delay resulting from other proceedings concerning the defendant,
including but not limited to” several enumerated types of delays, § 3161(h)(1), including “delay
resulting from any pretrial motion, from the filing of the motion through the conclusion of the
hearing on, or other prompt disposition of, such motion,” § 3161(h)(1)(F). The Act also provides
for a so-called “ends-of-justice” continuance. See § 3161(h)(8)(A). This provision permits a district
court to grant a continuance that excludes from the speedy-trial clock the resulting delay when the
court makes “findings that the ends of justice served by taking such action outweigh the best interest
of the public and the defendant in a speedy trial,” and “sets forth, in the record of the case, either
orally or in writing, its reasons” for these findings. § 3161(h)(8)(A). These findings “must be put
No. 07-5696                     United States v. Jordan                                                    Page 6


on the record by the time a district court rules on a defendant’s motion to dismiss under
§ 3162(a)(2).” Zedner v. United States, 547 U.S. 489, 507 (2006).
        Jordan argues that he was entitled to dismissal of the charges against him because more than
thirty countable days elapsed between Jordan’s initial arrest on July 14, 2006, and his indictment
on September 13, 2006. Jordan concedes that the following periods are properly excluded from the
speedy-trial clock: July 18 (initial appearance); July 20 (preliminary hearing); August 10-14
(pendency of government motion). However, Jordan disputes the most important exclusion claimed
by the government—a thirty-day ends-of-justice continuance granted by the district court under
§ 3161(h)(8)(A) on August 14. If this continuance was properly granted by the district court, less
than thirty days elapsed on the speedy-trial clock, and there was no violation of the Speedy Trial
Act. If it was not properly granted, more than thirty days elapsed, and therefore Jordan was entitled
to dismissal of the charges against him.
        The ends-of-justice continuance at issue was granted by a magistrate judge in a sealed order
on August 14, giving the government until September 15 to indict Jordan. J.A. at 352 (Sealed
Order). On August 9, the government filed a motion requesting leave to file a sealed document.
J.A. at 47. Leave was evidently granted, because also on August 9 the government filed a sealed
ex parte motion6 requesting a thirty-day continuance under § 3161(h)(8)(A). J.A. at 347-51 (Ex
Parte Motion). In support of the continuance, the government cited the complexity of Jordan’s
scheme, outstanding grand jury subpoenas to banks and telephone companies, and the possibility
that Jordan had engaged in similar schemes in South Carolina and Nevada. Id. In the sealed order
granting the continuance, the magistrate judge made the following findings:
        The Court finds that the ends of justice served by the extension outweigh the best
        interests of the public and the defendant in a speedy trial in that: 1) The failure to
        grant such an extension would result in a miscarriage of justice; and 2) The arrest in
        this case precedes indictment, and the facts upon which the grand jury must base its
        determination are unusual or complex; and 3) The failure to grant such an extension
        would deny the attorney for the government reasonable time necessary for effective
        preparation, taking into account the exercise of due diligence.
J.A. at 352 (Sealed Order).
        When a district court grants such an ends-of-justice continuance, it must “set[] forth, in the
record of the case, either orally or in writing, its reasons for finding that the ends of justice served
by the granting of such continuance outweigh the best interests of the public and the defendant in
a speedy trial.” 18 U.S.C. § 3161(h)(8)(A). We conclude that the district court met these
requirements of § 3161(h)(8)(A) in granting the continuance. First, the magistrate judge tracked the
language of the statute in the sealed order, indicating that he was aware of the statutory
requirements. See § 3161(h)(8)(B) (listing factors “which a judge shall consider in determining
whether to grant a continuance under [§ 3161(h)(8)(A)]”). Second, sufficient facts to satisfy those
requirements were set forth in the government’s ex parte motion, including the fact that a grand jury
investigation into Jordan’s activities was ongoing and that the grand jury was awaiting returns on
subpoenas from various banks and telephone companies.
         Nonetheless, we must also address a serious procedural issue raised by Jordan’s counsel for
the first time at oral argument. There, Jordan’s appellate counsel asserted that neither he nor Jordan
had previously been notified of the ends-of-justice continuance granted by the district court on

        6
           According to the attached Certificate of Service, the motion was not served upon Jordan’s then-counsel,
Assistant Federal Public Defender Douglas Thoresen, because it contained matters relating to grand jury proceedings
required to be kept secret under Rule 6 of the Federal Rules of Criminal Procedure.
No. 07-5696                      United States v. Jordan                                                       Page 7


August 14. According to Jordan’s current counsel—who began representing Jordan after conviction
but before sentencing—he first became aware of the continuance upon receiving the government’s
appellate brief in this case. Indeed, nothing in the record before us demonstrates that either Jordan
or his current or former counsel were furnished, prior to this appeal, with the government’s ex parte
motion for a continuance or the sealed order of the district court granting that motion. When pressed
on this issue at oral argument, the Assistant U.S. Attorney (“AUSA”) recalled discussing the
continuance with Jordan’s counsel at the time. But the record before us contains nothing that would
indicate the existence or content of any communication regarding the continuance.
         We begin by noting that “ex parte actions under [§ 3161](h)(8)(A) are red flag signals to an
appellate court.” United States v. Mitchell, 723 F.2d 1040, 1044 (1st Cir. 1983), abrogated on other
grounds by Henderson v. United States, 476 U.S. 321, 325-27 (1986). Although there is nothing in
§ 3161(h)(8)(A) specifically requiring a district court to hold a hearing before granting a
continuance, we caution that ex parte action should be the exception rather than the rule. See
Mitchell, 723 F.2d at 1044. As a general matter, ex parte contacts between a party and the trial court
in criminal trials “are nearly always problematic in light of the Sixth Amendment’s guarantee of a
public trial.” United States v. Madori, 419 F.3d 159, 171 (2d Cir. 2005). These concerns are
heightened in the context of a motion for a continuance under § 3161(h)(8). As the Supreme Court
has explained, “[t]he strategy of § 3161(h)(8) . . . is to counteract substantive openendedness with
procedural strictness.” Zedner, 547 U.S. at 509 (emphasis added). To this end, the district court
must make on-the-record findings explaining the reasons for granting an ends-of-justice
continuance. Id. at 506-09. We believe that in order to assure that the district court adequately
considers whether the ends-of-justice outweigh the public’s and defendant’s interests in a speedy
trial, the district court should also generally hold an adversarial hearing in which both sides
participate.7 Without the participation of the defendant, the district court is less likely to give full
and adequate consideration to the defendant’s countervailing interests in a speedy trial.
         Furthermore, we take exception to the undue secrecy here surrounding the government’s ex
parte motion and the district court’s order granting the continuance. Both documents were entered
under seal. It is unclear on the record before us when, or even if, they were unsealed and provided
to Jordan or Jordan’s counsel in the court below. As noted previously, Jordan’s counsel complained
at oral argument that he was not aware that a continuance had even been granted until he received
the government’s appellate brief.
         The government’s stated reason for filing its motion for a continuance under seal—and
without serving Jordan’s counsel—was to protect the secrecy of the grand jury proceedings pursuant
to Rule 6 of the Federal Rules of Criminal Procedure. J.A. at 348-51. The magistrate judge,
meanwhile, offered no explanation for sealing the August 14 order granting the ends-of-justice
continuance. We believe that the level of secrecy exercised here by both the government and the
district court was unjustified. We acknowledge that the government may, in the proper case,
justifiably keep secret the details of a grand jury investigation in a motion for a § 3161(h)(8)(A)
continuance. Here, however, the only arguably revealing details contained in the government’s
sealed motion were that the grand jury had outstanding subpoenas for the records of “banks and
telephone companies,” and that investigators were looking into whether Jordan was “involved in
similar utility fraud schemes in both South Carolina and Nevada.” J.A. at 349. These facts could
easily have been redacted so that the motion revealed nothing beyond the mere existence of a grand
jury investigation.




         7
          Of course, when the nonmoving party has notice of the motion and the motion is uncontested, the district court
need not hold a hearing.
No. 07-5696                     United States v. Jordan                                                     Page 8


         The sealing of the magistrate judge’s order was even less necessary. Federal Rule of
Criminal Procedure 6(e)(6) requires that “[r]ecords, orders, and subpoenas relating to grand-jury
proceedings must be kept under seal to the extent and as long as necessary to prevent the
unauthorized disclosure of a matter occurring before a grand jury.” Fed. R. Crim. P. 6(e)(6). But
the magistrate judge’s order merely recited the statutory factors in the course of finding that the ends
of justice outweighed the public’s and defendant’s interests in a speedy trial. Nothing in the sealed
order related to secret grand-jury matters. Consequently, the district court should not have sealed
this order and should have immediately provided the order to Jordan or his counsel.
        Notwithstanding our concerns that the continuance was granted ex parte and surrounded by
unnecessary secrecy, we conclude that the ends-of-justice continuance was effective to stop the
speedy-trial clock. The district court’s order met the requirement of § 3161(h)(8)(A) that the court
make on-the-record findings that the ends of justice outweigh the public’s and defendant’s interests
in a speedy trial. Further, by tracking the language of the statutory factors, see § 3161(h)(8)(B), the
magistrate judge signaled that he considered the proper requirements for granting a continuance.
Finally, we cannot say that the court clearly erred in finding that the facts set forth in the
government’s motion—including outstanding subpoenas to banks and telephone companies—were
sufficient to meet those requirements.
        Because the ends-of-justice continuance granted by the district court did not violate Jordan’s
rights under the Speedy Trial Act, the entire period after entry of the continuance on August 14 is
excludable from Jordan’s speedy-trial clock. Additionally, Jordan concedes that seven other days
are properly excluded from the speedy-trial clock. Excluding those seven days and the entire period
following entry of the August 14 ends-of-justice continuance, there were only twenty-five countable
days toward a Speedy Trial Act violation.8 Because the maximum thirty-day delay provided in
§ 3161(b) was not exceeded, we conclude that there was no violation of the Speedy Trial Act.
B. Taint of Illegal Seizure
        For the first time on appeal, Jordan argues that the evidence seized from his vehicle was
obtained incident to an arrest that was without probable cause in violation of the Fourth Amendment.
Under Rule 12(e) of the Federal Rules of Criminal Procedure, a party “waives” any pretrial
objection or defense that is not raised before the trial court’s pretrial-motion deadline. Fed. R. Crim.
P. 12(e). Rule 12(e) allows the court to grant relief from waiver for “good cause.” Id. But this court
has held that when a defendant completely fails to file a pretrial motion to suppress evidence, “we
are categorically without jurisdiction to hear appeals of suppression issues raised for the first time
on appeal.” United States v. Crismon, 905 F.2d 966, 969 (6th Cir. 1990); see also United States v.
Lopez-Medina, 461 F.3d 724, 738-39 (6th Cir. 2006).
        Here, Jordan not only completely failed to file a pretrial motion to suppress evidence based
on his arrest and search, but also affirmatively waived the issue on the record by declining to file
a motion to suppress after being urged to do so by former counsel and questioned by the district
court about his failure to heed counsel’s advice. At the status conference on November 20 at which
Jordan obtained the court’s permission to represent himself, Michael Flanagan, who had just been
relieved from his representation of Jordan, told the court that he was concerned about Jordan’s
decision not to file a motion to suppress the evidence seized in Jordan’s initial arrest. J.A. at 106
(Status Conference Tr. at 13). The district judge confirmed with Jordan that he had discussed the
matter with his former counsel and that he had chosen to not file a motion to suppress. J.A. at 106-
07 (Status Conference Tr. at 13-14). When asked why he would not file a motion to suppress,
Jordan replied, “”It’s just time for me to go to trial.” J.A. at 107 (Status Conference Tr. at 14). The


       8
           July 14 through July 17 (4 days) + July 19 (1 day) + July 21 through August 9 (20 days) = 25 days.
No. 07-5696                  United States v. Jordan                                              Page 9


judge then asked, “Even though you may have a valid motion to suppress that would suppress
evidence that is damaging to you?” Jordan replied, “That’s correct.” Id.
      In conclusion, because Jordan refused to file a pretrial motion to suppress, he conclusively
waived any challenge on appeal to the evidence seized incident to his arrest.
C. Denial of Standby Counsel
          Jordan argues that the district court erred in refusing to appoint standby counsel to assist him
at trial after Jordan obtained removal of his second appointed counsel, Michael Flanagan, eight days
before trial. It is undisputed that Jordan knowingly and voluntarily exercised his Sixth Amendment
right to represent himself pursuant to Faretta v. California, 422 U.S. 806 (1975). After Jordan
requested removal of Flanagan on November 16, 2006, the court held a hearing on November 20,
2006 and permitted Jordan to represent himself. J.A. at 104 (Status Conference Tr. at 7). After
granting that request, the court informed Jordan that he could choose either to proceed to trial as
scheduled eight days later without standby counsel, or alternatively accept a continuance of the trial
date to allow standby counsel adequate time to become familiar with the case. Id. After explaining
the options, the court asked Jordan, “Do you want to postpone the trial and have standby counsel,
or do you want to have a trial next Tuesday?” Id. Jordan replied, “I would rather have the trial next
Tuesday.” Id.
        Clearly, if Jordan had accepted the district court’s reasonable offer of a continuance, the
court would have appointed standby counsel. We conclude, therefore, that Jordan voluntarily
waived any right he might have had to standby counsel by refusing the district court’s offer to grant
a continuance giving standby counsel adequate time to become familiar with the case.
D. Discovery Violations under Rule 16
         We review a district court’s decisions under Rule 16 of the Federal Rules of Criminal
Procedure for abuse of discretion. United States v. Muhammad, 948 F.2d 1449, 1454-55 (6th Cir.
1991), cert. denied, 502 U.S. 1119 (1992). Rule 16 provides that the government, upon request by
a defendant, must permit the defendant to inspect and to copy or photograph papers or tangible
objects “if the item is within the government’s possession, custody, or control” and is “material to
preparing the defense,” intended for use in the government’s case in chief, or “was obtained from
or belongs to the defendant.” Fed. R. Crim. P. 16(a)(1)(E). If the district court finds that a violation
of Rule 16 has occurred, it has discretion to impose a number of sanctions, including ordering
discovery, granting a continuance, excluding the undisclosed evidence, or granting “any other order
that is just under the circumstances.” Fed. R. Crim. P. 16(d)(2).
         Jordan argues that the district court erred in not granting, sua sponte, a continuance of the
trial date upon learning at the pretrial conference on November 27 that Jordan had not been provided
with certain documents that the government intended to introduce into evidence. At the pretrial
conference on November 27, Jordan asserted that he had not been provided copies of phone and
debit card records that the government intended to introduce as business records. J.A. at 109-11
(Pretrial Conference Tr. at 11-13). But the court found that these documents had previously been
made available to Jordan’s former counsel, Michael Flanagan, in a timely manner, and that only the
certifications attached thereto were newly produced. J.A. at 110-13 (Pretrial Conference Tr. at 12-
15). Flanagan apparently did not make copies of these documents, and therefore the packet that he
provided to Jordan did not contain them. Id. The court offered Jordan a continuance to give him
time to review the documents, but Jordan refused and decided to proceed to trial the next day. J.A.
at 113-14 (Pretrial Conference Tr. at 15-16). Later in the hearing, Jordan asked for a continuance,
but when told that this would entail delay of his trial, Jordan again chose to proceed to trial the next
day. J.A. at 116-17 (Pretrial Conference Tr. at 18-19).
No. 07-5696                     United States v. Jordan                                                   Page 10


        Jordan now complains on appeal that the district court erred in forcing him to choose
between either accepting a continuance or proceeding promptly to trial. Specifically, Jordan argues
that the district court improperly sought to force him to “sign a speedy trial waiver” before9 it would
grant a continuance. Jordan Br. at 38. But the district court here sought no such “waiver.” Instead,
it merely sought to accommodate a pro se defendant on the eve of trial by offering him a
continuance that would have given him more time to familiarize himself with the government’s
evidence. Consistent with Rule 16, the district court offered—and Jordan refused—a remedy that
was “just under the circumstances.” Fed. R. Crim. P. 16(d)(2)(D).
        Jordan also argues that the district court erred in admitting into evidence several documents
that Jordan claims the government failed timely to provide during discovery. Specifically, Jordan
asserts that he did not receive seven documents prior to trial—Exhibits 7, 8, 9, 10, 11, 13, and
29—and that the district court failed to fashion appropriate relief pursuant to Rule 16. The
government responds, first, that there was no Rule 16 violation because all of these documents were
promptly provided to either Jordan or Jordan’s former counsel, Flanagan, who had the opportunity
to photocopy any documents he thought necessary. In the alternative, the government argues that,
even if there were discovery violations for late-provided documents, the district judge fashioned
appropriate remedies pursuant to Rule 16(d)(2), including offering Jordan continuances and ordering
prompt provision of documents to Jordan.
        First, there is no indication in the record that the district court admitted into evidence any
document that was not promptly disclosed to either Jordan or his former counsel. Before the jury
was brought in on the second day of trial, the court reviewed each of the seven documents that
Jordan had not previously received. The district court excluded Exhibit 7 and a portion of Exhibit
8 that had been provided late. J.A. 162-64 (Trial Tr. at 130-132). The government never offered
Exhibit 11 into evidence. The court found that Exhibit 13—a check from “Ameren UE Billing” for
the virtual office at Office Suites PLUS—had been provided to former counsel Flanagan well in
advance of trial. J.A. at 171 (Trial Tr. at 139). With respect to both Exhibit 9 (an email from
“Gerald Hurt” to Sarah Bottoms of Office Suites PLUS) and Exhibit 29 (another fraudulent flyer,
sent to a BMW dealership), the court accepted the government’s explanations as to why the
documents had been obtained late by the government and therefore provided late to Jordan. J.A. at
164-71 (Trial Tr. at 132-39). Finally, Inspector Dorroh testified that he had previously provided a
copy of Exhibit 10 (a money order used to pay the original fees at Office Suites PLUS) to Jordan’s
former counsel Flanagan. J.A. at 167-69 (Trial Tr. at 135-37).
         Even assuming that one or more of these documents were not timely disclosed to Jordan, the
district court repeatedly sought to accommodate Jordan using the discretionary relief authorized by
Rule 16(d)(2), including offering continuances, granting an early recess on the first day of trial, and
ordering the government to provide additional photocopies to Jordan of documents that he did not
have. As discussed above, at the pretrial conference on November 27 when Jordan informed the
court that certain documents had not been disclosed, the court offered Jordan a continuance to give
him time to review the documents, which Jordan refused. J.A. at 113-14 (Pretrial Conference Tr.
at 15-16). On the first day of trial before the jury was empaneled, the court again offered Jordan a
continuance to review the government’s documents, which Jordan again refused. J.A. 121-22 (Trial
Tr. at 5-6). Later in the first day of trial, after Jordan asserted that he had not received several
documents, the district judge ordered the government to provide Jordan with marked copies of every
document it intended to introduce, J.A. at 144 (Trial Tr. at 109), and then ordered an early recess
to give Jordan additional time to review the documents, J.A. at 149-53 (Trial Tr. at 114-19).



        9
           In any case, such a waiver would have had no effect for purposes of the Speedy Trial Act. See Zedner, 547
U.S. at 503 (holding that “a defendant may not prospectively waive the application of the [Speedy Trial] Act”).
No. 07-5696                 United States v. Jordan                                          Page 11


       In sum, even assuming arguendo that there were discovery violations, the district court did
not abuse its discretion in fashioning relief under Rule 16 for any violations that may have occurred.
E. Notice under Federal Rule of Evidence 902(11)
       Jordan argues that the government failed to provide timely notice under Federal Rule of
Evidence 902(11) of its intent to offer T-Mobile phone records corresponding to the phone found
in Jordan’s car. Rule 902(11) provides that a party seeking to introduce a business record into
evidence:
       must provide written notice of that intention to all adverse parties, and must make
       the record and declaration available for inspection sufficiently in advance of their
       offer into evidence to provide an adverse party with a fair opportunity to challenge
       them.
Fed. R. Evid. 902(11).
        On the first day of trial, Jordan objected that he had received a notice of the government’s
intention with respect to T-Mobile records for the number “(615) 692-1988,” but had received no
records for that number and instead had received records for “(615) 397-2323.” J.A. at 122 (Trial
Tr. at 6). The district court concluded that this was due to a typographical error in the notice
provided to Jordan and ordered the government to file a corrected notice with the proper phone
number. J.A. at 123 (Trial Tr. at 8). On the second day of trial, Jordan objected that he had not yet
received the corrected notice. J.A. at 174 (Trial Tr. at 142). The AUSA explained that he had filed
the corrected notice after trial was recessed on the first day, but had no way of serving Jordan
electronically in jail. J.A. at 175 (Trial Tr. at 143). The court then admonished the AUSA, “Well,
then you serve him the minute you see him . . . you don’t wait for the court to instruct you to serve
him with something that you filed in the case.” J.A. at 175 (Trial Tr. at 143).
        We believe that the district court did not abuse its discretion in dealing with this matter.
When first informed of the error, the court ordered the government to submit a correction. And
when the government delayed in serving Jordan, the court warned the government promptly to serve
Jordan in person with any filings in the case. Moreover, even assuming arguendo that the district
court erred, there is no evidence that Jordan was prejudiced by the delay in being served with the
notice, and consequently any error was harmless under Federal Rule of Criminal Procedure 52(a).
F. Sufficiency of the Evidence
       When reviewing a claim of insufficiency of evidence, “the relevant question is whether, after
viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443
U.S. 307, 319 (1979). In this context, “we do not weigh the evidence, assess the credibility of the
witnesses, or substitute our judgment for that of the jury.” United States v. Salgado, 250 F.3d 438,
446 (6th Cir.) (internal quotation marks omitted), cert. denied, 534 U.S. 936 (2001). “The
government may meet its burden through circumstantial evidence alone, and such evidence need not
exclude every possible hypothesis except that of guilt.” United States v. Jackson, 55 F.3d 1219,
1225 (6th Cir.), cert. denied, 516 U.S. 926 (1995).
        “This Court will not consider challenges to the sufficiency of the evidence if the defendant
failed to make a Rule 29 motion for judgment of acquittal at the end of the prosecution's
case-in-chief and at the close of the evidence. Failure to make the required motions constitutes a
waiver of objections to the sufficiency of the evidence.” United States v. Chance, 306 F.3d 356,
368-69 (6th Cir. 2002) (citation omitted). If a defendant fails to make the requisite Rule 29 motions,
our review is “limited to determining whether there was a manifest miscarriage of justice. A
No. 07-5696                       United States v. Jordan                                                       Page 12


miscarriage of justice exists only if the record is devoid of evidence pointing to guilt.” United States
v. Price, 134 F.3d 340, 350 (6th Cir.) (internal quotation marks and citations omitted), cert. denied,
525 U.S. 845 (1998).10
        Jordan argues that his conviction should be reversed because the evidence introduced at trial
was insufficient to establish his guilt beyond a reasonable doubt. However, Jordan made no Rule
29 motion for judgment of acquittal either at the close of the prosecution’s case-in-chief or at the
close of all the evidence. See J.A. at 295 (Trial Tr. at 378); J.A. at 316-17 (Trial Tr. at 424-25).
Therefore, our review is limited to determining whether there was a “manifest miscarriage of
justice” such that the record is “devoid of evidence pointing to guilt.” Price, 134 F.3d at 350.
        The government presented substantial evidence at trial connecting Jordan both to the
Suntrust lock-box account and to the fraudulent flyer directing Ameren customers to send payments
to the Suntrust account. This evidence included several items found by Inspector Dorroh on
Jordan’s person and in his car linking him to the Suntrust account and the flyer. These include the
Suntrust debit card linked to the account, the receipt for the money order used to open the Suntrust
account, the T-Mobile cell phone containing the fraudulent AmerenUE message, and a gift card used
to pay for the Skype telephone number on the fraudulent flyers. Clearly, the record in this case is
not “devoid of evidence pointing to guilt.” Consequently, we reject Jordan’s contention that his
conviction was not supported by sufficient evidence.
G. Sentencing
        We review a district court’s determination of the amount of loss attributed to a defendant for
clear error. United States v. Tudeme, 457 F.3d 577, 581 (6th Cir. 2006). We review the sentence
imposed for abuse of discretion. Gall v. U.S., --- U.S. ---, 128 S. Ct. 586, 597 (2007).
       Jordan argues that the district court erred when it determined the amount of intended loss
with respect to Count 1 for purposes11of U.S. Sentencing Guidelines § 2B1.1, which addresses
offenses involving fraud and deceit. The district court found the intended loss to be around
$811,000 (in the Guidelines category of $400,000 to $1 million), adding 14 levels to Jordan’s
Guidelines level. J.A. at 341-42 (Sentencing Tr. at 101-02). After making this finding, the district
court granted a downward variance from the Guidelines range of 87-108 months        and imposed a
sentence of 48 months on Count 1. J.A. at 343-44 (Sentencing Tr. at 111-12).12 Jordan nonetheless
argues that the district court erred in calculating intended loss under the Guidelines because the




         10
             In Price, the court applied this standard of review where the defendant made a Rule 29 motion at the close
of the government’s case-in-chief, but failed to renew the motion at the close of all the evidence. Price, 134 F.3d at 349-
50. We believe that the same standard should apply when, as here, the defendant failed to make a Rule 29 motion at both
the close of the government’s case-in-chief and at the close of all the evidence.
         11
           The sentence for Count 2 is not in dispute because it carried a mandatory two-year sentence that must run
consecutively.
         12
             A sentence outside the Guidelines based on Chapter 5 of the Guidelines is a “departure” or “Guideline
departure,” whereas a sentence outside the Guidelines based on the § 3553(a) factors is a “variance” or “non-Guideline
departure.” See United States v. Cousins, 469 F.3d 572, 577 (6th Cir. 2006), overruled in part on other grounds by
Irizarry v. U.S., 128 S. Ct. 2198 (2008). The district court in this case imposed a variance because it based its sentence
on the § 3553(a) factors and did not refer to any of the Chapter 5 bases for departure. J.A. at 354-55 (Statement of
Reasons at 2-3).
No. 07-5696                      United States v. Jordan                                                       Page 13


amount of possible loss was less than $25,000, which would have added only 4 levels 13
                                                                                    to Jordan’s
Guidelines level. U.S. SENTENCING GUIDELINES MANUAL (U.S.S.G.) § 2B1.1 (2006).
       Determination of the offense level under U.S.S.G. § 2B1.1 depends on the amount of loss
caused or intended by the defendant. Application Note 3(A)(ii) to this section provides as follows:
         “Intended loss” (I) means the pecuniary harm that was intended to result from the
         offense; and (II) includes intended pecuniary harm that would have been impossible
         or unlikely to occur (e.g., as in a government sting operation, or an insurance fraud
         in which the claim exceeded the insured value).
U.S.S.G. § 2B1.1 cmt. n.3 (2006). In the presentence report, the probation officer estimated the total
intended loss at $2,187,532.90, which included the ninety-eight checks actually mailed to the lock-
box account and the utility bills for customers who received the fictitious flyer but were informed
of the scheme before sending payments. J.A. at 365 (Presentence Report at 9). The district court
included in its calculation only the ninety-eight checks actually mailed to the lock-box
account—totaling around $811,000. J.A. at 341 (Sentencing Tr. at 101).
        Jordan argues that because the scheme was discovered and the lock-box account frozen
before he could actually withdraw the funds, there was no realistic possibility of a loss of $811,000.
He therefore contends that (1) the intended loss was less than $25,000, and (2) a downward
adjustment is justified because the scheme had no reasonable possibility of success. In support of
these arguments, Jordan cites this court’s decision in United States v. McBride, 362 F.3d 360 (6th
Cir. 2004).
        First, the McBride court recognized that there is “some point at which a perpetrator’s
misperception of the facts may become so irrational that the words ‘intended loss’ can no longer
reasonably apply.” Id. at 374. Jordan’s actions clearly do not fall to a level of irrationality; in fact,
his scheme was working successfully until discovered by authorities. The intended loss calculated
by the district court, around $811,000, was based on checks actually mailed by commercial
customers of AmerenUE to the lock-box account as intended under Jordan’s scheme.
        Second, the McBride court recognized that, “[w]here sentencing is based largely or solely
on intended loss, a downward departure may be warranted under the ‘economic reality’ principle.”
Id. at 375. A downward departure to comport with “economic reality” has its basis in Application
Note 19(C) to § 2B1.1, which provides: “There may be cases in which the offense level determined
under this guideline substantially overstates the seriousness of the offense. In such cases, a
downward departure may be warranted.” U.S.S.G. § 2B1.1 cmt. n.19(C) (2006). Although the
current version of the fraud Guideline provides no specific guidance on the application of this
downward departure,    the former version expressly envisioned a departure based on considerations
of economic reality.14 As one district court has noted, the change to the fraud Guideline “was ‘one
of style rather than substance.’” United States v. Roen, 279 F. Supp. 2d 986, 990 (E.D. Wis. 2003)
(quoting ROGER W. HAINES, JR., ET AL., FEDERAL SENTENCING GUIDELINES HANDBOOK 325


         13
           Although Jordan complains of error by the district court in failing to grant a downward “departure,” Jordan’s
argument actually relates to the district court’s calculation of intended loss under the Guidelines and not to any of the
Chapter 5 bases for departure.
         14
             See U.S.S.G. § 2F1.1 cmt. n.8(b) (2000) (“Where the loss determined above significantly understates or
overstates the seriousness of the defendant’s conduct, an upward or downward departure may be warranted.”); id. § 2F1.1
cmt. n.11 (“In a few instances, the loss determined under subsection (b)(1) may overstate the seriousness of the offense.
This may occur, for example, where a defendant attempted to negotiate an instrument that was so obviously fraudulent
that no one would seriously consider honoring it. In such cases, a downward departure may be warranted.”).
No. 07-5696                 United States v. Jordan                                            Page 14


(2002)). “The underlying theory behind [the “economic reality”] principle is that where a defendant
devises an ambitious scheme obviously doomed to fail and which causes little or no actual loss, it
may be unfair to sentence based on the intended (but highly improbable) loss determination from
the [§ 2B1.1] table.” McBride, 362 F.3d at 375 (internal quotation marks omitted) (second alteration
in original). One factor considered under the “economic reality” principle is the disparity between
the actual loss and the intended loss. Id. at 376.
        Unlike McBride, where the district court incorrectly believed that it had no authority to
impose a sentence outside the guidelines, see 362 F.3d at 376-77, in this case the district judge was
aware of and actually did grant a downward variance (applying the 18 U.S.C. § 3553(a) factors)
from a Guideline range of 87-108 months to an imposed sentence of 48 months for Count 1, J.A. at
343-44 (Sentencing Tr. at 111-12). Moreover, the “economic reality” principle is not applicable on
these facts. Jordan’s scheme was not “obviously doomed to fail,” nor were the losses from the
scheme “highly improbable.” Rather, the scheme was fully operational at the time it was
discovered, having induced AmerenUE’s customers to send some $811,000 in payments to the fake
address. And although there was a great discrepancy between the actual losses realized (around
$21,500 deposited in the Suntrust account, J.A. at 322-23 (Sentencing Tr. at 18-19)) and the
intended losses found by the district court (around $811,000), this is only because the scheme was
discovered at an early stage due to the diligence of corporate-fraud investigators and USPS Inspector
Dorroh.
         The Supreme Court recently set forth instructions for our review of sentencing courts. See
Gall, 128 S. Ct. at 597-98. First, this court must “ensure that the district court committed no
significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines
range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a
sentence based on clearly erroneous facts, or failing to adequately explain the chosen
sentence—including an explanation for any deviation from the Guidelines range.” Id.at 597. The
district court properly calculated the Guidelines range of 87 to 108 months on Count 1, J.A. at 342
(Sentencing Tr. at 102), considered the § 3553(a) factors, J.A. 353-56 (Sealed Statement of
Reasons), and explained in open court the reasons for its downward variance from the Guidelines,
J.A. at 343-44 (Sentencing Tr. at 111-12). In sum, the record shows no procedural error in the
district court’s sentencing decision.
        Second, after determining that the “district court's sentencing decision is procedurally
sound,” this court “should then consider the substantive reasonableness of the sentence imposed
under an abuse-of-discretion standard.” Gall, 128 S. Ct. at 597. In conducting this review, this
court should “take into account the totality of the circumstances, including the extent of any variance
from the Guidelines range.” Id. Where the sentence is outside the Guidelines range, this court “may
not apply a presumption of unreasonableness. We may consider the extent of the deviation, but must
give due deference to the district court's decision that the § 3553(a) factors, on a whole, justify the
extent of the variance.” Id. Because the government does not appeal the district court’s downward
variance from the Guidelines range, the only issue presented as to substantive reasonableness is
Jordan’s contention that the district court erred in finding that the intended loss was $811,000, rather
than less than $25,000, as claimed by Jordan. As discussed above, the “economic reality” principle
cited by Jordan does not justify a downward revision. Far from “highly improbable,” Jordan’s
scheme was fully operational and soon would have yielded some $811,000 had authorities not
intervened. Accordingly, we conclude that the district court’s sentencing decision was substantively
reasonable.
        In sum, we conclude that the district court did not abuse its discretion in sentencing Jordan
to forty-eight months on Count 1.
No. 07-5696             United States v. Jordan                                Page 15


                                  III. CONCLUSION
      For the foregoing reasons, we AFFIRM Jordan’s conviction and sentence.
