United States Court of Appeals 

For the First Circuit 

No. 16-1437 

UNITED STATES OF AMERICA, 

Appellee, 

v. 

AARON E. OLSON, 

Defendant, Appellant. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF NEW HAMPSHIRE 

[Hon. Landya B. McCafferty, U.S. District Judge] 

Before 

Torruella, Thompson, and Barron, 

 Circuit Judges. 

Inga L. Parsons, Christian J. Urbano and Law Offices of 

Inga L. Parsons on brief for appellant. 

Seth R. Aframe, Assistant United States Attorney, and John J. 

Farley, Acting United States Attorney, on brief for appellee. 

August 14, 2017 
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TORRUELLA, Circuit Judge. Defendant-Appellant Aaron 

Olson ("Olson") committed securities and tax fraud, and he pled 

guilty to tax fraud. Olson's plea agreement contained a sentencing 

range of forty-two to sixty months of imprisonment, and the 

district court sentenced him to sixty months. Olson also agreed 

to pay restitution, and the district court ordered him to pay 

almost $23 million. Olson now appeals his sentence and his 

restitution schedule. We affirm. 

I. BACKGROUND 

A. Factual Background 

In 1999, Olson began trading in commodities, and in 2002, 

he was approached by his first client. Although he was not 

licensed as a trader, Olson continued adding clients. By 2010, he 

had invested several million dollars for family, friends, and their 

businesses, and the New Hampshire Bureau of Securities 

investigated his unregulated trading. However, Olson remained 

unlicensed to trade in New Hampshire, and his business, AEO 

Associates ("AEO"), was not registered to trade in the state. As 

a result of the New Hampshire Bureau of Securities investigation, 

AEO effectively shut down and Olson created KMO Associates ("KMO"), 

which he registered in Massachusetts but ran out of his home in 

New Hampshire, where he remained unlicensed. KMO was also not 

registered in New Hampshire. 
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By 2011, many of Olson's investments had failed. Rather 

than truthfully report losses to his investors, however, he turned 

his investment business into a Ponzi scheme, creating false 

earnings statements showing significant returns and attracting new 

investments to pay investors. Olson also converted about 

$2.6 million of investor funds for his personal use and comingled 

clients' funds with his own. In addition to his securities 

violations, he attempted to evade or defeat taxes on income he 

obtained from operating AEO and KMO. 

Olson's clients finally became suspicious and confronted 

him. On March 23, 2012, he confessed and self-reported to the 

government and the Internal Revenue Service.

B. Procedural History 

The government filed a four-count information on April 

14, 2014, charging Olson with attempt to evade or defeat tax, in 

violation of 26 U.S.C. § 7201. On March 9, 2015, Olson entered 

into a plea agreement pursuant to Fed. R. Crim. P. 11(c)(1)(C) 

(the "Agreement"), in which he pled guilty to the four tax-fraud 

counts. The Agreement allowed Olson to withdraw his plea if the 

district court did not accept it, and it contained, inter alia: a 

sentencing range of forty-two to sixty months; a condition that 

Olson would pay restitution to the victims "in amounts to be 

determined at the time of sentencing"; and an appeal waiver that 
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became effective if Olson was sentenced "within, or lower than, 

the guideline range determined by the Court." At his plea hearing, 

the district court informed Olson that "[u]nder some circumstances 

[he] . . . may have the right to appeal any sentence," but that 

Olson waived some appeal rights, "and those waivers are set forth 

in your plea agreement." 

Thereafter, sentencing was delayed while Olson attempted 

to sell his granite quarry to provide a fund for restitution. The 

district court then held Olson's sentencing hearing on 

April 1, 2016. It calculated Olson's recommended sentencing range 

to be thirty-seven to forty-six months under the U.S. Sentencing 

Guidelines (the "Guidelines"), the same range recommended in 

Olson's presentence investigative report. Both parties agreed 

with the calculation and jointly recommended a sentence of fortytwo months. The district court also heard testimony from two 

victims, Olson, and Olson's wife, read letters from victims 

submitted on Olson's behalf and victim impact letters provided by 

the government, and probed Olson's unsuccessful attempt to sell 

his granite quarry. 

Ultimately, the district court sentenced Olson to sixty 

months of imprisonment, the highest possible sentence under the 

Agreement and an upward variance from the recommended guidelines 

range. The district court specifically laid out the factors it 
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considered, including the scope of the injury as partly evidenced 

by the testimony of the two victims, the need to deter other whitecollar criminals, his continuation of the crime over an extended 

period, and his decision to defraud even though he was "privileged" 

and did not use drugs or alcohol. The district court also found 

that although Olson stated his remorse, he had not sold his granite 

quarry, contributed any other money for restitution, or made any 

other "acts of remorse." Although Olson's decision to self-report 

and help the government identify victims and their losses was a 

mitigating factor, the district court found that Olson had already 

benefited from it, presumably by avoiding charges for securities 

violations. Olson did not offer any legal objection to this 

ruling. 

The district court held a separate hearing on 

restitution on October 31, 2016. At the hearing, the parties 

agreed that investors lost $22,811,405.26 from 2007 to 2012. Olson 

argued, however, that he had invested some of his clients' money 

in legitimate, though unsuccessful, investments. Because his 

clients had assumed the risk of losing money, those "legitimate" 

losses, which he calculated were approximately $5.5 million, 

should not be included in restitution amount. The district court 

rejected that argument, reasoning that but for Olson's inducements 

and misstatements, his clients would not have invested with him at 
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all. It therefore ordered restitution of the entire 

$22,811,405.26. 

II. ANALYSIS 

A. We Assume Appellate Jurisdiction over All of Olson's Claims 

The Agreement contained an appeal waiver that applied if 

Olson was sentenced "within, or lower than, the guideline range," 

which was thirty-seven to forty-six months. Olson was sentenced 

to sixty months' imprisonment, so the appeal waiver does not apply. 

 The government nevertheless contends that this Court 

lacks jurisdiction over Olson's appeal because his sentence was 

within the forty-two to sixty months recommended in the Agreement's 

Sentencing Stipulations and Agreements. "In the case of a plea 

agreement [such as Olson's] that includes a specific sentence under 

rule 11(e)(1)(C) . . . a defendant may not [make certain arguments 

on appeal] unless the sentence imposed is greater than the sentence 

set forth in such agreement . . . ." 18 U.S.C. § 3742(c).1 Given 

this bar, we may lack jurisdiction over some of Olson's claims of 

error, although other claims may constitute "violation[s] of law" 

over which we would retain jurisdiction. 18 U.S.C. § 3742(a)(1). 

In addition, the Agreement's appeal waiver and the 

colloquy at Olson's change-of-plea hearing implied a right to 

 

1 Fed. R. Crim. P. 11 has been subsequently reorganized and the 

provision referred to by § 3742(c)(1) is now Rule 11(c)(1)(C). 
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appeal from any sentence above the applicable guidelines range, 

which Olson's sentence was. If Olson nevertheless cannot appeal, 

his plea arguably was not knowingly made and could be withdrawn. 

See United States v. Figueroa-Ocasio, 805 F.3d 360, 370-71 (1st 

Cir. 2015) (vacating a guilty plea that was not "knowing and 

voluntary"); United States v. Castro-Gómez, 233 F.3d 684, 687-88 

(1st Cir. 2000) (allowing withdrawal of plea because "[a] failure 

to inform a defendant of a mandatory minimum sentence at his plea 

hearing 'implicates a core concern of Rule 11'") (quoting United 

States v. McDonald, 121 F.3d 7, 11 (1st Cir. 1997)). 

Rather than decide which of Olson's claims, if any, we 

can review and the effect of his appeal waiver, however, we can 

"'forsake the jurisdictional riddle' when the merits will be 

resolved in favor of the party challenging the court's 

jurisdiction." United States v. Woods, 210 F.3d 70, 74 (1st Cir. 

2000) (quoting United States v. Stoller, 78 F.3d 710, 714 (1st 

Cir. 1996)). Although this rule is inapplicable to Article III 

subject matter jurisdiction, Steel Co. v. Citizens for a Better 

Environment, 523 U.S. 83 (1998), it remains in place when, as in 

this case, only statutory jurisdiction is concerned. Woods, 210 

F.3d at 74 n.2. Because we can easily dispose of Olson's appeal 

on the merits, we bypass the complex jurisdictional issue. 
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B. Olson's Sentence Was Not Unreasonable 

For preserved challenges, "generally, both [procedural 

and substantive] aspects of this review are for abuse of 

discretion." United States v. Cortés-Medina, 819 F.3d 566, 568-

69 (1st Cir. 2016). "When assessing the procedural reasonableness 

of a sentence, however . . . we afford de novo consideration to 

the sentencing court's interpretation and application of the 

sentencing guidelines . . . ." Id. at 569. Challenges that were 

not preserved in the lower court are reviewed for plain error. 

Id. Here, Olson did not offer any legal objection below, so we 

review his arguments under the plain-error standard. 

First, the sentence was not procedurally unreasonable. 

We are not persuaded by Olson's argument that the district court 

applied an "upward departure" rather than a variance. Although 

the district court used the term "upward departure," its analysis 

shows that it imposed a variance. It never mentioned a single 

departure provision from the Guidelines, but it specifically cited 

the 18 U.S.C. § 3553(a) factors and carefully grounded its analysis 

in those factors. Right before its oral ruling on Olson's 

sentence, it again referenced § 3553(a) factors and applied its 

findings to those factors to justify its above-Guidelines 

sentence. We therefore conclude that the district court in fact 

imposed a variance rather than a departure. See United States v. 
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Santini-Santiago, 846 F.3d 487, 491 (1st Cir. 2017) (holding that 

basing a sentence on § 3553(a)'s factors "is the hallmark of a 

variance, even when the sentencing court references [a departure 

provision]"); United States v. Nelson, 793 F.3d 202, 206-207 (1st 

Cir. 2015) (finding an above-Guidelines sentence to be an upward 

variance where the district court specifically referenced 

§ 3553(a) factors, notwithstanding the district court's use of the 

term "depart"). In imposing the variance, the district court did 

not have to give prior notice. United States v. Aponte-Vellón, 

754 F.3d 89, 94 (1st Cir. 2014) ("Rule 32(h) . . . placed the 

district court under no obligation to provide advance notice of 

the variance."). 

Nor did the district court rely on improper factors in 

reaching its decision. It did remark on Olson's privileged 

background, his lack of alcohol or drug use, and his failure to 

sell his granite quarry and provide funds for restitution, but 

those remarks were to prove Olson's conscious decision to defraud 

and his failure to show concrete remorse. They properly relate to 

"the nature and circumstances of the offense and the history and 

characteristics of the defendant." 18 U.S.C. § 3553(a)(1). 

Second, Olson's sentence was not substantively 

unreasonable. "In reviewing the reasonableness of a sentence 

outside the Guidelines range, appellate courts may . . . take the 
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degree of variance into account and consider the extent of a 

deviation from the Guidelines." Nelson, 793 F.3d at 207 (quoting 

Gall v. United States, 552 U.S. 38, 47 (2007)). "The linchpin of 

a reasonable sentence is a plausible sentencing rationale and a 

defensible result." Id. (quoting United States v. Martin, 520 

F.3d 87, 96 (1st Cir. 2008)). The district court's sentence passes 

that test. In making an upward variance, the district court took 

into account multiple aggravating factors, such as the financial 

harm caused by Olson's elaborate scheme, his continuation of the 

crime over an extended period, his conscious decision to defraud, 

and the need to deter other white-collar criminals. It also 

considered his lack of concrete actions showing remorse, and as a 

mitigating factor, his cooperation with the government. Together, 

the district court's careful deliberation demonstrates a plausible 

rationale and reaches a defensible result. 

C. The District Court Correctly Rejected Olson's Legitimate 

Investment Losses Argument 

The parties agreed on the total amount lost by investors, 

so the only contested issue is whether that total should have been 

discounted because investors would have incurred some "legitimate" 

investment losses unrelated to Olson's fraud. In other words, 

Olson argues that his illegal scheme was not the but-for cause of 
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all of the investors' losses.2 The district court rejected that 

argument, as do we. 

Olson is right that there must be a causal link between 

the illegal activity and the resultant losses. 18 U.S.C. 

§ 3663A(a)(2). We have previously held that two "bedrock 

principles" of restitution orders require the that the government 

"show not only that a particular loss would not have occurred but 

for the conduct underlying the offense of conviction, but also 

that the causal connection between the conduct and the loss is not 

too attenuated (either factually or temporally)." United States 

v. Cutter, 313 F.3d 1, 7 (1st Cir. 2002) (citing United States v. 

Vaknin, 112 F.3d 579 (1st Cir. 1997)). However, Olson's argument, 

which focuses on the "but-for" prong of the analysis, fails. As 

the district court found, investors would not have trusted him 

with their money if he had disclosed that he was running an 

 

2 Restitution typically contemplates a causal link between the 

offenses of conviction and losses suffered by the victims of those 

offenses. Here, Olson's plea was for tax evasion, making the IRS 

the victim. However, pursuant to the parties' plea agreement, the 

district court ordered Olson to pay restitution to the victims of 

his Ponzi scheme. See 18 U.S.C §§ 3663A(a)(3) (allowing the court 

to order restitution to "persons other than the victim of the 

offense"), 3663(c)(2) (allowing the court to order restitution for 

offenses falling under the Mandatory Victim Restitution Act for 

which the defendant has not been convicted pursuant to the plea 

agreement, but that nonetheless "gave rise" to that agreement). 

Accordingly, the district court's causal link analysis focused on 

the nexus between Olson's fraudulent Ponzi scheme conduct and his 

investors' losses. 
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unlicensed business and incurring substantial losses, or if he had 

confessed that he comingled investors' funds, used new investments 

to pay prior investors, and misappropriated funds for his own use. 

Thus, Olson's misrepresentations were the but-for cause of all 

investor losses, and we agree with the district court that his 

legitimate investment losses argument is meritless. 

III. CONCLUSION 

For the reasons stated, we affirm Olson's sentence and 

restitution schedule. 

Affirmed.