NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 12a0901n.06 No. 12-3026 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

UNI TED STATES OF AMERI CA, Plaintiff-Appellee ,
v. J OSEPH C. C ARVER, Def endant- Appellant. ) ) ) ) ) ) ) ) ) ) ON AP P E AL FROM THE UNI TED STATES DI STRI CT COURT FOR T H E N O RT HERN DI STRI CT OF OH I O

BEF ORE: ROGERS and GRI FF I N, Circuit J udg es; and HO OD, District Judge. * GRI FF I N, Circuit J udg e. J oseph C arve r was convicted of conce aling assets in bankruptc y , in violation of 18 U.S.C. § 152(1), and of making a fa lse statement under oath in bankruptc y , in violation of 18 U.S.C. § 152(2). He was sentenc ed to 24 months’ imprisonment on eac h count to run concur rently , plus three y ear s of supervise d rele ase. Car ver a ppeals his convictions and se ntence s. We affirm.

I

. Carver filed for bankruptc y in October 2005. One of his assets was an extensive wine collection that he owned in both his persona l capa city and as the sole owner of his medical prac tice corpor ation, J oseph C. Carver , M.D., I nc. An October 2003 persona l financ ial statement valued his wi n e at $ 8 2 5,000; a J uly 2004 balanc e sheet for J oseph C. Carver , M.D., I nc., valued its wine
The Honora

ble J oseph M. Hood, Senior United States District J udg e for the Easter n District * of Ke ntucky , sitti ng by

desig nation.No. 12-3026

United States v. Carve r
collection at $377,093.17. Carver ’s entire wine collection, along with other assets and a persona l g uara ntee, se cure d a loan his cor poration had w ith the Cit izens Banking Company

. I n October 2004, Carver consig ned his entire wine collection to a wine auction house, Acke r Merr all & Condit Company (“A MCC”). When AMCC took possession of the wine in October 2004, Carver reque sted that the wine not be stored under his name, but he did not provide a n alterna tive name to AMCC. Over the foll owing two and one- h al f y ear s, the wine was auctioned off. Carver direc ted AMCC when to sell the wine a nd to whom the proce eds should be re mitted. On October 15, 2005, Carver filed for Chapter 7 bankruptc y . During that proce ss, he filled out intake forms, which listed his persona l assets and liabiliti es, as well as those of his corpor ation. Nowher e on the intake forms did Carver disclose that he or the corpor ation owned wine and had any money due from the sale of wine. Carver told his attorney that he once had a wine collection, which had been owned by the corpor ation and by himself persona lly , but that it had all been sold in J anuar y 2005. A meeting of cre ditors was held on Dec ember 23, 2005. At that time, Carver ’s corpor ation still owed Citi zens Ba

nking over $ 1 0 0 , 000, and Citi zens’ attorney , Daniel McGooke y , wanted to find out what happene d to its wine collater al, which had been valued at over $500 , 0 0 0

. Af t er McGooke y asked his questions, Ba nkru p t cy T rustee L ouis Yoppolo inquired direc tly as to the exis tence of the wine collection: THE TRUSTEE: Can I

ask y ou, is there a

ny thing lef t now of the wine inventory ? CARVER: No. The entire c ollection was sold . . .

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At the conclusion of the cre ditors’ meeting , both McGooke y and Yoppolo thus believed that all of Carve r’s wine collection had been sold in J anuar y 2005. I t turned out, howeve r, t hat not all of Carve r’s wine had bee n sold at that time. Fr om September 2005 to Aug ust 2006, during the pendenc y of his bankruptc y proce eding s, and both befor e and afte r his statement at the cre ditor’s meeting , Carver direc ted AMCC to sell more of his wine and remi t $ 1 95,125.84 in proce eds to third parties. Eleven sales and chec ks totaling $74,000 wer e made pay able to Dr. Fr ank Komorowski, and $119,083.84 was m ade pay able to Carver ’s future wife B ridg et Oney Carver , a mutual fund a ccount that she held, and he r Amer ican Ex press a ccount. The g overnme nt subsequently broug ht criminal char g es ag ainst Carver

. By g rand jury indictment, Carver wa s char g ed with unlawfully conce aling assets in the bankruptc y proce eding (Count 1), falsely stating under oath in the bankruptc y proce eding that all of the wine inventory was sold (Count 2), and cre at i n g false documents (i.e., promissory notes purportedly showing that Komorowski was lending Carver m o n ey when in rea lity Komorowski was pay ing Carver the proce eds from sales of the conce aled wine) (Count 3). The jury eventua lly returne d a verdic t of g uilty on the first two counts and a verdic t of not g uilty

on the third. The case proce eded to se ntencing

. At the sentenc ing hear ing, the district c ourt deter mined that the loss amount was $195,625.84, resulting in a ten-leve l incre ase to Carver ’s offe nse level; the court also found that the victims included the 47 unsecur ed cre ditors listed in Ca rver ’s bankruptc y petition, as well as the trustee, resulting in a two-leve l incre ase to Carver ’s offe nse level. The district

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court then varie d downwar d from the resulting Guidelines rang e of 33 to 41 months, and sentenc ed Carver to 2 4 m o n ths’ imprisonment and 3 y ear s of supervised rele ase. I t order ed Carver to pay $160,674.84 in restitution and a $200 spec ial assessment. Carver timely appea ls. I I

. Carver challeng es the sufficie ncy of the evidenc e supporting his convictions. He claims that in light of his disclosures to his attorney , and his eff orts to s at i s fy his cre ditors throug hout the duration of his bankruptc y case , the jury could not have rea sonably concluded t h at he knowing ly

conce aled a ssets or made a false sta tement under

oath in bankruptc y . We disag ree . The question in sufficie ncy -of- the-e vidence chall en ges is “whe ther, afte r viewing the evidenc e in the l ight most favor able to the prosec ution, any rational trier of fact could have found the essential elements of the crime bey ond a rea sonable doubt.” United States v. W agner , 382 F.3d 598, 610 (6th Cir. 2004) (citation and internal quotation marks omitted). We will reve rse a judgme nt for insufficienc y of evidenc e only if the judgme nt is not supported by substantial and competent evidenc e upon the rec ord as a whole. United States v. Chavis , 296 F.3d 450, 455 ( 6th Cir. 2002)

. I n so doi n g, “w e do not weig h the evidenc e, evalua te witness cre dibilit y , or displace the jury ’s judgme nt with our own.” W agner , 382 F.3d a t 610-11. To be convicted of conce aling assets in ba nkruptcy , in violation of 18 U.S.C. § 152(1), the evidenc e must show that a bankruptc y proce eding exis ted under the Ba nkruptcy Code, the defe ndant

conce aled interests in proper ty fr o m the bankruptcy trustee or cre ditors, such i ntere sts in proper ty

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United States v. Carve r belong ed to the bankruptc y estate of the defe ndant, and th e d efe ndant acte d knowing ly and fra udulently

. W

agner , 382 F.3d at 607. A conviction for making a false oath in bankr u p t cy , in violation of 18 U.S.C. § 152(2), require s proof that there was a bankruptc y proce eding , the defe ndant made or cause d to be made a fa l s e d ec lara tion or statement under penalty of perjury in the proce eding , the decla

ration rela t ed t o s ome materia l matter, the decla ration was false, and the defe ndant made the decla ration knowing ly and fra

udulently

. Six th Circuit Pattern Criminal J ury I nstructions § 10.01 (2011) ( mail fraud) (ada pted); cf. United States v. Spurlin , 664 F.3d 954, 962 (5th Cir. 2011). Carve r’s c onvictions for these c rimes ar e amply supported by

the evidenc e. A rational trier of fac t could have found the elements of conce aling assets in bankruptc y satisfied bey ond a reasonable doubt beca use t here wa s evidence that Carver failed to list his wine in the intake sheets he provided to h i s attorney ; he signe d under oath his bankruptc y petition in which the only

ref ere nce to the w ine was his fa lse statement that it had bee n “sold J anuar y 2005”; and he filed an amende d Schedule B and a motion to abandon stock representing that his solely

owned corpor ation was insolvent, y et he failed to list the wine as an asset. Additionally , both befor e and afte r his bankruptc y proce eding , Carver direc ted that the funds from the wine sales be remitted to e ither J oseph C. Car

ver or J oseph C. Car

ver, M.D., I nc., but, in contra st, dur ing the proce eding , he direc ted AMCC to remit the proce eds almost exclusively to third-par ty nominees. There was

even evidenc e he tried to make it appear t h at the wine proce eds from the third-par ty transac tions

wer e per sonal loans.

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United States v. Carve r
A ra tional trier of f

act also could have f

ound that the eleme nts of making a fa lse statement under oath in bankruptc y wer e satisfied bey ond a rea sonable doubt. At the meeting of cre ditors on Dec ember 23, 2005, the trustee asked Carver , “[I ]s there any thing left now of the wine inventory ? ” and Carver responde d, “No. The entire collection was sold[ .]” This sta tement was false, and there

was evidenc e that Carver knew it was false. Carver resists t h i s conclusion, claiming that his statement was “litera lly truthful” beca use he did not, at the time of the questioning, possess a wine inventory , and beca

use he was ref

err ing only to his persona l wine collection rathe r than his corpor ate wine collection. But this arg ument is unpersua sive. The fac t that Carver did not possess the wine 1 at the time of his questioning does not mean that it was sold ; and the exchang e betwee n Carver and the trustee ref

lects that Carver was ref

err ing to the “entire ” collection o f wine, both persona l and corpor ate. The evidenc e wa s theref ore suf ficient to sustain Carve r’s c onvictions. Carver next challeng es hi s sentenc e as both proce durally and subst antively u n re asonable. We “re view all sentenc es—whe ther inside, just outside, or signific antl y outside the Guidelines rang e—under a defe re n t ial abuse- of-discr etion standard.” Gall v. United States , 552 U.S. 38, 41 (2007). There are two steps to our revie w. We “ must fir st ensure that the district court committed

no signific ant proce dural err or, such as failing to calc ulate (or improperly calc ulating) the Guidelines rang e, treating the Guidelines as m andator y , failing to consider the [18 U.S.C.] § 3 5 5 3 (a) fac tors, selec ting a sentenc e based on clea rly err oneous fac ts, or failing to adequatel y ex p l ain the chosen

The g overnme nt arg

ues that the “li t er all y true” defe nse does not apply to this char g e, but 1 only to perjury char g es. Howeve r, we need not rea ch the question g iven that Carver ’s statement was not literally

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sent en ce [

. ] ” Id

. at 51. Next, if we deter mine “that the district court’s sentenc ing decision is proce durally sound,” we “conside r the substantive rea sonablene ss of the sentenc e imposed under an abuse- of-discr etion standard,” taking into a ccount the “totality of the c ircumstance s, including the extent of any

varia nce f rom the Guidelines r ang e.” Id. W e ad dress Carver ’s proce dural-r easona bleness arg

ument first. Acc ording to Carver , h i s sentenc e is proce durally unrea sonable beca use the district court err ed in calc ulating the loss amount and in deter

mining that there wer e more than ten victims of his conce alment of the wine collection. Citi zens Ba

nking was the only cre ditor vi ct i m i z ed, he claims, beca use it was the only one with a

secur ity interest in the wine, and it suffe red no loss beca use it was eventua lly repa id. We disag ree . For purposes of § 2B1.1, a “victim” is define d as “(A ) any person who sus t ai n ed an y p ar t of the actua l loss determined under subsection (b)( 1)

. . . .” U.S.S.G. § 2B1.1 cmt n.1. Her e, contra ry to Carver ’s contention, it was not just Citi zens Ba nking that was victimi z ed : C arver’s fra udulent

conce alment of the wine preve nted all 47 of his unsecur ed cre ditors from being paid a pro rata share

o f t h e surplus proce eds from the sale of the conce aled wine. See generally 11 U.S.C. § 7 2 6 (distribution of property

of the e state). Once more, Carver attempts to draw a distinction betwee n the wine owned by his corpor ation and the wine owned by him persona lly , asser ting without citation to any evidenc e that “the wine was

a corpor ate asset” and “wa s not an asset of the debtor’s persona l bankruptc y estate.” Howeve r, the jury was free to conclude that the conceale d wine was not all corporate wine, espec ially g iven t he leng ths Carver went to hide i t
. An d even if the conce aled wine was owned entirely by Carver ’s

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United States v. Carve r

corpor ation, it nonetheless would have become a part of Carver ’s p ersona l bankruptc y estate beca use he was the s ole owner

of his medical pr actice

. (We note i n this reg ard that Carver does not claim that the value of his stock would have been unaff ecte d by the i n clus ion of the wine in the corpor ation’s assets.) The district court did not clea rly err in concluding that there wer e more than ten victims of Carver ’s co n cealment of bankruptc y assets for purposes of apply ing U.S.S.G. § 2B1.1( b)(2) (A). Carver ’s contention that the district court improperly calc ulated the l o s s am o u nt fails for much the same rea son. The deter mination of the amount of loss is a finding of fac t that we will not disturb unless clea

rly err oneous. See United States v. Comer , 93 F.3d 1271, 1285 (6th Cir. 1996). The applicable Guideline in this case define s “ac tual loss” as “the rea sonably fore seea ble pecunia

ry harm that resulted from the offe nse.” U.S.S.G. § 2B1.1, cmt n.3(A)( i). I t then define s “re asonably fore seea ble pecunia

ry harm” as th e “pec uniary harm that the defe ndant knew or, under the circ umstances, rea sonably should have known, was a potential result o f t h e o ff ense.” Id. at cmt n.3(A)( iv). At sentenc ing, the district court found that actua l loss was $195,625.84, justify ing a twolevel incre ase under U.S.S.G. § 2B1.1( b)(2) (A). We see no clea r err or in this deter

mination. Carver ’s asser

tion that the loss amount should have been limit ed to the amount he owed to Citi zens Ba nking ignor es the fac t that Citi zens Ba nking was not the only cre ditor harme d by his conce alment of the wine . Carver ’s sentenc e is proce durally rea sonable. We now turn to Carver ’s claim that his sentenc e is substantivel y u n reasonable. Carver contends that his sentenc e fails substantive-re asonable ness re v iew beca use he “had alre ady been

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sever ely punished by the collater al conseque nces of his conviction,” his “convic tion stood as an aber ration in an otherwise law abiding life,” and “[w]hen weig hed ag ainst the char acte r and nature of his offe nse, [hi s] persona l and social history did not call for two y ear s in fede ral prison.” He also

asser ts that the district court should have considere d his arg ument that the calc ulated Guideline score failed to proper ly ref

lect § 3553(a) considerations, demonstrating that a below-G uidelines sentenc e

was appropr iate. And he compar es his case to United States v. Howe , 543 F.3d 128 (3d Cir. 2008), wher e the district court imposed, and the Court of Appea ls for the Third Circuit aff irmed, a sentenc e of probation with a condition of h o m e confine ment for wire fra ud, despite an 18 to 24-month Guideline ra

ng e. Id. at 137-41. We find Carve r’s a rg uments unavailing

. A s entenc e may be substantively unrea sonable if the district court arbitra rily selec ts the sentenc e, bases the sentenc e on impermissible fac tors, fails to consider the fac tors under 18 U.S.C. § 3553(a) , or g ives an unrea sonable amount of weig ht to any pertinent fa ct o r. United States v. Borho , 485 F.3d 904, 908 (6th Cir. 2007). The district court made no n e of these err ors here

. Moreove r, it did impose a below-Gu i d el ines sentenc e, explaining that “a downwar d varia nce is appropr iate for the g ood chapte rs in y our life and for the eff orts y ou’ve made,” to which we may , and do, apply a presumption of rea sonablene ss. See United States v. Curry , 536 F.3d 571, 573 (6th Cir. 2008); see, e.g. , United States v. Davis , 407 F. App’x 32, 44 (6th Cir. 2011). That presumption has not been overc ome. Notwiths tanding Carver ’s sug g estion, the fac t that a less sever e belowGuidelines sentenc e in Howe was found to be re asonable by our sister cir cuit does not show that a

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more sever e below-G uidelines sentenc e i n t h is case was not. Carver ’s sentenc e is substantively

rea sonable. I I I

. For these re asons, we a ffirm.

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