United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 19, 2015 Decided June 23, 2015

No. 14-3041

UNITED STATES OF AMERICA,

APPELLEE

v.

PAUL F. KAUFMAN,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 1:14-cr-00010-1)

Michael A. Olshonsky, appointed by the court, argued the

cause and filed the briefs for appellant.

Adrienne Dawn Gurley, Assistant U.S. Attorney, argued the

cause for appellee. With her on the brief were Ronald C.

Machen, Jr., U.S. Attorney, and Elizabeth Trosman and

Elizabeth H. Danello, Assistant U.S. Attorneys.

Before: GARLAND, Chief Judge, andROGERS and PILLARD,

Circuit Judges.

Opinion for the Court filed by Chief Judge GARLAND.
2

GARLAND, Chief Judge: Paul Kaufman was a salaried

employee at a nonprofit that received federal funds. Feeling

“overworked and undercompensated,” Kaufman formed two

outside companies and used his position at the nonprofit to

approve invoices in their name. Between 2004 and 2012,

Kaufman employed this scheme to pay himself over $110,000

in additional compensation. He also used the nonprofit’s credit

cards to pay for a variety of personal expenses, totaling at least

$46,000. Once discovered, he pled guilty to embezzling from an

organization that received federal funds. On appeal, he

challenges the 24-month sentence imposed by the district court. 

For the reasons set forth below, we affirm the judgment. 

I

The government asserts that we should not even consider

this appeal because Kaufman’s plea agreement expressly waived

his right to appeal his sentence. Kaufman did indeed “waive the

right to appeal the sentence in this case, including any term of

imprisonment,” unless the sentence was above the statutory

maximum or above the U.S. Sentencing Guidelines range

determined by the court. Plea Agreement 7 (J.A. 129). Neither

circumstance is present here. See 18 U.S.C. § 666(a) (indicating

that Kaufman’s statutory maximum would be 10 years); infra

Part II (discussing Kaufman’s Guidelines range). Ordinarily,

then, we would agree with the government that Kaufman’s

appeal is barred. See, e.g., United States v. Adams, 780 F.3d

1182, 1183-84 (D.C. Cir. 2015); United States v. Guillen, 561

F.3d 527, 529 (D.C. Cir. 2009). 

At Kaufman’s plea hearing, however, the district court

made two problematic statements in explaining the waiver

provision in the plea agreement. The court initially told

Kaufman that he “would still have the right to appeal the

sentence if [he] believe[d] the sentence is illegal.” Plea Hr’g Tr.
3

9. Later, it told him that he might have the right to appeal, under

some circumstances, if he did not “like” the sentence. Id. at 22.

Those statements transformed the nature of Kaufman’s plea

waiver in the same way the district court’s plea colloquy did in

United States v. Godoy, 706 F.3d 493 (D.C. Cir. 2013). There,

notwithstanding that the defendant had signed a plea waiver

similar to Kaufman’s, the court told the defendant that he was

waiving his right to appeal unless he should “come to believe

. . . that the Court has done something illegal, such as imposing

a period of imprisonment longer than the statutory maximum.” 

Id. at 495. That explanation, we said, “mischaracterized the

meaning of the waiver in a fundamental way.” Id. “Taken for

its plain meaning -- which is how criminal defendants should be

entitled to take the statements of district court judges -- the

court’s explanation allows [the defendant] to appeal any illegal

sentence.” Id. The same is true here.

As in Godoy, the prosecution could have sought to correct

the district court’s statements and to ensure that the defendant

understood the right he was agreeing to forgo by submitting a

guilty plea. Id.; see also United States v. Fareri, 712 F.3d 593,

594 (D.C. Cir. 2013). But the prosecution did not object. Under

those circumstances, “the district court’s oral pronouncement

controls,” and the defendant’s “appeal is not barred.” Godoy,

706 F.3d at 496; see Fareri, 712 F.3d at 594-95. The

government offers no argument to the contrary. 

II

Kaufman’s principal challenge to his 24-month sentence is

to the district court’s determination of the loss that his offense

caused the nonprofit. The court agreed with the government that

the total loss included all unauthorized payments to Kaufman’s

companies and all personal expenses charged to the nonprofit’s
4

credit cards. Under that calculation, the total loss exceeded

$120,000. This resulted in a ten-level increase in Kaufman’s

offense level under the Sentencing Guidelines, see U.S.S.G.

§ 2B1.1(b)(1), and a Guidelines range of 24-30 months, see id.

ch. 5, pt. A (sentencing table); Presentence Investigation Report

(PSR) ¶ 9. 

Kaufman disputed that calculation. He asked the court to

reduce the amount of loss by the fair market value of the

services rendered by his companies. See U.S.S.G. § 2B1.1 cmt.

n.3(E)(i). The companies had two employees and did work for

the nonprofit that Kaufman contended was “needed.” 

Sentencing Hr’g Tr. 10, 13. That work, he argued, had a value

of at least $50,000. See Kaufman Sentencing Mem. at 2 (J.A.

44). Reduced by this amount, the total loss would be between

$70,000 and $120,000, and would therefore result in only an

eight-level increase in his offense level, see U.S.S.G.

§ 2B1.1(b)(1), with a corresponding Guidelines range of 18-24

months, see id. ch. 5, pt. A (sentencing table); PSR ¶ 9.

The district court rejected Kaufman’s argument. The court

pointed to Kaufman’s signed Statement of Offense, which

expressly acknowledged that his scheme was “a way to collect

additional compensation for the work that he was being paid to

perform.” Statement of Offense ¶ 4 (J.A. 115). At the

sentencing hearing, Kaufman confirmed that the nonprofit did

indeed pay him a salary to perform those services. See

Sentencing Hr’g Tr. 13. The court therefore declined to give

Kaufman credit for the value of work for which the nonprofit

had already paid. 

Although a district court is not required to follow the

Guidelines after United States v. Booker, 543 U.S. 220, 259-60

(2005), the Guidelines remain “the starting point and the initial

benchmark” for a sentencing decision, Gall v. United States, 552
5

U.S. 38, 49 (2007); see also Peugh v. United States, 133 S. Ct.

2072, 2079-80 (2013). We therefore review this kind of

sentencing challenge to “ensure that the district court committed

no significant procedural error, such as failing to calculate (or

improperly calculating) the Guidelines range” or “failing to

consider” the statutory sentencing factors set forth in 18 U.S.C.

§ 3553(a). Gall, 552 U.S. at 51. If the sentencing decision is

“procedurally sound,” the remaining question is whether the

resulting sentence is substantively reasonable, which we

consider under an abuse-of-discretion standard. Id. In this

circuit, a sentence that is within the Guidelines range is entitled

to a presumption of reasonableness on appeal. United States v.

Dorcely, 454 F.3d 366, 376 (D.C. Cir. 2006); see Rita v. United

States, 551 U.S. 338, 346-47 (2007). 

Here, we do not need to address the district court’s rejection

of Kaufman’s loss calculation. Although we do not mean to

suggest that the court’s analysis was erroneous in any way, there

is an even simpler reason that Kaufman’s appellate challenge

must fail: the district court said it would impose the same

sentence even if it accepted Kaufman’s own loss calculation. 

See Sentencing Hr’g Tr. 49. A 24-month sentence would still be

appropriate, the court said, “in light of the extended period of

this fraud, its relatively sophisticated nature, the efforts that

were taken to conceal the crime, the steps that were taken to

orchestrate and maintain this scheme and the fact[] that the theft

was from an employer, and thus involved a serious breach of

trust.” Id. 

In United States v. Thompson, 994 F.2d 864, 868 (D.C. Cir.

1993), we declined to remand a sentencing decision in almost

identical circumstances. Faced with a dispute over which

criminal history category applied, the sentencing judge had

“made it clear he would impose the same sentence under either

criminal history category.” Id. In light of that statement, we
6

deemed it “futile to remand for resentencing.” Id. We reach the

same conclusion here. See also United States v. Simpson, 430

F.3d 1177, 1184-85, 1190 n.15, 1191-92 (D.C. Cir. 2005).1

Under either the court’s calculation or Kaufman’s, the 24-

month sentence is within the Guidelines range. See U.S.S.G. ch.

5, pt. A (sentencing table); id. § 2B1.1(b)(1). It is therefore

entitled to a presumption of reasonableness on appeal. See

Dorcely, 454 F.3d at 376. Kaufman has not rebutted this

presumption, nor could he. In imposing the sentence, the district

court carefully considered the § 3553(a) sentencing factors. In

particular, it found the offense to be “very serious” in nature

because Kaufman had engaged in a “lengthy and complex”

scheme that involved hundreds of discrete acts of

embezzlement, abusing the trust of his employer, and concealing

his fraudulent conduct even after he was confronted. Sentencing

Hr’g Tr. 43-47. 

Kaufman also challenges his sentence on the ground that the

district court neglected to adequately consider several specific

sentencing factors. In particular, he says, the court failed to take

into account his personal circumstances, including the medical

needs of his spouse and child and his extensive cooperation with

law enforcement. See 18 U.S.C. § 3553(a)(1). But that is not

correct. See Sentencing Hr’g Tr. 46, 48 (discussing the needs of

Kaufman’s family); id. at 47 (discussing his cooperation). Nor

did the court fail, as Kaufman contends, to consider the need to

avoid unwarranted sentencing disparities. See 18 U.S.C.

§ 3553(a)(6). The court determined that the average prison term

for defendants with Kaufman’s criminal history category who

1

Similar to this case, the sentence the court imposed in Thompson

was at the bottom of the government’s proposed Guidelines range and

near the top of the defendant’s proposed range. See Thompson, 994

F.2d at 867-68. 
7

were convicted of the same offense was 24 months. Sentencing

Hr’g Tr. 47-48. Although the court considered Kaufman’s

argument that many defendants in similar circumstances receive

probationary sentences, it concluded that such a sentence would

be insufficient in Kaufman’s case. Id. 

In sum, even if the district court’s loss calculation were

erroneous, we would not require it to reconsider Kaufman’s

sentence. The court expressly stated that it would regard the

same sentence as appropriate under either party’s calculation. 

Because that sentence is within-Guidelines, reasonable, and

thoroughly explained, there is no warrant for a remand.

III

For the foregoing reasons, the judgment of the district court

is

Affirmed.