PUBLISH UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

_________________________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. RIORDAN ANTHONY MAYNARD, Defendant - Appellant. No. 19-1304

_________________________________ Appeal from the United States District Court for the District of Colorado (D.C. No. 1:18-CR-00395-CMA-1)

_________________________________ Grant R. Smith, Assistant Federal Public De fender (Virginia L. Grady, Federal Public Defender, with him on the briefs), Office of the Federal Public Defender for the District of Colorado, Denver, Colorado , appearing for Appellant. Aaron M. Teitelbaum, Assistant United States Attorney (Jason R. Dunn, United States Attorney, with him on the brief), Office of the United States Attorney for the District of Colorado, Denver, Colorado , appearing for Appellee.

_________________________________ Before BRISCOE , BALDOCK , and McHUGH , Circuit Judges.

_________________________________ BRISCOE , Circuit Judge.

_________________________________ Defendant Riordan Maynard, the former chief executive officer of two related companies, was convicted by a jury of twenty -six criminal counts arising out of his gross mismanagement of thos e companies. Counts 1 a nd 2 related to Maynard’s FILED United States Court of Appeals Tenth Circuit 

### December 31, 2020 Christopher M. Wolpert Clerk of Court2 failure to pay corporate payr oll taxes to the Internal Re venue Service and his related efforts to impede the government’s inves tigation into those unpa id taxes. Count 3 arose out of Maynard’s conspiracy with an employee to steal or embezzle employee benefit plan and health car e contributions that were made by company employees. Counts 4 through 13 related to Maynard’s theft or embezzlement of employee benefit plan contributions. Counts 14 throug h 26 related to Maynard’s theft or embezzlement of employee hea lth care contributions. The district court sentenced Maynard to 78 months’ imprisonment. The district court also ordered Maynard to pay restitution to the Internal Revenue Se rvice and to the employee-victims. Maynard now appeals. Maynard argues that: (1) the district court misapplied the Sentencing Guidelines in calculating hi s offense level for Counts 1 and 2; (2) his convictions on Counts 14 through 26 were not supported by sufficient evidence; (3) the district court erred in calculati ng the restitution award for Counts 4 through 13; and (4) the district court plainly erre d in calculating the restitution award for Counts 14 through 26. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we reject all of Maynard’s arguments and affirm his convictions and sentence.
I
Tax evasion Maynard founded Touchbase USA, Inc. (TBUSA) in approximately 2001, and served as its chief executiv e officer until approximately February 13, 2012. TBUSA provided telecommunications design and installation se rvices for customers.3 From 2009 until 2012, TBUSA accrued unpaid federal tax liabilities of $2,595,039.00, which were comprised primarily of unpaid federal payroll taxes. The Internal Revenue Service (IRS) contact ed TBUSA regarding the delinquency and ultimately initiated collection actions against TBUSA, including levying on TBUSA’s bank accounts. In early 2012, Maynard responded to the IRS’s collection efforts by shutting down TBUSA and starting a new company, Touchbase Global Services, Inc. (TBGSI), a few weeks later. TBGSI wa s essentially a continuation of TBUSA, operating with mostly the same employees a nd offering the same services to mostly the same customer base. Notably, TB GSI also continued TBUSA’s practice of failing to pay its payroll ta xes. By the end of 2013, TBGSI owed over $1 million in unpaid federal payroll taxes. At that point, the IRS assigned a revenue officer, Joanna Randall, to collect TBGSI’s unpaid taxes. Randall focused her efforts on determining who TBGSI’s officers were. Randall did so for two reas ons: to obtain necessary information about TBGSI’s finances, and to de termine who could be held personally liable for the payroll taxes that were deducted from th e checks of TBGSI’s employees but never paid to the IRS. Maynard falsely denied being an officer of TBGSI and told Randall that his brother, Magnus Maynard, was in charge of TBGSI. In fact, however, Magnus had no involvement in running the company. In late 2013, Randall be gan levying on TBGSI’s corporate bank account in an effort to recover some of the unpaid taxe s. Unbeknownst at the time to Randall,4 however, Maynard was engaging in efforts to transfer funds from TBGSI’s corporate bank account to his own personal bank accou nt in order to a void Randall’s levying attempts. TBGSI made tax payments to the IRS in 2014 and 2015. Randall’s involvement with TBGSI ceased in Marc h 2015, after TBGSI entered into an installment agreement with the IRS to pay its outstanding tax liability. In the second quarter of 2016, howe ver, TBGSI began to once again avoid making necessary tax payments to the IRS. TBGSI subsequently defaulted on its installment agreement with the IRS. Cons equently, the IRS assigned a new revenue officer, Crystal Figueroa, to co llect TBGSI’s unpaid taxes. In early 2017, Figueroa began levying on TBGSI’s bank account in an attempt to recover the unpaid taxes. At that time, Maynard and Ch ristina Elbers, an Australian citizen who serv ed as TBGSI’s chief financial officer, began moving money out of TBGSI’s corporate bank acc ount and into Maynard’s personal bank account to shield those monies from the levies. The IRS res ponded by expanding its collection activities in approximately Ap ril 2017. At that time, the IRS began sending letters to TBGSI’s customers instru cting them to pay the IRS directly for services rendered by TBGSI. Maynard and Elbers in turn re sponded by contacting those TBGSI customers who received letter s from the IRS and tel ling them, falsely, that the IRS letters were sentin error and that the IRS w ould soon be retracting them. Maynard and Elbers also told those TBGSI customers to hold their funds for eventual payment to TBGSI, rather than paying the IRS.5 Maynard and Elbers failed to respond honestly to th e IRS’s requests for a list of TBGSI’s customers. The IRS sought this list in order to determine TBGSI’s cash flow and accounts receivable. Maynard and Elbers instead provided the IRS with a list of only those TBGSI customers who they thought the IRS was already aware of. In other words, Maynard and Elbers omi tted some of TBGSI’s customers from the list in an attempt to continue receiving payments from those customers without interference from the IRS. Maynard and Elbers also de liberately delayed invoicing certain customers for servic es rendered on the theory that customers who had not received an invoice from TBGSI would not be obligated to pay any money to the IRS if the IRS sent them a levy notice. Embezzlement of health insuran ce premiums and 401(k) contributions TBGSI offered its employees optional h ealth insurance coverage and a 401(k) savings plan. For those employees who chos e to purchase health insurance coverage, premiums were to be deducted by TBGSI from their paychecks and forwarded to the contracted insurer. As fo r the 401(k) plan, TBGSI employ ees selected the amount, if any, they wanted withheld from each payc heck. TBGSI promised to match employee 401(k) contributions at a rate set by formula. In 2017, the last year of TBGSI’s ope rations, Maynard mishandled thousands of dollars of employee health insuran ce premiums and 401(k) contributions. Although TBGSI withheld the funds as directed by its employees, TBGSI, per Maynard’s directions, stoppe d forwarding the health in surance premiums to the contracted insurer, United Healthcare, and did not pay the withheld 401(k)6 contributions funds into TBGSI’s retirem ent plan. TBGSI also, per Maynard’s directions, failed to make its promised “employer matching” contributions to the retirement plan dur ing this period. By June 2017, TBGSI owed United H ealthcare approximat ely $119,000 in past due premiums. United Healthcare responded to this nonpayment by retroactively canceling TBGSI’s employees’ hea lth insurance coverage back to March 4, 2017. As a result, TBGSI employees who obtained me dical care between April and June of 2017 received no insurance coverage for thatcare and instead were held personally responsible for the costs associ ated with that care. The to tal amount of denied claims from United Healthcare during this period for all TBGSI employees was approximately $40,204.32.
After United Healthcare cancelled TB GSI’s policy, TBGSI contracted for health insurance coverage fro m Anthem. Maynard falsely to ld his employees that he made the switch due to a rate dispute with United Healthcare. TBGSI continued, at Maynard’s direction, to deduct and retain premium payments from TBGSI employees’ paychecks, rather than forwarding them on to Anthem. In September 2017, Anthem retroactively canceled TBGS I’s policy back to the beginning of coverage in early July 2017. As a resu lt, TBGSI employees had no health insurance coverage from Anthem and were held pers onally responsible for all medical expenses they incurred from July 2017 through Se ptember 2017. Those unpaid medical expenses totaled $95,438.55.7 TBGSI ceased operations in September 2017. At approximately that same time, investigators from the United St ates Department of Labor a nd the IRS began a criminal investigation into Maynard’s ma nagement of TBUSA and TBGSI.
II On July 27, 2018, a criminal complaint was filed in the Unite d States District Court for the District of Colorado charging Maynard w ith one count of corruptly impeding the administration of tax laws, in violati on of 26 U.S.C. § 7212(a). Less than a month later, a federal gr and jury returned a twenty-six count indictment against Maynard and Elbers. Count 1 charged Maynard with corruptly impeding the administration of tax laws, in violation of 26 U.S.C. § 7212(a). Count 2 charged Maynard and Elbers with conspi racy to defraud the United States, in violation of 18 U.S.C. § 371. Count 3 char ged Maynard and Elbers with conspiracy to steal or embezzle payments made by empl oyees into their 401(k) and health care plans, in violation of 18 U.S.C. § 371. Counts 4 through 13 charged Maynard and Elbers with theft or embezzlement from an employee benefit plan (i.e., the 401(k) plan), in violation of 18 U.S.C. §§ 6 64 and 2. Counts 14 through 26 charged Maynard and Elbers with theft or embezzlem ent in connection with health care (i.e., Maynard’s theft of TBGSI employee premium pa yments for health care), in violation of 18 U.S.C. §§ 669 and 2. Lastly, the indictment included a forfeiture allegation pursuant to 21 U.S.C. § 853.8 The case against Maynard pro ceeded to trial in May 2019. 1 At the conclusion of the evidence, the jury fo und Maynard guilty on all twenty -six counts alleged in the indictment. The district court sentenced Maynard to 78 months’ imprisonment. This included 36 months on the tax counts, 60 m onths on the counts related to 401(k) theft, and 78 months on the counts related to health insurance prem ium theft, with all sentences to run concurrently to each other. The distri ct court’s sentence on the tax counts was based on a total tax loss of $4,970, 694.91, which was the total amount of unpaid payroll taxes owed by TBUSA and TBGS I. The district court in turn ordered Maynard to pay restitution to the IRS in that same amount. The district court calculated the lo ss amount on the 401(k)-related counts to be $111,974.04, which included the 401(k) contributions withheld from employees’ paychecks but never passed on to the re tirement plan, and the employer matching amounts that Maynard promised but never paid on behalf of his employees. The district court calculated the loss on the health insuran ce-related counts to be $185,921.91, which included premiu m payments withheld from employees’ paychecks but never passed on to the health plan, as well as th e amounts of unpaid medical claims that employ ees incurred because of the retroactive cancellation of their insurance policies.

1 Elbers, who purportedly lived in Au stralia during much of the time frame covered by the indictment, has not yet made her initial app earance in district court. Aple. Br. at 4 n.2.9 As regards the loss calculated by the district court in both the 401(k)-related counts and the health care-related counts, the district court ordered Maynard to pay restitution to the affected employees in the amounts it had calculated. Judgment in the case was entered on Au gust 21, 2019. Maynard filed a timely notice of appeal.
III Maynard asserts four issues on appeal. First, he argues that the district court procedurally erred at the time of senten cing by treating him as if he had been convicted of tax evasion. Second, Maynard argues that his convi ctions for theft in connection with healthcare (Counts 14-26) are not supported by sufficient evidence and therefore must be vacated. Third, Maynard argues that the district court procedurally erred at the time of senten cing by miscalculating the restitution award for Counts 4 through 13. Fourth, Maynard ar gues that the district court plainly erred in calculating the restitution award asso ciated with Counts 14 through 26. Determination of loss amounts for Counts 1 and 2 In his first issue on ap peal, Maynard argues that the district court, in calculating his offense level fo r Counts 1 and 2, “erred wh en it determined that the ‘loss’ amount[] under U.S.S.G. § 2T1.1 was the total amount of taxes owed by TBGSI and TBUSA.” Aplt. Br. at 12. In su pport, Maynard notes that under § 2T1.1, “the loss amount must reflect the loss caused by the object of the offense.” Id

. Maynard in turn notes that he “impeded the administrati on of internal revenue law by engaging in several acts that preven ted the IRS from obtaining a portion of the10 outstanding tax debt.” Id . But, Maynard asserts, “[i]ns tead of determining the loss caused by those acts, the distri ct court erroneously ruled th at the loss was the entire tax debt owed by TBGSI and TBUSA.” Id . Maynard also argues that “the district court’s loss determination is unmoored fro m the economic reality of the situation” because “[i]t is unrealistic to believe that the governmentwould have ever obtained the full amount of the outstanding tax debt owed by TBUSA and TBGSI.” Id . at 18. Maynard argues that “[n]either company ha d the ability to pay the outstanding tax debt,” and thus “there is no evidence th at the government would have collected nearly $5 million had [he] not violated 18 U.S.C. § 7212(a) or 18 U.S.C. § 371.” Id

. “We review challenges to the procedur al reasonableness of sentences for an abuse of discretion.” United States v. Worku , 800 F.3d 1195, 1201 (10th Cir. 2015). “[A] district court should begin all sentencing proceedi ngs by correctly calculating the applicable Guidelines range.” Gall v. United States , 552 U.S. 38, 49 (2007). “As a matter of administration and to secure nationwide consistency, the Guidelines should be the starting point and the initial benchmark.” Id

. Under the overarching abuse of discretion standard that applies to procedural reasonableness challenges, we review a dist rict court’s loss ca lculation methodology de novo and its actual loss calc ulations for cl ear error. United States v. Snow , 663 F.3d 1156, 1160 (10th Cir. 2011). A distri ct court commits procedural error, in pertinent part, by “failing to calculate (o r improperly calculating) the Guidelines range,” “failing to consider the § 3553(a) factors,” “or fa iling to adequately explain the chosen sentence.” Gall , 552 U.S. at 51. “An error of law is per se an abuse of11 discretion.” United States v. Sanchez-Leon , 764 F.3d 1248, 1262 (10th Cir. 2014) (quotations omitted). Count 1 of the indictment charged Ma ynard with corruptly endeavoring, from early 2012 to approximately September 201 7, to obstruct or impede the due administration of internal revenue laws, in violation of 26 U.S.C. § 7212(a). The jury convicted Maynard of this count and, in doing so, had to find that Maynard knowingly obstructed or impeded a “tax -related proceeding,” which the jury instructions defined to include “a particularinvestigation, audit, or other targeted administrative action.” ROA, Vol. 4 at 60. Although the jury was not required to make specific findings about how Mayna rd obstructed or impeded the IRS’s investigation, the indictment alleged several wa ys in which he did so: (a) closing TBUSA and opening TBGSI in or der to avoid paying more than $2 million in federal payroll taxes owed by TBUSA; (b) in late 2013, falsely stating to an IRS employee that he was not an officer or employee of TBGSI; (c) in 2014 and 2017, transferring and causing to be transferred funds be tween TBGSI’s bank account and his own personal bank account in order to defeat IRS levies th at sought taxes owed by TBGSI; (d) in 2017, omitting material info rmation regarding TBGSI’s finances from submissions to the IRS in an effort to prevent the IRS from collecting funds from TBGSI’s customers; and (e) in 2017, falsely informing TBGSI customers that IRS levies they received were sent in error. Count 2 of the indictment charged Ma ynard and Elbers w ith conspiring, from February 2017 to October 2017, to defra ud the United States and the IRS for the12 purpose of impeding, impairi ng, obstructing, and defeati ng the IRS’s assessment and collection of federal taxes, in violation of 18 U.S.C. § 37 1. Count 2 alleged a number of overt acts in support of the conspiracy, all of which th e jury unanimously found at trial. Those overt acts included repeatedly transfer ring money from TBGSI’s bank account to Maynard’s personal bank accoun t, contacting TBGSI customers and telling them that IRS levies were “sent in error,” failing to disc lose to the IRS any TBGSI customers that they believed had not received IRS levy notices, and submitting to the IRS a form that omitte d Maynard’s personal bank account as an asset of TBGSI. The presentence investigation report (PSR) grouped Counts 1 and 2 together for purposes of calculating an offense level. 2 ROA, Vol. 6 at 59. The PSR concluded that the controlling Guidelin e for Count 1 was U.S.S.G. § 2T1.1, and that the controlling Guideline for Count 2 was U.S.S.G. § 2T1.9. Id . The PSR in turn noted that “[b]oth guidelines reference the use of the Tax Table at USSG §2T4.1.” Id

. Applying that Tax Table, the PSR noted: According to the Government, it prove d at trial that the defendant shut down TBUSA and restarted it as TBGS I in order to avoid paying more than $2.5 million TBUSA owed in [fede ral] payroll taxes. Then, TBGSI immediately incurred over $1 million in additional liabilities. By the time of its closure in 2017, TBGSI owed over $2.4 million in [federal payroll tax] liabilities. This re sults in a total tax liability of approximately $5 million. The ta x loss is between $3,500,000, and $9,500,000; therefore, the base offense level is 24. USSG §§2T1.1(a)(1) and 2T4.1(J).

2 Maynard does not object to this grouping.13 Id

. Maynard objected to the PSR’s calcula tion of his offense level for Counts 1 and 2. ROA, Vol. 4 at 267-275. Mayna rd conceded that “[t]he Government’s calculation [of the loss] include[d] all payroll tax debt of both corporations at issue,” but he argued that he “was not tried, nor convicted of willful fa ilure to pay taxes.” Id . at 270. Maynard noted that § 2T1.1(c) directs that “‘the ta x loss is the total amount of loss that was the obj ect of the offense (i.e., the loss that would have resulted had the offense been successfully completed),’” id . at 269 (quoting U.S.S.G. § 2T1.1(c)), and he argued: The evidence presented at trial sh owed Mr. Maynard’s goal was to obstruct the IRS to buy time in hopes that TBGSI would become solvent and catch up on missed payroll tax. Mr. Maynard was not trying to get out of paying payroll tax, nor did he fraudulently file inaccurate payroll tax numbers. Over the years, TBGSI paid a total of $2,030,950.07 in payroll tax and TBUSA paid $1,318, 602.83 in payroll tax. The IRS would not have been owed any ta x had Mr. Maynard’s scheme been successful. Id . at 270. Maynard also argue d that, in any event, “[t] he tax loss amount [wa]s not the entire tax liability of TBGSI and TBUSA combined, but rather the money that the Government was deprived of by the crimin al conduct,” and he asserted that “this amount would be somewhere between $550,000 and $1,500,000.” Id . at 271. In support of this asse rtion, he noted that the gove rnment presented evidence that “TBGSI obstructed and prevented the IR S from levying $1.2 million which was in [his] personal bank account,” and that, “[h]ad this levy been successful TBGSI would14 have ceased trading because it would not ha ve had any money, and therefore it would [have] stopped incurring future tax debt.” Id . at 271-72. At sentencing, the district court reje cted Maynard’s objecti ons. The district court instead “agree[d] with the Governmentthat [Maynard’s] conduct [wa]s similar to tax evasion or willful failu re to pay taxes.” ROA, Vol. 7 at 1453. The district court noted that “TBGSI did, in fact, file tax returns, but th e defendant willfully evaded efforts to collect those taxes and willfully fa iled to pay those taxes.” Id . The district court in turn conc luded that “[t]he methods [o f calculation] described in Section 2T1.1(c)(1) and (3) [reasonably] fit th e particular circumstan ces of this case,” even if they “d[id] not pr ecisely match the facts.” Id . at 1454. The district court found that “[b]y shutting down TBUSA and obscuring the relationship between TBUSA and TBGSI, [Maynard] was able to willfully evade and failed to pay the 2.5 million TBUSA owed the IRS.” Id . The district court fu rther found that “[h]ad [Maynard] not engaged in the obstructive act of opening TBGSI and concealing its status as a successor entity, th e entire tax debt of TBGSI, approximately 2.4 million, would not have accrued.” Id . Lastly, the district c ourt found that “[e]ven after establishing TBGSI, [Maynard ] engaged in a litany of acts to obstruct and impede tax collection.” Id . at 1454-55. Section 2T1.1 of the Sentencing Guidelin es, which the district court applied to Count 1, is entitled “Tax Evas ion; Willful Failure to File Return, Supply Information, or Pay Tax; Fraudulent or False Return s, Statements, or Other Documents.” Subsection (a) thereof directs a district court to determine the base offense level by15 applying the Tax Table found in § 2T4.1 to “t he tax loss” associat ed with the offense or, “if there is no tax loss,” to apply a base offense level of 6. U.S.S.G. § 2T1.1(a). Subsection (c), entitled “Speci al Instructions,” states, in pertinent part, that “[i]f the offense involved tax evasion . . . , the tax loss is the total amount of loss that was the object of the offense (i.e., the loss that would have re sulted had the offense been successfully completed).” Id . § 2T1.1(c)(1). Subsection (c ) also states, in pertinent part, that “[i]f the offense involved willful failure to pa y tax, the tax loss is the amount of tax that the taxpaye r owed and did not pay.” Id . § 2T1.1(c)(3). The Application Notes to § 2T1.1 provi de specific examples of tax loss, but none of those are similar to the offense conduct at issue in this case. The Application Notes do, however, also state: In determining the tax loss attributab le to the offense, the court should use as many methods set forth in s ubsection (c) and this commentary as are necessary given the circumstances of the particular case. If none of the methods of determining the tax lo ss set forth fit the circumstances of the particular case, the court shoul d use any method of determining the tax loss that appears appropriate to reasonably calculate the loss that would have resulted had the offens e been successfully completed. Id . cmt. 1. In addition, the Application Notes state that “[ i]n determining the total tax loss attributable to the offe nse . . . , all conduct violat ing the tax laws should be considered as part of the same course of conduct or common scheme or plan unless the evidence demonstrates that the conduct is clearly unrelated.” Id . cmt. 2. This includes, according to the Application Notes, “a continuing pattern of violations of the tax laws by the defendant,” as well as when “the defendant uses a consistent method to evade or camouflage income.” Id

.16 Section 2T1.9 of the Guidelines, which th e district court applied to Count 2, is entitled “Conspiracy to Impede, Impair, Obstruct, or Defeat Ta x.” It directs a district court, in determining a defendant’s base offe nse level, to “[a]pply the greater” of the “[o]ffense level determined from §2T1.1 or§2T1.4, as appropriate,” or “10.” 3 U.S.S.G. § 2T1.9(a). The Ap plication Notes to § 2T1.9 explain, in pertinent part, that “[t]he base offense level is the o ffense level . . . from §2T1.1 or §2T1.4 (whichever guideline most closely addresses the harm that would have resulted had the conspirators succeeded in impeding, impairing, obs tructing, or defeating the Internal Revenue Service) if th at offense level is greater th an 10. Otherwise, the base offense level is 10.” Id . cmt. 2. Section 2T4.1 of the Guidelines, i.e., the Tax Table referenced in the foregoing Guidelines, provides, in pertin ent part, that if the tax lo ss is “[m]ore than $550,000,” but less than $1,500,000, a ba se offense level of 20 applies. U.S.S.G. § 2T4.1(H). It further provides that if th e tax loss is “[m]ore than $3,500,000,” but less than $9,500,000, a base offens e level of 24 applies. Id . § 2T4.1(J). Applying these Guideline provisions to the facts presented in this case, we conclude that the district court did not e rr in calculating the lo ss associated with Counts 1 and 2 and, in turn, applying a base offense level of 26 to those counts. As

3 Section 2T1.4 of the Guidelines applie s to “Aiding, Assisting, Procuring, Counseling, or Advising Tax Fraud.” Similar to § 2T1.1, it directs a district court, in determining a defendant’s base offense level, to apply the “[l]evel from §2T4.1 (Tax Table) corresponding to the ta x loss,” or “6, if there is no tax loss.” U.S.S.G. § 2T1.4(a).17 the district court noted, Maynard’s offens es of conviction were similar in some respects to both tax evasion an d willful failure to pay taxes, i.e., the first and third methodologies specified in § 2T1.1(c). Alth ough the payroll taxe s at issue were the legal obligation of TBUSA and TBGSI, the evidence establis hed that Maynard exercised complete control over both corpora tions and routinely took actions to cause both corporations to pay as little accrued payroll tax as possible, and in turn to prevent the IRS from levying on corporate funds to recover those unpaid payroll

taxes. 4 As anticipated by the Application No tes to § 2T1.1, Maynard exhibited a continuing and similar pattern of illegal conduct when he ran bot h corporations, and all with the goal of avoiding the payment of taxes owed. Maynard would have us limit the tax loss to what he de fines as the object of the o ffense—his acts in impeding the IRS from obtaining from specific accounts a portion of the outstanding tax debt which he contends is somewhere between $550,000 and $1,500,000. We reject Maynard’s attempt to reduce his ba se offense level in this way. The district court was correct, in ourview, in determining that Maynard’s conduct at TBUSA caused the IRS a tax loss of approximately $2. 5 million, and that his conduct at TBGSI caused the IRS an a dditional tax loss of approximately $2.4 million. And, contrary to Maynard’s argum ents on appeal, nothing in the Guidelines provides that a defendant’s inability to pa y an accrued tax liability should be taken

4 With TBUSA, Maynard shut down the corporation and started a new corporation to avoid paying the accrued taxes. With TBGSI, Mayna rd took steps to prevent the IRS from levying on corporate a ccounts and customer payments that were owed to TBGSI.18 into account in order to effectively reduce the tax loss at issue. See United States v. Brimberry , 961 F.2d 1286, 1292 (7th Cir. 1992 ) (rejecting defendant’s argument that tax loss should have been limited to what the government realistically could have expected to collect from her). Thus, for all of these re asons, we conclude that the district court’s calculation of the base offense level for Counts 1 and 2 was not

erroneous. Sufficiency of evidence – Counts 14 through 26 In his second issue on appeal, Maynard argues that the government failed to present sufficient evid ence at trial to support his c onvictions on Counts 14 through 26 for theft or embezzlement in connection with health care, in vi olation of 18 U.S.C. § 669. Section 669, Maynard asserts, requires proof th at a defendant willfully embezzled, stole, or converted “assets of a health care bene fit program.” Aplt. Br. at 21. Maynard argues that “the government presented no evidence” in this case “that the funds withheld from [TBGSI] employ ee paychecks” for health insurance premiums “were ‘assets’ that belonged to that program.” Id . at 22. In other words, he argues, “[w]hile [he] undoubtedly owed money to both Anthem and [United Healthcare], the funds withheld from the [TBGSI] employee paychecks never belonged to either of thes e insurance providers.” Id . Maynard argues that because “he [merely] failed to pay his bill” and “d id not defraud an insurance provider,” “this Court should vacate these convictions and remand to the district court for resentencing.” Id . at 23.19 Generally speaking, “we review the sufficiency of the evidence de novo to determine whether a rational jury could fi nd the defendant guilty beyond a reasonable doubt.” United States v. Mobley , 971 F.3d 1187, 1195 (10t h Cir. 2020) (quotations omitted). The government argues in its response brief, however, that Maynard waived his challenge to the sufficien cy of evidence on his § 669 convictions. Aple. Br. at 27-28. In support, the government notes that “[a]fter the government rested” at trial, “Maynard moved for a judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29, but he expressl y limited his motion to count 1 of the indictment . . . and did not address the counts char ging violations of . . . § 669.” Id . The government further notes that “Maynard di d not renew the motion in any form at the close of all the evidence or after the jury returned its verdict.” Id

. Federal Rule of Criminal Procedur e 29 addresses motions for judgment of acquittal and provides, in pertinent part: (a) Before Submission to the Jury . After the government closes its evidence or after the close of a ll the evidence, the court on the defendant’s motion must enter a judgmen t of acquittal of any offense for which the evidence is insu fficient to sustain a conviction. The court may on its own consider whether the evid ence is insufficien t to sustain a conviction. If the court denies a mo tion for a judgment of acquittal at the close of the government’s ev idence, the defendant may offer evidence without having rese rved the right to do so. * * * (c) After Jury Verdict or Discharge

. (1) Time for a Motion . A defendant may move for a judgment of acquittal, or renew such a motion, within 14 days after a guilty verdict or after the court discharg es the jury, whic hever is later. (2) Ruling on the Motion . If the jury has return ed a guilty verdict, the court may set aside th e verdict and enter an acquittal. If the jury20 has failed to return a verdict, the court may enter a judgment of acquittal. (3) No Prior Motion Required . A defendant is not required to move for a judgment of acquittal before th e court submits the case to the jury as a prerequisite for making su ch a motion after jury discharge. * * * Fed. R. Crim. P. 29(a), (c). “When a defendant challenges in district court the sufficien cy of the evidence on specific grounds, ‘all grounds not speci fied in the motion are waived.’” United States v. Goode , 483 F.3d 676, 681 (10t h Cir. 2007) (quoting United States v. Kimler , 335 F.3d 1132, 1141 (10th Cir. 2003)). “Although specifi city of grounds is not required in a Rule 29 motion, where a Ru le 29 motion is made on specific grounds, all grounds not specified are waived.” Id . (quotations omitted). At the close of the government’s evid ence in this case, Maynard’s counsel moved for judgment of acquittal. In doi ng so, Maynard’s counsel focused on the “acts listed in the first count.” Suppl. ROA, Vol. 3 at 7. Maynard’s counsel also stated, near the outset of his argument: “In re gards [sic] to the other counts, we would rest on the record.” Id . at 9. Maynard’s counsel and the district court discussed in detail the elements of Coun t 1 and the evidence that was presented by the government in support of Count 1. After that discus sion, the district c ourt asked Maynard’s counsel, “Is that the entirety of your argument? So, only as to Count 1 is the only one you are moving for a MJOA?” Id . at 12. Maynard’s counsel responded, “Yes,
Your Honor.” Id . After hearing from government counsel regarding Count 1, the district court “denie[d] . . . Maynard ’s Rule 29 motion as to Count 1.” Id . at 15. The21 district court then asked Maynard’s counsel, “Is there a nything further?” Id

. Maynard’s counsel responde d “No, Your Honor.” Id . At no point thereafter did Maynard move for judgment of ac quittal on any additional counts. Maynard argues in his appellate reply br ief that his counsel’s initial reference to “rest[ing] on the record” as “to the other counts” was in tended as “a general motion [for judgment of acquittal] as to th e remaining counts,” i.e., all counts other than Count 1. Aplt. Reply Br. at 8. That argument, however, is belied by the statements made thereafter by Maynard’s counsel. As outlined, the district court specifically asked Maynard’s counsel if he was moving for judgment of acquittal only as to Count 1 and Ma ynard’s counsel re sponded yes. Consequently, and understandably, the district c ourt did not address or rule on any of the other counts at issue. Therefore, we conclude that Maynard’s current challenge to his § 669 convictions (Counts 14 through 26) has been forfeited and, at best, is subject to review on appeal only for plain error. See Goode , 483 F.3d at 681 (explaining that a defendant’s failure to move for MJOA in di strict court “is more precisely termed a forfeiture”). Maynard makes no plain error argumen t in his opening appellate brief and instead only briefly mentions the plain error standards in his appe llate reply brief. For that reason, we could d eem the issue waived and decline to review it entirely because Maynard has effectively deprived the government of the opportunity to respond to his plain error arguments. See United States v. Leffler , 942 F.3d 1192, 1196 (10th Cir. 2019). We need not take that step, however, be cause even if we22 review for plain error, it is apparent th at Maynard cannot esta blish any error, let alone one that is plain. Counts 14 through 26 of the indictme nt charged Maynard with violating 18 U.S.C. § 669. That statute, entitled “The ft or embezzlement in connection with health care,” provides: (a) Whoever knowingly and willfully embezzles, steals, or otherwise without authority convert s to the use of any person other than the rightful owner, or intentionally mi sapplies any of the moneys, funds, securities, premiums, credits, property, or other assets of a health care benefit program, shall be fined under this title or imprisoned not more than 10 years, or both; but if the value of such property does not exceed the sum of $100 the defendant sh all be fined under this title or imprisoned not more th an one year, or both. (b) As used in this section, the term “health care benefit program” has the meaning given such term in section 24(b) of this title. 18 U.S.C. § 669. Section 24( b) of Title 18, which is e xpressly referenced in § 669, provides: As used in this title, the term “health care be nefit program” means any public or private plan or contract , affecting commerce, under which any medical benefit, item, or service is provided to a ny individual, and includes any individual or entity wh o is providing a medical benefit, item, or service for which payment may be made under the plan or contract. 18 U.S.C. § 24(b). Counts 14 through 26 of the indictme nt alleged that Maynard and Elbers “knowingly and willfully embezzle[d], st[o le], and otherwise without authority convert[ed] to their own use . . . and in tentionally misapplied any of the moneys, funds, securities, premiums, credits, propert y and other assets of the TBGSI health23 plan, a health care benefit program as defined in Title 18, United States Code, Section 24(b) . . . .” Supp . ROA, Vol. 1 at 16-17. Th e indictment further alleged thirteen specific dates (ext ending from June 15, 2017, through December 15, 2017) when Maynard and Elbers embezzled, stole, or otherwise converted payroll salary deferrals from their employees that were intended by those employees to pay their health insurance premiums. Id . at 17. At trial, the government presented tes timony from Paula Musil, an investigator employed by the United States Department of Labor, to support Counts 14 through 26. Musil testified that TBGSI had “an exis ting health plan that eligible employees could elect to participate in .” ROA, Vol. 7 at 1061. Musil explained that TBGSI contributed a flat amount toward each employee’s health car e premium payments, and that TBGSI employees would pay thei r remaining share of the health care premiums through a payroll deduction. Id . at 1061-62. Musil in turn testified that, based upon her review of corporate docum ents, Maynard and Elbers deducted the premium amounts from employees’ paychecks, but failed to pass those amounts on to Anthem and United Healthcare. Id . at 1068-69. According to Musil, Department of Labor regulations required Maynard and Elbers to forward the employee premium deductions on to the insurers within 90 days of deduction from the employees’ paychecks. 5 Id

.

5 Musil did not identify the precise regul ation she was referring. We assume, however, that she was referring to 29 C.F.R. § 2510.3–102. That regulation defines the phrase “plan assets” to “include am ounts (other than union dues) that a participant or beneficiary pays to an em ployer, or amounts th at a participant has24 Maynard argues that Counts 14 throug h 26 concerned two “health care benefit programs,” i.e., the health in surance plan offered by Unite d Healthcare and the health insurance plan offered by Anthem. Aplt. Br . at 21. That argument, however, ignores the broad definition of the statutory phrase “health care benefit program” that is outlined in § 24(b), as well as the language of the indictment in this case. As we have noted, the statutory defi nition includes “any public or private plan or contract, affecting commerce, under whic h any medical benefit, item, or service is provided to any individual, and includes any individual or entity who is providing a medical benefit, item, or service for which payment may be made unde r the plan or contract.” As we have also noted, the indictment in this case specifically alleged that Maynard and Elbers embezzled or stol e assets belonging to “the TB GSI health plan.” Supp. ROA, Vol. 1 at 16. In tu rn, the evidence presented at trial, consistent with the language of the indictment, unquestionably estab lished that TBGSI set up a health care plan for its employees, under which TB GSI contracted with a health insurance company (i.e., first United Healthcare a nd then Anthem) to provide insurance coverage for its employees, and under whic h TBGSI both contributed a flat amount for each employee’s coverage and also de ducted from its employees’ paychecks the remaining premium amounts. Thus, under th e broad statutory definition, the “health

withheld from his wages by an employer, for cont ribution . . . , as of the earliest date on which such contributions . . . can reas onably be segregated from the employer’s general assets.” 29 C.F.R. § 2510.3–102(a)(1). The regula tion in turn provides that “in no event shall the date determined pursu ant to paragraph (a)(1) of this section occur later than 90 days from the date on which the participant contribution amounts are received by the employer . . . .” Id . § 2510.3–102(c).25 care benefit program” at issue was TBGSI’s “private plan . . . under which . . . medical benefit[s]” were “provided to” TBGSI’s employees, and it included the contracted insurance companie s that provided medical insu rance benefits to TBGSI’s employees. 6 Understood in that way, the govern ment’s evidence clearly established that Maynard, together with Elbers, vi olated § 669 by effec tively stealing the withheld employee premium payments. More specifically, those h ealth care premium payments were “moneys,” “f unds, and/or “premiums” that belonged to the plan. For these reasons, we conclude that Maynard has failed to establish the existence of any error, let alone an error that was plain. We therefore reject his challenge to the sufficiency of the evidence underlying Counts 14 through 26. Calculation of restitution aw ard for Counts 4 through 13 In his third issue on appeal, Maynard argue s that the district court erred at the time of sentencing by miscalculating the re stitution award for Counts 4 through 13. Those counts pertained to Maynard’s em bezzlement or theft of TBGSI employees’ 401(k) contributions. The district court, Maynard notes, ordered him to “compensate the victims for not only the amount withhe ld from their paycheck s but also for the amount that the employees expected to receive from the employer’s matching [401(k)] contribution.” Aplt. Br. at 23–24. Maynard asserts that he “objected to this award on the basis that the matching funds where [sic] not the subject of the 401(k)

6 Indeed, Maynard concedes in his opening brief that “the government presented sufficient evidence to prove that the ‘private contract between TBGSI and the health care providers’ qualified as a ‘hea lth care benefit program’ as that term is defined by statute.” Aplt. Br. at 22.26 counts.” Id . at 24 (citing ROA, Vol. 7 at 1469). Maynard argues that “[t]he district court’s restitution award represents an e rroneous application of the [Mandatory Victims Restitution Act (MVRA)],” which “ limits restitution to the actual loss caused by the defendant’s offense of conviction.” Id

. “When reviewing a challenge to a rest itution determination, we review the district court’s application of the MRVA de novo, review its factual findings for clear error, and review the amount of restitu tion awarded for abus e of discretion.” United States v. Camick , 796 F.3d 1206, 1223 (10th Cir. 2015) (quotations and brackets omitted). The MVRA requires a district court, “when sentencing a defendant convicted of [an offense against propert y under Title 18],” to “order. . . that the defendant make restitution to the victim of the o ffense . . . .” 18 U.S.C. § 3663A(a)(1); see also id . § 3663A(c)(1)(A)(ii) (requiring restitut ion in all cases involving “an offense against property under this title”). For pur poses of the MVRA, “the term ‘victim’ means a person directly and proximately harm ed as a result of the commission of an offense for which restitution may be ordered . . . .” Id . § 3663A(a)(2). The MVRA provides, in relevant part, th at “[i]n each order of rest itution, the court shall order restitution to each vic tim in the full amount of each vi ctim’s losses as determined by the court and without consideration of the economic circumstances of the defendant.” Id. § 3664(f)(1)(A). “Restitution is limited to losses caused by the cond uct underlying the offense of conviction.” Camick , 796 F.3d at 1223 (brackets and quotations omitted). “The27 Government carries the bur den of proving causation by a preponderance of the evidence in the context of restitution.” Id . “The MVRA does not require absolute precision, but losses cannot be speculative.” United States v. Kalu , 791 F.3d 1194, 1213 (10th Cir. 2015) ( quotations omitted). In this case, the distri ct court calculated the loss amount associated with Counts 4 through 13 to be $111,974.04, which incl uded the 401(k) contribution amounts withheld from employees’ paychecks but never passed on to the retirement plan, interest on those withheld amount s, and the employer matching amounts (totaling $36,010.81) that Maynard and TBGSI promised but were never paid on behalf of TBGSI’s employees. ROA Vol. 4 at 340; ROA Vol. 7 at 1469–71. At sentencing, Maynard objected to includi ng the employer matching amounts on the grounds that those funds were simply owed and not paid , but otherwise were never stolen or embezzled from TBGSI employ ees. ROA Vol. 7 at 1469 (“There is no doubt that, by contract, the employees should have rece ived that money, but it certainly wasn’t deducted or stolen out of their paychecks, as the 401(k) payments, themselves, were.”). The district court ove rruled that objection, concluding “that the full amount of the victims’ 401(k) lo sses include[d] the employer matching contributions for each vic tim for 2017 because the em ployees were enticed to participate in the 401(k) program by the pr omise of a generous employer match.” Id

. at 1470. Maynard appeals the district court’s ruling, arguing that, for purposes of the MVRA, the only “loss caused by [his] violations of § 664” were “t he assets that he28 withheld from the employee paychecks and fa iled to deposit into a 401(k) plan.” Aplt. Br. at 25. We reject this argument. The “Background” section of the indictment in this case alle ged, in pertinent part, that TBGSI offered to its employees “a 401(k) savings plan” that “was subject to Title I of the Employee Retirement Income Security Act of 1974 (‘ERISA’)” and in turn “the provisions of Title 18, United St ates Code 664.” Supp. ROA, Vol. 1 at 6. The indictment further alleged that “TBGSI employees selected the amount (if any) to be withheld from each paycheck for th e 401(k) savings plan ” and that “TBGSI promised to match employee contribu tions at a rate set by formula.” Id . Counts 4 through 13 of the indictment expressly inco rporated those allegations by reference. Id . at 15 ¶ 24. At the trial in this case, the government , consistent with the allegations in the indictment, introduced an email written by Elbers and forwarded by Maynard to a prospective plan participant that expl ained in detail the employer matching component of the company’s 401(k) plan ; that email was da ted March 3, 2017, months after Maynard and Elbers stopped forwarding employees’ 401(k) contributions to the 401(k) plan. 7 ROA, Vol. 7 at 1095–96. Notably, Maynard does not dispute that he represen ted to plan participants th at TBGSI would make employer matching contributions to the 401(k) plan.

7 Elbers stated in the email that the company’s “contribution [wa]s calculated as follows: 100% of the first 3% of deferr ed compensation plus 50% of the next 2% of deferred compensation (so effectively T ouchbase contributions [sic] to a maximum of 4%).” ROA, Vol. 7 at 1095.29 In sum, the evidence presen ted at trial, consistent wi th the allegations in the indictment, established beyo nd a reasonable doubt that Maynard carried out the theft or embezzlement of the 401(k) funds by pr omising those employer-matching funds to TBGSI’s employees. Were it not for those promises, it is uncertain whether the employee-victims would have contributed to th e 401(k) plan at all. In other words, it was those promises that placed Maynard in a position to be able to embezzle or steal the 401(k) contributions. We therefore conclude that the government carried its burden of showing that those promises we re part of “the c onduct underlying the offense of conviction,” Camick , 796 F.3d at 1223 (quotation marks omitted), and that, as a result, th e loss to each employee-victim ne cessarily included the promised employer-matching contribution that was associ ated with each 401(k) contribution. See Kalu , 791 F.3d at 1213–14 (affir ming district court’s re stitution award under the MVRA that was based, in pertinent pa rt, on misrepresentat ions made by the defendant to the victims regarding the salary they would receive if they accepted his offer of employment). The dissent in this case suggests that restitution for Counts 4 through 13 should have been limited st rictly to the 401(k) contri bution amounts withheld from the employee-victims’ paychecks. In support of its positi on, the dissent points to our decision in United States v. Mendenhall , 945 F.3d 1264 (10th Cir. 2019). There, we held that the MVRA does not allow a distri ct court to order re stitution “for losses related to, but not arising di rectly from, [the] defendant’s offense of conviction.” Id

. at 1266. We therefore rejected the district court’s inclusion of restitution amounts for30 sixty-two stolen firearms because the defe ndant was only charged with and convicted of receiving, possessing, and con cealing three of those firearms. Id

. In our view, Maynard’s case is di stinguishable from, and therefore not controlled by, Mendenhall . As we have discussed, the allegations in the indictment, which were ultimately supported by the eviden ce at trial, establis hed that Maynard’s promises of employee-matching funds were central to each of th e theft/embezzlement offenses alleged in Counts 4 through 13 and proven at trial. More specifically, each stolen or embezzled employee 401(k) cont ribution was associated with a promised employer-matching amount that TBGSI, at Maynard’s direction, failed to make. Thus, in terms of actual lo ss to the employee-victims, each of the ten counts of conviction included a stolen or embezzled employee contribution and an associated employer-matching contribution that Maynard promised but failed to make. We therefore respectfully rej ect the dissent’s position. 8

8 Even assuming, for purposes of argum ent that the amount of restitution ordered by the district court for Counts 4 through 13 was err oneous, such error was harmless because the distri ct court could have awarde d the exact same amount of restitution under the MV RA for Count 3. Cf. United States v. Owens , 426 F.3d 800, 808-09 (6th Cir. 2005) (applying harmless error review to res titution issue that involved the MVRA). Count 3 charged Maynard and Elbers with conspiracy to steal or embezzle payments made by employees into their 401(k) and hea lth care plans, in violation of 18 U.S.C. § 371, and alleged in pertinent partthat Maynard and Elbers carried out the conspiracy by promising the employee-victims that TBGSI would make employer-matching 401( k) contributions. Supp. ROA, Vol. 1 at 12-15. Notably, we have held that “[c]onspiracy in violation of 18 U. S.C. § 371 is covered by the MVRA when the underlying object of the conspiracy is an offense against property.” United States v. Butler , 694 F.3d 1177, 1183 (10t h Cir. 2012). Therefore, the amount of restitution woul d not “change on remand.” Owens , 426 F.3d at 809.31 Calculation of restitution award for Counts 14 through 26 In his fourth and final issue on appeal , Maynard argues that the district court plainly erred in calculating the restitution award for Counts 14 through 26 which, as we have noted, involved theft or embezzleme nt in connection with health care, in violation of 18 U.S.C. § 669. Where, as here, a defenda nt asserts a procedural reasonableness challenge on appeal but did not make that argument at th e time of sentencing, we review the issue only for plain error. United States v. Wireman , 849 F.3d 956, 962 (10th Cir. 2017). “We will find plain error only when there is (1) error, (2) that is plain, which (3) affects substantial rights, a nd which (4) seriously affects the fairness, integrity, or public reputation of j udicial proceedings.” Id . (quotations omitted). As the party alleging plain error, Maynard “has the burden of establishing the four elements of plain error.” United States v. Peña , 963 F.3d 1016, 1023 (10th Cir. 2020). At sentencing, the district court adopted without objection the following factual findings relevant to Counts 14 thr ough 26 that were set forth in the PSR. From around 2012 to June 2017, TBGSI offered health insurance through United Healthcare to TBGSI employees. TBGSI pa id $600 per employee towards premiums, and employees paid the remainder. TBGS I automatically deducted the participant contribution from each participant’s pa ycheck. TBGSI was responsible for forwarding the full premiu m amounts to United Healthcare. Starting in March 2017, however, TBGSI stopped paying the premiums owed to United Healthcare. By June 2017, TBGSI owed United Health care approximately $119,000.32 On July 5, 2017, United Healthcare retroactively terminat ed TBGSI’s health insurance coverage back to March 4, 2017, due to Maynard’s and Elbers’ failure to pay the outstanding premiums. Maynard and Elbers did nottell TBGSI’s employees that their health care covera ge had been cancelled. In stead, Maynard and Elbers falsely informed TBGSI’s employees that United Healthcare had proposed to raise premiums by 20% to 30%, and that, as a re sult, Maynard and Elbe rs had decided to contract with Anthem to provide hea lth insurance to TBGSI’s employees. TBGSI’s coverage with Anthem was suppo sed to begin effective July 1, 2017. Although TBGSI continued to withhold empl oyee contributions for health insurance premiums, it failed to make any premium payments to Anthem for the coverage. Consequently, in September 2017, Anthem term inated coverage retroactive to July 1,
2017. Maynard and Elbers kept for TBGS I’s benefit a total of $50,279.04 from employee paychecks that was intended for h ealth insurance premiums. That included employee contributions towards premiums for United Healthcare from March 4, 2017, to June 30, 2017, and employee cont ributions towards premiums for Anthem from July 1, 2017, to September 2017. Had TBGSI instead forwarded those premiums to United Healthcare and Anthem , its employees would have had health care coverage for the periods in question, including the payment of covered claims incurred. At the time of sentencing, the govern ment submitted without objection a chart listing the total amount of premiums withheld from eighteen TBGSI employees33 between March 15, 2017, and September 15, 2017. ECF No. 117-3 at 1. The chart also listed, for each of those eighteen employees, the “Unpaid Claims” for United Healthcare and Anthem. Id . The district court relied on this evidence for purposes of calculating the restitution for Counts 14 through 26. More specifically, the district court determined, without objection from Ma ynard, that the appropriate restitution amount was “$185,921.91 for the health plan funds.” ROA, Vol. 7 at 1468. That total, the district court noted, was “comprised of $50,279.04 for the premium withholdings from the employees’ paychecks that were stolen,” “$40,204.32 in unpaid claims for UnitedHealthcare,” and “$95,438.55 in unpaid claims for
Anthem.” 9 Id

. In his appeal, Maynard concedes that “the district court was authorized to order restitution for [these] offenses” under the MVRA. Aplt. Br. at 26. But, he argues, “the district court’ s restitution order exceeds its statutory authority as the award amount exceeds the losse s caused by [him] and puts th e victims in a better position than they would have been had the crimes not occurred.” Id . In other words, Maynard argues, “[t]he court’s re stitution award repres ents textbook doublecounting.” Id . at 27. He explains that “the lo ss caused by [his] conduct was either the amount of premiums withheld fro m each individual employee’s paycheck or the

9 Thirteen of the eighteen employees ha d claims denied by United Healthcare. ECF No. 117-3 at 1. Nine of the eighteen employees had claims denied by Anthem. Id . Only two of the eighteen employees ha d no claims denied by either insurer. Id

. The claims denied by United Healthca re ranged in amounts from $20.00 to $9,591.90. Id . The claims denied by Anthem ranged in amounts from $800.00 to $80,645.55. Id

.34 amount that the insurance co mpany would have paid on th e claims, but not both.” Id

. (emphasis in original). Mayna rd in turn argues that “[ i]n order to put the victims back into the position that they would be in had the crimes not occurred, the court could choose between one of two options.” Id . “The court could, ” he argues, “treat the victims as if they have never paid for health insu rance—i.e., the victim would receive the amount of money withheld from their paychecks.” Id . Alternatively, he argues, “the court could have put the victim in the position they would have been had [he] secured health insu rance—i.e., the victim would receive the amount the insurance plan would have covered minus th e premiums that the victims would have paid to obtain such health insurance.” Id . Finally, Maynard argues that “the restitution award exceeds the ac tual loss suffered by the vic tims in that the district court failed to deduct from the denied claims any amount that the victim would have owed even if they had health insurance,” and that “[n]otab ly absent from the district court’s restitution award is consideration of the victim’s deductible.” Id . at 28. We need not decide whether the distri ct court erred for purposes of the first prong of the plain error test because, even assuming that it did, Maynard has failed to satisfy his burden under the sec ond and third prongs of that te st. “For an error to be plain, it must be an error that is clear or obvious unde r current, well-settled law.” United States v. Miller , 978 F.3d 746, 763 (10th Ci r. 2020) (quotation marks omitted). “Typically for an e rror to be contrary to we ll-settled law, either the Supreme Court or this court must have addressed the issue.” Id . (quotation marks omitted). In this case, Maynard cites only to Supreme Court or Tenth Circuit cases35 outlining general principles that are applicable to MVRA cases. 10 For example, Maynard cites to Hughey v. United States , 495 U.S. 411 (1990) fo r the principle that “the MVRA only permits a res titution order that restores the victims to the position they occupied before th e crime.” Aplt. Br. at 26. He also cites to United States v. Howard , 784 F.3d 745, 750 (10th Cir. 2015) for the principle that a “restitution award may not ‘unjustly enrich crime vi ctims or provide them a windfall.’” Id

. These general principles, however, do not address the specific and unique situation that is presented in this case regarding the restitution amounts a ssociated with Counts 14 through 26. And, as we shal l discuss in more detail, it is far from “plain” that the district court erred by fail ing to calculate restituti on in the manner suggested by Maynard. Maynard argues that “the loss caused by [his] conduct was either the amount of premiums withheld from each individual employee’s paycheck or the amount that the insurance company would have paid on th e claims, but not both.” Aplt. Br. at 27 (italics in original). Because the limited ev idence in the record establishes that each of the eighteen employee-victims was in a unique situation, it is not enough for Maynard to argue that the district cour t plainly erred by failing to choose between one category total or the other, i.e., awar ding either the total of the withheld and

10 The same holds true for the dissent. See Dissent at 9–10. Although the dissent suggests that these gene ral principles are enough to conclude that the district court committed plain error, we disagree. Neither Maynard nor the dissent cite to a single case that involved offens es, and in turn restitution issues, remotely similar to those at issue here. And, although the disse nt suggests that the a lleged error here is “obvious,” we respectfully disagree. Id. at 9.36 subsequently stolen premiums from all TB GSI employees or the total of the unpaid medical claims for all TBGSI employees. 11 Indeed, our review of the evidence presented at the sentencing h earing indicates that, had the district court done so, it would have unnecessarily benef itted Maynard at the expense of at least some of the employee-victims. For example, if the di strict court had awarded only the amount of the unpaid medical claims, thatwould have left two of the employee-victims with no recovery at all because they had no unpa id medical claims during the period from March 15, 2017, to September 15, 2017. In contrast, if the distri ct court had awarded only the amount of the withheld and stolen premium payments, that would have left many of the employee-victims without pr oper restitution because their unpaid medical claims exceeded the amounts of their withheld and stolen premium payments. If, as Maynard suggests, the goal of the MVRA is to restore the victim to the position occupied before the crim e, then the district court’ s restitution award satisfies that goal and is not plainly erroneous. By deducting amounts from each employeevictim’s paycheck for h ealth insurance premium pa yments and keeping those amounts for TBGSI’s benefit instead of fo rwarding them to United Healthcare and

11 For example, TBGSI employee Victor Gutierrez had $3,076.65 withheld from his paychecks for premiums, but had no unpaid medical claims. ECF No. 117-3 at 1. In contrast, TBGSI employee Alex is Nicholson had $2, 554.11 withheld from her paychecks for premiums, and in turn had $91,637.35 in unpaid medical claims. Id . As a third example, TBGSI employee Clare Lamy had $6,826.69 withheld from her paychecks for premiums, and in turn had $5,608.96 in unpaid medical claims. Id

.37 Anthem, Maynard financially harmed the employee-victims in two ways: (1) he effectively stole from them the amounts th at were deducted from their paychecks and intended to be used as hea lth insurance premium paymen ts; and (2) he also caused the employee-victims to incu r medical expenses that w ould otherwise have been covered under their health care plans with United Healthcare and Anthem. 12 In other words, Maynard’s criminal acts caused the employee-victims direct out-of-pocket losses when he kept the deducted in surance premiums deducted from their paychecks, and when they had to pay unc overed medical bills. Only by ordering restitution which covers both losses would th e employee-victims be made whole. To the extent Maynard is arguing that the district court should have separately analyzed each employee’s situation and attempted to determine what each employee’s actual loss was, he provides us with no additi onal evidence to support his arguments. To be sure, the limited evid ence in the record, as we have noted, establishes for each employee-victim th e premium amounts withheld from their paychecks and, in turn, the total amount of unpaid claims that would otherwise have

12 Both Maynard and the dissent would e ssentially pretend, with respect to those employee-victims whose uncovered medi cal expenses exceeded their withheld and embezzled health insura nce premiums, that those em ployee-victims had health insurance coverage. Not only do es this ignore the realities of what actually occurred, it would effectively reward Maynard fina ncially by allowing him to retain the embezzled health insurance pr emiums. Nothing in the text of the MVRA, nor in our case law interpreting the MVRA, supports such a result. To the contrary, the plain text of the MVRA indicates th at the restitution award is intended as a “penalty” equal to “the full amount of each victim’s losses.” 18 U.S.C. §§ 3663A(a)(1), 3664(f)(1)(A). And those losses, as we ha ve discussed, included both the stolen premium amounts and the unc overed medical expenses.38 been covered by United Healthcare and Anth em. But this evidence does not establish (a) the time period that employee-victim was covered by the two healthcare plans, 13 (b) when the unpaid medical claims were incurred, 14 or (c) how the two insurance plans would have operated in terms of de ductibles. Those details, which Maynard does not address or attempt to establish wi th evidence, would have been important and necessary to the district court had it been obligated to make the calculations now suggested by Maynard for the first time on appeal. 15 We also note that, to the extent Mayna rd suggests the di strict court should have engaged in a detailed analysis of each employee-victim’s situ ation, this ignores well-established precedent holding that the calculation of a restitution award under

13 For example, the government’s ch art indicates that TBGSI employee Gennaro Perrone had a total of $3,283.10 in premiums deducted from her paychecks and had $350.00 in unpaid medical claims that should have been covered by United Healthcare. Although we can infer from th is evidence that Perrone intended to be covered by, and thus had pr emium payments deducted for, United Healthcare, it does not tell us whether Perrone intended to be covered by, and thus had premium payments deducted for, Anthem.

14 If, for example, an employee incurre d a medical claim on March 16, 2017, that should have been but was not cove red by United Healthcare, and incurred no other medical claims thereafte r, then, at least arguably, only the withheld premium amounts covering the March 16, 2017 occurren ce should have been, under Maynard’s theory, taken into consideration in offsetti ng the amount of the unpaid medical claim. In other words, this employee, under Ma ynard’s theory, should have been awarded (a) the amount of the unpaid medical cl aim minus the withheld premium for the period covering the unpaid me dical claim, and (b) the total amount of withheld premiums for the period following the o ccurrence of the unpaid medical claim.

15 For these same reasons, we respectfull y reject the dissent ’s suggestion that the district court should have “examin[ed ] each employee individually and utilize[ed] the greater of the embezzled premiums or the unpaid insura nce claims.” Dissent at 10.39 the MVRA is not intended to be a full-blown trial of its ow n. Indeed, Congress itself made this very point wh en it enacted the MVRA. See S. Rep. No. 104-179, at 18 (1995), as reprinted in 1996 U.S.C.C.A.N. 924, 931 (cautioni ng that a district court’s calculation of restitution in a criminal case is not to “b ecome fora for the determination of facts and issu es better suited to civil pr oceedings”). As a result, we have held that a district court need not calculate restitution under the MVRA “with exact precision.” United States v. Anthony , 942 F.3d 955, 970 (10th Cir. 2020) (quotation marks omitted). We are therefor e not convinced that the district court “plainly” erred by failing to precisely dete rmine, including taking into account the workings of each insurance plan, the losses of each of the eighteen employee-victims. We in turn conclude, for many of the sa me reasons, that Mayna rd has failed to establish, under the third pron g of the plain error test, that the alleged error affected his substantial rights. “An error affects substantial righ ts if there is a reasonable probability that the erro r affected the outcome of the proceedings.” Miller , 978 F.3d at 765 (quotation marks omitted). “In the se ntencing context, we ask: Is there a reasonable probability that but for the c ourt’s error, the de fendant would have received a less er sentence?” Id . (quotation marks and brackets omitted). As we have discussed, Maynard pr ovides us with no evidence that is supportive of his arguments. For example, he argues, but fails to substantiate, that each of the unpaid medical clai ms considered by the distri ct court would have been subject, under the terms of the United Health care and Anthem plans, to deductible amounts that the employee-victims would have been obligated to pay. Ultimately,40 given the very limited eviden ce before us, we are unable to say there is a “reasonable probability” that the restitution amount fo r Counts 14 through 26 would have been lower had the district court engaged in a detailed analys is of each employee-victim’s situation.
IV For the reasons outlined above, we AFFIRM Maynard’s convictions and

sentence.19-1304, United States v. Maynard McHUGH , Circuit Judge, jo ining in part and dissenting in part: I agree with the majority that the district court did not err in calculating Mr. Maynard’s Guidelines range and that su bstantial evidence supports Mr. Maynard’s convictions under 18 U.S.C. § 669. Accordingl y, I join those portions of the majority opinion. 1 However, for the reasons I now explain, I respectfully dissent from the majority’s affirmance of the restitution orders with respect to the retirement benefit and the healthcare emb ezzlement convictions.
I. BACKGROUND As the majority opinion no tes, at Mr. Maynard’s dire ction in 2017, Touchbase Global Services, Inc. (“TBGSI”) used mo ney withheld from employees’ paychecks designated to retirement plans and health in surance plans to instead pay for operating expenses. TBGSI incentivized participation in the retirement plan by offering matching contributions, but later stopped paying the matching contributions without notifying its employees. In addition, TBGS I withheld money from employ ee paychecks ostensibly to pay for employee health insurance. Unbeknow nst to the employees, TBGSI failed to pass along the employee withholdings to the appr opriate health insurance company. As a

1 I also concur in the majority’s conclu sion that an accurate calculation of employees’ deductibles would not have been possible based on the evidence presented. But because, as discussed in section II.B, I am convinced the res titution amount for the embezzlement of healthcare premiums is othe rwise embedded with plain error, I dissent from the majority’s affirm ance of that award.2 result, two successive insurers retroactivel y cancelled health insurance coverage for TBGSI’s employees, resulting in unpaid clai ms the insurance would have covered. For his conduct in embezzling the employee withholdings, the grand jury charged Mr. Maynard with, and the pe tit jury convicted him of, onecount of conspiracy to embezzle employees’ retirement contributions and health insurance payments, in violation of 18 U.S.C. § 371 2 ; ten counts of theft or embezzlement of employee benefit plan funds, in violation of 18 U.S.C. § 664; and thirteen counts of theft or embezzlement in connection with hea lth care, in violatio n of 18 U.S.C. § 669. 3 On the retirement benefit embezzlement counts, over Mr. Maynard’s objection, the district court ordered re stitution, including “the employ er matching contribution for each victim for 2017 because the employees were enticed to participate in the 401(k) program by the promise of a generous employer match” which was never paid. ROA, Vol. VII at 1470–71. The district court al so included lost interest on the employees’ contributions. In total, the district court ordered Mr. Maynard to pay $111,974.04 in
restitution for embezzlement of the retirement benefits. On the health insurance pr emium embezzlement counts, th e district court ordered Mr. Maynard to pay $185,921. 91 in restitution. This amount“is comprised of $50,279.04

2 The district court did not or der restitution on this count.

3 Mr. Maynard was also charged with corruptly endeavoring to obstruct or impede due administration of the internal revenue laws in violation of 26 U.S.C. § 7212(a) and conspiring to avoid paying taxe s in violation of 18 U.S.C. § 371. Because I join in the majority’s analysis of Mr. Maynard’s argumen ts with regard to those claims, I do not discuss them here.3 for the premium withholding s from the employees’ paychecks that were stolen[,] $40,204.32 in unpaid claims for UnitedHealth care[, a]nd $95,438.55 in unpaid claims for
Anthem.” Id. at 1468. II. DISCUSSION Restitution must be authorized by statute. United States v. Mendenhall , 945 F.3d 1264, 1267 (10th Cir. 2019). The restitution he re is governed by the Mandatory Victims Restitution Act (“MVRA”), 18 U.S.C. § 3663A. The MVRA directs courts to order “‘that the defendant make restitution to the victim’ of ‘an offense against property under this title.’” United States v. Howard , 887 F.3d 1072, 1076 (1 0th Cir. 2018) (quoting 18 U.S.C. §§ 3663A(a)(1), (c)(1)(A)(ii)). “The overarching principle of the MVRA is to make victims whole.” Id. at 1078. Thus, restitution u nder this section ordinarily constitutes the return of the victim’s property, but if that is impracticable, the value of the property. Id. at 1076. The government has the burde n of proving the restitution amount. Id. “[T]he controlling metric for an awar d of restitution pursuant to the MVRA in every

case is actual loss suffered; nothing more, nothing less, to ensure that the victim does not receive a windfall.” Id. at 1078 (internal quotation marks omitted). A. Retirement Benefit Restitution On the 18 U.S.C. § 664 counts, the districtcourt found that “the full amount of the victims’ 401(k) losses includes the employermatching contribution for each victim for 2017 because the employees we re enticed to participate inthe 401(k) program by the promise of a generous employer match.” R OA, Vol. VII at 1470. The district court therefore included in the restitution amount th e unpaid matching contributions in addition4 to the embezzled with holdings and interest. Mr. Ma ynard argues this was improper because “the loss caused by th e ‘offense of conviction’ was the funds stolen from the employees’ paychecks,” not the unpaid matchi ng contributions. Appellant Br. at 24. The government argues the unpaid matching co ntributions are compensable because they were losses created by false repr esentations and are necessary to make the victims whole. As the majority notes, there is no di spute that Mr. Maynard (and Ms. Elbers) fraudulently represented that employer matchi ng contributions would be made to the 401(k) program, thereby enticing employees to participate in the program and providing an opportunity to embezzle th e employees’ contributions. Th e majority thus concludes “the government carried its burden of showing that . . . the loss to each employee-victim necessarily included the promised employer-m atching contribution that was associated with each 401(k) contribution.” Majority Op. at 29. And like the government, the majority cites United States v. Kalu , 791 F.3d 1194 (10th Cir. 2015), in support, reading that case to authorize restitution for misrepresentations. In my view, this court’s decision in Mendenhall precludes the government’s reasoning. The defendant in Mendenhall burglarized a pawn shop, stealing (among other things) sixty-two firearms. 945 F.3d at 1266. But he was charged with and convicted of only receipt, possession, and concealment of a stolen firearm based upon three specific firearms. Id. Without objection, the district court ordered restitution under the MVRA for other losses related to the burglary, including the other fifty-nine stolen firearms and repair costs the pawn shop incurred after the burglary. Id. at 1266–67. “Relying on controlling Supreme Court precedent, we co nclude[d] that Congress has authorized5 restitution only ‘for the loss caused by the specifi c conduct that is the basis of the offense of conviction.’” Id. at 1266 (quoting Hughey v. United States , 495 U.S. 411, 413 (1990)). “In ordering restitution for losses related to, but not arising direc tly from, defendant’s offense of conviction,” this court in Mendenhall held, “the district court exceeded the range of restitution authorized by the [MVRA].” Id. The majority’s view of Mendenhall , from my perspective, is not consistent with its facts. The majority characterizes Mendenhall as “reject[ing] the di strict court’s inclusion of restitution amounts for sixty-two stolenfirearms because the defendant was only charged with and convicted of receiving, possessing, and concealing three of those firearms.” Majority Op. at 2 9–30. But the restitution order in that case was broader than just the other firearms; it included “wages fo r employees to conduct inventory, loss of revenue for closing of business (historica l average of Saturdays and Mondays), and cleanup/repairs” cause d by the burglary. Mendenhall , 945 F.3d at 1266–67. So understood, Mendenhall establishes it is not enough thatthese losses are related to the crime of conviction; to be eligible for re stitution, the losses mustbe caused by the conduct underlying that crime. The majority attempts to distinguish Mendenhall because Mr. Maynard’s fraud was specified—although not separately charged—in the indict ment and the evidence at trial “established that [Mr.] Maynard’s pr omises of employee-matching funds were central” to the retirement benefit embezzle ment charges. Majority Op. at 30. The majority suggests the fraud was conduct underlying the offense because “it was those6 [false] promises that placed [Mr.] Maynard in a position to be able to embezzle or steal the 401(k) contributions.” Id. at 29. I do not think these attempte d distinctions distinguish Mendenhall . True, the indictment in Mendenhall listed only three firearms, and that matter did not proceed to trial. 945 F.3d at 1266, 1269. But we did note that there was substantial, undisputed evidence that Mr. Mendenhall had committed the burglary. Id. at 1266. Indeed, we stated, “everyone knows that [Mr.] Mendenhall stole the firearms and pocketed cash from the theft.” Id. at 1269. And there can beno doubt that the burglary was central to Mr. Mendenhall’s possessing stolen firearms—a bsent the burglary, the firearms would not have been stolen or in Mr. Mendenhall’s possession. In Mendenhall , we relied on a similar Fourth Circuit case; that court “expl ained that although the defendant’s ‘burglary and theft of the firearm represent necessary st eps in the accomplishmen t’ of the convicted offense, they were ‘legally irreleva nt for the purpose of restitution.’” Id. at 1268 (quoting United States v. Davis , 714 F.3d 809, 814 (4th Cir. 2013)). I see nothing materially different in the majority’s distinctions. Kalu is not contrary to Mendenhall , nor does it create an exception for misrepresentative conduct. In that case, a panel of this court upheld a restitution order that required the defendant to pay his victims as though his false statement had been true. 791 F.3d at 1212–15. But there is a critical distinction between that case and Mendenhall : Mr. Kalu was convicted of fraud. Id. at 1199–1200 (explaini ng Mr. Kalu was charged with and convicted of mail fraud and visa fraud, inter alia , for recruiting nurses and obtaining visas for them with the false statement that they would earn $72,000 per year,7 when in fact the nurses earned less than that amount). So, in my view, Kalu does not establish that all misrepresentations support an award of restitution. Rather, it holds that where misrepresentation is part of the offens e of conviction, a district court may order restitution giving the victims of the misrep resentation the benefit of the promise. Here, the jury convicted Mr. Maynard of embezzlement of funds from a retirement benefit account. Unlike in Kalu , the government did not pursue a conviction for fraud. While promising (falsely) to provide matching contributions was among the means Mr. Maynard used to convince employees to request withholdings, it was not an element of any crime of which Mr. Maynard was co nvicted. Even if he had matched the contributions as promised, Mr. Maynard would ha ve been just as guilty of violating § 664 when he embezzled the employee c ontributions. As we explained in Mendenhall , district courts may order restitution only for losses caused by the conduct un derlying the offense of conviction, not for losses caused by rele vant conduct. 945 F.3d at 1269. Losses from conduct enabling, but not constituting, the crime may not be included. Id. at 1268. By choosing not to pursue a fraud case against Mr. Maynard, th e government made recovery of the promised matching funds unavailable as restitution under the MVRA. See id. at 1269. Accordingly, I would hold the district court erred in includi ng the unpaid employer matching contributions as restituti on for the convictions under § 664. 4

4 The majority notes the district court could have awarded this restitution for Count 3, and accordingly any error was harmle ss. Although the district court could have ordered this restitution on Count 3, it did not do so. It is true “that ordinarily we may affirm on any ground that finds support in the record.” United States v. Garcia , 946 F.3d 1191, 1207 (10th Cir. 2020) (internal quota tion marks omitted). “But ordinarily, in exercising that discretion, we have be en—as a matter of basic fairness—guided by8 B. Healthcare Restitution Mr. Maynard next challenges the restitution award for his convictions of theft or embezzlement in connection withhealth care in violation of 18 U.S.C. § 669. In reaching its conclusion that Mr. Maynard could not prevail on this claim under plain error, the majority does not reach the question of wh ether the district court erred, instead concluding that any pres umed error was not plain. In contras t, I begin my analysis of the healthcare restitution issue with that first prong—error—befo re turning to whether the error was plain.
Error Mr. Maynard argues the district court erred in two ways: (1) by including both the embezzled premiums and the am ount of unpaid claims in the restitution order and (2) by including the full amount of the unpaid claims in the restitution order rather than accounting for expenses such as deductibles which employees would have paid even if they had been coveredby insurance as promised. I agree with the ma jority that Mr. Maynard has failed to come forth with evidence showing that, or how, deductibles

whether the parties have fully briefed and argued the altern ate ground, and whether they have had a fair opportunity to develop the factual record.” United States v. Chavez , 976 F.3d 1178, 1203 n. 17 (10th Cir. 2020) (internal quotation marks omitted). The government did not ask us to review for harmless error and, consequentially, Mr. Maynard did not discuss it. See United States v. Cristerna-Gonzalez , 962 F.3d 1253, 1267 (10th Cir. 2020) (“The go vernment ordinarily has the burden of proving that a nonconstitutional error was harmless. ”) (quotation marks omitted) . To my knowledge, this would be the first published op inion of this court to appl y harmless error to an MVRA calculation. See Majority Op. at 30 n.8 (citing a Sixth Circuit case for the proposition that harmless error applies to an MVRA calculation). I would not do so for the first time on our own initiative.9 would have applied; and on pl ain error review we cannot lo ok beyond the re cord before the district court. However, I believe the di strict court erred in ordering restitution for both the embezzled premiums and the unpaid claims. Mr. Maynard argues that absent his crimin al conduct, his employees’ withholdings would have been passed on to the health insurers, and th e employees would have been covered. So, in his view, their loss is eith er the embezzled premiums or the unpaid medical claims, but not both. He argues that restitution for both the amount of premiums and the unpaid medical expenses puts the employees in a better position than they would have been in if, in fact, the withheld amounts were used to purchase health insurance. The government disagrees, arguing that the embezzled premiums represent the loss of protection against risk that health insuran ce provides, while the out-of-pocket payments compensate costs actually incurred. I agree with Mr. Maynard. Victims wh o receive both reimbursement of the premium amounts withheld from their paych ecks and out-of-pocket expenses incurred when the insurers retroactively revoked covera ge will recover more than they would have received if Mr. Maynard had no t embezzled their premiums. That is an impermissible windfall under the MVRA. 5

5 The majority is concerned that th is result “would effectively reward [Mr.] Maynard financially by allowing him to retain the embezzled health insurance premiums” and suggests such a “reward” is unsupported. Majority Op. at 37 n.12. But restitution is about restitution, not disgorgement. “The ov erarching principle of the MVRA is to make victims whole.” United States v. Howard , 887 F.3d 1072, 1078 (10th Cir. 2018).10 At oral argument, counsel for Mr. Maynard posited that the best way to calculate restitution would be by examining each empl oyee individually and u tilizing the greater of the embezzled premiums or th e unpaid insurance claims. Th is would put each employee in a position as though Mr. Maynard’s crime had not been committe d. For persons who incurred less in healthcare expenses than the stolen premiums, the restitution award would be the value of insurance coverage—that is, the total of the stolen premiums. For employees who incurred healthcare expenses that exceeded the cost of the stolen premiums, however, the proper amount of re stitution would be the amount the insurance company would have paid in health care benefits if coverage were in effect. I agree with Mr. Maynard that awarding bo th the premium amounts and the amount of healthcare expenses puts the employees in a better positi on than if Mr. Maynard had not stolen the premiums. Under the district court’s award, the employees receive the benefit of health insurance, without the burden of an insurance premium. 6 Again, I think this exceeds the authority granted by the MVRA.

6 The majority suggests there are two ca tegories of losses here—the embezzlement of premiums and the incurring of medical ex penses that would ha ve been covered by insurance—and that these losses must be remedied independen tly. I respectfully disagree. Insurance premiums represent th e amount a person is willing to pay to have someone else cover her medical bills. By providing restituti on for the amount of those bills, the court has given the employee th e benefit of the bargain made. Th e employee is entitled to no less and no more. When a person incurs gr eater covered medical expenses than her premiums, the premiums are simply the co st of having those expenses covered.11 Remaining Prongs of Plain Error Review The majority does not cons ider whether the district court erred, but rather holds any error was not plain or did not affect Mr. Maynard’s substantial rights. Generally, however, an error in fashioning the restitu tion order resulting in the restitution amount exceeding the losses caused by the conduct of conviction will meet the three remaining prongs of the plain error analysis. United States v. Herndon , 982 F.2d 1411, 1420 (10th Cir. 1992); United States v. Guthrie , 64 F.3d 1510, 1514 (10th Cir. 1995); United States v. Gordon , 480 F.3d 1205, 1212 (10th Cir. 2007); United States v. Zander , 794 F.3d 1220, 1233 (10th Cir. 2015). But see United States v. Anthony , 942 F.3d 955, 974 (10th Cir. 2019) (holding a defendant failed to sh ow plain error on the plainness prong despite agreeing there was error); United States v. Zhou , 717 F.3d 1139, 11 56 (10th Cir. 2013) (holding an alleged restitution error was not plai n). As discussed below, I would hold that the error in including both insurance coverage and th e insurance premiums was plain under our precedent and affected Mr. Maynard’s substantial rights. As to the plainness of the asserted erro rs, the majority faults Mr. Maynard for citing only general principles which “do not address the specifi c and unique situation that is presented in this case reg arding the restitution amounts a ssociated with ” the charges here. Majority Op. at 35. It th en reasons that forcing the district court to award an amount reflecting only premiums or only unpaid cl aims would u ndercount employees’ losses. Considering the employees sep arately and providing the greater of the unpaid claims or premiums, the majority believes, would re quire more evidentiary support and possibly mini-trials at sentencing.12 As an initial matter, I am untr oubled that the plainness of the district court’s error is evident from general princi ples governing restitution awards as opposed to a case factually identical to this one. Our preced ent unambiguously dema nds that a restitution award make the victims whole, but not grant them a windfall. Howard , 887 F.3d at 1078; see also Zander , 794 F.3d at 1233. Here, it was ob vious the restitution order put the employees in a better position th an they would have been if Mr. Maynard had not stolen the premiums. The restitution award provides the employees all the benefits of health coverage, without the correspon ding premium expense. In my view, that is a classic windfall. Like the majority, however, I agree the di strict court could not have equitably treated all the employees the same. By aw arding restitution base d solely on premium amounts, for example, some employees who had high healthcare expenses would not be made whole. And if instead restitution were based only on health care expenses, those employees who were lucky enough not to have incurred uninsured expenses would still have suffered the uncompensated loss of thei r premiums. But, unlik e the majority, I am not convinced that calculating the restituti on amount by taking th e greater amount as between the unpaid premiums and the unco vered healthcare expenses of each employee would be too difficult. The sche dules provided to the district court, without objection, included totals for each employee of the prem iums stolen and the healthcare expenses incurred. A simple reference to that document to determine wh ich amount is higher is all that would be required to aw ard restitution sufficient to make the employees whole, without providing them with a windfall. Under these circum stances, I see little risk that a13 full-blown trial would be require d to calculate restitution. Instead, a restitution amount could have been easily calculated by includin g the higher of each am ount—but not both amounts—for each employee. Regarding the substantial right s prong of plain error, the ma jority is “unable to say there is a ‘reasonable probability’ that the restitution amount for Counts 14 through 26 would have been lower had th e district court engaged in a detailed analysis of each employee-victim’s situation.” Id. at 40. I respectfully disagree. According to Mr. Maynard, th e district court should have ordered only the amount of each employees’ embezzled premiums or th e amount of unpaid healthcare expenses, whichever is higher. The restitution award adop ted by the district court includes both amounts. If we agree—as I do—with Mr. Ma ynard, the amount of the restitution order will necessarily be reduced by eliminating the lesser of thos e amounts for each employee. The error therefore affected Mr. Maynard’s substantial rights. See Mendenhall , 945 F.3d at 1269. Finally, this court’s precedent compels the conclusion that this error affected the fairness, integrity, or public reputation of the judicial proceedings. “[W]e have already determined that where a court orders restituti on in an amount that exceeds the loss caused by a defendant’s offense in viol ation of 18 U.S.C. § 3663A, su ch an order amounts to an illegal sentence.” Mendenhall , 945 F.3d at 1270. And an illegal sentence affects the fairness, integrity, or public repu tation of the judicial proceedings. Id. (“[I]mproper restitution can thereby affect the fairness, in tegrity, and public re putation of judicial14 proceedings.”). Accordingly, I w ould reverse the district court’s award of restitution on the healthcare benefit embezzlemen t and remand for a recalculation.
III. CONCLUSION I would hold the district court erred in its restitution calculations pertaining to the §§ 664 and 669 convictions , and that its error regarding th e unpreserved challenge to the latter convictions was plain. I therefore respec tfully dissent from the majority’s contrary conclusions as to those issues.