IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 18-50257

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee

v.

WILLIAM JAMES JONAS, III, 

 Defendant - Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 2:16-CR-135-1

Before KING, GRAVES, and OLDHAM, Circuit Judges.

PER CURIAM:*

William James Jonas, III, was the city attorney and city manager for 

Crystal City, Texas. During Jonas’s tenure, Crystal City issued certificates of 

obligation—a kind of municipal bond—and certified that the proceeds would

be kept separate from the city’s other funds and would be used to pay for 

energy-saving infrastructure improvements. Notwithstanding that 

certification, Jonas directed city employees to place the proceeds into Crystal 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

August 14, 2020

Lyle W. Cayce

Clerk

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2

City’s general fund and to use those proceeds for other purposes, including 

paying his own salary. A jury found Jonas guilty of four wire-fraud offenses,

and the district court sentenced him to 420 months of imprisonment. On 

appeal, Jonas challenges both his wire-fraud convictions and his sentence. For 

the following reasons, we AFFIRM the judgment of the district court. 

I.

In 2013, Crystal City began discussions with Siemens Industry, Inc. 

regarding potential energy-saving infrastructure upgrades. Even though these 

upgrades were designed to pay for themselves over time, Siemens knew that 

Crystal City would have to borrow money to be able to afford the upfront costs.

Siemens therefore approached Crews and Associates, an Arkansas-based 

investment bank that Siemens had worked with previously, about Crystal 

City’s financing options. Crews declined to provide financing for the 

contemplated infrastructure improvements, however. 

Notwithstanding Crews’s decision, Siemens and Crystal City executed a 

contract in May 2014. Siemens agreed to make the infrastructure 

improvements and guaranteed that Crystal City would save approximately 

$200,000 per year for fifteen years, subject to fluctuations in energy prices.1 In 

return, the city agreed to deposit the full contract price—$2,124,389—in an 

escrow account within ninety days and to pay that money to Siemens in a series 

of installments as work on the infrastructure upgrades progressed.

Because Crystal City did not obtain financing, it was not able to meet its 

contractual obligation to fund an escrow account within ninety days. Siemens

and the city therefore modified their contract such that an escrow account did 

not need to be funded until ninety days after Crystal City’s city council 

1 The contract guaranteed that the infrastructure improvements would save Crystal 

City a certain amount of energy and then used a schedule of utility rates, not Crystal City’s 

actual costs, to evaluate Crystal City’s cost savings.

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approved a financing arrangement. The addendum modifying the contract was 

executed by Siemens and Jonas—acting on behalf of Crystal City—in 

September 2014.

While it was negotiating that addendum, Siemens approached Crews a 

second time regarding financing for Crystal City. After reviewing additional 

information about the city’s finances, Crews decided that it would be willing to 

arrange financing if and only if Crystal City was willing to fund its 

infrastructure improvements by issuing certificates of obligation secured by its

property-tax revenue. Given the city’s financial condition, Crews did not 

believe that more-commonly-used lending facilities—which would be subject to 

annual appropriations by Crystal City and secured only by the equipment 

installed by Siemens—were a viable alternative. 

Crystal City agreed to finance the infrastructure improvements via a 

public offering of certificates of obligation, but doing so was no simple matter. 

Crystal City hired a law firm to serve as bond counsel, and that firm—with 

input from Crews and Jonas—drafted the required documents. These 

documents included: (i) an official statement describing the certificates and 

how they would be used; (ii) an ordinance authorizing the issuance of the 

certificates of obligation and approving the official statement; (iii) a contract 

retaining Crews as the underwriter for the public offering of the certificates

and indicating that Crews would purchase the certificates from Crystal City 

for resale to investors; and (iv) a federal tax certification assuring investors 

that all the conditions required for the certificates to be exempt from federal 

income taxation had been met. On December 9, 2014, the city council enacted

the ordinance, approved the official statement, and agreed to the contract with 

Crews. Three weeks later, on December 30, Jonas executed the federal tax 

certificate, the certificates of obligation were issued, and the city received the 

proceeds of the certificates of obligation. 

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The ordinance, the official statement, the contract with Crews, and the 

federal tax certificate all represented that the proceeds of the certificates of 

obligation would be kept in a separate fund, not the city’s general fund. Those 

documents also represented that the proceeds would be used to pay for the 

infrastructure improvements and the costs of the public offering, as opposed to 

other city business. In fact, the federal tax certificate expressly provided that 

the city would not use the proceeds as working capital. 

As it turns out, these representations were false. The certificate proceeds 

were immediately placed—at Jonas’s direction and contrary to the city’s usual 

practice—in Crystal City’s general fund instead of in a separate account. And 

over the next five months, Crystal City spent substantially all of the proceeds,2

but Siemens received only $1,210,926.05 during that period. The rest of the 

proceeds were used for to pay for expenses that were not related to the 

infrastructure improvements, such as Jonas’s salary. Even with the certificate 

proceeds, Crystal City could not afford to pay its bills as they became due, and 

Jonas decided which bills would be paid and when those payments would occur. 

Although Siemens was not paid on time or in full, it completed the 

infrastructure upgrades in Crystal City by October 2015. In total, Crystal City 

2 Because the certificate proceeds were commingled with Crystal City’s other funds, it 

is impossible to say precisely when the proceeds were spent. See, e.g., Hawes v. Stephens, 964

F.3d 412, 417 (5th Cir. 2020) (“Because Mr. Hawes’s VA benefits were commingled with . . . 

sizeable deposits by a private individual, it is impossible to know whether the medical copayment was charged against funds that originated from the Department of the Treasury.”).

Bank records show, however, that there was only $7,936.42 in the general fund as of May 6, 

2015, so the rest of the certificate proceeds must have been spent on or before that date. See, 

e.g., United States v. Miller, 911 F.3d 229, 234 (4th Cir. 2018) (“The [lowest-intermediatebalance rule] provides that where the balance of an account into which tainted proceeds are 

deposited subsequently dips below the amount of those tainted proceeds, the only tainted 

funds thereafter traceable to the account are funds equal to that lowest account balance. This 

is true even if the account balance later grows through the deposit of legitimate funds.”); see 

also Swor v. Bartley Tex. Builders Hardware Inc. (In re Swor), 347 F. App’x 113, 117 (5th Cir. 

2009) (applying the lowest-intermediate-balance rule). 

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paid Siemens $1,404,340.21. This amount allowed Siemens to recoup its costs, 

but it was paid about $700,000 less than the contract price. 

II.

On February 3, 2016, Jonas was indicted as part of a federal

investigation into public corruption in Crystal City. Among other things, Jonas 

was charged with four counts of wire fraud under 18 U.S.C. § 1343, which were 

based on the misapplication of the certificate proceeds.3 The indictment 

identified three other schemes involving public corruption in Crystal City: 

(i) Jonas solicited bribes from a contractor named Daniel Hejl and facilitated 

bribes from Hejl to three corrupt members of the city council in exchange for 

lucrative contracts with the city; (ii) Jonas asked a lawyer to represent another 

contractor in its dealings with the city and to pay a portion of that lawyer’s fee 

to Jonas as a kickback; and (iii) as part of a corrupt arrangement between 

Crystal City’s mayor, Ricardo Lopez, and local businessman Ngoc Tri Nguyen, 

Jonas directed city officials to shut down one of Nguyen’s competitors and to 

waive some of Nguyen’s taxes. See generally United States v. Lopez, No. 18-

50465, 2020 WL 3524552 (5th Cir. June 29, 2020). With respect to these three 

schemes, Jonas and Lopez were charged with federal-programs bribery under 

18 U.S.C. § 666, honest-services wire fraud under 18 U.S.C. §§1343, 1346, and 

conspiracy to commit those offenses under 18 U.S.C. §§ 371, 1349.

The district court held a six-day trial regarding the charges against 

Jonas and Lopez. Neither defendant asked the district court to sever the trial. 

3 Three of the wire-fraud counts were based on emails that Jonas sent to Crews in 

December 2014; these emails transmitted executed copies of documents associated with the 

certificates, such as the ordinance and Crews’s contract with the city. The fourth count was 

based on the wire transfer sending the certificate proceeds to Crystal City. Each use of wire 

communications was charged as a separate offense, because “[i]t is not the scheme to defraud 

but the use of the mails or wires that constitutes mail or wire fraud.” United States v. St. 

Gelais, 952 F.2d 90, 97 (5th Cir. 1992).

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At the close of the United States’s case, Jonas moved for a judgment of 

acquittal under Rule 29 of the Federal Rules of Criminal Procedure. The 

district court denied that motion, and the jury found Jonas guilty on all 

charges.

After the jury returned its verdict, Jonas’s court-appointed attorney 

asked—at Jonas’s request—the district court for leave to withdraw from the 

case. The district court held a hearing on September 26, 2017. At the hearing, 

Jonas explained that he wanted to make certain motions, such as a motion for 

a new trial based on alleged prosecutorial misconduct, that his attorney was 

not willing to file. The district court indicated that it was not willing to appoint 

a new lawyer to represent Jonas during sentencing, but it would allow him to 

proceed pro se. After the district court set out these options, Jonas’s attorney 

indicated that he had already discussed the dangers of proceeding pro se with 

his client. Nevertheless, Jonas decided that he would rather represent himself 

at sentencing.

Six months after this hearing, the United States Probation Office 

completed its Presentence Investigation Report (PSR). Pursuant to the United 

States Sentencing Guidelines, the PSR treated all of Jonas’s convictions as a 

single group of closely related counts. See U.S. Sentencing Guidelines Manual 

§ 3D1.2 cmt. n.6 (U.S. Sentencing Comm’n 2016) (U.S.S.G.) (stating, as an 

example, that “five counts of mail fraud and ten counts of wire fraud” should 

be grouped together even if they “arise from various schemes”). The PSR 

calculated Jonas’s offense level to be 40, which included a 16-level 

enhancement for causing a loss of more than $1,500,000 but less than 

$3,500,000. This enhancement was based on “an intended loss to Crystal City 

of $2,172,102.51,” the amount of certificate proceeds received by the city, 

because the “misallocation of these funds and Crystal City’s late payments to 

Siemens . . . (from the outset) show that Jonas was unconcerned with paying 

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the contracted amounts and rather was interested in using the borrowed 

money to fund (amongst other things) his salary and expenses.” Given Jonas’s 

offense level and criminal-history category, the PSR concluded that Jonas’s 

sentencing range was 292-365 months.

At the district court’s sentencing hearing on May 16, 2018, Jonas 

objected to the PSR’s 16-level enhancement based on intended loss. Jonas

argued that there was no intended loss, because—per Jonas—Crystal City

could have paid Siemens out of its tax revenues notwithstanding the 

misappropriation of the certificate proceeds. Jonas further argued that there 

was no intended loss to Siemens, because he intended to pay Siemens 

eventually, as evidenced by the payments actually made to Siemens. The 

district court overruled Jonas’s objection, finding that Jonas did not initially 

intend to pay Siemens and that the intended loss was therefore the full 

contract price owed to Siemens. Accordingly, the district court concluded that 

the PSR correctly calculated Jonas’s sentencing range under the Guidelines. 

After hearing a victim-impact statement from the woman who took over 

as Crystal City’s city manager following Jonas’s arrest and indictment, the 

district court decided that a sentence within Jonas’s sentencing range was not 

adequate “to reflect the seriousness of the offense, to promote respect for the 

law, and to provide just punishment for the offense.” 18 U.S.C. § 3553(a)(2)(A).

Consequently, the district court imposed a 420-month sentence.4 Jonas filed a 

timely notice of appeal.

4 Because the statutory maximum sentence for a wire-fraud offense is 20 years, 18 

U.S.C. § 1343, the district court had to impose consecutive sentences in order to impose a 

total sentence of 420 months, see U.S.S.G. § 5G1.2(d) (“If the sentence imposed on the count 

carrying the highest statutory maximum is less than the total punishment, then the sentence 

imposed on one or more of the other counts shall run consecutively, but only to the extent 

necessary to produce a combined sentence equal to the total punishment.”).

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III.

Jonas, who is represented by appointed counsel on appeal, argues that 

the district court violated Rule 8(b) of the Federal Rules of Criminal Procedure 

by trying the wire-fraud charges against him alongside the federal-programsbribery, honest-services-wire-fraud, and conspiracy charges against himself 

and Lopez. According to Jonas, these two groups of charges were not 

sufficiently related to be charged in a single indictment. Jonas did not present 

his Rule 8(b) argument to the district court or otherwise move for severance, 

so we review—at most—for plain error. See United States v. Mann, 161 F.3d 

840, 862 (5th Cir. 1998).5 To qualify as plain, “the legal error must be clear or 

obvious, rather than subject to reasonable dispute.” Puckett v. United States, 

556 U.S. 129, 135 (2009). 

For the purposes of Rule 8, whether joinder is proper normally depends 

on the allegations in the indictment, which are taken as true. United States v. 

McRae, 702 F.3d 806, 820 (5th Cir. 2012); United States v. Faulkner, 17 F.3d 

745, 758 (5th Cir. 1994). A single indictment “may charge 2 or more defendants 

if they are alleged to have participated in the same act or transaction, or in the 

same series of acts or transactions, constituting an offense or offenses.” Fed. R. 

Crim. P. 8(b). We construe the terms of Rule 8 broadly in favor of joinder. 

United States v. Butler, 429 F.3d 140, 146 (5th Cir. 2005). 

Whether the wire-fraud charges against Jonas were part of the same 

series of acts or transactions as the other charges against Jonas and Lopez is 

at least subject to reasonable dispute. In connection with the wire-fraud 

charges, the indictment alleges that the certificate proceeds were used to “pay 

5 Mann states that, in cases where defendants “have failed to show any cause for 

failing to move for severance prior to trial,” we have held that “we need not even address the 

merits of their [Rule 8(b)] argument.” 161 F.3d at 862. Mann also states, however, that in 

other cases “we have limited review to plain error review in such circumstances.” Id. 

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certain favored contractors, including [Hejl].” Other portions of the indictment 

indicate that Hejl enjoyed his favored status—and therefore received a portion 

of the certificate proceeds—because he paid bribes to Jonas and others. Read 

together, these allegations indicate that Jonas’s wire-fraud offenses were used 

to fund other offenses charged in the indictment, so the district court did not 

plainly err by failing to make a sua sponte severance. 

IV.

Jonas also argues that there was insufficient evidence introduced at trial 

to support the jury’s verdict regarding the wire-fraud offenses. When 

considering a properly preserved challenge to the sufficiency of the evidence, 

we review the district court’s decision de novo, but we afford considerable 

deference to the jury’s verdict. United States v. Curtis, 635 F.3d 704, 717-18

(5th Cir. 2011). We view the evidence in the light most favorable to the verdict, 

and we will affirm if any reasonable trier of fact could have found every 

element of the offense beyond a reasonable doubt. Id. Applying this standard, 

we conclude that the district court correctly rejected Jonas’s challenge to the 

sufficiency of the evidence.

A.

Federal law “makes it a crime to effect (with use of the wires) ‘any 

scheme or artifice to defraud, or for obtaining money or property by means of 

false or fraudulent pretenses, representations, or promises.’” Kelly v. United 

States, 140 S. Ct. 1565, 1571 (2020) (quoting 18 U.S.C. § 1343). While the wirefraud statute refers to two categories of schemes, i.e., schemes to defraud and 

schemes to obtain money or property, the Supreme Court has held that those 

categories are coextensive. McNally v. United States, 483 U.S. 350, 359 (1987).6

6 Congress responded to this holding by enacting 28 U.S.C. § 1346, which states that 

“the term ‘scheme or artifice to defraud’ includes a scheme or artifice to deprive another of 

the intangible right of honest services.” To avoid constitutional difficulties, the Supreme 

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Consequently, in a wire-fraud prosecution, “the government must prove: (1) a 

scheme to defraud; (2) the use of, or causing the use of, wire communications 

in furtherance of the scheme; and (3) a specific intent to defraud.” United States 

v. Harris, 821 F.3d 589, 598 (5th Cir. 2016).

The scheme-to-defraud element means that the wire-fraud statute 

“prohibits only deceptive schemes to deprive the victim of money or property.” 

Kelly, 140 S. Ct. at 1571 (cleaned up). The deception does not need to be 

targeted at the victim, so a scheme to defraud may involve deceiving one person

to deprive someone else of money or property. United States v. McMillan, 600 

F.3d 434, 449 (5th Cir. 2010). And a scheme to defraud does not need to involve 

a personal benefit for the perpetrator. United States v. Blaszczak, 947 F.3d 19, 

35-36 (2d Cir. 2019); see also Kelly, 140 S. Ct. at 1573 (a deceptive scheme by a

mayor to get on-the-clock city workers to renovate his daughter’s house could 

“undergird a property fraud prosecution”); United States v. Baker, 923 F.3d 

390, 404 (5th Cir. 2019) (“Section 1343 does not require an intent to obtain 

property directly from a victim.”), cert. denied, 140 S. Ct. 2565 (2020). That 

said, “a property fraud conviction cannot stand when the loss to the victim is 

only an incidental byproduct of the scheme.” Kelly, 140 S. Ct. at 1573. 

Additionally, the statutory phrase “scheme or artifice to defraud” 

contains an implicit materiality requirement. Neder v. United States, 527 U.S. 

1, 25 (1999) (“We hold that materiality of falsehood is an element of the federal 

mail fraud, wire fraud, and bank fraud statutes.”). A false statement is 

material if it has a natural tendency to influence or is capable of influencing 

the decisionmaker to which it is addressed. Id. at 16. The natural-tendency 

test is “an objective one focused on whether the statement is of a type capable 

Court has limited this provision so that it criminalizes only bribes and kickbacks. Skilling v. 

United States, 561 U.S. 358, 408-09 (2010). Since Jonas’s wire-fraud convictions are not based 

on bribes or kickbacks, § 1346 does not affect our analysis. 

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of influencing a reasonable decision maker,” not on the particular 

circumstances in which a statement is made. United States v. Evans, 892 F.3d 

692, 712 (5th Cir. 2018) (cleaned up); see also United States v. Abrahem, 678 

F.3d 370, 376 (5th Cir. 2012) (concluding that “delivery of the statement in a 

manner not likely to persuade does not affect the materiality of the 

statement”). But see United States v. Davis, 226 F.3d 346, 358-59 (5th Cir. 

2000) (rejecting the argument that “a misrepresentation is only material if a 

reasonable person would rely on it” because “a statement could indeed be 

material, even though only an unreasonable person would rely on it, if the 

maker knew or had reason to know his victim was likely so to rely”).

B.

Jonas contends that there was no evidence that a scheme to defraud

existed, but we reject that contention. The official statement, the federal tax 

certificate, and other formal documents associated with the public offering of 

the certificates promised that the proceeds would be kept separate from 

Crystal City’s other funds and would be used to pay for infrastructure 

improvements. One of Jonas’s subordinates, acting pursuant to his

instructions, broke those promises almost as soon as they were made. A 

reasonable jury could therefore infer that Jonas knew that the promises were 

false all along but used them to obtain money from the investors anyway—in 

other words, that Jonas engaged in a scheme to defraud. See Corley v. 

Rosewood Care Ctr., Inc. of Peoria, 388 F.3d 990, 1007 (7th Cir. 2004) (“Fraud 

requires much more than simply not following through on contractual or other 

promises. It requires a showing of deception at the time the promise is made.”); 

see also United States ex rel. O’Donnell v. Countrywide Home Loans, Inc., 822 

F.3d 650, 658 (2d Cir. 2016) (holding, in a civil action premised on an alleged 

violation of § 1343, that “where allegedly fraudulent misrepresentations are 

promises made in a contract, a party claiming fraud must prove fraudulent 

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intent at the time of contract execution; evidence of a subsequent, willful 

breach cannot sustain the claim”).

We likewise reject Jonas’s contention that there was no evidence before 

the jury indicating that the false promises about where the certificate proceeds 

would be kept and how they would be spent were material. The jury heard 

testimony from a Crews representative indicating that the investment bank 

would not have been willing to participate in the public offering if it had known 

that Crystal City’s promises about the certificate proceeds were false. Indeed, 

if Jonas had not signed the federal tax certificate—or if that document had 

accurately described how the certificate proceeds would be used—the public 

offering would not have occurred, and Crystal City would not have obtained 

the certificate proceeds. We therefore conclude that the jury could have 

reasonably concluded that the false promises contained in the federal tax 

certificate were material, so Jonas’s wire-fraud convictions were supported by 

sufficient evidence.

V.

In his third point of error, Jonas contends that the district court deprived 

him of his right to counsel at sentencing by failing to appoint substitute counsel 

and by allowing him to proceed pro se. We review Sixth Amendment claims de 

novo. United States v. Romans, 823 F.3d 299, 312 (5th Cir. 2016). “Absent a 

Sixth Amendment violation, a court’s refusal to appoint substitute counsel is 

reviewed for an abuse of discretion.” Id. If a defendant waives his or her right 

to counsel and elects to proceed pro se, we review de novo whether that decision 

was knowing and intelligent. United States v. Tate, 535 F. App’x 359, 361 (5th 

Cir. 2013). 

A.

The district court did not violate the Sixth Amendment by refusing to 

appoint substitute counsel for Jonas. “An indigent defendant who cannot afford 

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to retain an attorney has an absolute right to have counsel appointed by the 

court.” Romans, 823 F.3d at 312. But a defendant is not entitled to appointed 

counsel of his or her choice, United States v. Fields, 483 F.3d 313, 350 (5th Cir. 

2007), so district courts are constitutionally required to appoint substitute 

counsel only upon a showing of “good cause, such as a conflict of interest, a 

complete breakdown in communication or an irreconcilable conflict,” Romans, 

823 F.3d at 312 (quoting United States v. Young, 482 F.2d 993, 995 (5th Cir. 

1973)). 

The mere fact that a defendant is not satisfied with an attorney’s 

performance does not qualify as good cause. United States v. Sarfraz, 683 F. 

App’x 268, 269 (5th Cir. 2017). Similarly, differences of opinion between 

appointed counsel and a defendant regarding strategic choices do not 

constitute good cause for the appointment of substitute counsel. See United 

States v. Moore, 706 F.2d 538, 540 (5th Cir. 1983) (“A defendant is entitled to 

appointment of an attorney with whom he can communicate reasonably, but 

has no right to an attorney who will docilely do as he is told.”).

Jonas testified that he wanted substitute counsel because his courtappointed attorney would not file certain motions that Jonas requested. Jonas 

also testified that he was not satisfied with his lawyer’s performance at trial 

and in connection with an unsuccessful motion for release on bond pending 

sentencing. Additionally, Jonas’s lawyer stated: “It now puts me in an 

extremely difficult situation to represent Mr. Jonas when I know he’s, in fact, 

very unsatisfied with my representation of him.”

These issues do not amount to good cause for appointment of substitute 

counsel. Far from evidencing a complete breakdown in communication or an 

irreconcilable conflict, the record indicates that Jonas and his attorney 

maintained a functional working relationship. For example, Jonas’s attorney 

told the district court that he had explained to Jonas the dangers of proceeding 

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pro se at sentencing. Since there was not good cause for appointing substitute 

counsel, the district court’s failure to do so did not violate the Sixth 

Amendment. 

B.

Jonas argues, in the alternative, that even if the district court did not 

violate the Sixth Amendment by failing to appoint substitute counsel, it abused 

its discretion by failing to do so. The district court denied substitute counsel to 

Jonas because it was concerned that appointment of new counsel would unduly 

delay Jonas’s sentencing and because it believed that Jonas’s request was an 

attempt “to play games with the system.” Jonas has not established that the 

district court’s consideration of these factors involved “an error of law or a 

clearly erroneous assessment of the evidence.” Romans, 823 F.3d at 312 

(quoting United States v. Teuschler, 689 F.3d 397, 399 (5th Cir. 2012)).

Consequently, we conclude that no abuse of discretion took place. 

C.

Jonas validly waived his right to counsel when he elected to proceed pro 

se at sentencing. Because there was not good cause to appoint substitute 

counsel for Jonas, this case does not involve “the constitutionally repugnant 

choice between representation by disqualified court-appointed counsel and 

self-representation.” Dunn v. Johnson, 162 F.3d 302, 307 (5th Cir. 1998). It 

follows that the district court’s decision to deny substitute counsel to Jonas did 

not render his subsequent “waiver of the right to counsel involuntary.” Id. 

While Jonas’s decision to represent himself at sentencing appears unwise in 

retrospect, the district court adequately warned Jonas about the danger of 

representing himself, and Jonas confirmed that he was knowingly and 

intelligently waiving his right to court-appointed counsel. Given Jonas’s 

education and experience practicing law, we are willing to take him at his word 

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and therefore conclude that Jonas knowingly and intelligently waived his right 

to counsel. 

VI.

As his next point of error, Jonas asserts that the district court erred 

when it calculated his Guidelines sentencing range by incorrectly quantifying

the loss associated with his offenses. “Under the Sentencing Guidelines, the 

offense level for offenses involving fraud is increased based on the amount of 

the loss inflicted by the defendant.” United States v. Harris, 597 F.3d 242, 249 

(5th Cir. 2010). We review the district court’s finding regarding the amount of 

loss for clear error, but we review the district court’s method for determining 

that amount de novo. United States v. Harris, 821 F.3d 589, 601 (5th Cir. 2016).

For the purposes of the Guidelines, “loss is the greater of actual loss or 

intended loss.” U.S.S.G. § 2B1.1 cmt. n.3(A). Actual loss “means the reasonably 

foreseeable pecuniary harm that resulted from the offense.” Id. cmt. n.3(A)(i). 

Intended loss, on the other hand, “means the pecuniary harm that the 

defendant purposely sought to inflict.” Id. cmt. n.3(A)(ii). Accordingly, intended 

loss “does not mean a loss that the defendant merely knew would result from 

his scheme or a loss he might have possibly and potentially contemplated.” 

United States v. Manatau, 647 F.3d 1048, 1050 (10th Cir. 2011); see also 

Amendment 792 to the United States Sentencing Guidelines (adopting the 

view articulated by then-Judge Gorsuch in Manatau). Put another way, “our 

case law requires the government [to] prove by a preponderance of the evidence 

that the defendant had the subjective intent to cause the loss that is used to 

calculate his offense level.” United States v. Sanders, 343 F.3d 511, 527 (5th 

Cir. 2003).

The district court found that Jonas’s intended loss was greater than 

$1,500,000 and less than $3,500,000, so it applied a 16-level enhancement to 

the offense level. See U.S.S.G. § 2B1.1(b)(1)(I). The district court found that, 

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when Jonas placed the certificate proceeds in Crystal City’s general fund, he 

did not intend to pay Siemens anything, even though Siemens was 

contractually entitled to over two million dollars from the city. Jonas contends 

that this finding is clearly erroneous because Siemens received partial 

payment from Crystal City. But while the payments received by Siemens 

reduced the actual loss that it suffered, those payments did not necessarily 

reduce the loss that Jonas purposely sought to inflict.7 We therefore conclude 

that the district court did not clearly err when determining the amount of loss 

attributable to Jonas and applying a 16-level enhancement. 

VII.

Finally, we conclude that the 420-month sentence imposed by the district 

court was substantively reasonable. “We review the substantive 

reasonableness of the sentence under an abuse-of-discretion standard.” United 

States v. Simpson, 796 F.3d 548, 557 (5th Cir. 2015). While a sentence outside 

of a defendant’s sentencing range under the Guidelines does not enjoy a 

presumption of reasonableness, we still “give due deference to the district 

court’s decision that the [18 U.S.C.] § 3553(a) factors, on a whole, justify the 

extent of the variance.” Gall v. United States, 552 U.S. 38, 51 (2007). A district 

court imposing an upward variance must, however, “thoroughly articulate its 

reasons,” which “should be fact-specific and consistent with the sentencing 

factors enumerated in [18 U.S.C. § 3553(a)].” United States v. Herbert, 813 F.3d 

7 For the first time on appeal, Jonas argues that the partial payments to Siemens 

should reduce the intended loss because those payments qualify as “money returned . . . by 

the defendant or other persons acting jointly with the defendant, to the victim before the 

offense was detected.” U.S.S.G. § 2B1.1 cmt. n.3(E)(i). The fatal flaw with this argument—

beyond Jonas’s failure to present it to the district court—is that the record does not indicate 

that Jonas’s wire-fraud offenses were undetected when the partial payments to Siemens 

occurred. On the contrary, the PSR indicates that the federal investigation into public 

corruption in Crystal City began in 2014, whereas the first payment to Siemens took place in 

April 2015.

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No. 18-50257

17

551, 562 (5th Cir. 2015) (quoting United States v. Smith, 440 F.3d 704, 707 (5th 

Cir. 2006)).

At the sentencing hearing, the woman who took over as Crystal City’s 

city manager following Jonas’s arrest and indictment gave a victim impact 

statement. In that statement, she described how Jonas’s mismanagement of 

Crystal City led to “financial ruin,” how Jonas’s arrest and indictment led the 

city to be “red-flagged by the state . . . from receiving any grants whatsoever,” 

and how the issuance of the certificates of obligation “sealed the city’s death” 

because the city was “never financially viable for that” much debt. 

Additionally, the city manager alleged that Jonas fired city employees who 

would not do the “[i]llegal things” that Jonas “wanted them to do,” which 

caused Crystal City to lose “a lot of good people that would have kept the city 

going if he had not terminated them.”

The district court found this victim impact statement “very persuasive,” 

and the statement convinced the district court that a sentence within the 

Guidelines range would not be adequate. The district court explained: “To hear 

how badly you left that city is shocking at best, Mr. Jonas. . . . But to fire people 

from their jobs because they wouldn’t engage in the conduct that you wanted, 

that’s -- that definitely wasn’t taken into account by the guidelines.” The 

district court tied these considerations to some of the § 3553(a) sentencing 

factors, specifically “the nature and circumstance of the offenses, the 

seriousness of the offenses, the history and characteristics of the defendant, 

the need to promote respect for the law, and to provide just punishment for the 

offenses.” Given the district court’s clear articulation of its reasoning and the 

deference we owe to its evaluation of the § 3553(a) factors, we cannot conclude 

that the district court abused its discretion when sentencing Jonas to 420 

months of imprisonment.

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No. 18-50257

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VIII.

For the foregoing reasons, we AFFIRM the judgment of the district court.

 Case: 18-50257 Document: 00515527238 Page: 18 Date Filed: 08/14/2020