PUBLISH UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. BRUCE CARLTON WRIGHT, Defendant - Appellant. No. 15-5090

________________ _________________ Appeal from the United States District Court for the Northern District of Oklahoma (D.C. No. 4:14-CR-00136-GKF-2)

________________ _________________ Barry L. Derryberry, Research and Writing Specialist (Julia L. O’Connell, Federal Public Defender, William Patrick Widell, Assistant Federal Public Defender, and Julie K. Linnen, Assistant Federal Public Defender, with him on the briefs), Office of the Federal Public Defender, Tulsa, Okla homa, for Defendant-Appellant. Joel-lyn A. McCormick, Assistant United St ates Attorney (Danny C. Williams, Sr., United States Attorney, with her on the brief), Office of the United States Attorney, Tulsa, Oklahoma, for Plaintiff-Appellee.

________________ _________________ Before PHILLIPS and BALDOCK , Circuit Judges. *

* The Honorable Neil Gorsuch heard oral ar gument but did not participate in the opinion. The practice of this court permits the remaining two panel judges, if in agreement, to act as a quor um in resolving the appeal. See 28 U.S.C. §46(d); see also United States v. Wiles , 106 F.3d 1516, 1516 n* (10th Cir. 19 97) (noting this court allows remaining panel judges to act as a quorum to resolve an appeal); Murray v. Nat’l Broad. Co ., 35 F.3d 45, 48 (2d Cir. 19 94) (remaining two judges of original three judge panel FILED United States Court of Appeals Tenth Circuit 

### February 21, 2017
Elisabeth A. Shumaker Clerk of Court2 ________________ _________________ PHILLIPS , Circuit Judge.

________________ _________________ A jury convicted Bruce Carlton Wright of conspiracy to commit bank fraud and of eleven counts of bank fraud arising from his participation in a scheme to submit false draw requests a nd invoices to obtain bank loans. The district court sentenced Wright to thirty-three mont hs’ imprisonment and ordered him to pay $1,094,490.60 in restitution. Wright raises several issues on appeal, concerning jury instructions, withheld impe achment evidence, and bank lo ss and restitution amounts. We affirm. BACKGROUND A grand jury sitting in the Northern Di strict of Oklahoma indicted Wright and Alan Blaksley on one count of conspiracy to commit bank fraud in violation of 18 U.S.C. §§ 1349 and 1344 (Cou nt 1), and on twelve count s of bank fraud in violation of 18 U.S.C. § 1344(1) (Counts 2-13). Befo re trial, Blaksley pleaded guilty to conspiracy to commit bank fraud and agreed to testify as a government witness at trial. Wright chose to defend agai nst the charges at trial. During the time charged in the Indictme nt, June 2007 to Ju ly 2008, Wright served as president of five Oklahoma lim ited liability companie s owned by Blaksley. One of these companies, Group Blaksley Properties, LLC, obtained a $6.5 million may decide petition for rehe aring without third judge), cert. denied , 513 U.S. 1082 (1995).3 loan from International Bank of Commerc e (Bank) to develop a senior-living community in Bentonville, Arkansas. 1 Sometime during the development of the property, Wright and Blaksley agreed to a fraudulent scheme in which Wright submitted fraudulent monthly draw request s for unperformed work and duplicate draw requests for work already performed elsewhere. As part of their scheme, Wright and Blaksley included with the draw re quests pictures of construction work supposedly (but not) completed at the Bentonville project. Misled by the false information, the Bank paid $1,176,490.60 in draw requests to Group Blaksley Properties. In fact, Group Blaksley Pr operties had performed little work on the Bentonville site. Blaksley pocketed almost all of the $1,176,490.60 for his personal use, and Wright obtaine d incidental benefits. In April 2008, the Bank inspected the pr operty and saw that Group Blaksley Properties had done much less work than represented. Before 2015, the Bank foreclosed and sold the Bent onville property, but the record doesn’t say how much it got from the sale. The jury convicted Wright on the conspi racy count and eleven of the twelve bank-fraud counts. 2 Wright didn’t object to the Pr esentence Investigation Report (PSR) or any of its contents, either before or at sentencing. The district court adopted

1 The Bank’s loan acted as a line of cr edit, requiring Group Blaksley Properties to submit draw requests after completion of work.

2 The jury found Wright not guilty of Count 2—the first bank-fraud count. Count 2 represented the first draw request for $82,000. The Presentence Investigation Report and the district court did not hold Wright accountable for this draw request.4 the PSR’s uncontested loss calculation of $1,094,490.60, and sentenced Wright to thirty-three months’ impris onment. Relying also on the PSR’s uncontested restitution calculation, the district court ordered Wr ight to pay $1,094,490.60 in restitution. Wright appealed. DISCUSSION Wright asserts that the district court e rred in five ways: (1) the district court plainly erred by not including within its list ed elements of cons piracy to commit bank fraud the necessary element of intent to defraud; (2) th e district court erred in responding to a written question from the ju ry during deliberations by directing the jury to consider each indict ment count separately; (3) th e district court erred in denying Wright’s Motion for New Trial based on a claimed Brady violation; (4) the district court plainly erred in calculating the loss amount under USSG § 2B1.1(b)(1); and (5) the district court plainly erre d in calculating the restitution amount. We review Wright’s first, second, fourth, and fifth asse rted errors, to which he didn’t properly object in the district court, under the plain-error standard. United
States v. Faust , 795 F.3d 1243, 1251 (10th Cir. 2015) . Under this standard, Wright must establish “(1) error, (2 ) that is plain, which (3) a ffects substantial rights, and which (4) seriously affects th e fairness, integrity, or public reputation of judicial proceedings.” United States v. Gonzalez-Huerta , 403 F.3d 727, 732 (10th Cir. 2005) (quoting United States v. Burbage , 365 F.3d 1174, 1180 (10th Cir. 2004)). Plain error affects a defendant’s substan tial rights if “there is a re asonable probability that, but for the error claimed, the result of the proceeding wo uld have been different. A5 reasonable probability is a probability suff icient to undermine confidence in the
outcome.” United States v. Hale , 762 F.3d 1214, 1221 ( 10th Cir. 2014) (quoting United States v. Rosales-Miranda , 755 F.3d 1253, 1258 (10th Cir. 2014)). Because Wright’s Motion for New Trial, his third asserted error on appeal, alleges a Brady violation, we review de novo the district court’s denial of that motion. United States v. Velarde , 485 F.3d 553, 558 ( 10th Cir. 2007). I. The district court didn’t plainly err in its jury instruction listing the elements of conspiracy to commit bank fraud. We review the jury instruct ions “in the context of th e entire trial to determine if they accurately state the governing law and provide the jury with an accurate understanding of the relevant legal standards and factua l issues in the case.” United States v. Kalu , 791 F.3d 1194, 1200–01 (10th Cir. 2015) (quoting United States v. Thomas , 749 F.3d 1302, 1312 (10th Cir. 2014)). Wright argues that the district court plainly erred by not including “intent to defraud” as an element of conspiracy to commit bank fra ud in Jury Instruction 14. Appellant’s Opening Br. at 13. Because Wright didn’t object to this jury instruction, we review under the plain-error standard. United States v. LaVallee , 439 F.3d 670, 684 (10th Cir. 2006). Wright’s plain-error argument fails on the first step of the analysis—he cannot show error. Though the c onspiracy instruction didn’t list “intent to defraud” as an element of the conspiracy, the district court cured this deficiency by incorporating into the conspiracy instru ction that same intent element from Instruction 15, which provided the elements of bank fraud.6 Count 1 charged Wright with conspiracy to commit bank fraud, in violation of 18 U.S.C. §§ 1344 and 1349. “[C]onspiracy to commit a particular substantive offense cannot exist without at least the degree of criminal intent necessary for the substantive offense itself.” United States v. Robertson , 473 F.3d 1289, 1292 (10th Cir. 2007) (quoting Ingram v. United States , 360 U.S. 672, 678 (1959)). And bank fraud requires intent to defra ud a financial institution. United States v. Gallant , 537 F.3d 1202, 1223 (10th Cir. 2008). In this circumstance, our circ uit’s pattern jury instructions favor listing “intent to defraud” as an element of c onspiracy to commit bank fraud. Tenth Circuit Pattern Jury Instru ctions Criminal § 2.19 (Use Note). Here, the district court’s conspiracy instruction neglected to e xpressly include this intentto-defraud element. Even so, we disagree with Wright that the district court’ s straying from the most proper instruction amount s to error in his case. 3 See United States v. Knight , 659 F.3d 1285, 1287 (10th Cir. 2011) (in reviewing jury instructions for error, we read and evaluate them in their entirety to determine wh ether the instructions as a whole fairly, adequately, and correctly st ate the governing law and provide the jury with an ample understanding of the applicable principles of law). Under Instruction 14—the conspiracy instruction— the district court informed the jury that it could not convict of conspiracy absent finding that Wright had agr eed with another person to commit “bank fraud”:

3 We don’t address whether the deficiency would have mattered had the jury convicted on the conspiracy count but acquitted on all the bank-fraud counts.7 The defendant Bruce Carlton Wright is charged in Count 1 with conspiring to commit bank fraud . It is a crime for two or more people to agree to commit a crime. To find the defendant guilty of conspiracy to commit bank fraud you must be convinced the government has proved each of the following be yond a reasonable doubt: First: two or more people reach ed an agreemen t to commit the crime of bank fraud ; Second: the defendant knew the essential objectives of the conspiracy; Third: the defendant knowingly and voluntarily participated in the conspiracy; and Fourth: the alleged coconspira tors were interdependent. R. Vol. 1 at 45 (emphasis added). And under Instruction 15, the dist rict court told the jury that bank fraud required proof that Wr ight had “acted with intent to defraud.” Id. at 47; see Weeks v. Angelone , 528 U.S. 225, 234 (2000) (“A jury is presumed to follow its instructions,” and “to understand a judge’s answer to its question.”). Hence the conspiracy instruction incorporated “i ntent to defraud” in to its elements by requiring an agreement to commit bank fraud. 4

4 Because Wright fails th e first step of the plai n-error analysis—error—we need not reach the remaining three steps. Even so, we note that Wright could not show that his claimed error affected his substantial right s. In convicting Wright on individual bank-fraud counts, the jury nece ssarily found that Wright had acted with intent to defraud in those instances. In such circumstances, where a conspiracy instruction incorporates a missing intent element by reference to the instruction governing the substantive cr ime, we sustain the conspi racy conviction against a challenge that its instruc tion missed an element. See Robertson , 473 F.3d at 1291–93.8 II. Wright waived any objection to th e district court’s response to a jury question by failing to argu e plain error on appeal. During deliberations, the jury sent th e district court a note asking, “Your Honor, does the defendant have to be guilty of Count No. 1 in order to be guilty or not guilty of other counts.” 5 R. Vol. 2 at 1614. In confe rring with counsel, the district court stated its belief that the proper response was “no.” Id. It proposed to respond, “No, the counts should be reviewed separately.” Id. at 1618. Wright’s counsel stated that he preferred that the court res pond, “You have all the law necessary.” Id. The district court asked Wright ’s counsel, “[A]re you saying that it would be legally incorrect to say ‘no’?” Id. Wright’s counsel responded, “No, sir. I think the answer is – I think legally the answer is ‘no.’” Id. Wright’s counsel then requested that the court respond, “You must decide whether the government has proven each and every element of each count in the indictme nt and you must consider each count separately.” 6 Id. at 1619. Over the general objection of Wright’s couns el, the district court responded to the jury, “No, you must consider each count separately.” Id. On appeal, Wright still con cedes that the district c ourt correctly answered the note “No” for the jury’s consideration of the bank-fraud counts based on Wright’s own conduct. But, now for the first time, he argues a new point—that the correct

5 Our circuit’s pattern jury instructions favor instru cting the jury to separately consider the evidence on each count. Tenth Circ uit Pattern Jury Instructions Criminal § 1.22. Here, the jury instructions didn’t include this instruction.

6 This response would not have answered the jury’s question.9 answer was “Yes” for bank-fraud convictions based on Blaksley’s acts and not his own—the Pinkerton theory of liability. 7 To convict Wright of bank fraud on Pinkerton liability, the jury would have to convict him of Count 1—conspiracy to commit bank fraud. So, Wright says, the distri ct court’s written response to the jury was incorrect—it enabled the ju ry to acquit him of the c onspiracy but still convict him for bank fraud based on Pinkerton liability. From this, Wr ight claims that we can’t know whether the jury convicted Wr ight of bank fraud for his own acts, or instead for Blak sley’s acts under Pinkerton

. Because Wright didn’t object on Pinkerton grounds to the district court’s written response to the jury’s question, he forfeited that argument. Even though Wright objected generally, he didn’t object on Pinkerton grounds and never presented his current argument to the di strict court. When a defenda nt objects at the district

7 See Pinkerton v. United States , 328 U.S. 640, 646–48 (1946); United States v. Rosalez , 711 F.3d 1194, 1208 (10th Cir. 2013) ( Pinkerton stands for the “longstanding rule that a party to a con tinuing conspiracy may be responsible for substantive offenses a coc onspirator commits”) (quoting United States v. Dumas , 688 F.2d 84, 87 (10th Cir. 1982)). The instruc tion in this case st ated as follows: If you find the defendant guilty of th e conspiracy charged in Count One and you find beyond a reasonable doubt that during the time the defendant was a member of that conspiracy another coconspirator committed any of the specific offenses in Counts Two through Thirteen, and that specific offense either wa s committed to achieve an objective of, or was a foreseeable consequen ce of, the conspiracy, then you may find the defendant guilty of that specific offense, even though the defendant may not have participated in any of the acts which constitute that specific offense. R. Vol. 1 at 49.10 court but raises a different argument on appeal, we review for plain error. United
States v. Sorensen , 801 F.3d 1217, 1238 (10th Cir. 201 5). Thus, Wright must satisfy the plain-error standard to obtain appellate relief. But on appeal, Wright doesn’t argue that the district court plainly erred in its response to the jury’s question. Instead, he argues that the distri ct court abused its discretion. We have stated th at “the failure to argue for plain error and its application on appeal . . . surely marks the end of the road for an argument for reversal not first presented to the district court.” Richison v. Ernest Group, Inc. , 634 F.3d 1123, 1131 (10th Cir. 2011). And we have repeatedly declined to consider arguments under the plain-error standard when the defe ndant fails to argue plain error. See, e.g. , United States v. De Vaughn , 694 F.3d 1141, 1159 (10th Cir. 2012) (refusing to discuss merits where the defendant “has not even tr ied to show how the alleged errors were ‘plain’”); United States v. Lamirand , 669 F.3d 1091, 1098 n.7 (10th Cir. 2012) (“Mr. Lamirand has not asked us to review his late-blooming argument for plain error. Accordingly, we decline to do so and will no t definitively opine on the merits of this argument.”). Thus, we decline to review Wright’s argument under the plain-error standard. 8

8 Even if we considered Wright’s ar gument under the plain-error standard, we would find no error. Firs t, the district court’s Pinkerton instruction itself shows the jury would not be led astray as Wri ght fears. The first sentence of the Pinkerton instruction tells the jury that Pinkerton liability depends on a conspiracy conviction. The district court’s response to the jury’s question did nothing to contradict this language. Second, the jury did convict Wright of conspir acy to commit bank fraud, so11 III. The district court properly exercised its discretion in denying Wright’s Motion for New Trial. Wright filed a Motion for New Trial under Federal Rule of Criminal Procedure 33, arguing that the government withheld from him during trial a Victim Impact Statement that the Bank’s President, Davi d Moore, prepared for his coconspirator Blaksley’s upcoming sentencing. In the Vi ctim Impact Statem ent, dated a week before Wright’s trial, Mr. Moore reporte d that Blaksley had continued interfering with the Bank’s attempt to recover assets even after the Bank obtained a charging order. 9 In particular, Mr. Moore reported that Blaksley had intentionally withheld distributions from one of his limited li ability companies to prevent the Bank from recovering money under its charging order against that compa ny. Even though the FBI agent and the Assistant United States Attorney knew about this information, Wright says, the government withheld this information from him un til after his trial. Wright claims this informa tion would have helped him fu rther impeach Blaksley at trial. The district court denied Wright’s Mo tion for New Trial, concluding that the Victim Impact Statement introduced at Bl aksley’s sentencing hearing was merely cumulative impeachment evidence. Wright seeks a new trial, arguing that the
it had full basis to convict Wright on the bank-fraud counts either for his own acts or Blaksley’s.

9 A charging order is a “s tatutory procedure where by an individual partner’s creditor can satisfy its clai m from the partner’s intere st in the partnership.” Charging Order , Black’s Law Dictiona ry (10th ed. 2014); see Okla. Stat. Ann. tit. 18, § 2034.12 government withheld exculpat ory evidence in violation of Brady v. Maryland , 373 U.S. 83 (1963). 10
To obtain a new trial based on a Brady violation, Wright must show that “(1) the prosecution suppresse d evidence, (2) the evidence was favorable to [Wright], and (3) the eviden ce was material.” Velarde , 485 F.3d at 558 (quoting United States v. Quintanilla , 193 F.3d 1139, 1149 (10th Cir. 1999)). “Due process mandates disclosure by the prosecution of all evid ence that favors the defendant and is ‘material either to guilt or punishment.’” Id . at 558–59 (quoting United States v. Robinson , 39 F.3d 1115, 1118 ( 10th Cir. 1994)). Addressing the first two factors, the government acknowledges that it didn’t furnish Wright the Victim Impact Statemen t until after trial. And the Victim Impact Statement perhaps was margina lly favorable to Wright. Evidence is favorable if it is exculpatory or impeaching. Douglas v. Workman , 560 F.3d 1156, 1172–73 (10th Cir. 2009). “Impeachment eviden ce is exculpatory for Brady purposes.” United States v. Cooper , 654 F.3d 1104, 1119 (10th Cir. 2011) (quoting United States v. Smith , 534 F.3d 1211, 1222 (10th Cir. 2008)). Here, Wright contends th at he could have impeached Blaksley with information fro m the Victim Impact Statement about Blaksley’s efforts to frustr ate the Bank’s recoupment effort s. Specifically, at trial,

10 In Brady , the Supreme Court held “that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material e ither to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Strickler v. Greene , 527 U.S. 263, 280 (1999) (quoting Brady , 373 U.S. at 87). The Court also held th at the duty to disclo se such evidence is applicable even if the accu sed hasn’t requested it. Id.13 Wright wanted to impeach fu rther Blaksley’s direct te stimony that he had “accepted responsibility” for his crime. 11 R. Vol. 2 at 1118. In any event, Wright’s Brady claim fails on the th ird step because the information in the Victim Im pact Statement was not materi al. Evidence is material if “there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding w ould have been different. A reasonable probability is a probability su fficient to undermine c onfidence in the outcome.” Cooper , 654 F.3d at 1119 (quoting United States v. Torres , 569 F.3d 1277, 1282 (10th Cir. 2009)). To make this determination, we view the suppressed evidence’s significance against the record as a whole. Id. at 1120. At trial, even without the Victim Impact Statement, Wright impeached Blaksley and attacked his credibility se veral different ways . After thoroughly reviewing the record, we agre e with the district court th at Blaksley’s credibility was “ably and significantly undermined” at trial. R. Vol. 1 at 126. For example, during cross-examination, Blaksley admitted that he had stolen money from the Bank and had repeatedly lied under oath to keep the money fraudulently obtained from the Bank. Blaksley also admitted that he had lied under oath at a receivership hearing to

11 Here, any impeachment value is ques tionable from the start. “Acceptance of responsibility” is a term of art in the advi sory sentencing guidelines. U.S. Sentencing Guidelines Manual § 3E1.1 (U.S. Sentenci ng Comm’n 2014). In evaluating whether a defendant has accepted responsibility, th e guideline commentary lists several considerations, including whether the defenda nt has truthfully ad mitted the offense conduct. On cross-examination, Blak sley testified that by “acceptance of responsibility” he meant “I ad mitted to the government fo r what I felt like I did wrong.” R. Vol. 2 at 1118.14 prevent the Bank from recovering the value of its lent money. So, even without the Victim Impact Statement, Wright still showed that Blaksley had obstructed the Bank’s recovery. “Where evidence ‘insignificantly impa ct[s] the degree of impeachment,’ it generally will ‘not be sufficient to meet the . . . materiality standard.’” Cooper , 654 F.3d at 1120 (alteration and om ission in original) (quoting Douglas , 560 F.3d at 1174). For instance, where a defendant has already attacked a witness’s credibility, “additional impeachment evidence will genera lly be immaterial and will not provide the basis for a Brady claim.” Id. (quoting Nuckols v. Gibson , 233 F.3d 1261, 1267 n.8 (10th Cir. 2000)). The record confirms that Wright effec tively impeached Blaksley at trial. Any additional impeachment evid ence would have been cumulative and insufficient to support a Brady violation. Further, we agree with the district c ourt’s position that Wri ght’s not having the Victim Impact Statement does not underm ine confidence in the outcome. Notably, the Victim Impact Statement doesn’t a ddress any of Blaksley’s testimony about Wright’s guilt. Instead, it si mply concerns Blaksley’s conduct after he and Wright committed their crimes. The governmen t presented testim ony from Blaksley’s employees and the Bank’s employees to estab lish Wright’s role. Even if the Victim Impact Statement would meaningfully ha ve cast further doubt on Blaksley’s credibility, we agree with the district court that th e government overwhelmingly proved Wright’s guilt. We are convinced that the jury would have convicted Wright15 even if he had the Victim Impact Statement before tria l. Thus, the district court properly exercised its discretion in denyi ng Wright’s Motion for New Trial. IV. Wright cannot show that the district court plainly erred in calculating his loss and restitution. Wright claims the district court e rred in calculating the Bank’s loss for sentencing and in calculating the amount of restitution Wright owed under the Mandatory Victims Restitution Act (MVRA). See 18 U.S.C. § 3663A. Based on Wright’s fraudulent draw requests, the PSR recommended holding him accountable for $1,094,490.60 in actual losses to the Bank. After Wright accepted the PSR as written, the district court imposed the PSR ’s loss and restitu tion recommendations. The district court attributed $1,094,490.60 in loss to Wright, resu lting in an adjusted offense level of 23 (a base -offense level of 7 plus 16 levels for loss exceeding $1 million). Together with Wright’s criminal hist ory category I, the advisory guideline range was 46–57 months. The district c ourt granted Wright’s motion to vary downward two levels for anticipated change s to the Sentencing Guidelines, reducing the guideline range to 30–37 months. From th is range, the distri ct court sentenced Wright to 33 months’ imprisonment and or dered that he pay $1,094,490.60 in restitution. Now Wright claims that the dist rict court plainly erred in calculating loss and restitution by not reducing loss and restitution by the Bank’s foreclosure recovery. Because Wright as serts the same arguments fo r both loss and restitution, we review these issues together.16 Under the sentencing guideline governi ng economic offenses, we calculate Wright’s offense level largel y based on the amount of loss. See U.S. Sentencing Guidelines Manual § 2B1.1(b)(1) (U.S. Sentencing Comm’n 2014). In determining loss, the district court must use the greater of the actu al loss or intended loss. Id. § 2B1.1 cmt. 3(A). Actual loss is “the re asonably foreseeable pecuniary harm that resulted from the offense.” Id. § 2B1.1 cmt. 3(A)(i). “Whe re a lender has foreclosed and sold the collateral, th e net loss should be determin ed by subtracting the sales price from the outstandi ng balance on the loan.” United States v. Washington , 634 F.3d 1180, 1184 (10th Cir. 2011); see USSG § 2B1.1 cmt. 3(E)(ii) (“Loss shall be reduced by . . . the amount the victim ha s recovered at the time of sentencing from disposition of the collateral . . . .”). “The court need only make a reasonable estimate of the loss” and it may use lo ss information that is s upported by a preponderance of the evidence. USSG § 2B1.1 cmt. 3(C); Washington , 634 F.3d at 1184. “A district court may orde r criminal restitution only as authorized by federal
statute.” United States v. Ferdman , 779 F.3d 1129, 1131 (10th Cir. 2015). Here, the district court ordered Wright to pay restitution under the MVRA. See 18 U.S.C. § 3663A. The MVRA mandates that district courts order restitution under convictions for fraud or deceit. 18 U.S.C. § 3663A(c)(1)(A )(ii). Wright agrees that the statute required the district court to order restituti on, but he disputes the district court’s restitution amount. As in calcul ating loss under the guidelines , the district court must reduce Wright’s restitution obligation to ac count for money received by the victim from the sale of the co llateral to avoid a wi ndfall for the victim. Robers v. United17 States , 134 S. Ct. 1854, 1857–58 (2014). Wright cl aims that the district court failed to credit the Bank’s foreclosure recovery against his loss and restitution amounts but the government says otherwise. One problem for Wright on appeal is that he failed to object to the district court’s loss calculation and restitution oblig ation. Before Wright ’s sentencing, the government submitted the Victim Impact Statement from Bl aksley’s sentencing hearing for the district court’s consideratio n. In that Victim Im pact Statement, as mentioned, Mr. Moore stated that the Ba nk suffered $4,613,811.67 in total losses, after crediting the Bank’s foreclosure recovery . The PSR set the amount of loss at $1,094,490.60, representing the total amount of Wright’s draw requests. Wright didn’t object to the PSR or any of its contents. Thus, Wright admitted responsibility for causing $1,094,490.60 in losses to the Bank. United States v. Deninno , 29 F.3d 572, 580 (10th Cir. 1994) (“Failure to object to a fact in a pr esentence report, or failure to object at the hearing, acts as an admission of fact.”). At Wright’s sentencing, Mr. Moore, th e Bank’s president, read the district court a second statement, once again assert ing that Wright and Blaksley’s fraudulent scheme caused the Bank to suffer total lo sses of $4,613,811.67. As with the PSR, Wright didn’t object to Mr. Moore’s calc ulation of the Bank’s loss. In accordance with the PSR and Mr. Moore’s written and oral statements, the district court set the18 Bank’s loss and Wright’s re stitution at $1,094,490.60. 12 Significantly, Wright did not object to the statements that the bank’s loss figure had already credited the amount received from its foreclosur e on the mortgaged property. Because Wright failed to object to th e amount of loss and restitution, we review for plain error. United States v. Howard , 784 F.3d 745, 748 (10th Cir. 2015). On appeal, despite his silence in the district court, Wright contends that the district court erred by failing to reduce the amount of loss and restitution by the amount recovered after the Bank foreclosed on the property. But under the plain error standard, Wright waived this challenge by fa iling to dispute this fact at sentencing. United States v. Zhou , 717 F.3d 1139, 1154 (10th Cir. 2013). “[F]actual disputes regard ing sentencing not brought to the attention of the district court do not rise to the level of plain error.” Howard , 784 F.3d at 749 (quoting United States v. Lewis , 594 F.3d 1270, 1288 ( 10th Cir. 2010)). In Howard , the defendant claimed the district court pl ainly erred in calcul ating loss for his fraud conviction by adding moneys lo st from second mortgages. Id . We noted that the challenge to the loss calculation raised solely a fact question. Id. We explained that “[b]ecause Defendant failed to object to the evidence below, th ere was no need for the government to explain why the prin tout was likely to be accurate.” Id. Thus, we

12 The district court didn’t hold Wright accountable for the total losses of $4,613,811.67. Doing so would have increa sed Wright’s adjusted offense level two levels.19 concluded that the defendant’s fact challenge could not rise to the level of plain error. Id.
In Zhou , the defendant argued that the di strict court had erred under the MVRA by ordering restitution that include d certain unauthorized expenses. 717 F.3d at 1154. We began by acknowle dging that we could properl y review for plain error any legal arguments Zhou had faile d to raise in district court. Id. But for unpreserved factual errors, we restated our rule that even under the plain-error standard, “failure to assert a factual dispute at sentencing waives the challe nge because it prevented . . . the district court from re solving the fact issue.” Id. We determined that Zhou waived any challenges to unobjected-to fact s found by the district court. Id. at 1154–55. Here, as did the defendants in Howard and Zhou , Wright presents a fact question—did the district court’s loss and restitution amounts credit the Bank’s foreclosure recovery? Had Wrig ht contested this at sent encing, the district court could have asked the Bank’s pr esident for more support that the foreclosure recovery was included in the Bank’s proffered loss es. But Wright’s silence to the Bank’s evidence left the government no need to belabor an already-lengthy sentencing hearing with more detailed evidence. The same goes for Wright’s not objecting to the loss and restitution amounts recommended in the PSR. Deninno , 29 F.3d at 580. By not protesting the loss and restitution amount s in the district court, Wright has waived them on appeal. See Howard , 784 F.3d at 748; Zhou , 717 F.3d at 1154.20 CONCLUSION Wright fails to show that he is entitled to a new trial and fa ils to satisfy the plain-error standard for any of his rema ining claims. Thus, th e district court’s judgment is affirmed.