In the 

United States Court of Appeals 

For the Seventh Circuit ____________________ 

No. 15-2824 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

v.

JOHN T. BURNS, III, 

Defendant-Appellant. 

____________________ 

Appeal from the United States District Court for the 

Northern District of Illinois, Eastern Division. 

No. 10 CR 394 — Charles P. Kocoras, Judge. 

____________________ 

ARGUED SEPTEMBER 13, 2016 — DECIDED DECEMBER 12, 2016 

____________________ 

Before BAUER, KANNE, and HAMILTON, Circuit Judges. 

KANNE, Circuit Judge. John Burns made fraudulent misrepresentations when soliciting investments for his employer, 

USA Retirement Services (“USARMS”). Burns told investors 

that he had experience managing investments and that he had 

personally invested in USARMS’s promissory notes. His 

statements were false. Moreover, without Burns’s knowledge, 

the investment opportunity was fraudulent. USARMS’s owners were operating a Ponzi scheme. 
2 No. 15-2824 

With USARMS’s owners out of the picture for various reasons, the government filed a superseding indictment against 

Burns. The government alleged that Burns committed fraud 

by making material misrepresentations to investors. A jury 

convicted Burns on two counts of wire fraud and three counts 

of mail fraud. Despite not alleging that Burns knew of or participated in the Ponzi scheme, the government sought to hold 

Burns accountable for the entire $3.3 million the investors that 

he solicited lost as a result of the Ponzi scheme. The district 

court enhanced Burns’s sentence, ordered restitution, and ordered forfeiture based on the victims’ $3.3 million total loss. 

On appeal, Burns argues that there was insufficient evidence to convict him of making material misrepresentations. 

Burns also challenges the sentencing enhancement and the 

restitution order on grounds that the district court did not determine that he proximately caused the victims’ loss. Finally, 

Burns argues that the forfeiture order was improper because 

it was based on the victims’ loss and not on his gain. Because 

there was sufficient evidence to convict, we affirm Burns’s 

conviction. But because the district court erred in calculating 

the sentence, restitution order, and forfeiture order, we remand for resentencing. 

I. BACKGROUND

At USARMS, Burns’s primary job was to provide estateplanning services to clients. In addition to those services, 

Burns would offer clients an opportunity to invest in promissory notes that USARMS sold. The notes were allegedly 

backed by Turkish bonds. USARMS’s owners, Francois 

Durmaz and Robert Pribilski, claimed to have a connection in 

the Turkish government that allowed them to purchase the 

bonds at a below-market rate. USARMS guaranteed an 8.5 
No. 15-2824 3

percent rate of return and told investors that returns could be 

as high as 14 percent. 

As the high guaranteed rate of return might have hinted, 

the investment opportunity was too good to be true. USARMS 

never purchased Turkish bonds. Instead, Durmaz and Pribilski used the investments for their personal use and to pay earlier investors “returns” on their investment—indicia of a classic Ponzi scheme. 

The government’s original criminal complaint charged 

only Durmaz with wire fraud in connection with the Ponzi 

scheme. Perhaps aware that the scam had run its course and 

was about to collapse, Durmaz fled the country before the 

original complaint was filed. Roughly two years later, the 

government filed an indictment against Durmaz, Pribilski, 

and Burns, charging them with various counts of wire and 

mail fraud. Pribilski pled guilty to the charges. But before he 

could be sentenced, he died. 

With only Burns left alive and in the United States, the 

government filed a superseding indictment. The government 

alleged that Burns had induced certain victims to invest in 

USARMS by falsely telling them that he had experience managing investments and that he and his family had invested in 

the Turkish bonds. The superseding indictment made no reference to the Ponzi scheme. In its response to Burns’s motion 

in limine, the government stated that the “Defendant is not alleged to have knowingly participated in the Ponzi scheme” 

and that the lies about his credentials and his personal investment are “the only crimes that defendant is alleged to have 

committed.” (R. 104 at 4.) 
4 No. 15-2824 

At trial, the government called six of the victims Burns had 

solicited investments from. Five victims testified that they had 

relied on Burns’s statements that he and his family had invested in the Turkish bonds. A sixth victim testified that Burns 

said that he had experience handling investments and that he 

personally allocated Turkish bonds to investor accounts. 

At the close of evidence, the jury convicted Burns on two 

counts of wire fraud and three counts of mail fraud. The district court sentenced Burns to eighty-four months in prison 

and three years’ supervised release. When calculating the sentence, the district court applied an 18-level enhancement to 

account for the roughly $3.3 million Burns’s victims lost in 

their investment with USARMS. The district court also entered a restitution order and forfeiture order, both for $3.3 

million. Burns filed a motion for judgment of acquittal and a 

motion for a new trial. The district court denied the motions, 

and this appeal followed. 

II. ANALYSIS

On appeal, Burns challenges his conviction, his sentence, 

the restitution order, and the forfeiture order. Burns argues 

that his statements about his financial background and his 

personal investment in USARMS were puffery and thus could 

not have been material misrepresentations. Regarding the 

length of his sentence and the restitution order, Burns contends that the district court did not establish that he proximately caused the victims’ loss. Accordingly, Burns claims 

that the court improperly enhanced his sentence and ordered 

him to pay more in restitution than the loss that he caused. 

Finally, Burns challenges the forfeiture order because the 

court ordered forfeiture based on the victims’ $3.3 million loss 
No. 15-2824 5

instead of the amount that he gained from his unlawful conduct. 

A. Sufficiency of the Evidence 

We review de novo the denial of a motion for the judgment 

of acquittal. United States v. Peterson, 823 F.3d 1113, 1120 (7th 

Cir. 2016). In reality, however, we apply the same analysis that 

we use when reviewing for the sufficiency of the evidence. Id.

The burden for proving insufficiency of the evidence is 

“heavy” and “nearly insurmountable.” United States v. Dessart, 823 F.3d 395, 403 (7th Cir. 2016). Burns must prove “that 

even after viewing the evidence in the light most favorable to 

the prosecution, no rational trier of fact could have found him 

guilty beyond a reasonable doubt.” Id. (internal quotation 

marks omitted); see also United States v. Clarke, 801 F.3d 824, 

827 (7th Cir. 2015). 

A statement is material if it has the ability to influence a 

person’s decision. United States v. Seidling, 737 F.3d 1155, 1160 

(7th Cir. 2013) (citing Neder v. United States, 527 U.S. 1, 16 

(1999)). Burns’s argument that his statements were puffery, 

akin to a used-car salesman’s sales pitch, is unavailing. “Puffing” is “[t]he expression of an exaggerated opinion—as opposed to a factual misrepresentation—with the intent to sell a 

good or service.” Black’s Law Dictionary 1269 (8th ed. 2004). We 

have said that puffery is nonactionable because no reasonable 

person would rely on such “empty superlatives.” F.T.C. v. Trudeau, 579 F.3d 754, 765 (7th Cir. 2009). 

Whereas puffery involves ambiguous and vague promises, Burns's comments were factual and specific. He told investors that he and his family had invested in the bonds and 

were reaping the rewards of having done so. He told investors 
6 No. 15-2824 

that he had a history of managing investments. He told investors that he had quit a reputable bank job to work at USARMS. 

All of these were factual misrepresentations, not exaggerated 

opinions. All of these were a far cry from promises of a "good" 

investment, "can't miss" opportunity, or other equivocal sales 

pitches buyers hear every day and are expected to discern and 

discount. United States v. Coffman, 94 F.3d 330, 334 (7th Cir. 

1996). Accordingly, the jury’s verdict will be affirmed. 

B. Sentencing, Restitution, and Forfeiture 

The government argues that Burns waived or at least forfeited his arguments about his sentence, the restitution order, 

and the forfeiture order. Consequently, we must first determine whether he preserved, forfeited, or waived his objection 

to the calculations. 

1. Waiver 

To preserve an issue for appeal, an appellant must make a 

“timely and specific objection” at trial in order to notify the 

court and the opposing party of the potential error and the 

ground for objection. United States v. Ousley, 698 F.3d 972, 975 

(7th Cir. 2012). 

Burns failed to preserve his objections in this case. When 

discussing the restitution and forfeiture orders at sentencing, 

Burns asked only if he alone would be responsible for the $3.3 

million or if the awards would be apportioned (presumably 

among USARMS’s owners and himself). The apportionment 

argument does not articulate a specific objection to how restitution and forfeiture were calculated. 

Nor did Burns specifically object to the loss calculation 

used to enhance his sentence. At sentencing, Burns argued 

that he should be responsible for 10 percent of the victims’ 
No. 15-2824 7

$3.3 million loss. But that argument was based on the fact that 

$3.3 million was only 10 percent of the entire loss that the 

Ponzi scheme caused. Although Burns intimated that he was 

not responsible alone for the loss, he never articulated the 

proximate-cause objection that he makes here. 

Because Burns did not properly preserve his objection 

during sentencing, we must determine whether Burns waived 

or merely forfeited his objection. “Waiver is the intentional relinquishment of a known right” and precludes judicial review 

by extinguishing the error. United States v. Butler, 777 F.3d 382, 

387 (7th Cir. 2015) (citing United States v. Olano, 507 U.S. 725, 

733 (1993)). Forfeiture, however, “is the failure to make the 

timely assertion of a right ... by accident or neglect.” Id. (citation and internal quotation marks omitted). Courts have only 

a limited power to correct forfeited errors. Id. at 386 (citing 

Olano, 507 U.S. at 731). 

The difference between forfeiture and waiver is hard to delineate. United States v. Garcia, 580 F.3d 528, 541 (7th Cir. 2009). 

At one point, the case law in this circuit suggested that a defendant’s failure to specifically object at sentencing established waiver in the strict sense of the term. See United States 

v. Martinez-Jimenez, 294 F.3d 921, 923 (7th Cir. 2002); United 

States v. Richardson, 238 F.3d 837, 841 (7th Cir. 2001). We have 

since declined to read those early cases as creating a brightline rule that every objection not raised at sentencing is 

waived. Instead, we have held that “the important concern is 

whether a defendant chose, as a matter of strategy, not to present an argument.” Garcia, 580 F.3d at 541; see also United States 

v. Brodie, 507 F.3d 527, 531 (7th Cir. 2007); United States v. 

Jaimes-Jaimes, 406 F.3d 845, 848 (7th Cir. 2005). A strategic decision demonstrates that the defendant made a knowing and 
8 No. 15-2824 

intelligent waiver and did not negligently fail to raise the argument. The analysis requires some conjecture on our part in 

light of the record viewed as a whole. Garcia, 580 F.3d at 542. 

Conscious of the rule that waiver is to be “construed liberally in favor of the defendant,” Butler, 777 F.3d at 387, we cannot find that Burns waived his objections at sentencing. 

The government offers three strategic reasons why Burns 

waived the objections that he makes here: (1) he accepted responsibility for the total loss so that he could argue for a lesser 

prison sentence, which would allow him to work and repay 

the debt quicker; (2) he agreed that $3.3 million was the appropriate number; and (3) he accepted $3.3 million because it 

was less than the total loss that the Ponzi scheme caused. All 

three arguments hinge on the idea that Burns accepted that he 

was responsible for the victims’ $3.3 million loss. All three arguments fail because the sentencing transcript belies Burns’s 

acceptance. 

We consider restitution and forfeiture first. At sentencing, 

Burns questioned whether he would be responsible for the entirety of the orders. By asking whether the restitution and forfeiture orders would be apportioned, Burns necessarily implied that he should have to pay less than $3.3 million. The 

record does not reflect a strategic decision to accept the $3.3 

million figure because Burns actually argued (although in a 

legally deficient manner) that the orders should be reduced. 

The omission was not “the result of a deliberate and strategic 

choice to pursue one sentencing argument” over another, and 

therefore, the argument is not waived. Butler, 777 F.3d at 387. 

The same holds true for Burns’s objection to the loss 

amount used to enhance his sentence. Again using the $3.3 
No. 15-2824 9

million figure, the district court increased Burns’s offense 

level by 18. U.S.S.G. § 2B1.1(b)(1)(I) (2014). Although failing 

to properly preserve the objection, Burns argued at sentencing that using $3.3 million to enhance his sentence was excessive because of how small a portion his investors’ losses were 

out of the entire loss caused by the Ponzi scheme. That the 

argument was based on questionable legal reasoning is irrelevant. However weak the argument presented at sentencing 

may have been, it shows that he did not intentionally waive 

his objection to the loss amount used to enhance his sentence. 

A defendant does not strategically waive an argument that 

was inartfully articulated; instead, counsel was deficient for 

failing to properly raise the objection. Brodie, 507 F.3d at 532. 

Despite our discussion above, the dissent makes much of 

the fact that Burns “agreed” with the $3.3 million number. The 

full dialogue at the sentencing hearing contradicts the dissent’s argument that Burns agreed that he proximately caused 

the full loss. The judge told Burns that he thought Burns 

agreed with the government’s loss number. Burns’s counsel 

responded that, “Well, we agree with the number. The only 

question is whether or not he is going to be responsible for the 

entire amount, which, I guess, is a restitution issue, or if it will 

be apportioned.” (R. 174 at 2.) The second part of Burns’s response discredits any claim that he agreed that he caused the 

victims’ full loss. That interpretation is buttressed by additional dialogue at sentencing. Moments later, Burns’s counsel 

again said, “We agree that that is the correct number, Judge.” 

(R. 174 at 3.) But that statement came only after counsel stated 

that $3.3 million “is the total amount of the loss.” (R. 174 at 3.) 

In context, we read Burns’s comments at sentencing as agreeing only that his victims lost $3.3 million, not that he proxi-
10 No. 15-2824 

mately caused the full loss. Burns did not make a strategic decision to forgo the arguments he raises here when he actually 

argued that he shouldn’t be responsible for the entirety of the 

victims’ loss. At most, Burns’s attorney negligently failed to 

raise the proximate-cause and forfeiture arguments. United 

States v. Jenkins, 772 F.3d 1092, 1096 (7th Cir. 2014). 

We also remain unconvinced that Burns strategically decided to accept the $3.3 million figure so that he could plead 

for leniency in his sentence. Burns asked the judge for a lesser 

sentence so that he could work to pay off the restitution and 

forfeiture orders. Again, however, that argument did not depend on accepting responsibility for the full $3.3 million that 

his victims lost. He argued for leniency after he argued that 

he should be responsible for only 10 percent of the victims’ 

loss for sentencing purposes and that the restitution and forfeiture awards should be apportioned. 

“Our duty when considering waiver is to divine from the 

record an intent to forego an argument ... .” Garcia, 580 F.3d 

at 542. We cannot divine a strategic decision to forgo an argument when a defendant makes both arguments. See Butler, 777 

F.3d at 387 (finding forfeiture because the “omission was due 

to defense counsel's oversight, rather than the result of a deliberate and strategic choice to pursue one sentencing argument while forgoing another”). The substance of what Burns 

argued at sentencing would have had the same effect as the 

arguments he makes on appeal—namely a shorter sentence 

and reduced restitution and forfeiture orders. Agreeing with 

the victims’ loss total or indicating that a punishment is just 

no more signifies a knowing and intelligent waiver than explicitly telling the district court there are no further objections 

to a sentence. “We must consider the lawyer’s statement in 
No. 15-2824 11

light of the surrounding circumstances and determine 

whether counsel made a knowing and intentional decision.” 

Garcia, 580 F.3d at 542. Without a convincing strategic explanation that would demonstrate a knowing and intelligent 

waiver, we conclude that Burns forfeited—but did not 

waive—his objections. Jaimes-Jaimes, 406 F.3d at 848. 

2. Plain-Error Review 

Because Burns forfeited his arguments, we review the district court’s decision for plain error. Under plain-error review, 

we reverse the district court “only when we find: (1) an error 

or defect (2) that is clear or obvious (3) affecting the defendant's substantial rights (4) and seriously impugning the fairness, integrity, or public reputation of judicial proceedings.” 

United States v. Anderson, 604 F.3d 997, 1002 (7th Cir. 2010). 

We pause here to address the dissent’s concern about our 

application of plain-error review. Our opinion should not be 

read as chastising Judge Kocoras for failing to address the arguments Burns presents here: indeed, we review for plain error because we explicitly hold that Burns did not preserve the 

arguments he now makes. Judge Kocoras, a learned and experienced jurist, did not intentionally or knowingly fail to address the arguments Burns raises here. The second element in 

plain-error review, that the error was “plain,” means that the 

error was “clear” or “obvious.” Olano, 507 U.S. at 734. We 

have never required, however, that the error be obvious to the 

district court, only that the error was obvious under the law. 

See Jenkins, 772 F.3d at 1098 (holding that the district court 

plainly erred when it adopted “erroneous information in a 

PSR” no matter how “correct such information appears”); see 

also Henderson v. United States, 133 S. Ct. 1121, 1130 (2013) 

(“The Rule’s requirement that an error be ‘plain’ means that 
12 No. 15-2824 

lower court decisions that are questionable but not plainly

wrong (at time of trial or at time of appeal) fall outside the 

Rule’s scope.”). That Judge Kocoras understandably did not 

recognize the errors we address here does not factor into our 

analysis of whether the errors were plain. 

If a plain error has occurred, the next step is to determine 

whether the defendant’s substantial rights are affected. Substantial rights are affected when the defendant can show “a 

reasonable probability that, but for the error, the outcome of 

the proceeding would have been different.” United States v. 

Hurlburt, 835 F.3d 715, 725 (7th Cir. 2016) (quoting MolinaMartinez v. United States, 136 S. Ct. 1338, 1343 (2016)). The defendant need not show that the outcome certainly would have 

been different. Id.; see also United States v. Feinberg, 89 F.3d 333, 

336 (7th Cir. 1996) (holding that to show prejudice, a defendant “must show that but for the [error], the outcome of the 

trial probably would have been different”). We agree with the 

dissent that plain-error review is to be applied rigorously. 

United States v. Hallahan, 756 F.3d 962, 979 (7th Cir. 2014). We 

disagree, however, about whether the facts show a reasonable 

probability that, but for the error, the outcome of the proceeding would have been different. For the reasons discussed below, we hold that there is a reasonable probability that the 

outcome at sentencing would have been different absent the 

error. 

a. Sentencing Enhancement 

Under the Sentencing Guidelines, a defendant’s base level 

is increased according to the loss associated with the crime. 

U.S.S.G. § 2B1.1(b)(1). “Loss” in § 2B1.1(b)(1) is defined as 
No. 15-2824 13

“the greater of actual loss or intended loss.”1 U.S.S.G. § 2B1.1 

cmt. n.3(A). “‘Actual loss’ means the reasonably foreseeable 

pecuniary harm that resulted from the offense.” U.S.S.G. 

§ 2B1.1 cmt. n.3(A)(i). “Reasonably foreseeable pecuniary 

harm” means loss that the defendant knew or reasonably 

should have known “was a potential result of the offense.” 

U.S.S.G. § 2B1.1 cmt. n.3(A)(iv). We have held that determining whether loss was reasonably foreseeable requires causation analysis. United States v. Domnenko, 763 F.3d 768, 777 (7th 

Cir. 2014); United States v. Whiting, 471 F.3d 792, 802 (7th Cir. 

2006). Causation includes two separate analyses: but for causation and proximate causation. Whiting, 471 F.3d at 802. 

A district court that does not adequately explain a sentence commits procedural error. United States v. Leiskunas, 656 

F.3d 732, 738 (7th Cir. 2011). Further, a district court errs when 

it fails to set out “explicit and clear factual findings and determinations” that form the basis of its decision. United States v. 

Titus, 821 F.3d 930, 934 (7th Cir. 2016). Thus, we have remanded cases when the district court improperly applied the 

causation analysis and when the district court did not address 

causation at all. Whiting, 471 F.3d at 802; Domnenko, 763 F.3d 

at 776–77. 

The words “reasonable foreseeability” and “proximate 

cause” and their variants do not appear in the sentencing transcript. At most, the district court held that Burns’s conduct was 

not reasonable in that he should have verified the investments 

instead of trusting what USARMS’s owners told him about 

 

1 Intended loss is irrelevant in this case because the district court based its 

enhancement on the victims’ actual loss. 
14 No. 15-2824 

the Turkish bonds. That his conduct was unreasonable, however, does not necessarily mean that he proximately caused 

the victims’ loss. Without a clear ruling on proximate causation, the district court erred. 

Because the court did not discuss proximate causation, 

Burns’s substantial rights were affected. The district court 

used the $3.3 million loss number to enhance Burns’s sentence 

by 18 levels. The 18-level enhancement increased Burns’s sentencing guideline range from 12–18 months to 108–135 

months. When a district court improperly applies a sentencing enhancement, the defendant’s substantial rights are affected. See United States v. Doss, 741 F.3d 763, 768 (7th Cir. 

2013); Leiskunas, 656 F.3d at 738; cf. United States v. Tovar-Pina, 

713 F.3d 1143, 1148 (7th Cir. 2013) (holding that, when a district court judge increases a sentence but fails to explain why, 

the error is not harmless and requires remand for resentencing). Even though the district court may determine that Burns 

proximately caused the actual loss on remand, there is a reasonable probability that the outcome will be different because 

the government did not claim that Burns knew about the 

Ponzi scheme. For that reason alone, the Ponzi scheme can 

reasonably be seen as a superseding cause that breaks the 

causal chain. 

Finally, an error that significantly increases a defendant’s 

prison sentence without a proper factual basis seriously impugns the fairness, integrity, and public reputation of judicial 

proceedings. Doss, 741 F.3d at 768. Thus, the district court 

committed reversible plain error. 
No. 15-2824 15

b. Restitution 

Courts lack inherent authority to order restitution and 

may do so only when authorized or required by statute. 

United States v. Locke, 643 F.3d 235, 246 (7th Cir. 2011). The 

Mandatory Victims Restitution Act (“MVRA”) requires courts 

to order restitution if the offense of conviction “involves as an 

element a scheme, conspiracy, or pattern of criminal activity.” 

18 U.S.C. § 3663A(a)(2). Both wire fraud and mail fraud include as an element a scheme to defraud. United States v. Daniel, 749 F.3d 608, 613 (7th Cir. 2014). 

The MVRA has a proximate cause requirement. The statute defines a victim to whom restitution must be paid as “a 

person directly and proximately harmed as a result of the 

commission of an offense for which restitution may be ordered... .” 18 U.S.C. § 3663A(a)(2); see also Robers v. United 

States, 134 S. Ct. 1854, 1859 (2014); United States v. Clark, 787 

F.3d 451, 463 (7th Cir. 2015). As already discussed, the district 

court did not address proximate causation during sentencing. 

That error affects Burns’s substantial rights. A defendant’s 

substantial rights are affected when he may have been required to pay more in restitution than he owes. United States 

v. Allen, 529 F.3d 390, 397 (7th Cir. 2008); United States v. Randle, 

324 F.3d 550, 558 (7th Cir. 2003) (“In requiring [the defendant] 

to pay several thousand dollars in restitution, without a statutory basis for doing so, the error affects [the defendant’s] 

substantial rights.”). Under the current restitution order, 

Burns may have to pay more than he owes because, without 

a proximate cause analysis, there is no way of knowing if he 

caused the victims’ full loss. Moreover, the fairness, integrity, 

and public reputation of judicial proceedings are harmed 
16 No. 15-2824 

when the district court acts without statutory authority. Locke, 

643 F.3d at 248; Allen, 529 F.3d at 397; Randle, 324 F.3d at 558. 

Ordering restitution beyond what Burns may have caused 

exceeds the statutory authority that Congress has given courts 

and requires reconsideration. 

c. Forfeiture 

The parties dispute whether forfeiture should be calculated under 18 U.S.C. § 981(a)(2)(A) or (B). Under either section, the defendant must forfeit “proceeds”; the difference in 

the subsections is in how “proceeds” is defined. Put simply, 

“proceeds” may mean either receipts (in subsection (A)) or 

profits (in subsection (B)). 

We need not decide that issue here because it is irrelevant. 

Burns does not argue that the district court should have reduced the forfeiture award by his direct costs in providing the 

financial services (which would be allowed under (B) but not 

(A)); rather, Burns argues that the district court erred by 

awarding forfeiture based on the victims’ loss and not his 

gain. Forfeiture is based on the theory that a defendant should 

not profit from his illegal activity, and thus, forfeiture orders 

reflect the defendant’s gain as opposed to the victims’ loss. 

United States v. Webber, 536 F.3d 584, 603 (7th Cir. 2008); United 

States v. Genova, 333 F.3d 750, 761 (7th Cir. 2003). For our purposes then, the only issue is whether the district court ordered 

forfeiture in the amount that Burns received from his fraud. 

It did not. Neither side alleges that Burns actually gained 

$3.3 million from his fraud. Burns alleges that he did not 

profit at all from his fraud. According to Burns, he received a 

salary and a guaranteed bonus under his employment contract. His compensation didn’t depend on his performance, 
No. 15-2824 17

and therefore, he didn’t gain from his fraud. Alternatively, 

Burns argues that, even if he profited from his fraud, he could 

at most be required to forfeit the money he actually received 

for his work ($220,000 over 17 months). The government’s 

only argument that Burns should forfeit $3.3 million is “that 

a court may order a defendant to forfeit proceeds received by 

others who participated jointly in the crime, provided the actions generating those proceeds were reasonably foreseeable 

to the defendant.” United States v. Contorinis, 692 F.3d 136, 147 

(2d Cir. 2012). 

At sentencing, the district court only tangentially addressed what Burns profited from his fraud. And the limited 

discussion reveals that even the district court did not believe 

that Burns made $3.3 million from his fraud. The district court 

stated that Burns “induced [the victims] to part with millions 

of dollars, which went to your company and which you indirectly benefitted, through your salary and through your bonuses -- the generous bonuses you received.” (R. 174 at 89–

90.) 

Further, the government’s reliance on Contorinis is misguided. In its brief, the government ignored the court’s admonition that it was “not aware of, and the government has 

not cited, any decision standing for the proposition that a defendant may be required to forfeit funds never acquired by 

him or someone working in concert with him.” Contorinis, 692 

F.3d at 147. In its brief in support of its motion in limine, the 

government stated that “Defendant is not alleged to have 

knowingly participated in the Ponzi scheme that happened at 

USA Retirement.” (R. 104 at 4.) The government’s response to 

Burns’s post-trial motions specified that “Defendant is alleged 

by himself to have told material lies to investors that caused 
18 No. 15-2824 

them to part with their money and invest it with USA Retirement.” (R. 125 at 9) (emphasis in original). The government 

cannot disclaim allegations that Burns acted in concert with 

USARMS’s owners but then seek a forfeiture order based on 

what USARMS’s owners made from the Ponzi scheme. 

That error affects Burns’s substantial rights because he was 

ordered to pay more than he gained from his fraud. See Locke, 

643 F.3d at 248; Allen, 529 F.3d at 397; Randle, 324 F.3d at 558. 

The fairness, integrity, and public reputation of judicial proceedings require that we exercise our authority to correct an 

error that would cause Burns to forfeit over $3 million more 

than he gained from his fraud. 

III. CONCLUSION

The jury verdict is supported by sufficient evidence, so we 

AFFIRM Burns’s conviction. The district court erred, however, 

in using the full amount of the victims’ loss to enhance Burns’s 

sentence and ordering restitution without determining that 

Burns proximately caused that loss. Moreover, the district 

court also erred by ordering forfeiture in the full amount of 

the victims’ loss without determining that Burns actually 

gained that full amount from his fraud. Accordingly, because 

the errors were plain, we must, and hereby do, VACATE 

Burns’s sentence, restitution order, and forfeiture order, and 

REMAND those matters for resentencing proceedings consistent with this opinion. 
No. 15-2824 19 

HAMILTON, Circuit Judge, dissenting in part. I agree that we 

should affirm Burns’ conviction. I would also affirm his sentence. The majority errs by reversing the below-guideline sentence on an issue that Burns simply did not present to the district court—whether he caused the full $3.3 million loss for 

which he was held accountable at sentencing. That was the 

total amount lost by the twelve customers whom Burns convinced to invest in the larger Ponzi scheme. 

The majority actually errs twice. First, in the district court, 

Burns waived the issues he pursues for the first time on appeal. He actually agreed that $3.3 million was the correct figure for the loss amount, restitution, and forfeiture. He even 

said that the $3.3 million restitution order would be “just punishment” for his offense! Dkt. No. 146 at 19-20. Burns also 

made strategic use of the $3.3 million figure, making it the basis of his principal argument for leniency: he asked for probation instead of incarceration so that he could repay the victims. That’s textbook waiver. 

Second, even if Burns merely forfeited his objection on the 

causation issue, there was no plain error. Burns’ substantial 

rights were not affected by the absence of a more explicit finding on causation. The evidence easily supports such a finding. 

We should not find “plain error” for the mere lack of a finding 

that the judge was not asked to make, at least when the evidence will support such a finding. 

I doubt that this unusual reversal signals a lasting shift in 

our approach to sentencing appeals. The majority’s approach, 

though, will encourage defendants to search records for new 

issues to raise on appeal. That is inconsistent with our usual 

and sound approach to sentencing appeals. “The sentencing 

in the district court is the main event. The parties prepare and 
20 No. 15-2824 

identify the issues they wish to address.” United States v. 

Lewis, 823 F.3d 1075, 1083 (7th Cir. 2016) (finding waiver of 

issues first raised on appeal). 

When available objections are not raised, the parties and 

the court should not and need not waste time on issues that 

are not actually disputed. The sentencing process here was 

thorough. Judge Kocoras addressed—thoughtfully and in detail—the many issues the parties actually raised before him. 

We do a disservice to district judges by reversing and remanding for supposedly failing to make findings they were not 

asked to make on issues that were not disputed. I respectfully 

dissent from the reversal and remand of Burns’ sentence. 

I. Waiver of Objections to Loss Amount, Restitution, and Forfeiture 

The majority concedes that Burns “never articulated the 

proximate-cause objection that he makes here.” Ante at 7. In 

fact, he not only failed to object to the loss amount, he affirmatively embraced it. Burns and his counsel submitted numerous objections to the presentence report. Yet in both the written objections and at the hearing, they embraced the $3.3 million figure and used it to recommend what would have been 

a remarkably lenient sentence, 60 months of probation. 

A. The Presentence Investigation Report and Burns’ Objections 

The waiver here was as thorough as one is likely to see. It 

began with the presentence investigation report and Burns’ 

written objections to it. Written objections are prepared with 

time to consider all issues and to select which to pursue. See, 

e.g., United States v. Staples, 202 F.3d 992, 995 (7th Cir. 2000) 
No. 15-2824 21 

(finding waiver; there is “stronger case for waiver” when defendant is given “advance notice of the PSR’s contents and an 

opportunity to object before and during the sentencing hearing,” yet fails to object). 

The presentence investigation report recommended a total 

loss amount of $3.3 million, the amount lost by the twelve victims who worked with Burns. (¶26) This amount led to an 18-

level increase in the offense level. (¶41) The report recommended the same figure for restitution. (¶¶121, 144) Burns’ 

counsel advised the probation office that he did not dispute 

the loss amount. (¶40) 

Burns filed detailed written objections to the presentence 

investigation report. He objected to the inclusion of victim impact statements in the report. He asked the court to sentence 

him under a proposed guideline amendment that would adjust the loss ranges for inflation and reduce the adjustment 

from 18 to 16 levels. He objected to a sentencing adjustment 

for abuse of a position of trust. Yet he did not challenge the 

$3.3 million loss amount in any way. 

Burns then outlined his sentencing request: 60 months of 

probation. His principal argument was that probation would 

enable him to repay his victims the $3.3 million. He made this 

claim several times in his objections to the presentence report. 

Dkt. No. 146 at 13, 19–20. His argument reflects a strategic 

choice to rely on the full loss amount to support his request 

for probation instead of incarceration. Burns even called the 

$3.3 million restitution—which he now challenges on appeal—just punishment for his crime: “Requiring Mr. Burns to 

pay back the $3.3 million in restitution, coupled with the lifelong hardships that he will experience as a result of being a 
22 No. 15-2824 

convicted felon, are just punishments for his offense.” Id. at 

19-20.1

In his objections to the presentence report, Burns also argued for leniency because of his relatively minor role in the 

larger USARMS scheme. He illustrated this twice by saying 

the $3.3 million his victims lost was only ten percent of the 

larger $37 million fraud: 

This scheme, in which Mr. Burns was not a 

knowing participant, netted approximately $37 

million from 130 investors. There are 12 victims 

that the government attributes to interacting 

with Mr. Burns, who lost a total of $3.3 million. 

 

1 Here is the full context of Burns’ written request for leniency: 

John [Burns] also has to face the daunting task of paying more 

than $3.3 million dollars in restitution to the victims in this case. 

If Mr. Burns is incarcerated for any period of time, he will not be able to 

make any meaningful contribution to that restitution. Mr. Burns is 55-

years-old. Incarcerating him for the 87 months that the probation 

officer recommends will bring any restitution payments to a screeching halt. If he is sentenced to probation, he can begin making restitution payments immediately because he is currently employed. 

Further, the prospects of him finding a job at age 61 (the approximate age he will be upon release if this Court follows the probation officers’ recommendation of an 87-month sentence and Mr. 

Burns receives the Drug and Alcohol Program) are improbable. 

Understandably, the bitter victims want to see someone go to jail 

as retribution for their losses. But perhaps if given the choice, they 

would rather have Mr. Burns working and making restitution 

payments to them. Requiring Mr. Burns to pay back the $3.3 million 

in restitution, coupled with the lifelong hardships that he will experience 

as a result of being a convicted felon, are just punishments for his offense. 

Dkt. No. 146 at 19–20 (emphasis added). 
No. 15-2824 23 

This loss attributable to Mr. Burns is a mere 10 

percent of Durmaz and Pribilski’s scheme. Mr. 

Burns was not a necessary or integral part of the 

scheme because the Partners were doing just 

fine raising investment funds before they hired 

him. 

Dkt. No. 146. at 18.2 This was not an objection to the $3.3 million loss amount. Indeed, this ten-percent argument depended on his accepting the $3.3 million amount. The defense 

obviously considered a challenge to the loss amount and 

chose a different approach. 

B. The Sentencing and Forfeiture Hearing 

Burns waived his appellate objections again at the hearing 

on sentencing and forfeiture. Three times at the beginning of 

the hearing, Burns’ counsel agreed to the $3.3 million figure. 

Sent. Tr. 2–3. The judge first asked whether there was any objection to the preliminary order of forfeiture for $3.3 million. 

Burns’ counsel responded: “Well, we agree with the number. 

The only question is whether or not he is going to be responsible for the entire amount, which, I guess, is a restitution issue, or if it will be apportioned.” Id. at 2. 

Saying his “only question” was about restitution fell far 

short of an actual objection for any purpose. It also implicitly 

accepted the $3.3 million figure as the correct forfeiture 

amount. After the court rejected apportionment, Burns’ counsel agreed that $3.3 million “is the total amount of the loss.” 

 

2 Burns’ counsel made the same claim earlier in the memorandum: “This 

scheme netted approximately $37 million from a total of 130 investors. The 

amount attributable to Mr. Burns is $3,383,183, which is less than ten percent of the total scam.” Dkt. No. 146 at 15.
24 No. 15-2824 

Id. at 3. The judge then said: “there is a commonality to the 

forfeiture order, as well as the upcoming consideration of the 

restitution order. Those numbers are the same and they cover 

the same conduct.” Burns’ counsel responded: “We agree that 

that is the correct number, Judge.” Id. Burns thus agreed that 

$3.3 million was the correct figure for all three purposes: loss 

amount, restitution, and forfeiture.3

 

3 Here is the full exchange at pages 2–3 of the sentencing transcript: 

THE COURT: Good morning. Is there any objection to the preliminary 

order of forfeiture? 

MR. LOPEZ [Counsel for Burns]: Judge, I have not had an opportunity 

really to respond to it. The only issue that we had – 

THE COURT: I thought you agreed with their number? 

MR. LOPEZ: Well, we agree with the number. The only question is 

whether or not he is going to be responsible for the entire amount, which, 

I guess, is a restitution issue, or if it will be apportioned. 

THE COURT: I do not think it is apportionment. This is an indictment 

solely against Mr. Burns. These properties were counts of the indictment. 

And, so, whether anyone else may be responsible, Mr. Burns would be 

responsible for the entirety. That is the way I see it. Do you see it that way? 

MR. HEDGES [Prosecutor]: Yes, your Honor. 

THE COURT: They are not asking for any larger sum, other than what 

was tried before me. 

MR. LOPEZ: Right. That is the total amount of the loss. I understand 

that. 

THE COURT: Here. 

MR. LOPEZ: Here. But I guess the restitution is a different issue. 

THE COURT: Well, the restitution that is proposed is the same figure. 

MR. HEDGES: That is correct, your Honor. 
No. 15-2824 25 

After sorting through the objections the parties actually 

raised, the judge summed up his guideline findings and gave 

the parties a further chance to object: 

So, here is what we have. We have the Guidelines and what they produce. It is a Level 29 and 

a Criminal History Category of I. That is the end 

result. And in that calculation, everyone is in 

agreement, I think – “everyone,” meaning the 

two parties here – there were 12 victims and the 

loss amount for these victims was $3,383,113. I 

think that amount is not in dispute. 

Id. at 22. The defense knew how to object. It remained silent 

when the judge said the amount was “not in dispute.” 

Later in the hearing, when Burns himself addressed the 

court, he followed through on the written argument and 

again relied on the full $3.3 million loss amount to ask for leniency. He claimed that sentencing him to “any type of incarceration will only serve to delay my ability to start repaying 

restitution.” Id. at 87. Although the “restitution of $3.3 million 

is daunting” he would “go to work” and “willingly make repayment to all of these people.” Id. He argued that allowing 

him to work while on probation would “serve a much better 

purpose ... than having me sent to some minimum security 

 

THE COURT: Yes. So, there is a commonality to the forfeiture order, 

as well as the upcoming consideration of the restitution order. Those numbers are the same and they cover the same conduct. 

MR. LOPEZ: We agree that that is the correct number, Judge. 

THE COURT: All right. Then I am going to grant that motion, so we 

can dispense with that. 
26 No. 15-2824 

camp, where I will be of no use to anyone.” Id. His counsel 

had made the same argument. Id. at 51. 

C. The Majority’s Theory to Avoid Waiver 

To avoid these unusually extensive signs of waiver, the 

majority relies on two passages in the sentencing transcript: 

the question about Burns’ responsibility for the full restitution 

amount, and a virtually incoherent variation on the ten-percent argument discussed above. Neither offers a sound basis 

for excusing Burns’ repeated failure to object and his affirmative embrace of the $3.3 million figure. 

As quoted above in note 3, at the beginning of the hearing, 

Burns’ lawyer asked whether he would be responsible for the 

entire restitution amount or if the amount would be apportioned. The question was only about restitution, not forfeiture, and as the dialogue continued, the court concluded that 

that the amounts for forfeiture and restitution “are the same 

and cover the same conduct.” Burns’ lawyer responded: “We 

agree that that is the correct number, Judge.” Id. at 3. Missing 

from this exchange is anything recognizable as an objection. 

Yet the majority finds that the mere question “necessarily implied that he should have to pay less than $3.3 million,” ante 

at 8, which leads the majority to conclude that Burns did not 

accept the $3.3 million figure or make strategic use of it. 

Lawyers and judges in federal courts understand the difference between questions and objections. A lawyer who does 

not like an answer to a question can register an objection if 

there is one. Here there was none. Yet the majority finds that 

the judge erred by not treating the mere question about possible apportionment as if it were a signal that Burns wanted 
No. 15-2824 27 

to raise every possible objection to the amount used for guideline loss, restitution, and forfeiture. 

That is not a sound approach to appellate review. Where 

counsel and client select issues to pursue at sentencing, as 

happened here, the selection of issues waives other issues that 

might well have distracted from the issues presented. See Staples, 202 F.3d at 995 (finding waiver of sentencing issues not 

raised in written objection to presentence report); see also 

United States v. Jaimes-Jaimes, 406 F.3d 845, 848 (7th Cir. 2005) 

(“There may be sound strategic reasons why a criminal defendant will elect to pursue one sentencing argument while 

also choosing to forgo another, and when the defendant selects as a matter of strategy, he also waives those arguments 

he decided not to present.”); see also United States v. Hible, 700 

F.3d 958, 961 (7th Cir. 2012) (collecting cases).4

After concluding that Burns did not accept the $3.3 million 

restitution and forfeiture, the majority turns to the guideline 

loss amount, finding that Burns showed he was not accepting 

the $3.3 million loss amount based on a statement “inartfully 

 

4 We apply the same approach to waiver in the selection of issues on appeal, where we do not insist on extra evidence of strategy. When lawyers 

select the issues to argue on appeal, we treat as waived issues that might 

have been raised but were not. See, e.g., Smeigh v. Johns Manville, Inc., 643 

F.3d 554, 565 (7th Cir. 2011) (“[Defendant] acknowledged that he didn’t 

raise vicarious liability below and wasn’t raising it on appeal. [Defendant] 

therefore has waived this argument.”); United States v. Dunkel, 927 F.2d 

955, 956 (7th Cir. 1991) (a “skeletal ‘argument’ ... does not preserve a 

claim” on appeal); Sere v. Board of Trustees of Univ. of Illinois, 852 F.2d 285, 

287 (7th Cir. 1988) (“We consistently and evenhandedly have applied the 

waiver doctrine when appellants have failed to raise an issue in their 

opening brief.”). 
28 No. 15-2824 

articulated” during the sentencing hearing. Ante at 9. To understand the statement, some context is helpful. Twice in 

Burns’ response to the presentence report, he attempted to 

minimize his role in the larger USARMS scheme by saying 

that the $3.3 million his victims lost was only ten percent of 

the larger $37 million fraud. Dkt. No. 146 at 15, 18. His counsel 

made this claim again in the sentencing hearing: “And when 

you look at the total loss of all of the victims in general versus 

the amount that is proportionate to Mr. Burns, it is less than 

10 percent of everything. So, Mr. Burns was not an integral 

part of anything, in our opinion, because this scam was operating successfully long before Mr. Burns came along.” Sent. 

Tr. 43. Again, this was not an objection to the loss amount. It 

was an effort to illustrate Burns’ minor role. 

Burns’ counsel later offered a confusing variant of the tenpercent argument for the first time. The majority relies on this 

statement: 

I think, also, the Court could look to the percentage of the whole under this factor, the fact that 

this whole scheme, you know, netted—I don’t 

know the number off the top of my head, but 30-

something million. And he is attributable for 

about three million. So, that is 10 percent. So, if 

your Honor takes the Guidelines of the 10 percent amount, the loss amount would be, 

roughly, yeah, about 300-and-some-thousand. 

So, that would equate to an Offense Level 7—

Base Offense Level 7—plus 12 for the monetary 

amount. 

Sent. Tr. 53–54. In context, this mystifying statement seems to 

be a confused variant of the ten-percent minor-role argument 
No. 15-2824 29 

Burns had already made several times. The judge had resolved the guideline calculation issues much earlier in the 

hearing. Id. at 22. Even the most charitable interpretation of 

this confusing statement should not override the extensive 

record of Burns’ agreement with and strategic use of the $3.3 

million amount. The waiver was clear. 

II. Plain-Error Review 

After overlooking Burns’ waiver, the majority errs further 

by applying the plain-error standard so liberally that it is as if 

the defendant had presented to the district court the same argument he presents now on appeal. That is not plain-error review. 

The late Justice Scalia explained for the Supreme Court the 

reasons for correct and rigorous application of the standard: 

If a litigant believes that an error has occurred (to his detriment) during a federal judicial proceeding, he must object in order to preserve the issue. If he fails to do so in a timely 

manner, his claim for relief from the error is forfeited. “No procedural principle is more familiar to this Court than that a ... right may be forfeited in criminal as well as civil cases by the 

failure to make timely assertion of the right before a tribunal having jurisdiction to determine 

it.” Yakus v. United States, 321 U.S. 414, 444 

(1944). 

If an error is not properly preserved, appellate-court authority to remedy the error (by reversing the judgment, for example, or ordering 

a new trial) is strictly circumscribed. There is 
30 No. 15-2824 

good reason for this; “anyone familiar with the 

work of courts understands that errors are a 

constant in the trial process, that most do not 

much matter, and that a reflexive inclination by 

appellate courts to reverse because of unpreserved error would be fatal.” United States v. Padilla, 415 F.3d 211, 224 (C.A.1 2005) (en banc) 

(Boudin, C.J., concurring). 

This limitation on appellate-court authority 

serves to induce the timely raising of claims and 

objections, which gives the district court the opportunity to consider and resolve them. That 

court is ordinarily in the best position to determine the relevant facts and adjudicate the dispute. In the case of an actual or invited procedural error, the district court can often correct or 

avoid the mistake so that it cannot possibly affect the ultimate outcome. And of course the 

contemporaneous-objection rule prevents a litigant from “‘sandbagging’” the court—remaining silent about his objection and belatedly raising the error only if the case does not conclude 

in his favor. 

Puckett v. United States, 556 U.S. 129, 134 (2009) (applying rigorous plain-error review to sentencing issue); accord, e.g., 

United States v. Arenal, 500 F.3d 634, 639 (7th Cir. 2007) (applying rigorous plain-error review to challenge to factual basis 

for guilty plea; timely objection could have cured arguable error). Those observations apply directly to Burns’ new challenge to the loss calculation used in his sentencing. 
No. 15-2824 31 

The majority notes, though, that “we have remanded cases 

when the district court improperly applied the causation 

analysis [for loss amount] and when the district court did not 

address causation at all.” Ante at 13, citing United States v. 

Whiting, 471 F.3d 792, 802 (7th Cir. 2006), and United States v. 

Domnenko, 763 F.3d 768, 776–77 (7th Cir. 2014). True enough, 

but in those cases the defendants had raised the same objections in the district court that they raised on appeal. Neither 

case was decided on plain-error review. 

The majority also points out that the words “reasonable 

foreseeability” and “proximate cause” do not appear in the 

sentencing transcript. That’s right. Those words do not appear 

because the defense did not argue there was any problem with 

foreseeability or causation with the $3.3 million loss. Judge 

Kocoras sensibly focused his energy on the many issues the 

parties actually argued. (The sentencing transcript is 108 

pages.) He did not waste anyone’s time on issues that the parties did not argue. See Lewis, 823 F.3d at 1081 (judges and others in criminal justice system “do not need to waste time treating matters that are not disputed as if they were”). 

Even assuming no waiver, so that plain-error review 

would be available here, Burns has not shown that his substantial rights were affected or that a failure to set aside his 

sentence would seriously affect the fairness, integrity, or public reputation of the judicial proceedings, let alone a miscarriage of justice. The burden is on Burns to show the court that 

the claimed error affected the outcome. United States v. Olano, 

507 U.S. 725, 734–35 (1993). This ordinarily requires a “specific 

showing of prejudice,” id., not just speculation about the possibility of a different outcome. 
32 No. 15-2824 

This is not a case where the guideline calculation was actually wrong, as it was in Molina-Martinez v. United States, 578 

U.S. —, 136 S. Ct. 1338 (2016) (finding plain error and ordering 

new sentencing where guideline range was in fact wrong). All 

that is supposedly missing here is a supporting factual finding on an issue that was not disputed. The majority itself recognizes that the district court may well find on remand that 

Burns’ fraud was a proximate cause of the victims’ $3.3 million 

loss. Ante at 14. 

That outcome is both likely and entirely appropriate. It 

also shows there was no plain error here. Read in its entirety, 

the sentencing transcript shows that the court believed Burns 

was a proximate cause of his victims’ entire losses. The judge 

said that Burns’ claims that he was unaware of the larger 

Ponzi scheme were “not true.” Sent. Tr. 89. “I do not think you 

stand before me as an innocent man who was euchred .... You 

are too sophisticated. You are too sharp a businessman to 

have fallen for that.” Id. at 90. And while Burns may not have 

been the “architect” of the larger scheme, he “must have got 

suspicious somewhere along the way,” and instead of walking 

away he chose to “become their best salesman.” Id. at 93. The 

majority does not address these findings in its plain-error review. 

The government did not argue that Burns had actual 

knowledge of the larger Ponzi scheme, but the judge made 

clear at the sentencing hearing that the evidence showed that 

Burns knew the supposed investments in Turkish government bonds were too good to be true. While the judge did not 

use the phrase “proximately caused,” he clearly found that 

Burns was foreseeably responsible for the losses. At best, 

Burns deliberately closed his eyes to the warning signs and 
No. 15-2824 33 

then lied to lure prospective investors. Those findings based 

on circumstantial evidence of Burns’ state of mind are more 

than sufficient to support findings of proximate cause and 

reasonable foreseeability for the full $3.3 million. 

Hindsight and the leisurely pace of appeal show there was 

a little more room for Burns to have argued that the forfeiture 

amount, as distinct from the identical guideline loss and restitution amount, should have been the amount he was paid 

instead of the amount his victims lost. It is easy to understand 

why Burns and his lawyers chose not to start an idle debate of 

the issue. The court was already ordering restitution of the 

same $3.3 million. There was nothing to gain by arguing 

whether forfeiture should be measured under 18 U.S.C. 

§ 981(a)(2)(A) or (B). 

In sum, the record here shows that Burns and his lawyers 

focused carefully on sentencing issues. They selected the issues they wanted to pursue. They chose not to dilute them by 

pursuing other potential but unpromising issues, including 

the proximate cause objection at the heart of the majority’s decision. While Burns was disappointed by the results of the 

strategy, his conduct amounts to waiver. We should not overlook the waiver and indulge Burns’ appellate makeover of his 

strategy and case. Nor was there any plain error. I would affirm the judgment of the district court in all respects.