UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 09-4743

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

EDWARD HUGH OKUN,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern 

District of Virginia, at Richmond. Robert E. Payne, Senior 

District Judge. (3:08-cr-00132-REP-1)

Argued: September 21, 2011 Decided: November 17, 2011

Before NIEMEYER and KING, Circuit Judges, and HAMILTON, Senior 

Circuit Judge.

Affirmed by unpublished per curiam opinion.

ARGUED: Andrew Anthony Protogyrou, PROTOGYROU & RIGNEY, PLC, 

Norfolk, Virginia, for Appellant. Michael Steven Dry, OFFICE OF 

THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee. 

ON BRIEF: Neil H. MacBride, United States Attorney, Alexandria, 

Virginia, Jessica A. Brumberg, Richard D. Cooke, Assistant 

United States Attorneys, OFFICE OF THE UNITED STATES ATTORNEY, 

Richmond, Virginia, for Appellee. 

Unpublished opinions are not binding precedent in this circuit.
2

PER CURIAM:

Edward Hugh Okun operated a “Ponziesque” scheme, resulting 

in losses in excess of $125 million dollars. Following a jury 

trial, he was convicted on twenty-three counts arising from this 

scheme. He was sentenced to 1200 months’ imprisonment, a 

sentence 3600 months below the advisory Guidelines sentence. 

Okun raises four issues on appeal: (1) whether the superseding 

indictment was legally sufficient; (2) whether the district 

court erred when it refused to grant an evidentiary hearing 

pursuant to Franks v. Delaware, 438 U.S. 154 (1978); (3) whether 

the district court erred when it denied his motion for 

continuance filed two weeks before trial; and (4) whether the 

district court abused its discretion in sentencing him. For the 

reasons stated below, we affirm.

I. Background

In 2005, Okun was the sole owner of Investment Properties 

of America (IPofA), a Virginia limited liability company, with 

its principal place of business in Richmond, Virginia. IPofA 

was involved in the business of commercial real estate 

investment and management. In 2005, Okun formed 1031 Tax Group, 

a Delaware limited liability company with its principal place of 

business in Richmond.
3

In connection with 1031 Tax Group, Okun became involved in 

the business of operating qualified intermediary (QI) companies.1

After acquiring his first QI company, Atlantic Exchange 

Company (AEC), Okun began to wire AEC client funds to his 

personal bank account and IPofA’s bank account, with the 

assistance of Lara Coleman, IPofA’s Chief Operating Officer. 

During the conspiracy, Coleman continued to assist Okun in the 

 

Between August 2005 and December 2006, Okun acquired six 

different QI companies, which in turn became subsidiaries of 

1031 Tax Group.

 1 Section 1031 of the Internal Revenue Code permits 

individuals (exchangers) to defer the payment of capital gains 

tax on the sale of certain assets when such assets are properly 

exchanged in a “like kind” exchange. 26 U.S.C. 1031. In 

general, a like-kind exchange occurs when one piece of property 

is sold and, within a given period of time, a similar piece of 

property is purchased. The like-kind exchange allows the 

exchanger to delay recognizing a gain on the sold property, as 

the tax basis of the sold property carries forward to the newlyacquired property. Thus, the recognition of a gain and the 

payment of capital gains tax are delayed. Id. § 1031(d). For 

the newly-acquired property to qualify as “like kind,” it must 

be identified within forty-five days and be purchased within one 

hundred and eighty days of the sale of the sold property. Id. § 

1031(a)(3). In addition, the exchanger must not receive the 

proceeds from the sale of the sold property, either actually or 

constructively, during the prescribed period. 26 C.F.R. § 

1.1031(k)–1(a). A QI company can be used to hold the sale 

proceeds in the interim, preventing the exchanger’s receipt of 

the funds. Id. § 1.1031(k)–1(g)(4). The Internal Revenue Code 

and regulations contain no requirement or restriction as to how 

the QI company is to hold the proceeds and, so far as the 

Internal Revenue Code is concerned, the QI company may invest 

the proceeds. Such investment typically is governed by the 

agreement between the exchanger and the QI company.
4

fraudulent scheme, which enabled Okun to use money held by the 

QI companies on behalf of the exchangers for personal use and 

for purposes related to IPofA’s business. The uses of the funds 

held by the QI companies were not disclosed to the exchangers 

and were in violation of the agreements between the exchangers

and the QI companies.

In 2007, Janet Dashiell, who had managed one of the QI 

companies acquired by Okun, began to work for 1031 Tax Group. 

Dashiell alerted the government to the manner in which the QI 

funds were being used by Okun and 1031 Tax Group.

In May 2007, 1031 Tax Group filed for bankruptcy. The 

collapse of 1031 Tax Group ultimately resulted in a loss in 

excess of $125 million dollars to exchangers who had deposited 

funds with the QI companies affiliated with 1031 Tax Group.

On March 17, 2008, a three-count indictment was filed in 

the United States District Court for the Eastern District of 

Virginia, charging Okun with the following offenses: one count 

of mail fraud, 18 U.S.C. § 1341; one count of bulk cash 

smuggling, 31 U.S.C. § 5332; and one count of making a false 

declaration, 18 U.S.C. § 1623(a).

On July 10, 2008, a twenty-seven count superseding 

indictment was filed in the district court. The superseding 

indictment charged Okun with the following offenses: one count 

of conspiracy to commit mail fraud and wire fraud, 18 U.S.C. 
5

§§ 1341, 1343, and 1349, one count of conspiracy to commit money 

laundering, id. §§ 371 and 1956(h), thirteen counts of wire 

fraud, id. § 1343, three counts of mail fraud, id. § 1341; three 

counts of promotional money laundering, id. § 1956(a)(1)(A)(i), 

one count of concealment money laundering, id.

§ 1956(a)(1)(B)(i), three counts of money laundering, id.

On February 27, 2009, the government filed a motion to 

dismiss one of the wire fraud and one of the mail fraud counts. 

On the same day, the district court granted the motion.

§ 1957, one count of bulk cash smuggling, 31 U.S.C. § 5332, and 

one count of making a false declaration, 18 U.S.C. § 1623(a).

On March 3, 2009, the case proceeded to trial. After the 

government rested its case, Okun moved for a judgment of 

acquittal pursuant to Rule 29 of the Federal Rules of Criminal 

Procedure. The district court granted the motion with respect 

to the two remaining mail fraud counts, but denied the motion as 

to the other counts. Following Okun’s presentation of his 

defense, closing arguments, and the district court’s 

instructions, the case went to the jury. The jury found Okun 

guilty as to the remaining twenty-three counts of the 

superseding indictment.

The district court sentenced Okun to 1200 months’

imprisonment, a downward variance from the advisory Guidelines 
6

sentence of 4800 months’ imprisonment. Okun noted a timely 

appeal.

II. Sufficiency of the Indictment

Okun first challenges the sufficiency of the indictment 

with respect to the mail fraud and wire fraud conspiracy count 

and the wire fraud counts. According to Okun, the indictment 

did not provide sufficient notice of the alleged 

misrepresentations made by Okun to complete the alleged frauds.

Whether an indictment properly charges an offense is a 

matter of law which we consider de novo if, as in this case, the 

defendant below makes a timely objection to the indictment. 

United States v. Darby, 37 F.3d 1059, 1062-63 (4th Cir. 1994). 

Because Okun timely objected below to the sufficiency of the 

indictment, we apply a heightened scrutiny. Id. at 1063. Under 

our case law, a “valid indictment must: (1) allege the essential 

facts constituting the offense; (2) allege each element of the 

offense, so that fair notice is provided; and (3) be 

sufficiently distinctive that a verdict will bar a second 

prosecution for the same offense.” United States v. Bolden

In this case, the mail fraud and wire fraud conspiracy 

count and the wire fraud counts tracked the statutory language 

of the relevant statutes and contained the essential elements of 

, 325 

F.3d 471, 490 (4th Cir. 2003).
7

both mail fraud and wire fraud, as well as conspiracy. Cf.

United States v. Fogel, 901 F.2d 23, 25 (4th Cir. 1990) (noting 

that an indictment that tracks the statutory language ordinarily 

is valid).2

From in or about August 2005 through in or about May 

2007, within the Eastern District of Virginia and 

elsewhere, defendants [Edward Hugh Okun and Lara 

Coleman] did unlawfully, knowingly, and intentionally 

combine, conspire, confederate, and agree with each 

other and with others, both known and unknown, to 

commit offenses against the United States, to wit:

 For example, the mail fraud and wire fraud 

conspiracy count charges: 

a. To devise and intend to devise a scheme and 

artifice to defraud and to obtain money and property 

by means of material false and fraudulent pretenses, 

representations, and promises, and knowingly transmit 

and cause to be transmitted by means of wire 

communications in interstate and foreign commerce, any 

writings, signs, signals, pictures, and sounds for the 

purpose of executing such scheme and artifice, in 

violation of Title 18, United States Code, Section 

1343;

b. To devise and intend to devise a scheme and 

artifice to defraud and to obtain money and property 

by means of material false and fraudulent pretenses, 

representations, and promises, and knowingly: (a) 

placing and causing to be placed in any post office 

 2 The elements of mail fraud are: (1) the existence of a 

scheme to defraud and (2) the use of mails to perpetrate that 

scheme. United States v. Vinyard, 266 F.3d 320, 326 (4th Cir. 

2001). The elements of wire fraud are: (1) the existence of a 

scheme to defraud and (2) the use of wire communication in 

furtherance of that scheme. United States v. Curry, 461 F.3d 

452, 457 (4th Cir. 2006). The elements of a mail fraud or wire

fraud conspiracy are: (1) the existence of an agreement to 

commit mail or wire fraud, (2) willing participation by the 

defendant, and (3) an overt act in furtherance of the agreement. 

United States v. Edwards, 188 F.3d 230, 234 (4th Cir. 1999).
8

and authorized depository for mail matter, any matter 

and thing whatever to be sent and delivered by the 

Postal Service; (b) depositing and causing to be 

deposited any matter and thing whatever to be sent and 

delivered by any private and interstate commercial 

carrier; and (c) causing to be delivered by mail and 

private and interstate commercial carrier any matter 

and thing whatever according to the direction thereon, 

in violation of Title 18, United States Code, Section 

1341.

(J.A. 69). 

The language used to describe the mail fraud and wire fraud 

conspiracy count directly tracks both the mail and wire fraud 

statutes, but adds in both instances that the “false and 

fraudulent pretenses” were “material.” (J.A. 69). The 

introductory charging language tracks 18 U.S.C. § 1349, which 

criminalizes any attempt or conspiracy to violate, among other 

statutes, the mail fraud and wire fraud statutes. Numerous 

overt acts in furtherance of the conspiracy are set forth in the 

lengthy manner and means section of the mail fraud and wire 

fraud conspiracy count. Thus, the essential elements for this 

count are clearly specified.

The same can be said about the wire fraud counts. Those 

counts charge that Okun and others 

for the purpose of executing the scheme and artifice 

to defraud and to obtain money and property by means 

of material false and fraudulent pretenses, 

representations, and promises, did knowingly transmit 

and cause to be transmitted by means of wire 

communications in interstate and foreign commerce, any 

writings, signs, signals, pictures, and sounds for the 

purpose of executing such scheme and artifice.
9

(J.A. 83). This charging language is identical to § 1343, 

except that, like the language in the mail fraud and wire fraud 

conspiracy count, it adds the word “material” to describe the 

“false and fraudulent pretenses.” (J.A. 83).

The mail fraud and wire fraud conspiracy count and the wire 

fraud counts also alleged the essential facts underlying each 

offense, allowing Okun to raise the defense of double jeopardy 

should the need arise in a successive prosecution. With respect 

to the mail fraud and wire fraud conspiracy count, the manner 

and means section of that count describes how Okun purchased QI 

companies, which used exchange agreements that required client 

exchange funds to be held for the purpose of funding client 

exchanges. Instead of abiding by the requirements set forth in 

the exchange agreements, Okun used the client exchange funds 

both to purchase other QI companies and for other purposes 

wholly unrelated to funding client exchanges.

The manner and means section of the mail fraud and wire 

fraud conspiracy count also describes how Okun and others hid 

from 1031 Tax Group clients the true and desperate financial 

condition of 1031 Tax Group by paying off earlier exchangers 

with the deposits of later exchangers. The count also describes 

how Okun and others lied to exchangers when the exchanges came 

due and how 1031 Tax Group was unable to fund the exchanges.
10

The manner and means section of the mail fraud and wire 

fraud conspiracy count also details how Okun and other 

conspirators concealed the theft of 1031 Tax Group client 

exchange funds from other executives both at IPofA and 1031 Tax 

Group. The count focuses on important aspects of Okun’s 

scheme by highlighting three different sources of legal advice 

that Okun received in the late fall of 2006 regarding his 

misappropriation of 1031 Tax Group funds. The count also sets 

forth an approximate loss of $132 million dollars.

Like the mail fraud and wire fraud conspiracy count, the 

wire fraud counts also set forth the essential facts underlying 

each count. The superseding indictment provides a sufficient 

description of a scheme to defraud. The superseding indictment 

alleges that property had been misappropriated, the means by 

which Okun gained control over that property, and that he 

attempted to conceal material facts from the rightful owners of 

that property. Moreover, each count sets forth a date, an 

amount, and a description of the wire transaction. 

In sum, the mail fraud and wire fraud conspiracy count sets

forth the essential elements of the offense and the essential 

facts with more than sufficient specificity to put Okun and any 

future court on notice of the actions for which Okun was 

charged, and would allow Okun to properly raise a defense of 

double jeopardy in a future prosecution. The count included a 
11

date range for the conduct charged, identified the relevant 

companies, detailed the manner and means of the scheme, and 

included an approximate amount of total loss. The wire fraud 

counts contained the same necessary specificity. Thus, Okun’s 

challenge to the sufficiency of the indictment must be rejected. 

Cf. United States v. Loayza, 107 F.3d 257, 261 (4th Cir. 1997) 

(“The indictment here was sufficiently specific. The time 

period, the scheme, the purported investment companies, the 

‘cover-up’ of the diversion of funds, and the use of the mail to 

carry out the scheme are all alleged.”).

III. Franks

On April 26, 2007, a search warrant was issued by a United 

States Magistrate Judge pursuant to a sworn affidavit filed by 

United States Postal Inspector John Barrett, Jr. Inspector 

Barrett’s affidavit set forth information and beliefs concerning 

the illegal activities of Okun and his related corporate 

entities. The primary source of the information in the 

affidavit was Dashiell. The information from Dashiell was 

corroborated by evidence produced by a confidential informant 

(CI). At issue here is Paragraph 18 of the affidavit, which 

states:

Evidentiary Hearing

[Dashiell] has informed me that on a daily basis, 1031 

Tax Group clients either close on substitute property, 

and so need their deposited funds, or decide not to 
12

purchase new property and request that their deposits 

be returned. Because client funds have not been 

maintained in insured bank accounts, and have instead 

been used by the subjects for various investments and 

personal expenses, their funds are not available to be 

returned. Instead, for at least the last several 

weeks, 1031 Tax Group has been using the money 

deposited by new clients to re-pay other clients who 

need or are demanding their funds immediately. 

[Dashiell] has informed me that 1031 Tax Group has not 

had enough money over the past several weeks to pay 

several of their clients. In conversations between 

David Field and [Dashiell], recorded with the consent 

of [Dashiell], Field confirmed that 1031 Tax Group 

does not have sufficient funds to repay its clients. 

During one of those conversations, Field stated that 

Edward Okun was working on refinancing deals that 

would bring more money into the 1031 Tax Group 

companies, but that in the meantime, the companies 

should continue to bring in new clients so that their 

deposits can be used to pay the clients currently 

demanding their money.

(J.A. 747-48).

The search warrant authorized the searching agents to 

retrieve: (1) all communications between and among 1031 Tax 

Group clients and officers and employees of IPofA and its 

subsidiaries and related companies; (2) all documents and data 

regarding the movement of money between Okun and other Okunrelated companies and third parties; (3) all bank records of 

Okun and other Okun-related companies; and (4) any retained 

copies of tax returns filed by Okun and other Okun-related 

companies.

On April 27, 2007, federal law enforcement agents undertook 

a thorough search of the offices of various corporate entities 
13

associated with Okun and 1031 Tax Group. The product of that 

search was a large quantity of documentary evidence relating to 

Okun and his transactions with the various companies with which 

he was involved.

In the district court, Okun challenged the search on 

numerous grounds. On appeal, however, he presses only one 

claim. According to Okun, Paragraph 18 of Inspector Barrett’s 

affidavit contained one material false statement, that is, that 

IPofA’s Chief Financial Officer, David Field, “confirmed [with 

Dashiell] that 1031 Tax Group does not have sufficient funds to 

repay its clients.” (J.A. 748). Okun posits the exact opposite 

is true—that Field “believed that sufficient assets were 

available to repay all investors.” Appellant’s Br. at 11.

The district court rejected this contention, concluding

that Inspector Barrett’s statement concerning Field’s 

confirmation was not false. According to the district court, 

Inspector Barrett’s statement was not false, because, in 

context, Inspector Barrett “is stating that he has been informed 

that 1031TG does not have the funds on hand to pay back those 

exchangers who are currently requesting the return of their 

funds, but that the corporation is investigating financing 

options that would allow for the exchangers to be paid.” (J.A. 

581). The district court noted that this reading of the 

affidavit was supported by other portions of the affidavit.
14

In general, a defendant is not entitled to challenge the 

veracity of a facially valid search warrant affidavit. United 

States v. Allen, 631 F.3d 164, 171 (4th Cir. 2011). In its 

decision in Franks

[W]here the defendant makes a substantial preliminary 

showing that a false statement knowingly and 

intentionally, or with reckless disregard for the 

truth, was included by the affiant in the warrant 

affidavit, and if the allegedly false statement is 

necessary to the finding of probable cause, the Fourth 

Amendment . . . requires that a hearing be held at the 

defendant’s request.

, however, the Supreme Court carved out a 

narrow exception to this rule:

438 U.S. at 155-56. After making the essential preliminary 

showing, the defendant is entitled to an evidentiary hearing on 

the veracity of the statements in the affidavit. The purpose of 

a Franks evidentiary hearing is to determine whether the 

probable cause determination was based on intentionally false 

statements. United States v. Akinkoye, 185 F.3d 192, 199 (4th 

Cir. 1999). If, after a Franks evidentiary hearing, the 

defendant has shown by a preponderance of the evidence that 

false statements were knowingly and intentionally (or with 

reckless disregard for the truth) included in the search warrant 

affidavit, and that such false statements were necessary to 

establish probable cause, the evidence seized must be 

suppressed. Franks, 438 U.S. at 155–56.
15

In order for the Franks rule to apply and justify 

suppression, the defendant must satisfy both prongs of the rule. 

First, the defendant must show by a preponderance of the 

evidence that the affiant placed false statements in the 

affidavit, either knowingly and intentionally or with a reckless 

disregard for the truth. Id. at 156. Second, the defendant 

must show that, with the false statements purged from the 

affidavit, the remainder of the affidavit is insufficient to 

establish probable cause. Id. at 155–56. Thus, if an affidavit 

includes false statements knowingly and intentionally (or 

recklessly) made, the evidence seized in the resulting search 

will not be suppressed if the affidavit, purged of the false 

statements, is nonetheless sufficient to establish probable 

cause. See United States v. Friedemann

Okun’s 

, 210 F.3d 227, 229 (4th 

Cir. 2000) (requiring suppression only if false statements 

necessary to finding of probable cause).

Franks contention founders for the simple reason 

that Inspector Barrett’s affidavit does not contain a false 

statement, as counsel for Okun candidly conceded at oral 

argument.3

 3 In its brief, the government raises the issue of standing, 

contending that the mere fact that Okun owned the corporate 

entities whose premises were searched is insufficient to confer 

upon him Fourth Amendment standing. Because there were no false 

 Inspector Barrett’s affidavit states that he had been 

(Continued)
16

informed by Dashiell that 1031 Tax Group in “the past several 

weeks” did not have sufficient funds on hand to pay back 

“several” of its clients. (J.A. 748). This information, which 

Okun does not challenge, amply supports the veracity of Field’s 

confirmation that there were insufficient funds to repay 1031 

Tax Group’s clients. The truth of Field’s confirmation also is 

supported by the corroborative evidence that Okun was seeking 

financing to continue the fraud. In short, the district court 

did not err when it refused to order an evidentiary hearing 

pursuant to Franks.4

IV. Denial of Motion for Continuance

We review the district court’s denial of a motion for 

continuance for abuse of discretion. United States v. Williams

 

statements in the affidavit at issue, we need not address the 

issue of standing.

, 

445 F.3d 724, 739 (4th Cir. 2006). The district court abuses 

its discretion when its denial of a motion for continuance is 

“an unreasoning and arbitrary insistence upon expeditiousness in 

4 We also note that Okun’s Franks argument fails because: 

(1) nothing in the record indicates that Inspector Barrett’s 

alleged false statement was made with intentional or reckless 

disregard for its truth; and (2) even assuming that Okun is 

correct that Inspector Barrett intentionally included the 

alleged false statement in his affidavit, the remainder of the 

lengthy and thorough affidavit demonstrates probable cause.
17

the face of a justifiable request for delay.” Id.

In November 2008, Okun received a continuance of the trial 

until March 2, 2009. His January 16, 2009 request for a 

continuance was denied. Two weeks prior to trial, Okun again 

sought a continuance. This motion was premised on two theories. 

First, the government had provided a witness list in 

alphabetical order instead of listing the order in which it 

intended to call such witnesses. Second, Okun argued that he 

was uncertain as to whether the government would be permitted to 

proceed with a theory that Okun made misrepresentations to the 

prior owners of the QI companies he purchased, in addition to 

the clients of those QI companies.

(citation and 

internal quotation marks omitted).

The district court denied the motion though, in its order, 

the government was ordered to provide a list of witnesses in the 

order in which they would be called to testify. The district 

court found that Okun had adequate notice of the government’s 

theory of the case and that a continuance would prejudice the 

government.

We find no abuse of discretion. The record reflects that 

the government discussed with Okun’s counsel for many months its 

theory of misrepresentations to prior owners of the QI 

companies. Counsel for Okun was also on notice of such theory 

through a variety of district court filings and document 
18

production. Moreover, had a continuance been granted, the 

government would have suffered prejudice, as it had already 

arranged for over twenty-five witnesses to travel to Richmond 

from around the country.

V. Sentence

We review a sentence imposed by the district court under 

the deferential abuse-of-discretion standard, regardless of 

whether the sentence imposed is inside, just outside, or 

significantly outside the Guidelines range. United States v. 

Evans, 526 F.3d 155, 161 (4th Cir. 2008); see also Gall v. 

United States, 552 U.S. 38, 41 (2007). The first step in this

review requires us to inspect the record for procedural 

reasonableness by ensuring that the district court committed no 

significant procedural errors, such as failing to calculate or 

improperly calculating the Guidelines range, failing to consider 

the 18 U.S.C. § 3553(a) factors, or failing to adequately 

explain the sentence. United States v. Boulware

In explaining the selected sentence, the district court is 

not required to “robotically tick through § 3553(a)’s every 

subsection.” 

, 604 F.3d 832, 

837–38 (4th Cir. 2010). 

United States v. Johnson, 445 F.3d 339, 345 (4th 

Cir. 2006). Rather, the district court “must make an 

individualized assessment based on the facts presented,” by 
19

applying “the relevant § 3553(a) factors to the specific 

circumstances of the case before it.” United States v. Carter, 

564 F.3d 325, 328 (4th Cir. 2009) (citation, internal quotation 

marks, and emphasis omitted). The district court must also 

state in open court the particular reasons supporting its chosen 

sentence and “set forth enough to satisfy” us that it has 

“considered the parties’ arguments and has a reasoned basis for 

exercising [its] own legal decisionmaking authority.” Rita v. 

United States, 551 U.S. 338, 356 (2007). “If, and only if, we 

find the sentence procedurally reasonable can we consider” its 

substantive reasonableness. Carter

In this case, the sentence imposed is both procedurally and 

substantively reasonable. First, the district court properly 

calculated the applicable Guidelines range. Okun was convicted 

of one count of conspiracy to commit mail fraud and wire fraud, 

one count of conspiracy to commit money laundering, twelve 

counts of wire fraud, seven counts involving money laundering, 

one count of bulk cash smuggling, and one count of making a 

false declaration. The convictions were grouped together for 

sentencing purposes and produced a single offense level of 53, 

ten levels above the highest offense level on the Sentencing 

Table. A total offense level of more than 43 is to be treated 

as an offense level of 43. U.S. Sentencing 

, 564 F.3d at 328 (citation 

and internal quotation marks omitted).

Guidelines Manual
20

(USSG) Chapter 5, Part A Sentencing Table, comment. (n.2). 

Okun’s criminal history category was I. Under the Guidelines, 

offense level 43, in criminal history category I, provides an 

advisory Guidelines sentence of life imprisonment. Because none 

of the counts of conviction carried a statutory maximum sentence 

of life imprisonment, the district court applied USSG § 5G1.2, 

which governs sentencing on multiple counts of conviction.5

Next, the district court considered the relevant § 3553(a) 

factors, emphasizing the extensive harm caused by Okun’s 

conduct, and the need for adequate deterrence and to protect the 

public from further crimes by Okun. The district court also 

considered Okun’s heart condition.

 As 

such, Okun’s advisory Guidelines sentence was the statutory 

maximum sentence on all counts of conviction combined—4,800 

months.

Okun’s main challenge to his sentence is that the district 

court did not consider his age and lack of criminal history in 

 5 The statutory maximum sentences for the counts of 

conviction varied from five to twenty years. USSG § 5G1.2(d) 

states: “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. In 

all other respects, sentences on all counts shall run 

concurrently, except to the extent otherwise required by law.” 

USSG § 5G1.2(d).
21

imposing sentence. However, we have repeatedly emphasized that 

the district court is not required to apply § 3553(a) in a 

checklist fashion. Johnson, 445 F.3d at 345. Here, the 

district court made extensive findings supporting the imposition 

of a variance sentence 3600 months below the advisory Guidelines 

sentence. After reviewing those extensive findings, we are 

satisfied that the district court considered the parties’

arguments and had a reasoned basis for exercising its own legal 

decisionmaking authority. Rita, 551 U.S. at 356. Accordingly, 

we reject Okun’s challenge to his sentence.6

VI. Conclusion

For the reasons stated herein, the judgment of the district 

court is affirmed.

AFFIRMED

 6 Okun also complains that his sentence exceeded the length 

of sentence typically imposed in similar cases. Under 18 U.S.C. 

§ 3553(a), one relevant sentencing factor is the need to avoid 

unwarranted sentence disparities among defendants with similar 

records who have been found guilty of similar conduct. 18 

U.S.C. § 3553(a)(6). We note the sentence imposed in this case 

is in line with sentences imposed in similar white-collar cases. 

See, e.g., United States v. Lewis, 594 F.3d 1270, 1278 (10th 

Cir.) (affirming 310-year sentence for a defendant convicted by 

a jury of an investment fraud of over $40 million dollars), 

cert. denied, 130 S. Ct. 3441 (2010).