NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 12a0019n.06 No. 10-6243 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT UNI TED STATES OF AMERI CA Plaintiff - Appellee

v. DENNI S ROGER BOL Z E Def endant - Appellant ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNI TED STATES DI STRI CT COURT FOR THE EASTERN DI STRI CT OF TEN NESSEE OPI NI ON

Before: BATCHEL DER, Chief Judge; MCK EAGU E and STRANCH, Circuit Judges. JAN E B. STRANCH, Circuit Judge. Dennis Bolze perpe trated a $21 milli on Ponz i scheme for more than six y ear s, aff ecting over one hundred victims in the United States and Europe and resulting in a multi-mi llion dollar loss to fra ud victims. Pursuant to an agr eeme nt with the Gover nment, Bolze pled g uilty to three counts of wire fra ud and three counts of money launder ing. The district court imposed a p ri son sentenc e of 327 months. Bolze now appea ls his sentenc e, contending that the district court should not have applied a two-leve l vulnera ble victim enhanc ement and that a pr ison term of 327 months is subst antively unrea sonable. We AF F IRM

. I. F ACTS AND P ROCEDURAL HISTORY Bo lze stipulated to the following fac ts. Fr om April 2002 throug h Dec ember 2008 , Bo l z e owned, operated, an d co n t rolled all activities of Centurion Asset Manag ement, I nc. (CAM) and Advanc ed Trading Service s, I nc. (ATS), both Neva da corpor ations. During that period, he executed

1a scheme to defr aud by soliciting milli ons of dollars from investors under false prete nses, by causing

investors to wire funds to him on cer tain dates , by failing to invest the funds as promised, and by misappropriating and conver ting investors’ funds to his o wn b enef it without the investors’ knowledg e or authorization. Bolze fra udulently repr esente d that h e wo u l d invest all of the funds entrusted to him in CAM’s and ATS’s day -trading of E-mini NASDAQ futures contra cts and E-mini S&P 500 futures c ontrac ts. Rather than in v es t the funds as promised, Bolze diverted new investor funds to exis ting investo rs , l u l l i n g them into the belief that they wer e rec eiving returns on their investments. To perpe tuate the scheme , Bolze encour ag ed additional inves tments, discourag ed withdrawa ls, and p r o v id e d in

v e s to r s w it

h f a b r ic a te d d o c u me nts containing fra

udulent repr esenta tions that B o lz e , CA M and ATS had g ener ated profitable returns on the investments. Bolze also posted fabr icated day

trading results to the I nterne t for his investors to see. H e admitted that he r ece ived more tha n $21 milli on from investors, of w hich appr ox imately $9.6 milli on was used to r e-pa y exis ting investors and $1.6 million was actua lly invested. B olze used the rema ining funds to suppor t his own lavish lifesty le. T he district court g rante d Bolze’s reque st for a bifurca ted sentenc ing hear ing. I n the first p h as e, the court held an evidentiar y hear ing on Bolze’s numerous objections to the Present en ce Report (PSR). The court hear d the testimony of an FB I Ag ent, one of the victims, and Bolze. The Go v er n ment prese nted a number of exhibi ts, and three other victims of the scheme provided o ra l victim impact statements to the court, althoug h they wer e not sworn as witnesses. After considering the PSR , the parties’ briefs, the testimony , the exhibi ts, and both oral and written victim impact statements, the district cour t issued a Memora

ndum and Orde r ruling on all of B olze’s objections,

2but defe rring the Gover nment’s reque st to deny Bolze a three -leve l reduc t ion for acc eptanc e of responsibility . The c ourt applied the vulne rable victim enhance ment over B olze’s objection. I n the second phase of the sentenc ing hear ing, Bolze and the FB I Ag ent ag ain testified. The court g rante d an acc eptanc e of responsibili t y reduc tion, and the parties arg ued their positions on sentenc ing. The court deter mined that Bolze’s total offe nse level was 37, with a cr i m i nal history cate g ory of I I I , resulting in an advisory g uidelin e ra n ge o f 2 52 to 327 months. I n an exhaustive analy sis of the § 3553(a) sentenc ing fac tors, the district court d et ermined that a sentenc e of 327 months was sufficie nt, but not gre ater than nec essar

y , to comply

with the purposes of § 3553( a). II. STANDARD OF REVIEW I n revie wing a district court’s application of the advisory sentenc ing g uidelines, we examine the court’s fac tual finding s for clea r err or and its leg al conclusions de novo. United States v. W ard , 506 F.3d 468, 472 ( 6th Cir. 2007). I n evalua ting the se ntence actua lly imposed, our touchstone is “re asonable ness” as we revie w the sentenc e for an abuse of discretion. United States v. Gunter , 620 F.3d 642, 645 (6th Cir. 2010) (citing Gall v. United States , 552 U.S. 38, 51 (2007))

. Be cause Bolze al leg es only the substantive unrea sonablene ss of his sentenc e, we ask whether the district co u rt considere d the § 3553(a) fac tors and chose a sentenc e “‘suf ficient, but not g reater than nece ssary to comply with’” those fac tors. Id. at 647 (quoting 18 U.S.C. § 3553(a) ). A sentenc e is substantively

unrea sonable if the district court selec ts the sentenc e arbitra rily , bases the sentenc e on impermissible fac tors, fails to c onsider pertinent § 3553(a) fac tors, or g ives an unrea sonable amount of weig ht to any pertinent fa ctor. Id.

3III. ANALYSIS

We car efully considere d Bolze’s challeng es t o his sentence in light of the t horoug h rec ord develope d in the district court. We conclude that the vulnera ble victim enhanc ement was proper ly applied and that the sentenc e at the top of the advisory g uideline rang e was substantively rea sonable. A. Vulnerable victim enhancem ent The applicable 2009 advisory g uideline at issue, USSG § 3A1.1(b)( 1), provided: “I f the defe ndant knew or should have known that a victim of the offe nse was a vulnera ble victim, incre ase by 2 level s . ” Ap p lication Note 2 to § 3A1.1 further provided that a person who i s a victim of t he offe nse of conviction qualifies as a “vulner able victim” if that person “is unusually vulnera ble due to ag e, phy sical or ment al co n d i t i o n, or . . . is otherwise particula rly susceptible to the criminal conduct.” The enhanc ement applies if the Gover nment proves that one victim of the Ponz i scheme was unusually

vulnera ble. See United States v. Ande rson , 440 F.3d 1013, 1017 ( 8th Cir. 2006). Bolze denied that any of his victims wer e unusually vulnera ble, testify ing that “[e]very body

. . . I solicited

. . . portray ed themselves as succe ssful, eng ag ed, articula te, had their wits about them, knew what they wer e doing.” R. 83, Sent. H’rg Tr. at 110. He asser ted that his victims invested only “discre tionary money ,” that ag e alone i s not sufficie nt to justify the enhanc ement, and that the p re s en t p o o r financ ial condition of his victims is not rele vant to whether they wer e unusuall y vulnera ble at the time they invested their money with him. He denied that he forc ed any one to invest and he claimed that he did not know the Mallorca n investors beca

use his associate dealt with them. We first dispense with Bolze’s contention that the district court could not consider victim impact statements if the victims did not te stify under oath at his sentenc ing. Asentenc ing c ourt is not limit ed to consideration of sworn testimo n y . Under the policy statement found at USSG

4§ 6A1.3, the court may consider all information rele vant to sentenc ing without reg ard to whether that

information wo u l d b e ad m i ssible at trial, and the Fe dera l Rules of Evidence do not apply at the sentenc ing hear ing. Fe d. R. Evid. 1101(d)( 3). The Crime Victims’ Rights Act g ave the district court

ex p re s s au thority to consider victim impact statements. 18 U.S.C. § 3771(a) (4) & (b); USSG § 6A1.5. Consequently , we find no fault with the district court’s decision to consi d er al l of the victim impact statements submitt ed, whe ther swor n or unsworn. As to Bolze’s next arg

ument, we are persua ded that the application of the vulnera ble victim enhanc ement was not based on clea rly err oneous fac ts, nor was the application of § 3A1.1(b)( 1) to the fac ts leg ally improper. See W ard , 506 F.3d at 472. Whether a victim quali fi es as “u nusually vulnera ble” is a fac tual finding that we revie w for clea r err or. United States v. Mize , No. 00-3079, 2000 WL 1785741, at *3 (6th Cir. 2000) (unpublished per curia m). The district court found, based

on a preponde ranc e of the evidenc e, that “many of the victims wer e retire d, remove d from the work forc e, and neither wea lthy nor asset manag ement savvy [,] ” such that “the victims’ a g es, combined with defe ndant’s repr esenta tions that investing with defe ndant and CAM was the rig ht decision because of victims’ profe ssed fea rs of financ ial insta b i l i t y i n their retire ment, indicates unusual[] vulnera bility in r eg ard to f

inancial matters.” R. 89, Memorandum at 25-26 (empha sis in orig inal). These fac tual finding s are fully supported by the evidentiar

y rec ord. Additionally , we will not disturb the district court’s choice to believe the victims’ statements over Bolze’s testimony

. Many victims repor

ted that Bolze convince d them to invest by assuring them that their money would be saf e, contr ary to B olze’s a ssertion that his inve stors wer e “simply willing to take on more risky investments.” Id. at 26. And many victims did not invest “discre tionary money ” as Bolze claimed,

5but funds “they intended to use for their basic needs and to provide them with an income on which

to live in their retire ment.” Id. Fur thermore , the preponde ranc e of the evidenc e supports the district c ourt’s deter mination that Bolze knew or should have known that victims of his offe nse wer e unusually vulnera ble to his fra udulent scheme

. The district court found that Bolze knew “seve ral of the victims wer e in or about to enter retire ment,” that Bolze “had persona l dealing s with the victims, g oing so far as to bring them to his home,” and that Bolze expressly told i n v es t o rs t hat “the investment strateg ies he was advocating we re ide al for pe ople of their situation[.] ” Id. at 26-27. The experience of investor H.H., cited by the district court in its Memorandum (at pag es 26- 27, citing R. 69-6, p. 42), is particula rly illust rati v e o f Bo l z e’s conduct and is alone sufficie nt to

s upport application of the vulnera ble victim enhanc ement in this case . H.H. was a 7 6 -y ea r o l d widow living in Mallorca who told the district court that she invested ever y thing she had with Bolze and his companie s in good f aith. R. 69- 6 at 42. She persona lly met with Bolze sever al times. He “wined and dined” her and invited her t o h is home. H.H. sent all of her saving s to Bolze, who repe atedly assure d her that her money was grow ing “spec tacular ly .” Id. When the P onzi s ch em e

co l l ap s ed , H.H. lost her investment. Among other adver se impacts, she could no longe r aff ord private health insurance

. Id. She is now forc ed “to live on a ver y s m al l state pension of approximately

$175 per w eek” and spend the equity in her home on ba sic nec essities. Id. Not only does this victim impact statement confirm that Bolze did know about his Mallorca n investors, it demonstrates how Bolze develope d a persona l rela tionship with an elderly widow in

o rd er t o defr aud her of her entire life’s saving s. I n a simil ar situation, the First Circuit approv ed application of the vulnera ble victim enhanc ement wh er e a victim lost her investment in a Ponz i

6scheme and “wa s particula rly susceptible based on her advanc ed ag e, status as a widow,

. . . and desire to invest the money to establish an income.” United States v. Pol-Flores , 644 F.3d 1, 4 (1st Cir. 2011). I n our own unpublished opi n i o n in Mize , we sim ilarly deter mined that an 87-y ear old ret i re d woman was unusually vulnera ble and the enhanc ement applied wher e the victim was

conce rned about financ ial secur ity and she was particularly susceptible to the fra ud scheme perpe trated by her longtime i nsuranc e age nt. Mize , 2000 WL 1785741, at *3. I n United St ates v. Curly , 167 F.3d 316, 319-20 (6th Cir. 1999), we upheld application of th e v u l n er ab l e victim enhanc ement wher e the defe ndants enticed elder ly investors on multipl e occa s io n s o v e r s e v e r al y ear s t o i n v es t their saving s with the defe ndants, who then defr auded them of the money . We als o aff irmed a vulnera

ble victim enhanc ement wher e a fra ud defe ndant targ eted older, vulnera ble people who would be willing to send money to him in the hope of winning a valuable prize. United States

v. Brawner , 173 F.3d 966, 973 (6th Cir. 1999) (re ly ing on fac t that v i ct i m s wer e “other wise particula rly susceptible to t he cr iminal conduct”) ; see also United States v

. W illiams , 21 F. App’x 824, 826 (10th Cir. 2001) (holding elder l y v i ct ims wer e unusually vulnera ble wher e they lacke d sophisticated financ ial knowledg e and the defe ndant knew of his victims’ financial condition). B a s e d o n th e s e a

uth orities and the fac tual rec ord, particula rly H.H.’s victim impact s ta te me n t,

we uphold the district court’s appli ca t ion of the two-leve l vulnera ble victim enhanc ement. The court’s c are ful examination of this i ssue leads us to conc lude that no er ror oc curr ed below. B. Su bstantive reasonableness of the sente nce Bolze’s c laim that his 327-month sentence is substantively unrea sonable is without m erit. The district cour

t imposed a sentenc e within the applica ble advisory

g uideline ra

ng e, eve n though the sentenc e was the highe st the court could g ive without an upwar d varia nce. We acc ord a

7presumption of rea sonablene ss to a sentenc e within the advisory g uideline rang e. See United States

v. He nry , 545 F.3d 367, 385 ( 6th Cir. 2008). The district court did not selec t the sentenc e arbitra rily , base the sentenc e on impermissible fac tors, fail to consider pertinent § 3553(a) fac tors, or g ive an unrea sonable amount of weig ht to any pertinent fac tor. See Gunter , 6 2 0 F.3d at 645. Rather, the court conscie ntiously evalua ted eac h § 3553(a) fac tor and explained in detail how eac h fac tor influence d the court’s sentenc ing decision. The c ourt’s extensive analy sis assures us that the c ourt chose a sentenc e sufficie nt, but not g reater than nec essar

y to comply

with the purposes of § 3553( a).

IV. CONCLUSION Bolze perpe trated fra

ud for more than six y ear s, devasta ted more t h an 1 0 0 v i ctims, and misappropriate d milli ons of dollars. For all of the rea sons stated, we hold that the vulnera ble victim

en h an ce ment was properly applied and that the 327-mont h sentenc e is substantively rea sonabl e. Acc ording ly , we AF F IRM

.

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