UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. JILL M. EVANS, Defendant - Appellant. No. 17-1185 (D.C. No. 1:15-CR -00220-JLK-1) (D. Colo.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before HARTZ , McKAY , and MORITZ , Circuit Judges.

________________ _________________ Defendant Jill Evans appeals her 84-month sentence impos ed by the United States District Court for the District of Colorado. She challenges the procedural and substantive reasonableness of the sentence. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
I. BACKGROUND In May 2015, Defendant was indicted on eigh t counts of wire fraud in violation of 18 U.S.C. § 1343 and six counts of money la undering in violation of 18 U.S.C. § 1957. On January 23, 2017, she pleade d guilty to two counts as part of a plea agreement. In

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, howeve r, for its persuasive value consistent with Fed. R. A pp. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### April 13, 2018
Elisabeth A. Shumaker Clerk of Court2 return, the government dismisse d the remaining counts. In th e plea agreement the parties stipulated to the following facts: Defendant began her fraudulent scheme in late 2011. She told would-be investors that they could quickly make a return of up to 50 times their original investments in deals to purchase tankers of diesel oil and jet fuel if they would pay some shipping, storage, and other fees. She claimed that an international law firm wa s involved in the transaction and “documented” her claim with forged e- mails and letters purporting to be from an attorney in the firm st ating that the deals were proceedi ng. She also mi srepresented to investors that Barclays Bank was vetting the transaction, when in reality Barclays had refused to open a bank accoun t for her because of her lack of business history. In addition, she falsely told victims that she a nd her husband had person ally invested in the deals, forging documents purpor ting to show that she had inve sted $200,000 to pay fees
for the fictitious fuel transactions. Defendant used the victims’ funds to c over her personal expenses, including her son’s college tuition and rent, mortgage payments, credit-car d payments, restaurant and vacation costs, and restitution for a prior stat e-court fraud conviction. Although the deals never came to fruition, she continued to promis e for several more ye ars that funding was imminent. The investors lost more than $2 million. The presentence report (PSR) prepared afte r Defendant’s guilty plea calculated her offense level as 26 and her criminal-history level as Category II, pr oducing a guidelines range of 70–87 months’ impris onment. Despite her guilty plea, the PSR suggested that Defendant not receive a downwa rd adjustment for acceptan ce of responsibility because3 “the defendant ha[d] not voluntarily terminat ed or withdrawn from fraudulent, criminal conduct.” R., Vol. 2 at 101. In support of this determination the PSR reported that in November 2016, Defendant had lied to her probation officer about the reason for her termination from a job—she to ld him that she had left because she “couldn’t sell anything,” but she had actually been terminat ed for falsifying and forging documents. Id. (internal quotation marks omitted). And it sa id that in August 2016 she had obtained court permission to go to New York to he lp her son move there, but it was later discovered that her son had neither traveled to New York nor planned to do so, and that Defendant had engaged in activity connected to her fraudulent scheme while in New York. The sentencing hearing was conducted on Ma y 3, 2017. The dist rict court stated at the outset that it would not be following the Guidelines in imposing sentence because of its disagreement with the Sentencing Co mmission’s use of data in setting the fraud guideline and its belief that the guideline did not properly refl ect the purposes of sentencing set forth in 18 U.S.C. § 3553. As recommended by the PSR, it denied the parties’ joint motion for a do wnward adjustment for accept ance of responsibility, ruling that “the defendant after the plea engaged in further deceptions and evasions, and I do not think that constitutes acceptance of responsibi lity.” Case No. 15-c r-00220-JLK, Dkt. No. 123, May 3, 2017, Sentenci ng Tr. at 9. It imposed a sentence of 84 months’ imprisonment. The court explained its senten ce at length, consum ing some seven pages of the hearing transcript. It highlighted th e egregiousness of Defendant’s crime; her lack of sympathy for her victims; the continuation of her illegal ac tivity; the need to reflect the4 seriousness of her offense and provide just pun ishment, to promote respect for the law, and to adequately deter her from further cr iminal conduct; and the potential value of providing her with access to educational a nd vocational training, as well as cognitive behavioral therapy. After the sentencing hearing the district court completed a Statement of Reasons form. The court noted: “Guidelines advice rejected. Sentenced pe r 18 U.S.C. § 3553,” R., Vol. 2 at 213, although it checked the box on the form st ating that the sentence was within the guideline range. As “ADDITIONAL BASIS FOR THE SENTENCE IN THIS CASE,” the court wrote: “See Sentencing St atement in the transcript of May 3, 2017, sentencing proceedings.” Id. at 216.
II. DISCUSSION Defendant challenges both the procedural and substantive reasonableness of her sentence. We have explained the two concepts as follows: Procedural reasonableness addresses whether the district court incorrectly calculated or failed to calc ulate the Guidelines sentence, treated the Guidelines as mandatory, failed to consider the § 3553(a) factors, relied on clearly erroneous facts, or failed to adequately explain the sentence. Substantive reasonableness review broa dly looks to whether the district court abused its discretion in weighing permissible § 3553(a) factors in light of the totality of the circumstances. United States v. Vigil , 696 F.3d 997, 1001–02 (10th Ci r. 2012) (brackets, citation, and internal quotation marks omitted). We begin with the procedural-reasonableness challenge. Some of what Defendant char acterizes as substantive-reasonableness arguments should have been characterized as procedural-reasonableness arguments, so5 our organization does not track the organization of her open ing brief. But the substance of our analysis of each argument is not affected by the characterization. A. Procedural Unreasonableness Defendant mounts two challenges to the pro cedural reasonableness of the district court’s imposition of sentence: (1) the cour t made unsupported factual findings; and (2) the court did not follow proper procedures in determining the appropriate sentence. Some of Defendant’s arguments were not presented to the district court. For those unpreserved arguments, we review for plai n error and can grant relief only if the following four requirements are met: “(1) the district court committed error; (2) the error was plain—that is, it was obvious under curre nt well-settled law; (3) the error affected the Defendant’s substantial rights; and (4) the error seriously affected the fairness, integrity, or public reputation of judicial proceedings.” United States v. Gantt , 679 F.3d 1240, 1246 (10th Cir. 2012) (brackets and internal quotation marks omitted).
1. Factual Findings

a. Remorse and Sympathy Defendant disputes the district court’ s finding that she had not expressed sympathy for her victims until the sentencing hearing itself. See Sentencing Tr. at 124:18–24 (“One of the things th at is extremely poignant to me is that it was only about five minutes ago that this defendant made any statement at all expressing sympathy for the victims in this case.”). She argues that she had repeat edly expressed remorse, as indicated in three letters to the court from he r friends and a report by a psychiatrist that quoted her as saying that she “wish[ed she] would have made bette r decisions” and that6 she was “sorry it came to all those things and th at I can’t change it.” R., Vol. 2 at 207. But absent expressions of sympathy for the victims, her expressions of remorse could easily be viewed as merely reflecting regret at getting caught. In our view, Defendant’s continuing to lie and failure to express symp athy for the victims adequately supported the district court’s finding.
b. Acceptance of responsibility Defendant also argues that the district c ourt erroneously failed to find that she had accepted responsibility for her crimes. The Sentencing Guidelines allow a two-level reduction in the applicable offense level “[i]f the defendant clearly demonstrates acceptance of responsibility fo r h[er] offense.” USSG § 3E1.1(a). One appropriate consideration is “voluntary termination or withdrawal from criminal conduct.” Id. n.1(B). “Determination of acceptance of responsi bility is a question of fact reviewed under a clearly erroneous standard.” United States v. Gauvin , 173 F.3d 798, 805 (10th Cir. 1999). Thus, we will reverse only if “w e are left with the definite and firm conviction that a mistake has been committed.” United States v. Battles , 745 F.3d 436, 458 (10th Cir. 2014) (brackets and in ternal quotation marks omitted). Because “‘[t]he sentencing judge is in a unique position to evaluate a defendant’s acceptance of responsibility. . . , the determination of the se ntencing judge is entitled to great deference on review.’” Gauvin , 173 F.3d at 805 (quoting USSG § 3E1.1, comment n.5). Reversal of the denial of the adjustment is also mo re difficult because the defendant has the burden of showing entitlement to the ad justment, so we must affirm if it was reasonable for the7 sentencing judge not to be persua ded by the defendant’s evidence. See Battles , 745 F.3d at 458. Defendant does not challenge the court’ s findings regarding her post-plea misconduct. Her argument relates to the timing. She contends that the court’s reliance on “[a]ny alleged activities that took place AFTER the plea” was misplaced because such acts “do[] not in any way diminish that Ms . Evans pled guilty, sa ving the Government and the victims from the ordeal and cost of a trial.” Aplt. Br. at 25. This contention, however, is contrary to circuit precedent, whic h has affirmed the denial of the adjustment because of post-plea misconduct. See Prince , 204 F.3d at 1022–23; see also United States v. Downing , Case No. 17-6058, 2017 WL 6016335, at *2 (10th Cir. Dec. 5, 2017) (unpublished) . At oral argument Defe ndant contended that her post-plea misconduct was not sufficiently egregious to justify denial of the adjustment. But that point was not raised in her opening brief on app eal, so we decline to address it. We affirm the district court’s denial of the motion for a downward ad justment for acceptance of responsibility. 2. Proper Procedure Defendant raises several cha llenges to the district cour t’s sentencing methodology. In reviewing a sentence challenged on proced ural grounds, we ordinarily review for an abuse of discretion. See Gantt , 679 F.3d at 1246. But, as previously noted, if the defendant failed to preserve the procedural ch allenge below, we review for plain error. See id. The Supreme Court has charted the proper c ourse for district courts to follow in imposing sentence:8 First, a district court should begin all sentencing proceedings by correctly calculating the applicable Guidelines ra nge. As a matter of administration and to secure nationwide consistency, the Guidelines should be the starting point and the initial benchmar k. The district court must then consider the arguments of the parties and the factor s set forth in [18 U.S.C.] § 3553(a). The district court may not presume that the Guidelines range is reasonable; and it may in appropriate cases impose a non-Guidelines sentence based on disagreement with the Sentencing Commi ssion’s views. The district court must explain the basis for its chosen sentence on the record. A major departure from the Guidelines should be supported by a more significant justification than a minor one. Peugh v. United States , 569 U.S. 530, 536–37 (2013) (b rackets, citations, and internal quotation marks omitted). The district court complied with this procedure. It correctly calculated the guidelines range, considered the § 3553 fact ors and the arguments from counsel, did not presume that the guidelines range was reasona ble, and thoroughly e xplained its reasoning on the record. Defendant’s arguments to the contrary are not persuasive. Defendant claims that the di strict court “would not ackn owledge the role that other persons, particularly her [d eceased] husband, played in the [fraudulent] scheme.” Aplt. Br. at 30. But the district court clearly did so when it stated that it did not “have any doubt at all that other peop le were involved in this.” Sentencing T r. at 126:5–6. And it responded reasonably when it said that it was “concerned about this defendant, not about [Defendant’s husband], not about any of these other people who were participants in this fraud.” Id. at 126:5–11. Defendant also challenges the district court’s method of sentencing, arguing that the district court’s “process and procedure in this case is very confusing,” because the court both stated that it would grant a va riance and imposed a sentence within the9 Guidelines. Aplt. Br. at 21. We do not se e the inconsistency. As we understand the district court, when it said that it would vary from the Guidelines, it was not predicting the ultimate sentence it would impose but only how it would reach its conclusion. It was not persuaded by the guidelin e for fraud offenses and theref ore looked simply to the § 3553 factors (although after calculating the guideline sentencing range). Perhaps other judges would use different terminology, but there was certainly no prejudice to Defendant. Defendant next contends that the distri ct court should not have rejected the guideline for fraud offenses. Th e court’s rejection derived largely from its skepticism of the accuracy of the sentencing statistics on which the guideline levels were based. Despite ample opportunity, however, Defendant di d not challenge in district court either the rejection of the fraud guideline or the co urt’s reasons for doing so. We therefore review only for plain error, a nd affirm. It is well-settled th at sentencing judges are not prohibited from rejecting guidelines. See Kimbrough v. United States , 552 U.S. 85, 109– 10 (2007). And Defendant’s use of statistics to try to support the fraud guideline comes too late for plain-error review. See United States v. Wright , 848 F.3d 1274, 1285 (10th Cir. 2017) (under plain-error review, failure to raise factual dispute at sentencing in district court waives the error). In addition, Defendant argues that the distri ct court failed to adequately express its reasons for the sentence. We disagree. Its explanation touched the necessary bases and provided a thorough report of its thinking.10 Defendant’s final procedural challenge is th at the district court failed to properly complete the Statement of Reasons by explai ning the sentence. But any error in this regard was harmless because “the district cour t’s oral explanation [m akes clear] that the district court would have im posed the same sentence had it filed a written statement of reasons form.” United States v. Ortiz-Lazaro , 884 F.3d 1259, 1264 (10th Cir. 2018).
B. Substantive Unreasonableness Defendant also challenges the substan tive reasonableness of her sentence, asserting that it was unreasonably long. “In evaluating the substantive reasonableness of a sentence, we ask whether the length of th e sentence is reasonable considering the statutory factors delineated in 18 U.S.C. § 3553(a).” United States v. Hamilton , 510 F.3d 1209, 1217–18 (10th Cir. 2007). We review a sentence for substantive reasonableness under an abuse-of-discretion standard. See Gall v. United States , 552 U.S. 38, 51 (2007). A sentence is unreasonable “only if it is arbitr ary, capricious, whimsical, or manifestly unreasonable.” Gantt , 679 F.3d at 1249 (internal quotation marks omitted). In light of the district court’s support able findings regard ing the nature of Defendant’s offenses, her continuing fraudule nt conduct, her lack of sympathy for the victims, and her psychological problems, the sentence imposed easily satisfies the abuseof-discretion standard. She contends that he r sentence fails to reflect the need to avoid sentencing disparities, see 18 U.S.C. § 3553(a)(6), citing two sentences imposed in the Eastern District of Tennessee. But as we have explained in rejecting a similar claim, “No two cases are identical, and comparison of an individual sentence with a few counselselected cases involving other defendants sentenced by othe r judges is almost always11 useless.” United States v. Franklin , 785 F.3d 1365, 1372 (10t h Cir. 2015) (internal quotation marks omitted). Indeed, “the sent ence may be substantively reasonable even when disparities are unwarranted.” Id. at 1371 n.4. Defendant’s final challenge is that th e 84-month sentence was substantively unreasonable because a 57-month sentence woul d be adequate to satisfy the statutory goals of sentencing. But “substantive reasonableness contemplates a range, not a point.” United States v. Martinez , 610 F.3d 1216, 1227 (10th Ci r. 2010) (internal quotation marks omitted). “Even if we might reasona bly conclude that a different sentence was also appropriate, that is not a sufficient basis for reversal.” Id. We reject Defendant’s substantive-reasonabl eness challenge to her sentence.
III. CONCLUSION We AFFIRM Defendant’s sentence. Entered for the Court

Harris L Hartz Circuit Judge