PUBLISH UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. DEREK ZAR, Defendant - Appellant.

––––––––––––––––––– –––––––––––––––– UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. MICHAEL JACOBY, Defendant - Appellant.

––––––––––––––––––– –––––––––––––––– UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. SUSANNE ZAR, a/k/a Susanne Hames, Defendant - Appellant. No. 13-1111

No. 13-1119

No. 13-1302 FILED United States Court of Appeals Tenth Circuit 

### June 23, 2015
Elisabeth A. Shumaker Clerk of Court2 ________________ _________________ Appeals from the United States District Court for the District of Colorado (D.C. Nos. 1:10-CR-00502-KHV-2 1:10-CR-00502-KHV-1 1:10-CR-00502-KHV-3)

________________ _________________ Ann Marie Taliaferro, Brown, Bradsha & Mo ffat, L.L.P., Salt Lake City, Utah, for Defendant-Appellant Derek Zar. Richard A. Hostetler, Law Firm of Rich ard A. Hostetler, Denver, Colorado, for Defendant-Appellant Michael Jacoby. Jonathan D. Reppucci, Reppucci Law Fi rm, P.C., Denver, Colorado, for DefendantAppellant Susanne Zar. J. Bishop Grewell, Assistant United States Attorney (John F. Walsh, United States Attorney, with him on the brief) Office of the United States Attorney, Denver, Colorado, for Plaintiff-Appellee.

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

________________ _________________ MORITZ , Circuit Judge.

________________ _________________ Defendants Michael Jacoby, Derek Zar, and Susanne Zar a ppeal convictions and sentences arising from th eir participation in a mo rtgage fraud scheme. The government tried the defendant s together, but each defendant separately appealed and filed separate briefs. Because the defe ndants assert both joint and individual challenges to their convictions and sentences , we permitted the go vernment to file a single consolidated answer brief and heard combined oral argument. We now resolve these three related appeals in a singl e opinion. Exercising jurisdiction under 283 U.S.C. § 1291 and finding no reversible errors, we affirm each defendant’s convictions and sentences.
B ACKGROUND Between January 2005 and September 2006, real estate agent Michael Jacoby devised and executed a mortgage fraud scheme involving the purchase of 18 residential properties in Colo rado. Jacoby recruited willing sellers to sell homes at inflated prices, willing buyers to purch ase the homes by obtaining mortgage loans based on falsified loan applications, and w illing investors to suppl y short-term loans to cover the buyers’ down payments. Jacoby acted as realtor for each transaction, while Derek Zar and his mother, Susanne Zar (collectively, “the Zars”), were buyers. De rek Zar purchased seven of the properties with fraudulent lo an applications and particip ated in the sales of four other properties either by arranging for th e sale of or selling three properties to Susanne Zar and one to another buyer. Su sanne Zar purchased six of the properties with fraudulent loan applications and particip ated in the sales of four other properties by preparing false documents to support Derek Zar’s purchases. For some transactions, Jacoby arranged for sellers to “donate” part of the sales proceeds to grant programs without disclo sing to lenders that the “donation” would be funneled back to buyers to repay shor t-term loans from investors covering the buyers’ down payments. In other transactio ns, Jacoby arranged for back-to-back sales involving the same property. In the firs t sale, an LLC—usually one formed by the individual who acted as the buyer for th e second sale—would purchase a new4 construction home from the home builder for cash at a discounted sales price. The LLC would then sell the home to the LLC’s founder, as an individual buyer, at an artificially inflated price. As part of the second sale, the buyer would obtain a mortgage loan with a fraudulent loan appli cation. The buyer would then use some of the excess loan proceed s to repay investors who contribut ed cash for the first sale to the LLC. Lenders eventually foreclosed on and sold all 18 homes but experienced collective losses of nearly $3 million. Additionally, in 2007 Jacoby personally obtained two loans—one from First Bank to purchase a home and another from Citibank to refinan ce the same home. While securing the two loans, Jacoby ma de material misrepresentations and omissions by lying about his down payment source and inco me, failing to disclose that he did not initially purch ase the home in an arm’s lengt h transaction, artificially inflating the home’s sales price, and supplyi ng an artificially in flated appraisal for the refinancing loan. A federal grand jury indicted Jacoby , Derek Zar and Susanne Zar on charges of wire fraud and aiding and abetting in violation of 18 U.S. C. §§ 1343 and 2 and money laundering in violation of 18 U.S.C. § 1957. Additi onally, in connection with his two personal loans in 2007, the grand ju ry indicted Jacoby on two counts of bank fraud in violation of 18 U.S.C. § 1344. Following a three-week join t trial, the jury convicted Jacoby of 11 counts of wire fraud, three counts of money laundering, and two counts of bank fraud; Derek Zar of four counts of wire fraud and one count of mone y laundering; and Susanne Zar5 of three counts of wire fraud and one count of money laundering. The district court sentenced each defendant to a term of imprisonment follo wed by a period of supervised release and ordered each defendant to pay restitution.
D ISCUSSION We first consider challenges by Derek Zar and Susanne Zar to the district court’s denial of three pretrial rulings: th e Zars’ joint motion to sever their trial from Jacoby’s and their joint motion to dismiss the indictment, both of which were based on alleged violations of the statutory speedy trial right, a nd the Zars’ joint motion to suppress statements they made to IRS agents . Next, we consider alleged trial errors, including the defendants’ joint challenge to a jury instruction and Susanne Zar’s individual argument that the district cour t violated her Sixth Amendment right to confront the witnesses agains t her, namely Derek Zar. Then, we consider whether to address the defendants’ ineffective assistan ce of counsel claims, which they jointly raise for the first time on appeal. Finally , we turn to the defendants’ sentencing challenges. I. Pretrial Rulings A. Speedy Trial Act (Derek Zar and Susanne Zar) Both Zars challenge two pretrial rulings: (1) the denial of th eir motion to sever their trial from Jacoby’s trial, and (2) the denial of their motion, jointly filed pro se,6 to dismiss the indictment. Bo th motions alleged violations of the Speedy Trial Act, 18 U.S.C. §§ 3161-3174 (“the Act”). 1 Under the Act, federal criminal trials mu st commence within 70 days of public indictment or the defendant’s first appearance , whichever is later. 18 U.S.C. § 3161(c)(1). But certain delays are excludable under 18 U.S.C. § 3161(h). As relevant here, § 3161(h)(1)(D) excludes period s of “delay resulting from any pretrial motion, from the filing of the motion through the conclusion of the hearing on, or other prom pt disposition of, such motion.” Section 3161(h )(6) excludes “[a] reasonabl e period of delay when the defendant is joined for trial with a codefendant as to whom the time for trial has not run and no motion for severance has been grante d.” And, § 3161(h)(7)( A) excludes “[a]ny period of delay resulting from a continuance gr anted by any judge . . . on the basis of his findings that the ends of justice served by ta king such action outweigh the best interest of the public and the defendant in a speedy trial.” If a defendant is not brought to trial w ithin the time limit set by § 3161(c) as extended by § 3161(h), “the information or indictment shall be dismissed on the motion of the defendant.” 18 U.S.C. § 3162(a)(2). Here, all parties agree the Zars’ speedy trial clock be gan to run on October 19, 2010, the date of Derek Zar’s initial appearance. The govern ment brought the Zars to trial on August 7, 2012—658 days later. The parties also agree th at the 51-day period from October 28, 2010, the date Susanne Za r filed a motion for continuance, through

1 In their joint motion to sever, the Zars also alleged violations of the constitutional right to a speedy trial, but they do not reassert those violations on appeal.7 December 17, 2010, the date the court heard the moti on, is excludable under § 3161(h)(1)(D). But the partie s disagree as to the number of remaining days that can be excluded, and the Zars reassert two a lleged speedy trial violations they raised below in a motion to sever and a subse quent motion to dism iss the indictment. 2 We address each mo tion in turn. 1. Motion to Sever The Zars challenge the excludability of the 130-day delay between March 19, 2012, and July 26, 2012, resulting from the district court’s decision, on March 1, 2012, to vacate the March 19, 2012, tr ial date without setting a new one. 3 Susanne Zar objected to vacating the trial date and, on March 8, 2012, moved to sever her trial from Jacoby’s. The district court denied the motion on April 25, 2012. The Zars contend the district court abused its discretion in denying the severance motion because the 130-day delay violated their statutory speedy trial right.

2 Although not raised in either the Zars ’ motion to sever or motion to dismiss, the Zars also challenge on appeal the ex cludability of a second, 112-day continuance that moved the trial date from November 28, 2011, to March 19, 2012. The Zars’ failure to challenge this continuance belo w permits us to cons ider this challenge waived. See United States v. Loughrin , 710 F.3d 1111, 1121 (10th Cir. 2013) (a defendant seeking to challenge on appeal a district cour t’s continuance must do the same in motion to dismiss file d in district court). In any event, the Zars acknowledge the existence of pending motions during all but four days of this period, and the government concedes those four days are nonexcludabl e. Thus, by our calculation, 108 days of the challenged 112-day peri od are excludable under § 3161(h)(1)(D) due to pending motions. 3 The Zars represent this delay as a 140-day delay, frami ng the time period as March 19, 2012, to August 6, 2012. Bu t the government concedes the 10 days between July 27, 2012, and Augu st 6, 2012, are nonexcludable.8 We review the denial of a severance motion based on an alleged speedy trial violation for an abuse of discretion. United States v. Apperson , 441 F.3d 1162, 1190 (10th Cir. 2006). But compliance with the Speedy Trial Act’s legal requirements is subject to de novo review. United States v. Banks , 761 F.3d 1163, 1174-75 (10th Cir.), cert. denied , 135 S. Ct. 308 (2014). Preliminarily, the Zars acknowledge th e existence of pending motions between January 23, 2012, and July 26, 2012. As such , we could simply conclude the disputed 130-day time period is ex cludable under § 3161(h)(1)(D). But because this continuance gave rise to th e severance motion the Zars now claim the district court erroneously denied, we choose to address th is particular delay in more detail. During a motions hearing on January 18 , 2012, the district court denied Jacoby’s motion to sever the trial. At that time, the trial was scheduled to begin on March 19, 2012. In light of the denial of his severance motion, Jacoby orally moved to extend the deadline for expe rt witness disclosure. The c ourt denied his oral motion but granted Jacoby leave to file a writte n motion. He did so on January 23, 2012, attaching the disclosure of his ne wly designated expert witness. On March 1, 2012, after hearing oral arguments, the district court granted Jacoby’s motion to designate th e expert witness, reasoning that Jacoby did not act in bad faith in delaying his expert witne ss identification. Th e court noted the government intended to de signate a rebuttal witness and acknowledged that Jacoby and the government had jointly moved for a hearing on the admissibi lity of the expert testimony under Federal Rule of Evidence 70 2. Based on the court’s conclusion that9 it could not conduct that hearing before th e March 19, 2012, trial date, the court vacated the trial date without setting a new one. Susanne Zar objected and moved to seve r the trial, arguing the indefinite continuance would “significan tly prejudice[] her right to a speedy trial.” Second Mot. to Sever, Mar. 8, 2012, Doc. 341, at 6-7. Raising similar arguments, Derek Zar subsequently sought leave to f ile his own severance motion. Treating the Zars’ motions as a jointly-filed severanc e motion, the district court denied the motion on April 25, 2012. The court recognized the Zars’ substantial statutory right to a speedy tr ial, but concluded the Zars ’ “recent decision to invoke those rights is not sufficient to overcome the presumption favor ing a joint trial.” Order, Apr. 25, 2012, Doc. 365, at 3. Furthe r, in light of its de nial of the severance motion, the court held that the Zars rema ined subject to § 3161(h)(6), which excludes periods of reasonable delay re lated to continuances request ed by joined codefendants. The court deemed “reasonable” the delay occasioned by Jacoby’s expert witness designation and the corresponding need for a Rule 702 hearing. In so holding, the court relied on several circumstances: (1) th e Zars were both free on bond, (2) neither previously had asserted a speedy trial de mand, and (3) the government planned to present one primary body of eviden ce against the three defendants. We find no abuse of discretion in the di strict court’s denial of the severance motion. The court recognized the strong pr esumption favoring tr ying properly joined defendants together. See Zafiro v. United States , 506 U.S. 534, 537- 38 (1993) (noting that a defendant seeking severance must show “a serious risk that a joint trial would10 compromise a specific trial right of one of the defe ndants”). And, while further recognizing the significance of the Zars’ sp eedy trial rights, the court considered appropriate factors in reachi ng its conclusion that the Zars failed to overcome that presumption. Consequently, we affirm the district court’ s denial of the severance motion and conclude the 130 da ys are excludable both for the reasons stated by the district court and because motions were pending during the entire 130-day period. 2. Motion to Dismiss On October 28, 2010, Susanne Zar s ought an 18-month continuance based on the case’s complexity . On November 15, 2010, Dere k Zar filed a similar motion, incorporating his mother’s arguments, but seeking only a 12-month continuance. At the December 17, 2010, hearing, the dist rict court agreed to a continuance and rescheduled the trial for November 28, 2011. In support, the court cited the complexity of the case and the time need ed to prepare an adequate defense, concluding the continuance would serve “the ends of justice.” See 18 U.S.C. § 3161(h)(7)(A) (tolling the speedy trial cl ock for period of delay resulting from ends-of-justice continuance); United States v. Margheim , 770 F.3d 1312, 1318 (10th Cir. 2014) (explaining that “[e] nds-of-justice continuances a fford the district court a modicum of flexibility in managing partic ularly complex or difficult cases”), cert. denied 135 S. Ct. 1514 (2015). On June 12, 2012, after the district c ourt declined to seve r their trial from Jacoby’s, the Zars filed a jo int, pro se motion to dismi ss the indictment, alleging the district court erred in gr anting the 346-day continuance between December 18, 2010,11 and November 28, 2011. The district court denied the motion and the Zars challenge that ruling on appeal, contending the district court failed to make adequate findings to support the continuance they requested, at least in part. 4
We review both the denial of a mo tion to dismiss for Speedy Trial Act violations and the grant of an “ends-o f-justice” continuance for an abuse of discretion. However, as noted , we review the district court’s compliance with the Act’s legal requirements de novo. Banks , 761 F.3d at 1174. Before granting an ends-of-justice continua nce, the district court must consider several factors. See 18 U.S.C. § 3161(h)(7)(B) (listi ng factors). Further, the court must make express findings on the reco rd stating its reasons for granting a continuance. See 18 U.S.C. § 3161(h)(7)(A); see also Zedner v. United States , 547 U.S. 489, 506-07 (2006); United States v. Toombs , 574 F.3d 1262, 1269 (10th Cir. 2009). But while “the record must clearly establish the di strict court considered the proper factors” at the time it granted the c ontinuance, “the district court need not articulate facts which are obvious and set forth in the motion for the continuance itself.” Toombs , 574 F.3d at 1269 (internal citati ons and quotation marks omitted); see United States v. Loughrin , 710 F.3d 1111, 1119 ( 10th Cir. 2013) (citing Toombs

4 Although both Zars reque sted a continuance, th ey are not precluded from challenging the court’s ruling. See Zedner v. United States , 547 U.S. 489, 503-06 (2006) (rejecting government’s argument that judicial estoppel barred defendant who requested continuance from challenging l ack of adequate findings to support continuance); United States v. Toombs , 574 F.3d 1262, 1273 (10th Cir. 2009) (“[D]efense responsibility for continua nces does not unwi nd Speedy Trial Act violations.”).12 and noting courts can look to oral and written statements of the district court and moving party to determine whether record s upports an ends-of-jus tice continuance). At the motions hearing, Susanne Zar’s counsel requested an additional 18 months for trial preparation based on th e duration of fraudulent activities, the duration of the government’s i nvestigation (five years), the nature of the prosecution, and the volume of discovery documents (over 30,000). Derek Za r’s counsel also sought a continuance, but asserted he c ould prepare in 12 months. After considering these arguments, the court gr anted an approximate 12-mont h continuance, stating, So I think this case is complex in that it involves at least 29 transactions, maybe more transacti ons. It has four defendants. These transactions may be structured in an elaborate fashion, and I appreciate the need of counsel to prepar e an adequate defense. Therefore, I technically am going to find that the case is complex under 18 U.S.C. Section 3161(h)(7)(B)(ii), but I also am going to find that additional time beyond the calculation for speedy trial is necessa ry for the defendants to adequately prepare a defense in deference to due diligence pursuant to Section 3161(h)(7)(B)(iv). I find that the ends of justice are serv ed by a continuance of this trial. I do not believe it requires 18 months’ wo rth of preparation, and we all will have the pleasure of spending next December together. So we will set the trial for November 28th, 2011, 1:00 p.m. Hr’g Tr., Dec. 17, 2010 , Doc. 163, at 11-12. Contrary to the Zars’ contention, this record consists of more than “short, conclusory statements lacking in detail.” See Toombs , 574 F.3d at 1271 (noting record must contain explanation of re asons supporting con tinuance and “short, conclusory statements lacki ng in detail” are insufficient) . Further, given the Zars’ detailed motions and arguments , the court was not required to restate the “facts which13 [were] obvious” from thos e motions and arguments. See Loughrin , 710 F.3d at 1119; Toombs , 574 F.3d at 1269, 1271. Consequently, we conclude the district court did not abuse its discretion in granting the first continuance, and that this 346-day delay is excludable under § 3161(h)(7)(A). And, because the Zars obj ected only to this continuance in their motion to dismiss the indictme nt, we further conclude the district court did not abuse its discretion in denying the Zars’ motion to dismiss the indictment. 3. Conclusion To summarize, the speedy trial clock ra n for eight days before Susanne Zar filed her first motion to con tinue the trial on October 28, 2010. That motion remained pending until December 17, 2010, rendering 51 days excludable under § 3161(h)(1)(D). Because th e first ends-of-justice con tinuance is adequately supported by the record, the 346-day period from December 18, 2010, through November 28, 2011, is excludable under § 3161(h)(7)(A). The 51-day period between November 29, 2011, and Ja nuary 18, 2012, is excluda ble under § 3161(h)(1)(D) due to pending motions. But the speedy trial cl ock ran for four days from January 19, 2012, through January 22, 2012, a peri od when no motions we re pending, thus ticking off a total of 12 days. Motions we re pending or under advisement during the 186-day period from January 23, 2012, through July 26, 2012, rendering that time excludable under § 3161(h)(1)(D) and § 31 61(h)(1)(H). Finally, the government concedes that the speedy trial clock ran for 10 days between July 27, 2012, and August 6, 2012, before th e trial began on August 7, 2012. Thus, the government14 correctly argues that only 23 days ticked o ff the speedy trial clock before the Zars were tried. Because the government brought th e Zars to trial in compliance with the Speedy Trial Act, the district court did not abuse its disc retion in denying the Zars’ severance motion or their moti on to dismiss the indictment. B. Motion to Suppress (Susanne Zar) Before trial, the Zars jo intly moved to suppress stat ements they made to IRS agents Mike Garvey and Beverly Hood during an in-home interview. Following a hearing, the district court concluded the interview was not a custodial interrogation and denied the suppression motion. Only Susanne Zar appeals that denial, challenging two of the district court’s fact ual findings and its ultimate conclusion that the in-home interview was not a custodial interrogation. When considering a district court’s s uppression ruling, we review the court’s factual findings for clear error, viewing th e evidence in the light most favorable to the prosecution, and its le gal conclusions de novo. United States v. Garcia , 751 F.3d 1139, 1142 (10t h Cir. 2014); United States v. Revels , 510 F.3d 1269, 1273 (10th Cir. 2007). Clear-error review “ask[s] whether, on the entire evidence, [the appellate court] is left with the definite and firm conviction that a mistake has been committed.” Easley v. Cromartie , 532 U.S. 234, 242 (2001) (internal quotation marks omitted). 1. Relevant Law and the District Court’s Ruling Statements obtained during a custodial interrogation cannot be used against a defendant unless the government demonstrat es the defendant was properly informed15 of her rights under Miranda v. Arizona , 384 U.S. 436 (1966). See United States v. Chee , 514 F.3d 1106, 1112 (10th Cir. 2008). A person is in custody when her “freedom of act ion is curtailed to a ‘degree associated with formal arrest.’” United States v. Perdue , 8 F.3d 1455, 1463 (10th Cir. 1993) (quoting California v. Beheler , 463 U.S. 1121, 1125 (1983) (per curiam)). Courts consider several factors to dete rmine whether, under the totality of the circumstances, a reasonable pe rson would have un derstood her situation as one akin to formal arrest. United States v. Jones , 523 F.3d 1235, 1239 (10th Cir. 2008). Those factors include (1) whethe r the suspect was aware th at she could refrain from answering questions or end the interview at will, (2) whether the questioning was prolonged and accusatory, and (3) whether the questioning took place in a policedominated atmosphere. Id . at 1240. Following a hearing, the district cour t denied the Zars’ suppression motion, concluding the Zars were not subject to a cu stodial interrogation. The court reasoned, There are two aspects—well, actually three aspects that are troublesome. The first is that the questioning went on for a period of three hours. The second is that the agents failed to advise that this was a consensual conversation. And the third is that the agents failed at any point to advise the interviewees that they had a right to seek counsel. None of these factors are dispositive, and they are outweighed, in my view, by all of the other aspects of the interrogation which reflect a consensual conversation: The agents approached the house, requested an opportunity to enter. When [Derek] Zar answered the door, he was advise d of their credentials and their purpose of being there. He cl osed the door. At that point, he knew he did not have to talk to them. When he reopened the door, he chose to talk to them. And although I would agree with some courts that have observed the failure to reaffirm that this was a consensual conversation is probably not16 good practice on the part of the inves tigating agents, it doesn’t change the fact that Mr. Zar invited them into th e house after he had previously closed the door to evaluate the situation. One of the implications that’s been raised in the questioning is that the Zars were unacquainted or uninform ed or ill-equipped to deal with two law enforcement officers. There is no evidence to support that. The inquiry with regard to Mr. Za r and his formal education reveals that the agent knew that he had not completed high school and, although he was 28 years old, he did not have a GED. Any concerns about that, however, I believe are relieved by the fact that his mother was present during the entirety of the interview, a nd there has been no information as to her inability to perceive or be familia r with what was goi ng on during the interview. Applying the objective standard, ta king into account the totality of the circumstances, I find that a reasona ble person would have felt that he or she was at liberty to terminate the in terrogation and to ask the agents to leave. Hr’g Tr., Oct. 18, 2011, Doc. 279, at 64-66. 2. Analysis Susanne Zar challenges two of the distri ct court’s factual findings as clearly erroneous. First, she argues the district c ourt’s finding that Dere k Zar “knew he did not have to talk to” agen ts before he reopened the door is not supported by Agent Garvey’s testimony which provi ded, in relevant part, We knocked on the door. Derek Zar an swered the door. I identified myself as a special agent with IRS and showed him my credentials. Agent Hood also showed Derek Zar her credentials. I told him I wanted to ask him some questions about the homes that he purchased with Mike Jacoby. He said to give him a minute, and he closed the door. A few minutes later, he opened the door and let us in. Hr’g Tr., Oct. 18, 2011, Doc. 279, at 10. Garvey later testified he never directly informed either Derek Zar or Susanne Zar that they could refuse to talk to the agents or othe rwise terminate the17 conversation. But Susanne Zar’s contention that Garvey’s testimony does not support the district court’s finding overlooks the district court’ s ability to make reasonable inferences from the evidence. See United States v. Mabry , 728 F.3d 1163, 1166 (10th Cir. 2013) (“‘The credibility of witnesses, the weight to be given to evidence, and the reasonable inferences drawn from the evidence fall within the provi nce of the district court.’” (quoting United States v. Rosborough , 366 F.3d 1145, 1148 (10th Cir. 2004))). Because the district court’s finding that Derek Za r knew he did not have to talk to the agents can reas onably be inferred from Garvey ’s testimony, we conclude that finding is not clearly erroneous. Moreover, even if not supported by the evidence, the district court’s finding that Derek Zar knew he could re fuse to talk to agents was not material to its decision. Subjective knowledge is both generally irrele vant and specifically irrelevant to the question now before us—whether a reasona ble person in Susanne Zar’s position would have understood her situation to be akin to a formal arrest. See United States v. Little , 18 F.3d 1499, 1505 (10th Cir. 1994) (e n banc) (“[T]he particular personal traits or subjective state of mind of the defendant are irrelevant to the objective ‘reasonable person’ test . . . ‘other than to the extent that they may have been known to the officer and influenced his c onduct.’” (citati ons omitted)). Next, Susanne Zar argues the district c ourt clearly erred in finding that, “[a]t the Zars’ invitation, they sat at the kitche n table and they conversed for a period of three hours.” She points to the lack of any evidence that she invi ted the agents into her home or to her kitchen table, or that she consented to the three-hour interrogation.18 It is true that Garvey did not directly testify that eith er of the Zars invited him to the kitchen table. Instead, he testified that after Derek Za r invited him inside, he saw Susanne Zar “near the staircas e,” that he and another agen t introduced themselves to her, and they “proceeded over to the kitc hen table.” Initially, we don’t read the district court’s finding as indicating that Susanne Zar pe rsonally invited the agents to talk for three hours, only that she implicitly invited them to sit at the kitchen table where they conversed for three hours. Regard less, because either interpretation of the district court’s finding can be inferred from Garvey’s te stimony, that finding is not clearly erroneous. 3. Conclusion Like the district court, we are troubled by the agents’ failure to advise the Zars that the interview was a consensual conversat ion. But the agents were not required to do so, and as the district c ourt noted, this factor alone did not transform the in-home interview into a custodial in terrogation. Rather, as the di strict court concluded, under the totality of the circumst ances the Zars were not in custody during the interview. Consequently, we affirm th e district court’s denial of the suppression motion. II. Alleged Trial Errors A. Instruction No. 17 (Derek Zar, Susanne Zar, and Jacoby) All three defendants jointly challenge Instruction No. 17—the elements instruction for the wire fraud counts—on two grounds . First, they argue the instruction omitted an essential element of wire fraud—the sc heme to defraud. Second, they contend that omitting that el ement and adding the phrase “or joined a19 scheme” constructively amended the charge s to broaden the basis for conviction beyond the statute and the indictment. 1. Additional Relevant Facts The superseding indictment charged th e defendants, collectively, with 11 counts of wire fraud, in vi olation of 18 U.S.C. § 1343, which provides, in relevant part, Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or prom ises, transmits or causes to be transmitted by means of wire, radio, or television communication in interstate or foreign commerce, any writings, signs, signals, pictures, or sounds for the purpose of executing such scheme or artifice, shall be fined under this title or imprisoned not more than 20 years, or both. (Emphasis added). The superseding indictment varied s lightly from the stat ute, conjunctively alleging the defendants “know ingly devised and intended to devise a scheme to defraud . . . and to obtain moneys, funds, and other property . . . by means of materially false and fraudulent pretenses a nd representations.” I ndictment, Doc. 167, at 1 (emphasis added). But consistent with the statute, the gove rnment, Jacoby, and Derek Zar each submitted propos ed instructions disjunc tively describing § 1343 as “mak[ing] it a crime to use in terstate wire communication facilities in carrying out a scheme to defraud or to obtain money by means of fa lse or fraudulent pretenses, representations or promises.” E.g. , D. Zar Proposed Instru ction, Doc. 510, at 2 (emphasis added). Additi onally, Jacoby and Derek Za r each proposed giving a unanimity instruction.20 During the instruction conference, the district court questioned the parties as to whether a scheme to defraud differs from a scheme to obtain money or property by means of false or fraudulent pretenses and whether the jury should be given a unanimity instruction. After discussion, the govern ment eventually elected to instruct the jury only on the theory that the defendants devised a scheme “to obtain money or property by means of false or fraudulent pretenses, representations, or promises.” Trial Tr., Aug. 28, 2012, Doc. 704, at 3089. Based on this election, the district court eliminated the words “defraud or” thro ughout the instruction. Id. at 3089-90. Derek Zar objected, arguing the scheme to defraud is an element of both the indictment and the statute and that he had reasonably relied on the government’s pursuit of that element at trial. He furthe r argued that striking the phrase “defraud or” from the instruction mi sstated the law. Susanne Zar a nd Jacoby joined this objection and further objected to including the phras e “or joined a scheme,” contending the phrase conflicted with the wi re fraud statute and pattern instruction. But the court overruled the defendants’ objections and Instruction No. 17 ultimately read in relevant part, Section 1343 of Title 18, United Stat es Code makes it a crime to use interstate wire communications facilities to execute a scheme to obtain money by means of false or fraudulen t pretenses, representations or promises. To carry its burden of proof on these charges, as to each defendant, the government must pr ove the following elements beyond a reasonable doubt: FIRST: Defendant devised, intended to devise, or joined a scheme to obtain money or property by means of false or fraudulent pretenses, representations or promises as described in the indictment;21 SECOND: Defendant did so knowingly and with spec ific intent to obtain money by means of false or fraudulen t pretenses, representations or promises; THIRD: Defendant used or caused an other person to use interstate wire communications facilities for the purpose of carrying out the scheme; and FOURTH: The scheme employed fa lse or fraudulent pretenses, representations or promises that were material. Jury Instruction, Doc. 520-2. 2. Omission of an Essent ial Element of Wire Fraud In any prosecution for wire fraud, th e government must establish three elements beyond a reasonable doubt: “(1) a sc heme to defraud; (2) an interstate wire communication; and (3) a purpose to use the wire communication to execute the scheme.” United States v. Wittig , 575 F.3d 1085, 1093 (10th Cir. 2009) (internal quotation marks and c itations omitted). We review de novo whether the jury in structions, as a whole, accurately informed the jury of the governing law. United States v. Sharp , 749 F.3d 1267, 1280 (10th Cir. 2014). An instruct ion that erroneously omits an element of the offense is subject to review fo r harmless error. Neder v. United States , 527 U.S. 1, 12-13 (1999). The defendants argue that by removi ng the phrase “defraud or” from the instruction, the district c ourt effectively removed the fi rst element, “a scheme to defraud,” from the jury’s cons ideration. They suggest this error is understandable in light of this court’s precedent, but that the error nevertheless requires reversal. In urging the government to el ect whether to instruct th e jury to find either (1) a scheme to defraud or (2) a scheme to obta in money by false pret enses, the district22 court acted consistently with our precedent interpreting § 1343. See United States v.
Cronic , 900 F.2d 1511, 1513 (10th Cir. 1990) (interpreting mail fraud statute, 18 U.S.C. § 1341, as prohibiting two “ove rlapping” but separate offenses); see also United States v. Welch , 327 F.3d 1081, 1104 (10th Ci r. 2003) (noting first two elements of wire fraud a nd mail fraud are identical).
But Cleveland v. United States , 531 U.S. 12, 25-26 (2000), effectively overruled Cronic . In Cleveland , the Supreme Court rejected the government’s contention that the mail fraud statute, § 1341, “defines two independent offenses: (1) ‘any scheme or artifice to de fraud’ and (2) ‘any scheme or artifice . . . for obtaining money or property by means of false or fraudulent pretenses, representations, or promises.’” 531 U.S. at 25 (quoting 18 U.S.C. § 1341, alteration in original). In doing so, the Court clarified that the disj unctive phrases in § 134 1 proscribe a single offense and that the second phrase merely describes one type of fraudulent scheme. Id. at 26. And, as noted earlier , this court has recognized that the first two elements of the mail fraud statute and the wire fra ud statute, §§ 1341 and 1343, are identical. Welch , 327 F.3d at 1104. Consequently, Cleveland , rather than Cronic , informs our analysis of the allege d instruction error. The parties acknowledge Cleveland ’s impact but disagree on its application. The government argues the instruction di d not omit an essential element because under Cleveland , the scheme to obtain money or pr operty by fraudulent pretenses is simply a specific type of scheme to defr aud. The defendants’ argument lacks clarity but implicitly recognizes that after Cleveland , the wire fraud statute’s two-clause23 disjunctive structure creates a single offense. Yet the defe ndants seemingly argue that because the statute defines only one offense, th e district court omitted an essential element of that offense—the scheme to defraud—by instructing the jury only on the specific means of committing a scheme to defraud described in the second part of the clause. We disagree. Since the first element of wire fraud is a scheme to defraud and that element includes a scheme to obtain property by means of fa lse or fraudulent pretenses, representations, or promises, omitting the phrase “defraud or” did not render the instruction constitutionally defi cient. If anything, the government’s “election” worked to the de fendants’ favor by requiring th e government to prove a particular type of scheme to defraud. C onsequently, we conclude Instruction No. 17 did not omit an essential element of wire fraud. 3. Constructive Amendment of the Indictment Next, the defendants contend Instruct ion No. 17 constructively amended the superseding indictment a nd broadened the basis fo r conviction by omitting the “scheme to defraud” element and by addi ng the phrase “or jo ined a scheme.” “‘In reviewing a claim of constructiv e amendment, we consider the jury instructions as a whole, reviewing de novo the propriety of any individual jury instruction to which an objection was made at trial.’” United States v. Bedford , 536 F.3d 1148, 1157 (10th Cir. 2008) (quoting United States v. Alexander , 447 F.3d 1290, 1298 (10th Cir. 2006)). Jury instructions construc tively amend an indictment when they broaden the24 indictment. See United States v. Sells , 477 F.3d 1226, 1237 (10th Cir. 2007) (“A constructive amendment, which is reversible per se, occurs when the district court’s instructions and the proof offered at trial broaden the indictment.” ). Here, consistent with 18 U.S.C. § 1343, the superseding indi ctment alleged both a general scheme to defraud and a specific scheme to obtain mone ys through false pretenses. Thus, as discussed, omitting the phras e “defraud or” narrowed the i ndictment and required the government to prove a particular type of scheme to defraud—one committed by means of false pretenses—and did not constructively amend the indictment. Similarly, including the phrase “or join ed a scheme” did not constructively amend the indictment. The indictment alleged in part that the defendants “participated in” various real estate transactions to fu rther the fraudulent scheme. A defendant who knowingly par ticipates in a fraudulent sche me, i.e., joins one, can be convicted of wire fraud. See United States v. Prows , 118 F.3d 686, 692 (10th Cir. 1997) (“Under well-establis hed Tenth Circuit preced ent a defendant may be convicted under either [the ma il or wire fraud] statute if the government shows that the defendant joined a scheme devised by someone else, as l ong as the defendant possessed the intent to defraud.”). Moreove r, the indictment charged each defendant with aiding and abetting in c onjunction with each wire fra ud count, and the district court instructed the jury accordingly. Because we conclude that the phrase “o r joined a scheme” in Instruction No. 17 merely referenced the indictment’s allegation that the defendants jointly participated in the mortgage fraud, we hold that including this phrase did not25 constructively amend the indictment. 4. Conclusion Because Instruction No. 17 included ever y essential element of wire fraud and modifications to the instruction did not co nstructively amend th e charges against the defendants, we find no instructional error.
B. Crawford Violation (Susanne Zar) Susanne Zar contends that, in the ab sence of a contemporaneous limiting instruction, the admission of testimonial statements her non-te stifying codefendant Derek Zar made to an IRS agent during th e Zars’ in-home interview violated her Sixth Amendment right to con frontation as interpreted in Crawford v. Washington , 541 U.S. 36 (2004). Whether the admission of a non-testif ying codefendant’s statements or confession in a joint trial violated th e defendant’s Sixth Amendment right to confrontation is ordinar ily a legal question subj ect to de novo review. United States v. Clark , 717 F.3d 790, 813 (10th Cir. 2013); United States v. Sarracino , 340 F.3d 1148, 1158-59 (10t h Cir. 2003). But the parties agree that plain-error review applies here because Susanne Zar neither object ed to the admission of Derek Zar’s statements nor requested a contem poraneous limiting instruction. See United States v. Pablo , 696 F.3d 1280, 1287 (10th Ci r. 2012) (explaining that plain error relief is granted only when the defendant establishes an error, that is plai n or obvious, that affects substantial rights, a nd that seriously affects the fairness, integrity, or public reputation of judicial proceedings).26 The Confrontation Clause of the Si xth Amendment guarantees a criminal defendant’s right to confront the witnesses against her. U.S. Const. amend. VI; Clark , 717 F.3d at 813-14. As interpreted in Crawford , “the Sixth Amendment preclude[s] the admission of out-of-court statements th at are testimonial, unless the witness is unavailable and the defendant had a prior opportunity to cross-examine the witness.” Clark , 717 F.3d at 814-15 (internal quotati on marks and citations omitted). Statements made during a police inte rrogation generally are testimonial. United States v. Shaw , 758 F.3d 1187, 1195 (10th Cir.), cert. denied 135 S. Ct. 503 (2014). In the context of multi-defendant trials, whether the admission of a non-testifying co-defendant’s statements violates the Con frontation Clause depends on the content of the statements and the cour t’s ability to mitigate any prejudicial impact. When the statements of a non-testifyi ng codefendant expressly impli cate another codefendant and are so “powerfully incriminating” that a court cannot presume the effectiveness of a limiting instruction advising the jury to consid er the statements only in deciding the nontestifying codefenda nt’s guilt, the statemen ts may not be used in the joint trial. Bruton v. United States , 391 U.S. 123, 135-36 (1968). But if the non-testifying codefendant’s statements implicate another codefendant “o nly when linked with evidence introduced later at trial,” the Confrontation Clause is not violated as long as the court (1) redacts the non-testifying codefendant’s confession to eliminate the defendant’s name and any reference to her existence, and (2) gives a proper limiting instruction when it admits the confession. Richardson v. Marsh , 481 U.S. 200, 208, 211 (1987); see also Spears v. Mullin , 343 F.3d 1215 (10th Cir. 2003).27 Here, IRS Agent Beverly Hood testified at trial about several statements Derek Zar made during the Zars’ in-home interview. Although Susanne Zar did not object to the statements’ admission or request a contemporan eous limiting instruction, the district court gave this limiting instruction at the clos e of trial: “You have heard evidence that Susanne Zar and Derek Zar gave statements to the authorities. You may consider any such statement in deciding the charges against that defendan t, but not against any other defendant. You should give such statements such weight, if a ny, as you feel they deserve.” Trial Tr., Aug. 28, 2012, Doc. 704, at 3110. On appeal, Susanne Zar acknowledges he r son’s statements did not directly implicate her. Nevertheless, relying on Richardson and Spears , she contends his statements implicated her when linked with other evidence presented at trial and that the district court violated her confrontation rights by failing to sua sponte give a limiting instruction. But even assuming the district court committed an obvious Crawford error by admitting Derek Zar’s testimonial statemen ts without a contem poraneous limiting instruction, we agree with the government that Susanne Za r cannot establish prejudice under the third prong of the plain-error analysis. See Pablo , 696 F.3d at 1293 (noting appellant bears burden to demonstrate “a r easonable probability that , but for the error claimed, the result of the pr oceeding would have been different” (internal quotation marks and citation omitted)). Here, the district court admitted inde pendent evidence of Susanne Zar’s guilt including Hood’s testimony regarding inculpat ory statements Susanne Zar made during28 the Zars’ in-home interview as well as documen tary evidence, such as bank records, loan applications, and residential sales contracts, supporting those statements. And witnesses other than Derek Zar testified at trial about Susanne Zar’s involvement in various real estate transactions arranged by Jacoby. Given this eviden ce and the district court’s instruction at the close of trial advising the ju ry to consider each defendant’s statements individually in determining guilt, we declin e to reverse Susanne Zar’s convictions under the plain-error standard. 5
III. Ineffective Assistance of Counsel (Derek Zar, Susanne Zar, and Jacoby) All three defendants jointly assert ineffective assistan ce of counsel claims for the first time on appeal, collectively argui ng their respective atto rneys demonstrated prejudicially deficient performance by en tering into a poorly-worded stipulation regarding the jurisdictional elemen t of the wire fraud counts. Generally, ineffective assi stance of counsel claims should be raised in collateral proceedings rather than on direct appeal. See, e.g. , United States v. Galloway , 56 F.3d 1239, 1240 (10th Cir. 1995) (en banc) (instructing that “such claims brought on direct app eal are presumptively dismissi ble, and virtually all will be dismissed”). But relying on United States v. Crowe , 735 F.3d 1229, 1244 (10th

5 Susanne Zar additionally argues that if we reverse her wi re fraud conviction (Count 16), we must also reverse he r money laundering conv iction (Count 10). Lacking any basis to reverse the wire fraud conviction, we find no basis to reverse the money laundering conviction. Further, the Zars jointly seek reversal and a new trial based on the cumulative and prejudicial effect of the alleged trial errors. See United States v. Caraway , 534 F.3d 1290, 1302 (10t h Cir. 2008) (discussing cumulative error analys is). But because the only error we have found is an assumed unpreserved Crawford error, we reject the Za rs’ cumulative error claim.29 Cir. 2013), defendants argue their claims are fully developed in th e record and thus present an exception to this general rule. See Galloway , 56 F.3d at 1242 (recognizing that “[s]ome rare claims wh ich are fully developed in the record may be brought either on direct appeal or in collateral proceedings”). As in this case, the defendant in Crowe challenged her attorney’s decision to enter into a written stipulati on on an element of wire fra ud. But in contrast to the defendants in this case, the defendant in Crowe asserted her ineffe ctive assistance of counsel claim in a motion for new trial and the district court denied the claim on its merits. Thus, unlike the panel in Crowe , we lack the benefit of a district court ruling, and we decline to address the defendants’ ineffective assistance of counsel claims. IV. Alleged Sentencing Errors The defendants jointly asse rt that the district cour t violated their Fifth and Sixth Amendment rights to a jury trial when it found facts necessar y to increase their advisory Guidelines sentenci ng ranges. The Zars jointly ch allenge the district court’s method of calculating the loss both for Guidelines purposes and for imposing restitution. Susanne Zar individually contends the district court er roneously attributed to her the losses related to three propertie s, and Derek Zar argues the district court erroneously applied a three-level enhancem ent based on his aggravating role in the offense and erroneousl y denied his motion for a downward variance. Before turning to these specific claims, we briefl y summarize the district court’s calculation of each defendant’s sentence.30 A. Additional Relevant Facts 1. Michael Jacoby In calculating Jacoby’s advisory Guide lines range, the presentencing report (“PSR”) grouped Jacoby’s wire fraud, m oney laundering, and ba nk fraud convictions, resulting in a base offense level of 7. See U.S.S.G. § 3D1.2(c), (d); § 3D1.3(b). The PSR adopted the government’s loss calcul ation of $3,160,267 and assigned an 18-
level increase based on the amount of the loss. See U.S.S.G. § 2B1.1(b)(1)(J) (providing 18-level increase if loss is more than $2,500,0 00 but less than $7,000,000). Jacoby also received a two- level increase based on the number of victims. See U.S.S.G. § 2B1.1(b)(2)(A) (providi ng two-level increase for offenses involving 10 or more but less than 50 victims). Finally, for his role as an “organizer or leader” of the fraudulen t scheme, Jacoby received a four-level increase under U.S.S.G. § 3B1.1(a). Jacoby’s total offense le vel of 31 and his criminal history of I resulted in an advisory Gu idelines range of 108-135 m onths’ imprisonment for each of his 16 convictions. The district court sentenced Jacoby to a controlling term of 108 months’ imprisonment followed by a five-year term of supervised re lease and ordered restitution of $2,926,467. 2. Derek Zar The PSR grouped Derek Zar’s four wire fraud convictions and one money laundering conviction producing a base offense level of 7. See U.S.S.G. § 3D1.2(c), (d); § 3D1.3(b). After adopting the government ’s loss calculation of $1,599,359, the31 PSR applied a 16-level increase for that loss. See U.S.S.G. § 2B1.1(b)(1)(I) (providing 16-level increase for loss of more than $1,000,000 but less than $2,500,000). The PSR then applied a three- level increase under U. S.S.G. § 3B1.1(b) for Derek Zar’s role in the offense as a “manager or s upervisor.” His total offense level of 26 and criminal histor y of I resulted in an adviso ry Guidelines range of 63-78 months’ imprisonment for each of Derek Zar’s five convictions. The district court sentenced Derek Zar to a controlling term of 63 months in prison followed by three years of superv ised release and orde red restitution of $1,364,657. 3. Susanne Zar The PSR grouped Susanne Zar’s three wi re fraud convictions and one money laundering conviction producing a base offense level of 7. See U.S.S.G. § 3D1.2(c), (d); § 3D1.3(b). The PSR then assigne d a 16-level increase based on a loss calculation of $1,519,114, see U.S.S.G. § 2B1.1(b)(1)(I), a nd a one-level increase for the money laundering conviction, see U.S.S.G. § 2S1.1(b)(2)(A). Susanne Zar’s total offense level of 24 and crimin al history of I produced an advisory Guidelines range of 51-63 months’ imprisonment for each of her four convictions. At sentencing, the district court found Susanne Zar re sponsible for less actual loss than indicated in th e PSR but enough to warrant the recommended 16-level increase under U.S.S.G. § 2B1.1(b)(1)(I). The court granted a downward variance, imposed a 24-month controlling prison se ntence followed by three years of supervised release, and ordere d restitution of $1,283,835.32 B. Apprendi/Alleyne Error (Derek Zar, Susanne Zar, and Jacoby) The defendants jointly contend the loss amount necessary to support an increase in the base offense level under U.S.S.G. § 2B1.1(b )(1) is an “element” of the offense that must be charged in the indi ctment, submitted to a jury, and proved beyond a reasonable doubt to satisfy the Fi fth and Sixth Amendments as interpreted
in Alleyne v. United States , 133 S. Ct. 2151 (2013), and Apprendi v. New Jersey , 530 U.S. 466 (2000). The defendants’ reliance on Apprendi and Alleyne is misplaced as none of the defendants were subject to mandatory minimum sentences or sentenced beyond the statutory maximums for their convictions. See Alleyne , 133 S. Ct. at 2155, 2160 (holding any fact increasing mandatory mini mum sentence is elem ent that must be submitted to jury); Apprendi , 530 U.S. at 490 (holding any fact increasing sentence beyond statutory maximum must be submitted to jury). Cf. 18 U.S.C. §§ 1957, 1343, 1344 (providing statutory maximum sentences for money laundering, wire fraud and bank fraud of imprisonment of not more than 10 years, 20 years, and 30 years, respectively). Instead, the judicial fact finding the defendants complain of occurred in the context of determining their applicab le sentencing ranges under the advisory sentencing Guidelines. The Apprendi/Alleyne rule does not apply in this context. See United States v. Ray , 704 F.3d 1307, 1314 (10th Cir. ) (noting Supreme Court has definitively rejected Apprendi ’s application to present a dvisory-Guidelines regime), cert. denied , 133 S. Ct. 2812 (2013); see also United States v. Cassius , 777 F.3d33 1093, 1096-99 (10th Cir. 2015) (explaining that Alleyne applies only to judicial findings that alter the applicable statutory sentencing range, as opposed to findings that impact the applicable advisory Guidelines range). C. Method of Loss Calculatio n (Derek Zar and Susanne Zar) The Zars argue the district court failed to use a reasonable method to calculate the loss amount for purposes of determin ing their Guidelines sentencing ranges and for purposes of imposing re stitution under the Mandatory Victim Restitution Act of 1996, 18 U.S.C. §§ 36 63A-3664 (“MVRA”). The Zars concede that in calculating the loss amount for Guidelines purposes the district court followed our precedent in United States v. Washington , 634 F.3d 1180, 1184 (10th Cir. 2011), but they raise the issue to preserve it for further review. Bound by our precedent, we find no error. Likewise, we find no error in the dist rict court’s calculation of loss for purposes of restitution. Citing United States v. Yeung , 672 F.3d 594 (9th Cir. 2012), the Zars argue the district court erred as a matter of law by not calculating the restitution offset amount based on the fair market value of th e collateral real estate at the date of foreclosure when the victim-l ender took title and could have sold it for cash. We easily reject this argument as the Supreme C ourt has expressly abrogated the Yeung methodology. See Robers v. United States , 134 S. Ct. 18 54, 1856 (2014) (holding that a sentencing court imposi ng restitution under the MVRA “must reduce the restitution amount by the amount of mo ney the victim received in selling the collateral, not the value of the collate ral when the victim received it”).34 D. Relevant Conduct (Susanne Zar) Susanne Zar individually contends the di strict court erred by including three properties in its loss calculation—10 65 Ridge Oaks, 1490 Rose, and 30848 E. 151st—to determine her Guidelines sent encing range. She acknowledges that these properties were among the 18 pr operties involved in the mo rtgage fraud scheme but she maintains the government fa iled to sufficiently prove th at the losses attributable to these three specific properties constitute d relevant conduct un der U.S.S.G. § 1B1.3 for purposes of calculating he r Guidelines sentence. Preliminarily, the parties disagree on whether Susanne Zar properly preserved this claim. But even if we assume she preserved her objection, we conclude the district court did not cl early err in attributi ng these losses to her. See United States v. Sells , 541 F.3d 1227, 1234 (10th Cir. 2008) (considering Guidelines calculation under § 1B1.3(a)(1)(B) and applying clear error to district court’s factual determinations). Section 1B1.3(a)(1)(B) makes clear that a participant in a fraudulent scheme “undertaken by the defendant in concert with others” must be held responsible for “all reasonably foreseeable acts and omissions in furt herance of the jointly undertaken criminal activity.” This is tr ue regardless of a defendant’s direct participation in a sp ecific transaction. Sells , 541 F.3d at 1234. As the government notes, the indictment listed the three properties among the 18 properties involved in the mortgage fraud scheme and the evidence at trial demonstrated that losses fro m these three properties were reasonably foreseeable to35 Susanne Zar regardless of whether she dir ectly participated in the real estate transactions related to these three specific properties. Thus , we conclude the district court did not clearly err in including the thr ee challenged propertie s in calculating the loss attributable to Susanne Zar. E. Three-Level “Manager/Supervisor” Enhancement (Derek Zar) Derek Zar individually argues the district court erroneously increased his base offense level under U.S.S.G. § 3B1.1(b), whic h calls for a three-le vel increase “[i]f the defendant was a manager or supervisor (but not an or ganizer or leader) and the criminal activity involved five or more pa rticipants or was ot herwise extensive.” Over Derek Zar’s objections, the district c ourt found the trial evidence demonstrated that he was a manager or s upervisor and agreed with the PSR’s recommendation to apply the three-level enhancement. We review a district court’ s finding that a defendant is a manager or supervisor under § 3B1.1(b) for clear error. United States v. James , 592 F.3d 1109, 1113 (10th Cir. 2010); see United States v. Cruz Camacho , 137 F.3d 1220, 1223-24 (10th Cir. 1998) (discussing tension between two lines of this court’s precedent regarding appropriate standard of review and concl uding clear error review is appropriate). “Under this standard, we will not reverse the district court’s finding unless, ‘on the entire evidence, we are left with the definite and firm conviction that a mistake has been committed.’” James , 592 F.3d at 1113 (quoting United States v. Wilfong , 475 F.3d 1214, 1218 (10th Cir. 2007)).36 1. Additional Relevant Facts The PSR recommended the three-level enhancement citing evidence from the record that Derek Zar “recruited other indi viduals, including relatives, to participate in the scheme and help[ed] them to part icipate in the fraudulent home purchases.” PSR, Doc. 596, at 42 (sealed). The PSR fu rther indicated, “[b]ased on information obtained from the case agent and review of discovery materials,” that Derek Zar “had a managerial rol e” in the scheme. Id. at 43. Finally, the PSR urged application of the enhancement because Derek Za r “recruited others to pa rticipate in the fraudulent purchase of multiple homes” and “benefitted fro m their involvement and directed their activities in orde r to facilitate completion of the fraudulent transactions.” Id. at 45. Derek Zar filed written objections to th ese portions of the PSR and argued at sentencing that the trial evidence did not su pport the trial court’s finding that he was a manager or supervisor. Specifically, he argued he did not exercise any decisionmaking authority, recruit any accomplices, clai m a larger share of the fruits of the crime, plan or organize the fraudulent sc heme, or exert control or authority over others. In response, the prosecutor reminded the court that two witnesses testified at trial that Derek Zar encour aged them to participate in fraudulent real estate transactions, identified certain properties for them to bu y, informed them of the prices for those properties, explained how the grant programs worked, and introduced them to Jacoby, who acted as the realtor fo r the witnesses’ purchases of the37 properties. The prosecutor also pointed out that the government was seeking a fourlevel enhancement for Jacoby’s aggravating role and argued the three-level increase was proportionately appropriate for Derek Zar’s role in the scheme. After hearing these arguments and the prosecutor’s recitation of the trial evidence, the district court overruled the objections, finding Derek Zar’s role as a manager or supervisor to be s upported by the record and the PSR. 2. Analysis Derek Zar argues the district court failed to make ad equate specific factual findings to support its general finding that he was a manager or supervisor. He further argues the trial eviden ce does not support the court’ s general finding as to his role in the mortgage fraud scheme. 6 a. Adequacy of Findings Before applying an aggravating-role enhancement under § 3B1.1(b), the district court must make sp ecific factual findings as to the defendant’s role in the offense. United States v. Cordoba , 71 F.3d 1543, 1547 (10th Cir. 1995); United States v. Roberts , 14 F.3d 502, 522 (10th Cir. 1993); see also Fed. R. Crim. P. 32(i)(3)(B) (requiring district court to rule on “any disputed portion of the presentence report” before imposing a sentence).

6 Derek Zar also contends the fact s supporting the manager/supervisor enhancement must be charged in the indictme nt, submitted to a jury , and proved beyond a reasonable doubt to satisfy the Fifth an d Sixth Amendments as interpreted in Alleyne and Apprendi

. We reject this argument because, as discussed, the Apprendi/Alleyne rule does not apply to calculation of an advisory guide lines sentence. See Ray , 704 F.3d at 1314; see also Cassius , 777 F.3d at 1096-99.38 Relying on these authorities, Derek Zar ar gues “the district court articulated no specific findings or factual ba sis” to support the three-level enhancement. D. Zar. Br., at 39. Ordinarily, when a district court fa ils to make adequate findings or comply with Rule 32, we remand for further findings. See, e.g. , United States v. PeñaHermosillo , 522 F.3d 1108, 1113 (10th Cir. 2008); United States v. Brown , 164 F.3d 518, 522 (10th Cir. 1998). Bu t Derek Zar does not seek that remedy. Instead, he urges us to review the record and concl ude it does not support the enhancement. We see no need to remand for further findi ngs. The district court satisfied Rule 32 by ruling on Derek Zar’s objections to the PSR before imposing sentence. And while the court’s specific factual findings are admittedly sparse, the findings are not so deficient as to hinder our review. See United States v. Gonzalez Edeza , 359 F.3d 1246, 1249 (10th Cir. 2004) (suggesting remand is appropriate when absence of factual findings hinders revi ew or findings are “so conc lusory as to render the enhancement unreviewable”). Significan tly, the court ruled on the matter immediately after the prosecuto r directed the court’s attention to specific portions of the trial record and the court concluded th e “record clearly reflect[ed]” Derek Zar’s role as a manager or supervisor. The c ourt’s reliance on specific portions of the record is sufficient to guide our review and, as discusse d next, sufficient to support its application of the th ree-level enhancement. b. Sufficiency of Evidence U.S.S.G. § 3B1.1 does not define the terms “manager,” “supervisor,” “organizer,” or “leader.” Instead, the Commentary provides several factors to39 consider in “distinguishing a leadership a nd organizational role from one of mere management or supervision. ” U.S.S.G. § 3B1.1, cmt. n.4. Those factors are, the exercise of decision making authority, the nature of participation in the commission of the offense, the recruitment of accomplices, the claimed right to a larger share of the fruits of the crime, the degree of participation in planning or organizing the offense, the nature and scope of the illegal ac tivity, and the degree of control and authority exercised over others. U.S.S.G. § 3B1.1, comment. (n.4). Relying on these factors, this cour t has consistently interpreted the “manager/supervisor” role as one requiring th e defendant to exercise some degree of “decision-making authority,” “control,” or “organizationa l authority” over a subordinate participant in the offense. See, e.g. , United States v. Beltran , 571 F.3d 1013, 1020-21 (10t h Cir. 2009) (noting that for th ree-level enhancement to apply “defendant must also exerci se some degree of ‘decision- making authority or control over a subordinate’”); Peña-Hermosillo , 522 F.3d 1108, 1112 (10th Cir. 2008) (same); Gonzalez Edeza , 359 F.3d at 1248 (explaining e nhancement is appropriate when defendant is “responsib le for organizing others fo r the purpose of carrying out the crime”); United States v. Backas , 901 F.2d 1528, 1530 (10th Cir. 1990) (“In order to be a supervisor, one needs merely to give some form of direction or supervision to someone subordinate in the criminal activity for which the sentence is given.”). Citing several of these cases, Derek Zar argues the trial evidence fails to demonstrate that he “exercise[d] decisi on-making authority” or otherwise “exerted control and authority” over any subordinate s in the mortgage fraud scheme. Rather,40 he characterizes himself a lo wly buyer in the scheme who, at most, advised other buyers who were esse ntially his peers. But the evidence at trial established otherwise. For example, one witness testified that Derek Zar advised her to buy two of the properties listed in the indictment so she could resell one to him and one to Susanne Zar. He also informed her of the price of each pr operty, explained how the real estate transaction would work, including how she would use the gr ant program to “donate” a portion of her sales proceeds back to Derek Zar, and in troduced her to Jacoby, who then acted as the real estate agent for bot h transactions and provided cashier’s checks to cover the down payments for each home. Similarly, a second witness testified that Derek Zar encouraged her to join him in investing in real estate, explai ned how she could buy homes utilizing the grant programs, and introduced her to Jacoby. The witness purchased six homes with Derek Zar, uti lizing the grant programs and Jacoby’s real estate services for fi ve of those purchases. Our independent review of the record establishes that Derek Zar recruited others to participate in the mortgage fra ud scheme, advised them as to which homes to buy and sell, directed their utilization of the grant programs, and introduced them to Jacoby so he could act as the real estate agent and, in some cases, provide hardmoney loans for down payments. These activ ities sufficiently demonstrate Derek Zar’s role as a manage r or supervisor in th e mortgage fraud scheme. See, e.g. , Gonzalez Edeza , 359 F.3d at 1248-49 (affirming three-level enhancement for “manager/supervisor” role on fi ndings that defendant gave instructions to, directed41 the conduct of, and coordinated another par ticipant’s delivery of methamphetamine); United States v. Pofahl , 990 F.2d 1456, 1480-81 (5th Cir. 1993) (finding no error in applying § 3B1.1(b) to de fendant who negotiated drug prices, recruited other conspirators, and directed othe r members of conspiracy). We conclude the district c ourt did not clearly err in finding that Derek Zar was a manager or supervisor and we affirm its application of the thre e-level enhancement.

F. Motion for Variance Under 18 U.S.C. § 3553(a) (Derek Zar) Finally, Derek Zar challenges the district court’s denial of his motion for a variance under 18 U.S.C. § 3553(a). “We re view sentences for reasonableness under a deferential abuse of discretion standard.” United States v. Haley , 529 F.3d 1308, 1311 (10th Cir. 2008). Because the district court “sees and hears the evidence, makes credibility determinations, a nd actually crafts Guidelines sentences day after day” it has a distinct advantage over this court in determining “whether the facts of an individual case justify a variance pursuant to § 3553(a) . . . [and] we generally defer to its decision to grant, or not grant, a variance based upon its balancing of the § 3553(a) factors.” Id. At sentencing, Derek Zar asserted several factors supported his variance request. In denying the motion, the district court conclude d most of the factors he asserted already had been accounted for in the advisory sentencing Guidelines, that his conduct was planned rather than aberrati onal, and that while others had recruited him into the fraudulent scheme , they had not done so through coercion or duress. On42 appeal, Derek Zar contends the district court abused its discretion by essentially presuming the reasonableness of the advi sory Guidelines se ntence and failing to adequately consider his reasons for seeking a lo wer sentence. We agree with the government that the di strict court did all it was required to do before imposing a with in-Guidelines sentence. See United States v. Lente , 647 F.3d 1021, 1034-35 (10th Cir. 2011) (no ting that when court imposes withinGuidelines sentence, it need neither explicitly refer to § 3553(a) fact ors nor respond to every argument for lenien cy; instead, a general stat ement of its reasons will suffice). Here, the district court noted th e advisory sentencing range of 63-78 months, discussed several § 3553(a) fact ors, considered Derek Zar’s arguments for a variance, and stated its reasons for rejecting those arguments be fore imposing the low-end prison sentence of 63 months. We find no abuse of discre tion under these circumstances. C ONCLUSION Finding no reversible trial or sentencing errors as to any defendant, we affirm.