NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 12a0077n.06 No. 09-2286 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

UNI TED STATES OF AMERI CA, Plaintiff-Appellee ,
v. MYRON L . HOOKE R, Def endant- Appellant. ) ) ) ) ) ) ) ) ) ) ON AP P E AL FROM THE UNI TED STATES DI STRI CT COU R T FOR THE EASTERN DI STRI CT OF MI CHI GAN

BEF ORE: MARTI

N and GRI FF I

N, Circuit J udg es; ANDERSON, District Judge. * GRI FF I N, Circuit J udg e. My ron L

. Hooker appea ls h i s s en t ence imposed afte r pleading g uilty to one count of conspirac y

to commit fraud and one count of wire fra ud. We affir

m. I

. I n October

2005, My

ron Hooke r, along with five co-de fenda nts, was char g ed in a twenty

1
count indictment alleg ing conspirac y , mail fra ud, an d wire fra

ud. Hooker owned or worke d with

v ar i o u s co mpanies in southwestern Michig an that he used to proce ss fra udulent mortg ag e loan applications.

The Honora

ble S. Thomas Ander son, United States District J udg e for the Western District * of Tenne ssee, sitting by

desig nation. The co-de fenda

nts wer e Peter Gar land, Nicole J ackson, Antwan McRae, Keith L akey , and 1 Monique Ba

nkhead.No. 09-2286

United States v. Hook

er

The mortg ag e fra

ud scheme opera

ted in the following way . Hooker or co-de fenda nt Gar land persua ded “straw buy ers” – persons with dece nt cre dit who wish to invest in rea l estate – to purcha se distressed proper

ties in their names. Telling the buy ers they wer e “i n v es tors” in the proper ties, Hooker helped to purcha se the proper ties by providing the down pay ment. He promised the buy ers he would lease and maintain the p ro p er t i es on their behalf. The buy ers thought t hey would make money throug h the collec tion of rent and upon the eventua l sale of the pr operties a t a profit. After Hooker identified a proper ty and buy er, he ro uted the buy er to a loan office r, whom H o o k e r h a d supplied with false information reg arding the buy er’ s income, assets, intention to occupy the property , and source of the down pay ment. The loan office rs used the f alse infor mation and a fra udulently inflated appra isal for the proper ty to obtain financ ing in excess of the amount require d to purcha se the proper

ty

. Hooker collecte d the excess financ ing under the g uise of pay ment toward

a false construction lien h e o r Gar land had fra udulently place d on the proper ty in their company

names. He then split the excess with his co-c onspirators and the straw buy er in vary ing amounts. 2 Sometimes Hooker initially provided the buy er with monthly mortg ag e pay ments in order to conce al the fra ud, but stopped afte r a few months, at which time the buy er, unable to make pay ments himself, would defa u l t on the loan. The bank would fore close the buy er’ s rig hts and sell the proper ty at auction for

less than the amount of the loan. T h e g overnme nt char g ed Hooker and his co-c onspirators in a single indictment with mail and wire fra ud, as well as conspirac y to commit fra ud. Hooker repr esente d himself for three y ear s befor e

The stra w buy ers we re not c harg ed in the I ndictment. 2 - 2 -No. 09-2286

United States v. Hook

er

reta ining counsel. During this time, h e fi l ed many frivolous pleading s rela ted to alleg ed jurisdictional defe cts in the proce eding s, ref used to eng ag e in the discovery proce ss, and violated the terms of his bond. He also filed a fra udulent financ ing statement with the Michig an Depa rtment of State Uniform Commercial Code Section naming as debtors the district judge , the Assistant United States Attorney prosec uti n g h i m , and two mag istrate judge s involved in his proce eding s. The Michig an Depa

rtment of State promptly terminated the statement afte r the district judge notified the Depa rtment that the statement wa s false. Hooker reta ined counsel and eventua lly pled g uilty to counts one and eleve n of the indictment (conspira cy and wi re fr aud, 18 U.S.C. §§ 371 and 1343, respe ctively ). A prese ntence repor t was prepa

red. Hooker objec t ed t o a six teen- level incre ase on acc ount of the loss amount, U.S.S.G. § 2B1.1( b)(1) , a three -leve l incre ase due to Hooker ’s role in the criminal activity , U.S.S.G. 3 § 3B1.1( b), and the inclusion of a two-leve l (instead of a three -leve l) reduc tion for acce p t an ce o f responsibility

. The district court conducte d a sentenc ing hear ing at which FB I Special Ag ent J ohn Ry an and co-de fenda

nts Monique Ba

nkhead, Keith L akey , Antwan McRae, and Pe t er Gar land testified

re garding the fac tual basis for the enhanc ements for loss and Hooker ’s role in the offe nse. Aft er hear ing the testimony , the district court ove rruled H ooker’ s objections. The district court calc ulated Hooker ’s rang e under the United States Sentencing Guidelines

as follows: it beg an with a base offe nse level of seven, U.S.S.G. §§ 2B1.1( a)( 1), 2X1.1(c )(1) ; added Citations herein to the Sentencing Guidelines ar e to the 2008 ver sion used at sentenc ing. 3 - 3 -No. 09-2286

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er

six teen levels under U.S.S.G. § 2B1.1( b)(1) (I ) on acc ount o f the loss amount ($1,206,310); and added three more levels under U.S.S.G. § 3B1.1( b) afte r finding Hooker was a manag er or supervisor of criminal activity that included five or more participa nts. The court did not awa rd a reduc tion for

acc eptanc e of responsibility

. Wit h a criminal history cate g ory of I and an adjusted offe nse level of 26, Hooker ’s advisory rang e was 63-78 months. The district court sentenc ed Hooker to concur rent prison sentenc es of 40 months on count one and 63 months on count eleve n. I t or dere d restitution in the amount of $1,206,310. Hooke r timely appea led. I I

. Hooker chal l en ges his sentenc e in three way s. He arg ues first that the di strict court failed to comply with Rule 32 of the Fe dera l Rules of Criminal Procedur e befor e imposing the sentenc e. He nex t challeng es t he proc edura l and substantive re asonable ness of his prison sentenc e. F inally , he cha lleng es the district cour t’s awa rd of r estitution. W e addr ess ea ch cha lleng e in turn.

I I I

. Hooker first contends that the district c ourt failed to c omply with Criminal Rule 32, which require s the district court to either rule on “ any

disputed portion of the pre sentenc e re port or other controve rted matter” or deter mine that a ruling is unnece ssary beca use it will not aff

ect sentenc ing. Fe d. R. Crim. P. 32(i)(3) (B ). The rule prohibits courts from “mer ely sum m ar i l y adopt[ing] the fac tual finding s in the prese ntence repor t or simply decla

r[ing] that the fact s ar e supported by a preponde ranc e of the evidenc e.” United States v. W hite , 492 F.3d 380, 415 (6th Cir. 2007) (citations

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United States v. Hook

er

and internal quotation marks omitted). I t codifies the principle that courts “must actually find facts , and [they ] m ust do so by

a pre pondera

nce of the evidenc e.” Id. at 416. Hooker rec eived a substantial enhanc em ent based on the loss amount attributed to his conduct. I n his view, the district court, without rec og nizi ng his objection, s ummarily adopted the loss c alculation in the prese ntence repor t and failed to articula te its methodology

. He did not raise the alleg ed Rule 32 violation i n t h e district court, so we revie w for plain err or. United States v. Vonner , 516 F.3d 382, 388 ( 6th Cir. 2008) (en ba nc). Hooker prese ntly objects to the loss calc ulation on g rounds he did not raise in t h e proce eding s below. We cannot fault the district court for not ruling on objections never raised befor e it. Acc ording ly , so long as the district court ruled on the o b j ec t i ons actua lly befor e it, there is no Rule 32 problem. See W

hite , 492 F.3d at 415 (“A s a threshold matter, the defe ndant must actively raise the dispute during the sentenc ing hear ing befor e the district court’s duty to find fac ts arises.” ). Hooker ’s sole objection in the district court to the g overnme nt’s loss calc ulation was that it included loss on proper

ties in which he believed t h e governme nt could not prove he had any involvement. He contende d that the loss amount instead was $150,000 beca use, in his view, that was the only amount that could be tied to him thr o u gh cl o s i n g documents bear ing his name. After hear ing an entire morning of testimony amply supporting a finding of Hooker ’s involvement in the proper ties included in the calc ulation, the district court overr uled Hooker ’s objection. The district court did not summarily adopt the fac tual finding s in the prese ntence repor t reg arding loss. I ndeed,

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it acknow ledg ed before rec eiving testim o ny that making finding s based solely upon statements i n the g overnme nt’s sentenc ing me morandum would be imprope r. Hooker focuse s entirel y o n one statement by the district court in an attempt to prove an improper summary adoption of the prese n t en ce repor t’s loss calc ulation: “I , in assessing the objections that wer e raised, believe that they are without merit and thus I will overr ule the objections that have been lodge d.” Were that statement the entire discussion of Hooker ’s objection to loss, his claim of err or might have some merit. But there was more. Hooker ’s narr ow focus unfairly ignor es the district court’s state ments immediately following its ruling: I have listened to the arg uments with r eg ard to the objections and I have listened to the testimony of Mr. Hooker ’s codef endants, Ms. Ba

nkhead, Mr. L akey , Mr. McRae, and Mr. Gar land. Although many of them, per h ap s all of them, may have acknow ledg ed that the documents [t hat] wer e furnished to them did not contain Mr. Hooker ’s s i g nature , it is appar ent to this Court, based upon the totality of the evidenc e that was prese nted, that Mr. Hooker ’s, quote, fing erpr ints, end of quote, [are] all over these documents. There is no question in my mind that Mr. Hooker was the l ea d i n g forc e in the fra ud that bring s him, as well as the other defe ndants, into this courtroom. These statements sufficie ntly set forth the district court’s sound basis for calc ulating loss in response to Hooker ’s sole objection – i.e., the court’s view that a lack of Hooker ’s signa ture on closing documents did not mean he was not sufficie ntly involved in the fra ud on all ten proper

ties included in the calc ulation. See also R. 260 at 189 (COURT: “I s it y our view that fra ud cannot occur without

a written signa ture on a rea l estate transac tion? ”). Hooker ’s narr ow focus also ignor es the fac t that the court hear d almost an entire day ’s worth of testimony s u p porting the g overnme nt’s loss calc ulation before ruling . The district cour t met its obl iga

tion under Rule 32.

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United States v. Hook

er

I V. Hooker next challeng es the rea sonablene ss of his prison sentenc e. We “must first ensure that the district court committed no signific ant proce dural err o r, such as failing to calc ulate (or improperly cal cu l at i n g ) the Guidelines rang e, trea ting the Guidelines as mandatory , failing to consider the § 3553(a) fac tors, selec ting a sentenc e based on clea rly err oneous fac ts, or faili ng to adequately explain the chosen sentenc e . . . .” Gall v. United States , 552 U.S. 38, 51 (2007). “I f the sentenc e is ‘proc edura lly sound,’ we ‘then consider the substantive rea sonablene ss of the sentenc e imposed under an abuse- of-discr etion standard.’ ” United States v. W ettstain , 618 F.3d 577, 591 (6th Cir. 2010) (quoting Gall , 552 U.S. at 51). A. Hooker contends that his sentenc e is pr ocedur ally unrea sonable beca use the district court: (1) incorre ctly calc ulated loss under the Guidelines; (2) declined to apply a reduc tion for acc eptanc e of responsibility ; (3) incre ased the offe nse leve l based on Hooker ’s status as a manag er or supervisor; (4) trea ted the Guidelines as mandatory ; and (5) failed to addre ss the rele vant § 3553(a) fac tors and make a n individualiz ed asse ssment of the fa cts. We addre ss eac h claim sepa rate ly

. 1. L oss Calculation Ho o k er rec eived a six teen- level incre ase beca use the loss associate d with his conduct ($1,206,310) was betwee n $1 milli on and $2.5 milli on. U.S.S.G. § 2B1.1( b)(1) (I ). To calc ulate loss, the district court subtracte d the value o f ea ch of ten proper ties, as deter

mined by its sale price at fore closure, from the tot al amount of financ ing obtained to purcha se the proper ty

. Special Ag ent

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United States v. Hook

er Ry an testified that, based upon his interviews with witnes s es and his revie w of rec orded phone

conver sations betwee n Hooker and his co-c onspirators, Ho o k er wa s involved in eac h of the ten proper ties included in the ca lculation. The district cour t cre dited the testimony

. Hooker never objected to this method of calc ulating loss; he arg ued only that the calc ulation should not include all ten properties beca use h e d id not sign documents for those proper ties. The district court fo u n d otherwise, howeve r, and its finding is not clea rly err oneous. Hooker now contends that this method was flawed in various way s. Whil e we usually g ive fresh revie w to the district court’s methodology for calc ulating loss and revie w its underly ing fac tual finding s for clea r

err or, W hite , 492 F.3d at 414, we review Hooker’ s new claims only for plain err or bec ause he did not raise them be low. Hooker arg ues first, without any evidenc e, that the lending instit u ti o n s h e d e f

raude d probably sold the loans to investors who later bundled the loans into mortg ag e-ba cked secur ities. Be cause the

rec ord does not indicate how much the loans wer e sold for, Hooker mai n t ai n s , i t is impossibl e to deter mine the amount of loss (if any ) to the orig inal lending instit utions. Hooker is specula ting about

a major premise of his arg ument – that the lender s sold the loans and there by suffe red littl e or no loss from the fra

ud. And althoug h he say s the district court should have taken judicial notice of this fac t, he never asked it to take judicial no t ice, and a court must take judicial notice only when a party reque sts it and supplies the court with the nece ssary information. Fe d. R. Evid. 201(c) (2). More to the point, judicial notice is inappropria te here , wher e the fac t Hooker wishes the district court would have judicia lly

noticed no doubt is subject to rea sonable dispute. See Fe d. R. Evid. 201(b).

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United States v. Hook

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Hooker also arg ues that the district court’s methodolog y failed to c onsider pay

ments made

on the loans prior to de fault and the eff ect of mortg ag e insurance

. The I ndictment does alleg e that Hooker sometimes paid the initial mo rt gage pay ments to cover up the fra ud, and it appea

rs these amounts wer e n o t i n cluded in the loss calc ulation. Howeve r, Hooker offe red no evidenc e of the amount he re paid on any

loan. And absent any identifiable repay ment amounts, even had Hooker reque sted consideration of these pay ments in calc ulating loss, the district c ourt would have had no idea by how much to reduc e the loss amount. There fore , the district court did not plainly err by not reduc ing the loss amount by any amount Hooker repa id. Cf. United St ates v. Gale , 468 F.3d 929, 942 (6th Cir. 2006) (upholding amount of restitution awa rd in the fac e of the defe ndant’s challeng e to the l oss amount based on alleg ed pay ments to the vi ctim where the def endant f ailed to produc e reliable evidenc e of the pay ments). But even were there any err or i n this reg ard, it did not aff ect Hoo k er ’s s u b s tantial rig hts

– indeed, it was harmless

. See Fe d. R. Crim. P. 52(a) ; United St ates v. Johnson , 467 F.3d 559, 564 (6th Cir. 2006) (noting that an err or at sentenc ing is ha rmless wher e it did not ca use the de fenda

nt to rec eive a more sever e sentenc e). That is beca use the loss amount of $1,206,310 was considera bly

more than the $1 milli on threshold require d for the six teen- level enhanc ement. And only s p e c u lation could support the contention that the few pay ments Hooker did make reduc ed the loss by more than

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United States v. Hook

er $206,310, placing Hooker in a lower loss rang e and, conseque ntly , a lower Guidelines rang e. Were the pay ments substantial, Hooker undoubtedly would have r aised the issue a t sentencing

. 4 Hooker also claims that the total loss amount must be reduc ed by the amount the lender s had

rec overe d by the time of sentenc ing. True enoug h, see U.S.S.G. § 2B1.1, cmt. n.3(E), but the district court’s loss calc ulation alre ady acc ounted for the amounts lender s rec overe d, by subtracting the fair marke t value of the proper ty from the total loan amount. Hooker offe red no evidenc e that the lender s

rec overe d any

additional amounts from the stra w buy ers. Finally , Hooker contends that beca use the amount of loss was specula tive and unreliable , the district c ourt should have use d g ain as an alterna tive method for deter mining loss. See U.S.S.G. § 2B1.1, cmt. n.3(B ) (“The court shall use the g ain t h at re s u l t ed from the offe nse as an alterna tive

measure of loss only if there is a loss but it reasonably cannot be determine d .” (empha sis added) ). Hooker never asked the district co u rt to consider ga in or provided any indication (or evidence ) of the amount he g ained from the scheme

. Moreove r, deter mining loss by considering g ain would be inappropria te her e bec ause loss re asonably can be deter

mined. 2. Acc eptanc e of Responsibility Hooker contends that the district court err ed by deny ing a two-leve l reduc tion for acc eptanc e of responsibility under U.S.S.G. § 3E1.1(a)

. Pleading g uilty befor e trial, combined with “truthfully

As for the eff

ect of mortg ag e ins uran ce on the l oss amount, Hooker is ag ain s pecula ting. 4 He has offe red no evidenc e of the prese nce or eff ect of mortg ag e insurance on loss incur red by the lending instit utions. Nor is it clea r in what way , if any , insurance would aff ect the loss calc ulation. See generally U.S.S.G. § 2B1.1, cmt. n.3 (instructing in detail how to calc ulate loss and mentioning nothing a bout deductions for insura nce pa y ments to the victim). - 10 -No. 09-2286

United States v. Hook

er admitting the conduct comprising the offe nse of conviction, and truthfully admitting or not f alsely deny ing any ad d i t i onal rele vant conduct,” is signific ant in establishing an entitlement to the reduc tion but may be outweig hed “by conduct

. . . that is inconsistent with such acc eptanc e of responsibility .” U.S.S.G. § 3E1.1, cmt. n.3. Where the fac ts a re not in dispute, we g ive defe renc e and revie w the district court’s decision for clea r err or. United States v. Johnson , 627 F.3d 578, 585 (6th Cir. 2010). During allocuti on, Hooker stated, “I – also, Your Honor, I take full responsibility for my actions, full responsibility .” He contends that this statement, along with the fac t that he did not make the g overnme nt try

the ca se, entitles him to the reduc tion. The district court denie d a reduction in

a leng thy discussion that highlig hted Hooker ’s continued dis re gar d for the law throug hout the proce eding s, demonstrated by his vi o l at ion of the terms of his bond; his ref usal to eng ag e in the discovery proce ss or consult with his court-a ppointed counsel; his obstreper ous and i nappropr iate conduct during pretria l p ro ce ed i ng s; and his filing of a false financ ing statement naming the prosec utor, two mag istrates, and the district judge , as debtors, wh i ch conduct by itself, the court believed, constituted a fede ral offe nse. Hooker does not dispute the fac tual acc urac y of any of these

rea sons or challeng e the propriety of considering them. Rather, he arg ues that the district court failed to c redit the signific ance of the g uilty plea itself. But a defe ndant who pleads g uilty is not entitled to the reduc tion “as a matter of rig ht.” U.S.S.G. § 3E1.1, cmt. n.3. The district court deter mined that Hooker ’s conduct during the proceeding s belied his expressed ac cepta nce of responsibility , and it did not clear ly

err in doing so.

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3. Role Enhance ment The district court incre ased Hooker ’s offe nse level by three levels afte r finding that he was the “lea ding forc e” in the mortg ag e fr au d co n s p i rac y . The Guidelines provide for a three -leve l incre ase if the defe ndant “wa s a manag er or supervisor (but not an org anizer or lea der) and the

cr i m i n al activity involved five or more participa nts or was otherwise extensive.” U.S.S. G. § 3B1.1( b). The “key issue” in apply ing the enhanc ement “is not direc t control or ultimate decisionmaking authority , but rathe r the defe ndant’s ‘re lative responsibility .’” United States v. Henley , 360 F.3d 509, 517 (6th Cir. 2004) (quoting United States v. Gaitan-Ace vedo , 148 F.3d 577, 595-96 (6th Cir. 1998)). The Supreme Court’s decision in Buford v. United States , 532 U.S. 59 (2001), may call into doubt some of our ear lier statements reg arding the l ev el of defe renc e we g ive to a district court’s application of the role enhanc ement. See United States v. Vasquez , 56 0 F.3d 461, 473 (6th Cir. 2009); United States v. Monciv ais , 492 F.3d 652, 660 (6th Cir. 2007). We need not resolve the issue here , howeve r, because our deter m i n at i o n does not depend on how m uch defere nce we afford the district court. The fac ts here support the district court’s application of the th r e e - le v e l enhanc ement. Hooker

was responsible fo r finding and secur ing the cooper ation of many of the straw buy ers, supply ing them with down pay

ments, providing the loan offic ers with fa lse information for the applica tions, and making sure the deals closed smoothly

. For instance, Hooker rec ruited Trac y Dar nell as a straw bu y er for four proper

ties, connec ted her to co-de fenda nt Monique Ba

nkhead (a loan office r) to

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United States v. Hook

er complete the loan applications, and was responsible for telling Ba nkhead whi ch i n formation to include in the applications. Also, co-de fenda nt Antwan McRae testified that, while he was working with co-de fend an t Gar land t o proce ss a loan application, Garland had to “run every thing past Mr. Hooker ,” showing that Hooker had a higher l ev el o f responsibility in the scheme than even his partne r. Fur

thermore , co-de fenda

nt Keith L akey testified that Hooker provided him with the straw buy er’ s nece ssary financ ial information and a power of attorney that permitted L akey to deal direc tly with Hooker instea d of the buy er. The buy er r efuse d to sign a ny thing a t closing until Hooker told him to sign. Moreove r, Gar land testified that he was Hooker ’s “business part n er ” and that they ag ree d to split the proce eds from the criminal activity 51/49, with Hooker rec eiving the larg er share

. Finally , Special Ag ent Ry an testified that he listened to phone conver sations be tween Gar land and Hooker

. Acc ording to Ry an, Hooker and Gar land spoke ever y day reg arding “business, rea l e state, finding houses, finding investors, making money , [and] g etting a bunch of money off loans.” Ry an’s impression afte r listening to the phone conver sations was that Hooker “wa s involved in all aspec ts of [each proper

ty ]

. ” T h i s testimony adequately supports the district court’s deter mination that Hooker qualified for the role enhanc ement. Cf. United States v. Stafford , 639 F.3d 270, 276 (6th Cir. 2011). 4. Treatment of the Guidelines Hooker contends that the district court i m p ro p er ly trea ted the Guidelines as mandatory

. “[T] he district court cannot presume that the sentenc ing rang e rec ommended under the Guidelines is mandatory or even rea sonable.” United States v. Herrera -Z u niga , 571 F.3d 568, 582 (6th Cir.

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er 2009). We pr esume that the district court knows and applies the law during sentenc ing, Gale , 468 F.3d at 941, which means we presume that the court u n d erstood the advisory nature of the Guidelines. See United States v. Garthus , 652 F.3d 715, 721 (7th Cir. 2011) (“We don’t rea d [t he district court’s] rema

rk about t h e g uidelines’ being ‘re asonable ’ to mean that he was g iving them presumptive forc e, which would be improper. He is pre s u m ed to know the law (a rea listi c presumption, g iven how larg e sentenc ing looms in the work of district judge s nowada y s).” (interna l ci t at ion omitted)). To rebut this presumption, the defe ndant must “‘ma rshal evidenc e’” that t h e district court treated the Guidelines as manda tory

. United States v. Mc Caster , No. 09-4356, 2011 WL 3664206, at *5 (6th Cir. Aug

. 22, 2011) (per curia m) (quoting United States v. Bailey , 488 F.3d 363, 367 (6th Cir. 2007)). Hooker did not raise the issue befor e the district court, so we revie w for plain err or. United States v. Barne tt , 398 F.3d 516, 525 ( 6th Cir. 2005). The e ntirety

of Hooke r’s a

rg ument on this iss ue re ads as f ollows: There is no evidenc e i n t h i s case that the district court rec og nized that it had discretion to sentenc e outside [t he] g uidelines. This lack of evidenc e, combined with the district co u rt ’s failure to articula te its rea sons for arr iving at the offe nse level signific antly incre ased defe ndant’s sentenc e and th er eby aff ecte d his substantial rig hts. Nothing in the rec ord shows that the d i s t ri ct court trea ted the Guidelines as mandatory

. Hooker has not rebutted the presumption that the district court proper ly considere d the Guidelines.

5. Addre ssing the § 3553( a) F actor s and Explaining the Sentenc e Finally , Hooke r co ntends that the district court addre ssed the § 3553(a) fac tors only in passing and failed to make an “individualized assessment” of defe ndant b a s e d o n the fac ts prese nted.

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er Although the district c ourt did not expressly identify and apply eac h § 3553(a) fac tor individually , the rec ord ref

lects that the district court co n s i d ered the evidenc e and Hooker ’s arg uments befor e imposing its sentenc e. That is sufficie nt. See United States v. Denny , 653 F.3d 415, 423-24 (6th Cir. 2011) (“ [T] his court has e mphasized that a district court ‘nee d not r ecite’ the § 3553 fac tors when it imposes a sentence. The crucial question is wh et h er t h e rec ord m akes clear that the s entenc ing judge listened to ea ch arg ument, considere d the supporting evidenc e, was fully awa re of the defe ndant’s circ umstances and took th em i n to acc ount in sentenc ing him.” (interna l citation, quotation marks, and a lterations omitted)). B. I n his sole challeng e to the substantive rea sonablene ss of his sentenc e, Hooker contends that the district court cre ated an “uncon scionable” disparity betwee n his sentenc e and the anticipated sentenc e of co-de fenda

nt Peter Gar land, the Guidelines rang e for whom the parties calc ulated at 30- 37 months, or roug hly

half of H ooker’ s rang e. Sentencing courts must consider “the need to avoid unwar rante d sentenc e disparities among defe ndants with simil ar rec ords who have been found g uilty of simil ar conduct.” 18 U. S.C. § 3553(a) (6). This fac tor is conce rned with national disparities, not differ ence s in sentenc es betwee n co-de fenda

nts. United States v. Simmons , 501 F.3d 62 0 , 623 (6th Cir. 2007). “A district judge , howeve r, may exercise his o r h er d i s cre tion and deter mine a defe ndant’s sentenc e in light of a co-de fenda

nt’s sentenc e.” Id. at 624 (e mphasis in origina l). The de cision rests within the judge ’s

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dis cr et i o n , and, unless the district court did not understand its discretion, the decision is not revie wable. Id. Her e, the district court asked counsel for the go v er n m en t to addre ss any differ ence s in conduct betwee n Hooker and Gar land and whether any differ ence s war rante d g iving Hooker a sentenc e within Gar land’s rang e. Counsel arg ued that Hooker was more involved in the scheme , had b u l l i ed at least one seller during closing, and “wa s willing to g o the ex tra mi le” to g et t hese deals closed. The district court considere d these statements, along with the testimony , and found that “a leg itimate and g ood case can be made for separ ating Mr. Hooker from the other defe ndants, including that of Peter Gar land.” Nothing in the rec ord shows that the district court l ac k ed an understanding that it could vary below the Guide lines rang e.

V. Hooker contends that the district c ourt abused its discr etion in or dering restitution because the orde r wa s not ba sed on sufficie nt e vidence establishing the exis tence of identifiable victims or the loss amount. Be cause Hooker did not raise these challeng es below, we revie w for plain err or. United States v. Fre eman , 640 F.3d 180, 186 ( 6th Cir. 2011). The district court order ed restitution in the amount of $1,206,310. Be cause Hooker committed an off

en s e b y “f

raud or dece it,” and beca use an “identifiable victim or victims ha[d] suffe red a . . . pecunia

ry loss,” restitution was mandatory

. 18 U.S.C. § 3663A(c ). A “victim” is one who is “dire ctly and proxi mately harme d as a re s u l t o f the commission of an offe nse for which restitution may be order ed

. . . .” 18 U.S.C. § 3663A(a )(2)

. The victims here wer e the lender s from

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whom Hooker obtained the mortg ag e loans. The court calc ulated the restitution amount in the same way it calculate d loss for purposes of the sentenc ing e nhance ment. Hooker contends only that there are no identifiable victims or harm beca use the lender s “had long since sent the loans downstream and their losses, if any [,] ar e i n capable of rea sonable deter mination.” As with h is rela ted Guidelines arg ument, this arg ument is based entirely on specula tion. Wit hout evidenc e that the l ending instit utions sold t he loans a t litt le to no loss, there

wa s n o b as i s for the district court to ref use to order restitution in the amount proposed in t h e prese ntence repor

t and ver ified by

Special Ag ent Ry an’s testimony

.

VI

. We affir m.

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