FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

September 4, 2008

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 07-12946

Non-Argument Calendar

________________________

D. C. Docket No. 99-08125-CR-DTKH

UNITED STATES OF AMERICA, 

 Plaintiff-Appellee,

versus

ZANE BALSAM,

 Defendant-Appellant.

________________________

Appeal from the United States District Court

for the Southern District of Florida

_________________________

(September 4, 2008)

Before CARNES, WILSON and PRYOR, Circuit Judges.

PER CURIAM:

This is Zane Balsam’s appeal of his conviction and sentence for engaging in

financial transactions with criminally derived property in violation of 18 U.S.C. §
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1957 and his sentences for money laundering with intent to conceal the proceeds in

violation of 18 U.S.C. § 1956(a)(1)(B) and conspiring to commit a money

laundering offense in violation of 18 U.S.C. § 1956(h).

I.

In 1996 Zane Balsam and another man founded what they represented to be

a viatical investment company—a company that buys life insurance policies at a

discounted rate from terminally ill policy holders. In fact, the company was simply

a vehicle to steal its investors’ money. Balsam and several others were charged

with and tried for various offenses related to the scheme. During the trial Balsam

made a motion for a judgment of acquittal or, in the alternative, a new trial. The

district court denied his motion. At the close of evidence, Balsam renewed his

motion, and the court again denied it. The jury convicted him of one count of

conspiracy to commit a money laundering offense in violation of 18 U.S.C. §

1956(h), one count of engaging in a financial transaction with criminally derived

proceeds in excess of $10,000 in violation of 18 U.S.C. § 1957, and nine counts of

money laundering with the intent to conceal or disguise the nature, source or

ownership of the proceeds in violation of 18 U.S.C. § 1956(a)(1)(B)(i). 

Before sentencing, the probation office prepared a presentence investigation

report on Balsam. In the PSR the probation office first grouped all of Balsam’s
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offenses under U.S.S.G. § 3D1.2 because they “involv[ed] substantively the same

harm.” The money laundering charges carried the highest offense level, so

U.S.S.G. § 3D1.3 required that the probation office use that offense level in

calculating Balsam’s guideline range. The probation office assigned Balsam a base

offense level of twenty-three for the money laundering charges under U.S.S.G. §

2S1.1(a). It went on to assign him an eleven level enhancement for laundering

over $50 million under U.S.S.G. § 2S1.1(b)(2)(L). Finally, it assigned Balsam a

four level increase under U.S.S.G. § 3B1.1(a) on the ground that he organized or

led a criminal activity involving five or more participants. This resulted in an

adjusted offense level of thirty-eight. Combined with a criminal history category

of I, the probation office calculated Balsam’s guideline range to be between 235

and 293 months imprisonment. 

Balsam made numerous objections to the PSR, some of which were resolved

before sentencing, and the remainder of which were overruled at sentencing. At

the sentence hearing, Balsam objected that two of the changes that had already

been agreed upon were not included in the PSR. The government conceded the

mistake, and, after striking those sentences, the court adopted the PSR. The

government then moved for an upward departure under U.S.S.G. § 5K2.0 because

of the large number of vulnerable victims involved. The court granted the motion,
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which increased Balsam’s guideline range to 360 months to life imprisonment. 

The court sentenced Balsam to 360 months imprisonment, three years supervised

release, and $50 million in restitution. He appealed, and we affirmed his

conviction and sentence. United States v. Arroya, No. 02-10368, slip. op. at 51

(11th Cir. June 24, 2004) (unpublished).

Following that decision, the Supreme Court issued United States v. Booker,

543 U.S. 220, 125 S. Ct. 738 (2005), which held that it is unconstitutional to apply

the sentencing guidelines as mandatory. Id. at 245, 125 S. Ct. at 756–57. As a

result, the Supreme Court granted certiorari, vacated our opinion, and remanded for

us to consider Balsam’s appeal in light of Booker. Balsam v. United States, 546

U.S. 801, 126 S. Ct. 41 (2005). We again affirmed his convictions, but we vacated

his sentence and remanded for resentencing. United States v. Arroya, No.

02-10368, 2007 WL 30034, at *2 (11th Cir. Jan. 5, 2007).

Before Balsam’s second sentence hearing, he filed four pro se motions: (1)

a motion to vacate or set aside the restitution order; (2) a motion to subpoena

witnesses and testimony; (3) a motion to amend, correct, or redo the PSR; and (4) a

motion to reverse his conviction for engaging in financial transactions with

criminally derived property. The district court denied all four but denied the

motion for subpoena “without prejudice to renewal by counsel.” Balsam also filed
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two resentencing memoranda, one pro se and one through counsel. In those

memoranda, he argued, among other things, that: (1) his original sentence was

unreasonable; (2) his objections to the PSR at the first sentence hearing were

sustained but not reflected in the PSR; (3) it was unconstitutional to enhance his

sentence for facts not admitted by him or found by a jury beyond a reasonable

doubt; (4) he did not deserve an aggravating-role enhancement; and (5) he was not

guilty of engaging in financial transactions with criminally derived property. At

sentencing Balsam also introduced additional evidence of his good character and

remorse. 

The district court sustained Balsam’s objection to the PSR and instructed the

probation office to make sure that the PSR reflected its earlier ruling. The court

went on to reaffirm its earlier findings, including its calculation of Balsam’s

guideline range, and explicitly considered the 18 U.S.C. § 3553(a) sentencing

factors. After acknowledging that the guidelines were only advisory, the court

sentenced Balsam to 120 months imprisonment for conspiracy to commit money

laundering and 120 months imprisonment for engaging in a financial transaction

with criminally derived proceeds in excess of $10,000, with the sentences to run

concurrently. The court also sentenced Balsam to 240 months imprisonment for

each of the nine counts of money laundering with the intent to conceal or disguise
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the nature, source or ownership of the proceeds, with those sentences to run

concurrently. The 120 month sentences and the 240 month sentences, however,

were to run consecutively for a total of 360 months imprisonment. In addition,

Balsam was again sentenced to three years of supervised release and $50 million in

restitution. 

Balsam now appeals his conviction for engaging in financial transactions

with criminally derived property, his sentences for all of his convictions, and the

denials of the motions he made before resentencing.

II.

First, Balsam contends that the district court erred in denying five of the

motions that he made before being resentenced. These were: (1) a motion to

vacate or set aside the restitution order; (2) a motion to correct the PSR; (3) a

motion to subpoena witness testimony; (4) a motion to recalculate the guideline

range based on exceptions to the mandate rule; and (5) a motion to reverse the jury

verdict on his conviction for engaging in a financial transaction with criminally

derived proceeds in excess of $10,000. 

The first three of these motions are listed in one of the subheadings of the

argument section of his brief but not mentioned anywhere else. Because he failed

to explain why he believes the district court erred by denying these motions, he has
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waived these issues on appeal. See Flanigan’s Enters. v. Fulton County, 242 F.3d

976, 987 n.16 (11th Cir. 2001) (A bare allegation will waive an issue on appeal if

the party “fail[s] to elaborate or provide any citation of authority in support of the .

. . allegation.”). 

His two remaining arguments are scantily briefed, but we will address them. 

Balsam argues that the district court erred by denying his motion to recalculate his

guideline range before resentencing, however we conclude below that the district

court did not err in calculating Balsam’s sentencing guideline range. Therefore, it

could not have erred in denying his motion to recalculate it.

The law of the case doctrine also obligates us to reject Balsam’s argument

that the district court erred by denying his motion for acquittal. That doctrine

“holds that subsequent courts will be ‘bound by the findings of fact and

conclusions of law made by the court of appeals in a prior appeal of the same

case.’” Culpepper v. Irwin Mortg. Corp., 491 F.3d 1260, 1271 (11th Cir. 2007). 

Following Booker, we affirmed Balsam’s convictions and remanded only on the

sentencing issues, Arroya, No. 02-10368, 2007 WL 30034, at *2, so our decision

affirming his convictions are binding as the law of the case. “We will not be

barred from reconsidering the law-of-the-case ‘when (1) a subsequent trial

produces substantially different evidence[,] (2) controlling authority has since
8

made a contrary decision of law applicable to that issue[,] or (3) the

law-of-the-case is clearly erroneous and will work manifest injustice if not if not

reconsidered.’” Culpepper, 491 F.3d at 1271 (quoting Wheeler v. City of Pleasant

Grove, 746 F.2d 1437, 1440 (11th Cir.1984)). However, Balsam has not even

asserted that any of these exceptions apply, much less explained why any would,

so we are bound by the earlier panel’s affirmance of his convictions. 

Balsam raises this issue again by arguing that the district court erred in

denying his first motion for acquittal after trial, but the law of the case also

forecloses this argument. 

III.

Balsam next contends that the district court erred by commenting on the

record at his resentencing that it believed him to be the mastermind behind the

fraud. This was a well-supported factual finding by the district court, particularly

in light of the uncontested fact that Balsam was a co-founder of the fraudulent

viatical investment company. Balsam, however, does not argue that the finding

was clearly erroneous, but instead asserts that the comment itself was somehow

inappropriate. It is entirely appropriate for a district court to inform the parties of

its findings and explain its reasoning for the sentence it imposes on the defendant. 

See Gall v. United States, 552 U.S. ___, ___, 128 S. Ct. 586, 597 (2007) (stating
9

that it is a procedural error to fail to adequately explain the defendant’s sentence). 

This does not even approach the extraordinarily high threshold for a judge’s

comments during sentencing to be reversible error. See United States v.

Greenman, 700 F.2d 1377, 1379 (11th Cir. 1983) (holding that, for a district

judge’s comments at sentencing to be error, they must “compel[] us to conclude

that the district judge closed his mind to evidence favorable to appellant before the

sentencing proceedings were concluded.”); see also Liteky v. United States, 510

U.S. 540, 555, 114 S. Ct. 1147, 1157 (1994) (holding that a judge’s comments

during a trial will only be per se error “if they reveal such a high degree of

favoritism or antagonism as to make fair judgment impossible.”).

IV.

Balsam also contends that the district court made several errors in

calculating his sentencing guideline range. We review de novo the district court’s

application of the guidelines, and we review its factual findings only for clear

error. United States v. Westry, 524 F.3d 1198, 1218 (11th Cir. 2008). 

A.

Balsam first argues that the district court erred in calculating his sentencing

guideline range because it relied on facts to which he did not admit and that were

not found by the jury beyond a reasonable doubt. Our case law makes it clear that
 Balsam also asserts that, because he was not charged with fraud, he could not be a 1

leader or organizer of the fraudulent viatical insurance scheme. This argument is meritless. The

PSR makes it clear that he led and organized money laundering activities. Also, in calculating

the applicable guideline range, a sentencing court can take into account relevant uncharged

conduct. See United States v. Amedeo, 370 F.3d 1305, 1314 (11th Cir. 2004).

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this is not error. See United States v. Smith, 480 F.3d 1277, 1281 (11th Cir.), cert.

denied, 128 S. Ct. 175 (2007) (“When the district court applies the Guidelines in an

advisory manner, nothing in Booker prohibits district courts from making, under a

preponderance-of-the-evidence standard, additional factual findings that go beyond

a defendant’s admisssions.”).

B.

Balsam next argues that the district court erred by applying a four-level

aggravating role enhancement under U.S.S.G. § 3B1.1 on the ground that it was

unsupported by the evidence. The district court specifically found that “Balsam

1

was, in fact, an organizer of criminal activity” because “[h]e worked in tandem

with [a co-conspirator] to develop the overall criminal activity and to develop the

forms and other representations that would be made to induce people to invest” in

his viatical insurance company. This finding is well-supported by the trial record. 

Moreover, Balsam’s PSR stated that he was involved in the conspiracy for

more than three years, during which he taught co-conspirators about the viatical

business, recruited at least three people to help in the scheme, and used several
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others to hide his illicit gains. Although he objected to other portions of the

paragraph describing his role in the scheme, he did not object to these statements. 

He is therefore deemed to have admitted them. See United States v. Wade, 458

F.3d 1273, 1277 (11th Cir. 2006) (“It is the law of this circuit that a failure to

object to allegations of fact in a PS[R] admits those facts for sentencing

purposes.”). These actions alone would support a §3B1.1 aggravating role

enhancement. See United States v. Thomas, 446 F.3d 1348, 1355 n.2 (11th Cir.

2006) (holding that a four level role enhancement was supported by evidence that

the defendant recruited others to participate in the crime).

C.

Balsam’s third argument is that the district court erred in two ways by

departing upward due to the large number of vulnerable victims. One, he asserts,

is that the guidelines for money laundering do not allow it. We cannot find any

support for this argument. The district court departed upward under U.S.S.G. §

5K2.0, which is equally applicable to all offenses. Insofar as Balsam’s argument is

that the victims of the fraudulent viatical insurance scheme were not victims of

money laundering, we again note that a district court can consider all relevant

conduct—including uncharged or acquitted conduct—in applying the sentencing

guidelines. See United States v. Amedeo, 370 F.3d 1305, 1314 (11th Cir. 2004).
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Balsam’s other argument on this point is that he did not receive sufficient

notice that the district court was considering a departure. Federal Rule of Criminal

Procedure 32(h) states:

Before the court may depart from the applicable sentencing range on a

ground not identified for departure either in the presentence report or

in a party’s prehearing submission, the court must give the parties

reasonable notice that it is contemplating such a departure. The notice

must specify any ground on which the court is contemplating a

departure.

While this argument might have had some merit in his first appeal, it

has none here. The latest that Balsam could have been aware that the district

court was contemplating an upward departure was in April 2002 at his initial

sentence hearing, when the government made its motion. Balsam did not

object at that time, and we affirmed the district court’s departure on

Balsam’s first appeal. Balsam was sentenced again in June 2007, more than

five years after the government first indicated that it was seeking an upward

departure and more than five years after the district court explained why it

was receptive to that motion. Five years is “reasonable notice.” Fed. R.

Crim. P. 32(h); see United States v. Meeker, 411 F.3d 736, 744 (6th Cir.

2005) (holding that, under the facts of that case, less than three days notice

was not unreasonable). 
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D.

Balsam’s fourth argument asserts that the district court let the jury

return a general verdict form on the conspiracy charge that did not specify

which substantive offense the jury found Balsam to have conspired to

commit. As a result of this, Balsam argues, is that the district court

arbitrarily assumed that the conviction was for conspiracy to commit a

substantive offense under § 1956, which carries a base offense level of

twenty-three, instead of a conspiracy to commit a substantive offense under

§ 1957, which carries a base offense level of seventeen. U.S.S.G. §§ 2S1.1,

2S1.2; U.S.S.G. App. A. 

This argument is without merit because the guidelines actually require

the court to treat a conviction for a multi-object conspiracy “as if the

defendant had been convicted on a separate count of conspiracy for each

offense that the defendant conspired to commit.” U.S.S.G. § 1B1.2(d). The

district court was also required to make its calculations based on the

conviction with the highest base offense level. U.S.S.G. § 3D1.3. This

means that, because Balsam’s convictions for money laundering came with a

base offense level of twenty-three, his guideline range calculation would be

the same regardless of what the object of the conspiracy count was.
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E.

Finally, Balsam argues that the district court erred by relying on the

statements in his PSR that it had earlier struck. The record simply does not

support this allegation. The PSR was revised in response to objections made

and sustained at his sentencing. Balsam’s assertion is baseless.

Even if the presentence report had not been changed following his

first sentencing, Balsam has not identified anything in the record indicating

that the district court considered the allegedly incorrect statements on

resentencing. To the contrary, the court explicitly stated that it would

instruct the probation office to make sure that the PSR reflected all of the

ordered changes. Balsam has not met his burden of showing that the district

court imposed his sentence based on clearly erroneous facts. See Gall, 552

U.S. at ___, 128 S. Ct. at 597.

V.

Finally, Balsam contends that the district court erred in sentencing him to

360 months imprisonment. He argues both that this sentence violates the Sixth

Amendment and that it is unreasonable. Balsam’s Sixth Amendment argument is

that his sentence is unconstitutional because, in total, it exceeds the statutory

maximum for either offense. However, we have held that consecutive sentences
15

are not unconstitutional as long as the sentence for each offense does not exceed

the applicable statutory maximum, and neither of Balsam’s sentences did. United

States v. Davis, 329 F.3d 1250, 1254 (11th Cir. 2003).

We turn now to Balsam’s arguments that his sentence was unreasonable. 

We review the total sentence imposed by the district court for reasonableness under

an abuse of discretion standard. Gall, 552 U.S. at ___, 128 S. Ct. at 594. After

“ensur[ing] that the district court committed no significant procedural error,” we

consider the substantive reasonableness of the sentence. Gall, 552 U.S. at ___, 128

S. Ct. at 597. The party “challeng[ing] the sentence bears the burden of

establishing that the sentence is unreasonable in the light of both [the] record and

the factors in section 3553(a).” United States v. Talley, 431 F.3d 784, 788 (11th

Cir. 2005).

Balsam argues that his sentence was unreasonable because: (1) the total

sentence was the result of consecutive terms of imprisonment; and (2) he

“submitted . . . credible arguments and detailed factors and comparisons to other

sentences for other obviously more serious crimes” showing that 120 months

would be a reasonable sentence. Neither of these arguments supports a conclusion

that his sentence was unreasonable.

The district court sentenced Balsam to consecutive terms because when the
16

guideline range is higher than the statutory maximum for the offense with the

highest offense level, the guidelines recommend making the sentences consecutive. 

See U.S.S.G. § 5G1.2. The statutory maximum for Balsam’s money laundering

conviction was only twenty years, 18 U.S.C. § 1956(a)(1)(B)(ii), but his guideline

range was thirty years to life. The district court’s decision to follow U.S.S.G. §

5G1.2 does not make the total sentence unreasonable or in any other way improper. 

See United States v. Magluta, 418 F.3d 1166, 1185 (11th Cir. 2005).

Balsam’s second argument that his sentence is unreasonable is also

unpersuasive. The district court has broad discretion in sentencing, Gall, 552 U.S.

at ___, 128 S. Ct. at 591, and the fact that it was unconvinced by Balsam’s

arguments in favor of a sentence substantially below the guideline range does not

mean that it abused that discretion, see Talley, 431 F.3d at 788. “There is a range

of reasonable sentences from which the district court may choose, and when the

district court imposes a sentence within the advisory Guidelines range, we

ordinarily will expect that choice to be a reasonable one.” Id. Here, the district

court sentenced Balsam to 360 months imprisonment, the lowest sentence within

the guideline range. Balsam has not shown that the district court abused its

discretion by doing so. 

AFFIRMED.