13-2840 USA v. Norman

UNITED STATES COURT OF APPEALS 1 FOR THE SECOND CIRCUIT 2

- - - - - - 3 August Term, 2014 4 (Submitted: October 16, 2014 Decided: January 9, 2015) 5 Docket No. 13-2840 6

_________________________________________________________ 7 UNITED STATES OF AMERICA, 8 Appellee , 9 10 - v. - 11 DAVID NORMAN, a/k/a "Jim Norman," 12 Defendant-Appellant

. 13

_________________________________________________________ 14 Before: KEARSE, STRAUB, and WESLEY, Circuit Judges

. 15 Appeal from a judgment of the United States District Court for the Southern District 16 of New York, Katherine B. Forrest, Judge , convicting defendant of cons piracy to commit wire fraud 17 in violation of 18 U.S.C. § 1349, and sentencing him to, inter alia , 20 years' imprisonment. Defendant 18 challenges that aspect of his sentence, arguing principally that the court improperly increased his 19 Guidelines offense level for number of victims, am ount of loss, and leadersh ip role, all principally 20 based on his testimony at trial, while further increasing his offense level on the ground that he 21 committed perjury at trial. We find no error in the c ourt's decisions to credit parts of defendant's trial 22 testimony while finding other parts perjurious. 23 Affirmed. 24PREET BHARARA, United States Atto rney for the Southern District 1 of New York, New York, New York (Andrea Surratt, Andrew 2 Goldstein, and Karl Metzner, Assistant United States 3 Attorneys, New York, New York, of counsel), for Appellee

. 4 MEGAN WOLFE BENETT, New York, New York, for 5 Defendant-Appellant

. 6 DAVID NORMAN, Petersburg, Virginia, Defendant7 Appellant, filed a Supplemental Brief pro se

. 8

KEARSE, Circuit Judge : 9 Defendant David "Jim" Norman appeals from a judgment entered in the United States 10 District Court for the Southern District of Ne w York following a jury trial before Katherine B. 11 Forrest, Judge , convicting him of conspiracy to commit wi re fraud in violation of 18 U.S.C. § 1349, 12 and sentencing him to, inter alia , 20 years' imprisonment, to be followed by a three-year term of 13 supervised release; he was also ordere d to pay $1,731,805.34 in restitution and to forfeit 14 $2,197,637.04. On appeal, Norman challenges only the imprisonment component of his sentence, 15 contending chiefly that the district court erred in calculating his offense level under the Sentencing 16 Guidelines ("Guidelines") by making findings that increased his offense level for his role in the 17 conspiracy, the number of victims of his crime, and the amount of loss they sustained, all principally 18 on the basis of his testimony at trial, while also finding that he committed perjury at trial and 19 increasing his offense level for obstruction of justice. Norman also argues that his sentence is 20 substantively unreasonable. Finding no merit in his contentions, we affirm. 21

2I. BACKGROUND 1

In mid-2008, Norman, along with two codefendants, Olivia Jeanne Bowen and Noemi 2 Dodakian, was charged in Count On e of an indictment alleging conspiracy to commit wire fraud, in 3 violation of 18 U.S.C. § 1349, from early 2005 through the filing of the indictment. Norman was 4 arrested in Canada in 2009 and was extradited to the United States in 2011. In the meantime, Bowen 5 and Dodakian, who were also charged with a separate wire fraud conspiracy in Count Two of the 6 indictment along with two other defendants but not Norman, were convicted on both of the counts 7 against them--Bowen after a plea of guilty and Dodakian after a jury trial. 8 Norman was tried alone in a six-day jury trial in 2013. The government's evidence at 9 his trial showed that the conspiracy involved a supposed investment program called the "Jim Norman 10 Program," which was an advance-fee scheme in which Bowen and Dodakian--whom, along with 11 others, Norman called "facilitators" or his "team" (Trial Transcript ("Tr.") 837)--communicated with 12 numerous persons and persuaded them to invest. The facilitators (seePart II.C.3. below), and 13 sometimes Norman himself, told prospective investors various stories as to the needs and purposes 14 of the Jim Norman Program, principally representing that Norman had acquired or inherited many 15 millions of dollars that were tied up overseas, much of it in accounts in his name or in the name of his 16 nonprofit "Espavo Foundation" at the World Bank or the International Monetary Fund ("IMF"). 17 Prospective investors were told that Norman need ed relatively modest amounts of money to pay fees 18 and taxes in order to liberate his millions. 19

3Norman and his facilitators offered investor s returns that were vastly disproportionate 1 to the money to be invested and told them that their investments would be without risk, as Norman 2 would give them promissory notes. For example, i nvestors were promised that if they sent Norman 3 $10,000, they would receive, within one w eek, the $10,000 investment plus $750,000. (See , e.g. , 4 Tr. 297, 327, 364, 546, 833.) Cindi Owen, a victim who, with associates, originally sent Norman 5 $50,000, testified that they were promised that theywould receive $2 million plus the return of the 6 invested $50,000; Owen and her husband subsequen tly invested an additional $75,000 (obtained from 7 a line of credit secured by their home), for which they were promised $2,250,000 plus the invested 8 $75,000. (Seeid . at 62-63, 113.) Another victim testifie d that she and her husband invested $30,000 9 (funded by cash advances on credit cards) and were promised that they would be paid $1.98 million. 10 (Seeid . at 320-21.) 11 No one who contributed to the Jim Norman Program received the promised payout. 12 Few, if any, were even repaid their investments. 13

A. Norman's Testimony at Trial 14 At his trial, Norman testified and offered various explanations as to the means and 15 goals of the scheme, contending that it was a valid investment program. A musician by trade, Norman 16 testified that he initiated his investment program after receiving, in 2001 or 2002 (seeTr. 861), an 17 email request for money from persons in the Ivory Coast with whom he had had no prior contact: 18 "Desmond" (seeid . at 687-89) and Desmond's mother and sist er. Norman testified that Desmond said 19 he and his mother and sister wantedto move to France; but they could not get their money--an "initial 20

4sum of 17.4 million"--out of the Ivory Coast becausethat country lacked a suitable banking system. 1 (Id . at 687.) They asked that Norman "be the recipient or the beneficiary of these funds and assist 2 them in getting the money out into the Western banking system." (Id .) Norman was to retain a 3 portion of that money for getting it out of Africa and was to send the remainder to Desmond and his 4 family when they reached France. 5 In order to initiate any tr ansfer of the funds belonging to Desmond, his mother, and 6 his sister, however, "the manager of the[ir] bank" (Tr. 690; seeid . at 866) requested "hundreds of 7 thousands" of dollars in fees (id . at 690). Norman himself had no such assets; indeed, from 2001 8 through 2007 he was on the verge of bankruptcy. (Seeid . at 690, 723-26, 830-32, 896 (after the 9 beginning of 2001, Norman was "broke").) Norman, a Canadian resident, testified that he therefore 10 recruited facilitators, persons who were experiencedin raising money in the United States. Among 11 Norman's facilitators were Bowen and Dodakian; Linda Palmer, who worked with Bowen and 12 Dodakian; and John Billingsley, who headed another fundraising group. (Seeid . at 697.) Norman 13 testified that the facilitators su cceeded in raising money from inve stors and sending it to accounts at 14 the World Bank and the IMF. (See , e.g. , id . at 698, 700-02, 780-83, 793-95, 812-13, 826.) He 15 testified that they were so su ccessful in raising money for Desmond that Norman was soon engaged 16 to raise money to unlock accounts of others, including Desmond's brother David with $12.4 million, 17 and an asset manager with $68 million, and another portfolio manager with more than $1 billion. 18 (See , e.g. , id . at 695-96, 878-79.) 19 Norman testified that he had email communi cations with officials of the World Bank 20 and the IMF who repeatedly warned him that additional fees must be sent to those institutions in order 21

5to preserve and unlock accounts established by Normanin his name or that of his Espavo Foundation. 1 (See , e.g. , Tr. 715-16 ("many" such emails from a Tere sa Theo--also referred to as "Mrs. T"--whom 2 Norman described as a representative of the IMF w ith respect to "economic affairs" relating to West 3 Africa); id . at 785-89, 793-807, 812-13, 817-18.) The government , in its case-in-chief, had called as 4 witnesses officials of the World Bank and the IM F, who testified that those institutions had no 5 accounts in the name of either Norman or Espavo Foundation. (Seeid . at 400-03, 576-78.) The 6 World Bank official testified that that institution did not maintain any accounts in the names of private 7 individuals or nonprofit foundations; a person cannot wire money to the World Bank. (Seeid

. 8 at 400-01.) Nor did the World Bank have any reco rd of employing the person Norman claimed to 9 have dealt with at the World Bank. (Seeid . at 403.) Norman nonetheless testified that he and his 10 facilitators sent to the World Bank and the IMF moneys demanded by those institutions for Norman's 11 accounts, pointing to emails he claimed to have received containing such warnings and demands from 12 European offices of the World Bank and the IMF. (SeeTr. 785-89, 793-807, 812-13.) 13 On cross-examination, Norman held fast to his position that the emailed warnings and 14 demands to which he pointed were from the World Bank and the IMF despite the fact that they were 15 written in broken English. (See , e.g. , Tr. 914-15, 946-47.) And he insisted that the emails were from 16 those institutions' European branches despite being conf ronted with the fact that, to the extent that the 17 emails revealed any place of origin, they showed th at they originated on the west coast of the United 18 States. (Seeid . at 911-14.) 19 Also on cross-examination, Norman testifie d that more than 100 people in the United 20 States had sent him money for investments in the Jim Norman Program. (See , e.g. , Tr. 833, 898.) He 21

6testified that, in all, he had collected from those persons between $6 million and $9 million. (Seeid

. 1 at 840.) He testified that he "wrote promisso ry notes to the people on the wires coming in" (id

. 2 at 833), each with a specific deadline for payment (seeid . at 915-17, 920-21). Norman admitted that 3 all of the due dates passed without any investor receiving any payout. (Seeid . at 920-21; id . at 896 4 ("Nobody has been paid back.").) 5 Norman, however, who had no income of his own (seeid . at 831, 850-51), spent many 6 thousands of the invested dollars on himself. He maintained a bank account in the United States into 7 which his investors wired money for the Jim Norm an Program (the "Centura account"). From that 8 account in November 2004 through March 2005, Norm an withdrew nearly $87,000 in cash and made 9 purchases totaling more than $168,000 with a debit card. (SeeTr. 617-18; Government Exhibit 10 ("GX") 327.) He spent, inter alia , some $5,700 on Gucci luggage (see Tr. 612, 850), nearly $7,900 11 to "update[]" his audio equipment (Tr. 853; seeid . at 613), more than $20,500 for clothing (see 12 GX 329, at 18-19; Tr. 611, 848-49 (to "updat[e]" his wardrobe)), more than $31,500 on furniture, art, 13 and Persian rugs for his loft (seeTr. 612-13; Sentencing Transcri pt ("S.Tr.") 9-10), and bought a 14 $180,000 Porsche truck (seeTr. 937-38) because he needed "transportation" (id . at 938). 15 Norman testified that he was still, during the trial, seeking investors for the Jim 16 Norman Program (see , e.g. , Tr. 896) and that he believed the promised moneys would be received (see 17 id . at 829, 946-47). The jury found him guilty of wire-fraud conspiracy. 18

7B. Sentencing 1 The presentence report ("PSR") prepared on Norman calculated that his Guidelines 2 offense level was 37, without consid eration of a possible increase for obstruction of justice, an issue 3 as to which the PSR deferred to the district court. There was no dispute that Norman's criminal 4 history category was I, as he had no prior criminal record. The Guidelines-recommended range of 5 imprisonment for a defendant with that offense level and criminal history is 210-262 months; for 6 Norman's offense, the top of the range was limited to 240 months because the statutory maximum 7 prison term was 20 years. 8 After receiving the PSR and submissions from the parties, and hearing oral argument 9 with respect to each side's objections to various offense-level calculations, the district court too 10 concluded that Norman's Guidelines offense le vel was 37, although it did notreach that conclusion 11 by exactly the same route as the PSR. The court found that Norman's base offense level was seven, 12

seeGuidelines § 2B1.1(a) (setting seven as the base offense level for a fraud offense for which the 13 statutory maximum prison term is 20 years or more). The court added 18 steps pursuant to 14 § 2B1.1(b)(1)(J) for a loss amount of more than $2.5 million but not more than $7 million; four steps 15 pursuant to § 2B1.1(b)(2)(B) for an offense involving 50 or more, but fewer than 250, victims; two 16 steps pursuant to § 2B1.1(b)(10) because the crime involved sophisticated means or was committed 17 in substantial part from outside of the United St ates; four steps pursuant to § 3B1.1(a) on the ground 18 that Norman was an organizer or leader of crimin al activity that involved five or more participants 19 or was otherwise extensive; and finally two step s pursuant to § 3C1.1 on the ground that Norman had 20 obstructed justice both in his trial testimony and in posttrial letters he sent to the court. (See 21 S.Tr. 23-27, 36.) 22

8The court rejected objections by Norman tothe increases based on (1) the amount of 1 loss, (2) the number of victims, (3 ) the number of participants in, or the extensiveness of, his offense, 2 and (4) obstruction of justice. As to the first three objections, the court noted that Norman himself 3 testified that he had received between $6 million and $9 million and that none of his investors had 4 been paid; that Norman testified that his invest ors numbered more than 100; and that Norman used 5 numerous facilitators to obtain money from investors. The court stated that it could also have made 6 the same findings as to loss amount even in th e absence of such testimony by Norman, given the 7 documentary evidence introduced by the government w ith respect to moneys flowing from investors 8 into his Centura account. 9 With respect to the enhancement for obs truction of justice, the court found that 10 numerous aspects of Norman's testimony were false, including his testim ony as to how the Jim 11 Norman Program came into being, his testimony that he sent moneys he received from investors to 12 accounts at the World Bank and the IMF, and his te stimony that he received numerous warnings and 13 demands for additional sums of money from those two institutions (seeS.Tr. 24-25). The court found 14 that these and other false aspects of Norman's te stimony were intended to influence the jury to vote 15 for his acquittal. (Seeid . at 23-24.) The court also found that Norman, after trial and before 16 sentencing, had attempted to prevent the imposition of a just sentence by sending the court letters 17 containing false information (seeid .; Letters from David Norman to Judge Forrest dated June 17 and 18 July 9, 2013, Dkt. Nos. 266, 267, respectively). In these letters, Norman claimed that money for 19 investors in the Jim Norman Program had arrived and that he needed to make travel arrangements for 20 several of his associates so that the funds coul d be accessed. The court stated: "The letter to me 21

9indicated some money had been received. There is no money. There are no accounts. The money 1 has not been received. These are false statements. They are lies." (S.Tr. 26.) The court found that 2 Norman had "acted consciously with a purpose of obstructing justice." (Id . at 26-27). 3 Although Norman argued that it was "internallyinconsistent" for the court to rely on 4 his testimony in order to increase his offense level for such factors as loss amount and number of 5 victims while simultaneously imposing an obstruction-of-justice increase on the basis of his testimony 6 (id . at 31; seeid . at 22-23), the court rejected that argument. It pointed out that "[t]he law allows the 7 finder of fact in a sentencing pro ceeding as . . . in other fact fi nding proceedings to credit some but 8 not all of the testimony." (Id . at 23.) It stated that 9 [o]f course some witnesses tell the truth sometimes and lie other times. 10 Some lie all the time. Some never lie in their testimony. . . . Here, I believe 11 there was a mixed bag. There was some perjurious testimony and there was 12 some truthful testimony. 13 (Id .) The court stated that it "credited Mr. Norman's testimony to the extent that it was corroborated 14 by other evidence." (Id . at 32.) 15 After considering the sentencing factors set out in 18 U.S.C. § 3553(a), the court 16 concluded that imposition of the statutory maximu m term of imprisonment was required in light of 17 each factor (seeS.Tr. 53). Taking those factors and the applicable advisory Gu idelines range into 18 consideration (seeid . at 46-48), the court sentenced Norman principally to 240 months' imprisonment 19 (seeid . at 53). The court stated that it would haveimposed that prison term irrespective of the 20 Guidelines-recommended range. (Seeid .) 21

10II. DISCUSSION 1

On appeal, Norman pursues his contention that his sentence was substantively and 2 procedurally unreasonable, arguing principally that the court could not permissibly rely on parts of 3 his trial testimony to enhance his offense level fo r such Guidelines factors as amount of loss and 4 number of victims, while rejecting other parts of his testimony as perjurious, requiring a further 5 offense-level enhancement for obstruction of justice. (SeeNorman brief on appeal at 17-19.) He also 6 argues that the court was not entitled to rely on his testimony as to the number of investors in his 7 scheme or the total amount of loss he caused because his testimony was "inconsistent" (id . at 18), 8 "unsubstantiated" (id . at 19), "extravagant" (id .), "insufficiently corroborated" (id . at 20), and 9 "unreliable" (id .). We reject all of his contentions. 10

A. Sentencing Procedure 11 Although the Guidelines are advisory, rather than binding on the district court, see 12 United States v. Booker , 543 U.S. 220, 259-60 (2005), the court must "begin all sentencing 13 proceedings by correctly calculating the appli cable Guidelines range," Gall v. United States , 552 U.S. 14 38, 49 (2007). And "after giving both parties an opportunity to argue for whatever sentence they 15 deem appropriate, the district judge should then c onsider all of the § 3553(a) factors to determine 16 whether they support the sentence requested by a party." Id . at 49-50. Those factors include the 17 nature, circumstances, and seriousness of the offense; the defendant's history and characteristics; the 18 need to deter the defendant from committing further crimes and to protect the public from further 19

11crimes of the defendant; and the need to avoid unwarranted sentence disparities among defendants 1 with similar records who have been found guilty of similar conduct. See , e.g. , 18 U.S.C. § 3553(a). 2 We review the district court's sentencing decision for both substantive and procedural 3 reasonableness. See , e.g. , id . at 46, 51. Substantive-reasonableness review focuses principally on the 4 district court's application of the § 3553(a) factors (seePart II.D. below) and is essentially review for 5 abuse of discretion, see , e.g. , Gall , 552 U.S. at 46, 51; United States v. Broxmeyer , 699 F.3d 265, 289 6 (2d Cir. 2012) ("Broxmeyer "), cert. denied , 133 S. Ct. 2786 (2013); Un ited States v. Cavera , 550 F.3d 7 180, 187-89 (2d Cir. 2008) (en banc) ("Cavera "), cert. denied , 556 U.S. 1268 (2009). Procedural 8 errors in sentencing would include "failing to calcu late" the advisory Guidelines range, "improperly 9 calculating" that range, "failing to consider the § 3553(a) factors," or "sel ecting a sentence based on 10 clearly erroneous" factual findings. Gall , 552 U.S. at 51; see , e.g. , United States v. Johnson , 567 F.3d 11 40, 50-51 (2d Cir. 2009). 12 The district court's factual findings at sentencing need be supported only by a 13 preponderance of the evidence. See , e.g. , United States v. Cossey , 632 F.3d 82, 86 (2d Cir. 2011); 14 United States v. Salazar , 489 F.3d 555, 557 (2d Cir. 2007); United States v. Gaskin , 364 F.3d 438, 15 464 (2d Cir. 2004), cert. denied , 544 U.S. 990 (2005); United States v. Ben-Shimon , 249 F.3d 98, 102 16 (2d Cir. 2001). In reviewing a sentence, we will not overturn the district court's findings of fact unless 17 they are clearly erroneous. See , e.g. , United States v. Skys , 637 F.3d 146, 152 (2d Cir. 2011) 18 ("Skys "); United States v. Garcia , 413 F.3d 201, 221-22 (2d Cir. 2005). We give "'due deference' to 19 district court sentencing decisions, taking into account totality of circumstances." Broxmeyer , 699 20 F.3d at 289 (quoting Gall , 552 U.S. at 51). 21

12That deference derives from a respect for the distinct institutional advantages 1 that district courts enjoy over thei r appellate counterparts in making an 2 "individualized assessment" of sentence under 18 U.S.C. § 3553(a). Gall v. 3 United States , 552 U.S. at 50, 51-52, 128 S.Ct. 586; accordUnited States v. 4 Jones , 531 F.3d 163, 170 (2d Cir.2008). Among those advantages is a district 5 court's unique factfinding position, which allows it to hear evidence, make 6 credibility determinations, and interact directly with the defendant (and, often, 7 with his victims), thereby gaining insights not always conveyed by a cold 8 record. SeeGall v. United States , 552 U.S. at 51-52 . . . . 9 Broxmeyer , 699 F.3d at 289. "[W]here there are two permissible views of the evidence, the 10 factfinder's choice between them cannot be cl early erroneous." United States v. Abiodun , 536 F.3d 11 162, 170 (2d Cir.) (internal quotation marks omitted), cert. denied , 555 U.S. 1020 (2008); see , e.g. , 12 United States v. Sash , 396 F.3d 515, 521 (2d Cir. 2005). 13 In the present case, the district court painstakingly calculated the Guidelines14 recommended range of imprisonment, finding that the factual components of its calculations were 15 supported by at least a preponderance of the evidence (see , e.g. , S.Tr. 10, 12, 15 (loss amount of more 16 than $2.5 million established by "well in exce ss of preponderance of the evidence"), id . at 36 (perjury 17 supported by "clear and convincing" evidence; "[t]hereis no doubt")). Norman's claims of procedural 18 error are that the court improperly calculated his Guidelines offense level by (1) crediting parts of his 19 trial testimony that required enhancement of his offense level while finding other parts perjurious, 20 requiring a further enhancement of his offense level for obstruction of justice, and (2) making findings 21 as to loss amount, number of victims, role, and in tent to obstruct justice that Norman argues are 22 clearly erroneous. None of his contentions has merit. 23

13B. The Claim of Inconsistent Treatment of Norman's Trial Testimony 1 Norman's contention that the district court could not permissibly enhance his 2 Guidelines offense level based on parts of his trial testimony that it chose to credit and further enhance 3 his offense level on the ground that he committed perj ury is meritless. "Every criminal defendant is 4 privileged to testify in his own defense, or to refuse to do so." Harris v. New York , 401 U.S. 222, 225 5 (1971). But the function of a trial is to seek the truth; and witnesse s, before testifying, must give an 6 oath or affirmation to testify truthfully, seeFed. R. Evid. 603. "[A] defendant's right to testify does 7 not include a right to commit perj ury." United States v. Dunnigan , 507 U.S. 87, 96 (1993); see , e.g. , 8 Nix v. Whiteside , 475 U.S. 157, 173 (1986); United States v. Havens , 446 U.S. 620, 626 (1980); 9 United States v. Grayson , 438 U.S. 41, 54 (1978); Harris , 401 U.S. at 225 (the privilege of testifying 10 "cannot be construed to include the right to commit perjury"). 11 It is the job of the factfinder in a judicialproceeding to evaluate, and decide whether 12 or not to credit, any given item of evidence. Whether, and to what extent, testimony that has been 13 admitted is to be credited are questions squarely within the province of th e factfinder. A jury is 14 properly instructed that it is free to believe part and disbelieve part of a defendant's trial testimony. 15 See , e.g. , United States v. Gleason , 616 F.2d 2, 15-16 (2d Cir. 1979), cert. denied , 444 U.S. 1082 16 (1980); seeid . at 15 ("Where the court points out that te stimony of certain types of witnesses may be 17 suspect and should therefore be scrutinized and weighe d with care, . . . it must also direct the jury's 18 attention to the fact that it may well find these witnesses to be truthful , in whole or in part ." (emphasis 19 added)); United States v. Vega , 589 F.2d 1147, 1154 & n.5 (2d Cir. 1978) (approving instruction to 20 the jury that "[t]he testimony of an individual defendant is beforeyou. You must determine how far 21

14it is credited." (emphasis added)); United States v. Martin , 525 F.2d 703, 706 & n.3 (2d Cir.) 1 (approving instruction to jury that "[i] t is for you to decide to what extent , if at all , defendant's interest 2 has affected or colored his testimony" (emphases added)), cert. denied , 423 U.S. 1035 (1975). 3 With regard to factfinding in connection with sentencing, the judge who presided over 4 the trial or over an evidentiary sentencing hearing is in the best position to assess the credibility of 5 the witnesses, and her decisions as to what tes timony to credit are entitled to substantial deference. 6 See , e.g. , Gall , 552 U.S. at 51-52 ("The sentencing judge is in a superior position to find facts and 7 judge their import under § 3553(a) in the individual case. The judge sees and hears the evidence, 8 makes credibility determinations, has full knowledge of the facts and gains insights not conveyed by 9 the record." (internal quotation marks omitted)); Broxmeyer , 699 F.3d at 289, 293-94; cf. United 10 States v. Caracappa , 614 F.3d 30, 49 (2d Cir.) ("Given the distri ct court's superior ability to make 11 credibility assessments based on its first-hand observati on of the witnesses at [an] evidentiary hearing 12 [as to the defendant's decision not to testify], we defer to those a ssessments . . . ."), cert. denied , 131 13 S. Ct. 675 (2010); United States v. Iodice , 525 F.3d 179, 185 (2d Cir. 2008) ("giv[ing] particularly 14 strong deference" to district court's findings after a suppression hearing where "credibility 15 determinations are at issue"). A nd just as a jury is entitled to belie ve parts and disbelieve other parts 16 of a witness's trial testimony, so is the sentenci ng judge. "Like any other factfinder who assesses 17 witness credibility, the sentencing judge is free to be lieve all, some, or none of a witness's testimony." 18 United States v. Candie , 974 F.2d 61, 65 (8th Cir. 1992). Normanhas cited no authority--or logic-- 19 contrary to this principle. 20

15Punishment for perjury--i.e. , for "willful[ly]" giving "false testimony concerning a 1 material matter," Dunnigan , 507 U.S. at 94--is essential to "theintegrity of our trial system," id . at 97. 2 The requirement of sworn testimony, backed by punishment for perjury, is as 3 much a protection for the accused as it is a threat. All testimony, from third4 party witnesses and the accused , has greater value because of the witness' oath 5 and the obligations or penalties attendant to it. 6 Id . (emphasis added). Accordingly, when the sentencing court "proper[ly] determin[es] that the 7 accused has committed perjury at trial, an enhancement . . . is required" for a correct calculation of 8 the defendant's Guidelines offense level. Id . at 98. 9 The district court here expressly observed that, although the testimony of some 10 witnesses is homogeneous with respect to truth or falsity, "some witnesses tell the truth sometimes 11 and lie other times" (S.Tr. 23). The court found that Norman's testimony "was a mixed bag," 12 containing "some perjurious testimony and . . . some truthful testimony." (Id .) The court described 13 aspects of Norman's trial testimony that the court found were false and were intended to persuade the 14 jury to acquit Norman (seeParts I.B. above and II.C.4. below); the court stated that it "credited Mr. 15 Norman's testimony to the extent that it was corroborated by other evidence" (S.Tr. 32)--corroboration 16 that is described in Part II.C. below. 17 The sentencing court was entitled to credit someparts and to disbelieve other parts of 18 Norman's sworn testimony and to sentence Norman accordingly. 19

C. The Challenges to Specific Guidelines Determinations 20 We also reject Norman's contentions that the record was insufficient to support the 21 court's findings that there were more than 100 victim s of his crime, that thei r losses totaled more than 22

16$2.5 million, that his crime involved five or more participants, and that Norman perjured himself at 1 trial with the intent to obstruct justice. 2

1. Amount of Loss 3 The Guidelines require that the offense le vel of a defendant convicted of a basic 4 economic offense such as conspiracy to commit fraud be calculated in part with reference to the 5 amount of loss caused by his offense. For a lo ss amount of more than $2,500,000 but not more than 6 $7,000,000, the offense level is to be increased by 18 steps. See Guidelines § 2B1.1(b)(1)(J). The 7 sentencing court is not required to calculate the amount of loss with certain ty or precision but "need 8 only make a reasonable estimate of the loss" that is "based on available information." Guidelines 9 § 2B1.1 Application Note 3(C); see , e.g. , United States v. Bryant , 128 F.3d 74, 75 (2d Cir. 1997). 10 "The sentencing judge is in a unique position to assess the evidence and estimate the loss based upon 11 that evidence. For this reason, the court's loss determination is entitled to appropriate deference." 12 Guidelines § 2B1.1 Application Note 3(C). 13 In finding that the total loss incurred by Norman's investors--all, or virtually all, of 14 whom lost their investments--exceeded $2.5 million, the district court relied principally on Norman's 15 testimony during his cross-examination and in respons e to questions from the court. After Norman 16 testified that he had told a prospective investor that the Jim Norman Program had received more than 17 $9 million (Tr. 839-40), explaining th at $9 million was a "round figure" and that it "could have be[en] 18 more, it could be less" (id . at 840), the court sought clarification from Norman: 19 THE COURT: When you said it could be more, it could be less, would 20 be less than 8 million or is it between somewhere 8-ish or above? 21

17THE WITNESS: 6 to 9. . . . 1 THE COURT: But at least 6 is to the best of your recollection? 2 THE WITNESS: Yes, between 6 and 9. 3 (Id .) 4 Although Norman argues that it was procedural error for the court to rely on this 5 testimony because, he now claims, it was "extravagant," "unsubstantiated," and "uncorroborated" 6 (Norman brief on appeal at 18-19), his argument is legally and factually flawed. First, while the 7 district court stated that it credited his testimony to the extent that it was corroborated, the court could 8 have accepted it to the extent that the court found it credible even without corroboration; there is no 9 requirement that a defendant's sworn testimony be corroborated before it can be credited. Any lack 10 of corroboration for a witness's testimony--unless it is incredible on its face--goes merely to the 11 weight of the evidence; the weight it is to be acco rded is a matter for argument to the factfinder, not 12 a ground for reversal on appeal. See , e.g. , United States v. Morrison , 153 F.3d 34, 49-50 (2d Cir. 13 1998); United States v. Roman , 870 F.2d 65, 71 (2d Cir.), cert. denied , 490 U.S. 1109 (1989). 14 Second, Norman's recollection that the Jim Norman Program received between 15 $6 million and $9 million was in fact consistent with other evidence at trial. The government 16 introduced, without objection (seeTr. 615, 620), exhibits that summarized the investments wired to 17 Norman's Centura account fr om 2002 through March 31, 2005 (see , e.g. , GX 327, GX 328), moneys 18 sent in ever-increasing amounts (seeGX 327, at 1 (showing inve stments totaling $29,856.92 in 2002, 19 $228,897.56 in 2003, $931,478.52 in 2004, and $924,764.40 in the firs t three months of 2005)). From 20 December 2002 through March 2005, the Centura account received investments totaling 21

18$2,114,997.40. (Seeid .) That account was closed by the bank after March 31, 2005 (seeTr. 721, 1 835), but Norman testified that he continued th ereafter to solicit and receive investments (seeid

. 2 at 835-36, 896). That testimony was corroborated by trial testimony from some of Norman's victims. 3 (See , e.g. , id . at 56-62, 92, 108 (Owen, her husband, and her associates invested $125,000 in July and 4 August 2005); id . at 256-57 (Allan Title invested $50,000 in July 2005).) 5 Indeed, Norman, who was tried in 2013, testified that he was still soliciting and 6 receiving investments in the Jim Norman Program as of the time of trial: 7 Q. You . . . testifie d that well after this account was shut down in 8 March 2005, you continued to raise money? 9 A. Yes, to date. 10 Q. To date? 11 A. To date. 12 Q. You're raising money? 13 A. Yes. 14 Q. Nobody has been paid back, correct? 15 A. Nobody has been paid back. 16 (Tr. 896.) 17 Q. When was the last time you worked on the project? 18 A. This morning. 19 (Id . at 829.) 20 Having continued to solicit and receive inve stments, Norman testified that GX 327's 21 tally of $2,114,997.40 received by the end of March 2005 severely underrepresented the total 22 investments in the Jim Norman Program: 23 19Q. The document that we saw in evidence yesterday made reference 1 to approximately $2 million that were received. Was that the sum total of what 2 was raised in your efforts to extricate these funds? 3 A. No, not even close . . . . 4 (Tr. 767.) The district court noted that if Norman 's scheme continued to take in money at its 2005 5 rate, by the time of his indictment in mid-2008 he would have received more than $5 million in 6 addition to the more than $2 million received prior to March 31, 2005. (SeeS.Tr. 16-17.) 7 There was no evidence that the sums invested by Norman's victims totaled less than 8 the $6-9 million testified to by Norman. The district court did not err in finding that the loss amount 9 was more than $2.5 million. 10

2. Number of Victims 11 The Guidelines define a "victim" to include"any person who sustained any part of the 12 actual loss" (as contrasted with "intended loss, " Guidelines § 2B1.1 Application Note 3(A)(ii)) 13 determined in the district court's calculation of the Guidelines loss am ount. Guidelines § 2B1.1 14 Application Note 1. A four-step increase in offense level is prescribed if the offense of conviction 15 involved at least 50 but fewer than 250 victims. SeeGuidelines § 2B1.1(b)(2)(B). 16 The district court found that Norman's offe nse fell into that category, based largely on 17 GX 328, which listed well over 100 individuals who wi red money to Norman's Centura account from 18 November 2004 through March 2005. (SeeS.Tr. 17.) The court noted that although Norman testified 19 "that he received small amounts from friends as gifts from time to time," he also testified "that he had 20 no other significant source of income during the period of the scheme." (Id .) The court found that 21 "all in all the wire transfer information lists a number of individuals that are far in excess of 50." (Id .) 22
20Norman argues that GX 328 did not prove thathis crime involved at least 50 victims 1 because he was asked whether the persons liste d in GX 328 "from A through Claire Olivrious [sic ]" 2 were "people wiring you money" (Tr. 896), and thatA through Claire Oliverius comprised only some 3 20 persons (seeGX 328, at 1). (SeeNorman brief on appeal at 21-22.) However, read as a whole, 4 Norman's testimony about the persons listed on GX 328 was not limited to that small fraction of the 5 list; Norman admitted that he was receiving investment s from "[t]hese people, this long list of people" 6 on GX 328, a list that "goes on for three pages" (Tr. 895, 896). 7 In any event, the district court found, "[i]n addition," that the existence of "well above 8 50" victims was established by Norman's explicit testimony at trial. (S.Tr. 17.) Norman testified that 9 there were more than 100 investors in the Jim Norman Program (seeTr. 833), all of whom (seeid

. 10 at 898-99, 920-21), or "[all but] maybe two or three" of whom (id . at 898), lost their investments. 11 Although on appeal Norman contends that the court could not properly rely on his testimony because 12 it was "vague and inconsistent" (Norman brief on app eal at 21) in that Norman said he had raised 13 money from "[p]robably more than a hundred" peopl e (Tr. 833) and later said that the number of 14 investors was "200 off the top of [his] head" (id . at 898), Norman at no point testified that he had 15 fewer than 50 investors, the threshold for the four-s tep enhancement. He testified in pertinent part 16 as follows: 17 Q. More than a hundred people in the U.S. sent you money? 18 A. Probably more than a hundred. 19 Q. 200? 20 A. I wouldn't go that far, but I wouldn't round it off to a hundred. 21

21(Id . 833.) When the court sought clarification as to how many people contributed to the Jim Norman 1 Program not only directly to Norman but also through any of his facilitators, aski ng whether there 2 were "200, 300, 400" (id . at 898), Norman testified as follows: 3 THE WITNESS: 200 off the top of my head really. 4 Q. You already testified well more than a hundred? 5 A. Yes, yes, yes. 6 Q. Other than the two or three or maybe four people who got paid back 7 their principal? 8 A. Yes. 9 Q. All these other hundred plus peopl e, they didn't get paid back their 10 principal, right? 11 A. No. 12 (Id . at 898-99.) 13 Norman's testimony was neither vague nor inc onsistent in stating that there were more 14 than 100 investors in the Jim Norman Program--well over the 50-victim minimum required for the 15 § 2B1.1(b)(2)(B) four-step offense-level increase. There was no error in the district court's finding 16 that there were at least 50 victims of Norman's offense. 17

3. Leadership Role 18 The Guidelines provide that "[i]f the defendantwas an organizer or leader of a criminal 19 activity that involved five or more participants or was otherwise extensive," his offense level is to be 20 increased by four steps. Guidelines § 3B1.1(a) . Norman does not suggest that he was not an 21

22organizer or leader but rather contends that the district court made insufficient findings with respect 1 to the scope of the activity and num ber of persons who were "participants" within the meaning of the 2 guideline. Although the district court here f ound both prongs of § 3B1.1 to have been met (see 3 S.Tr. 35), the standard for this increase is by its terms disjunctive, seeGuidelines § 3B1.1(a); Skys , 4 637 at 151, 156; and we conclude that the findings and the record suffice with respect to the "five or 5 more participants" standard, without needing to reach the question of whether the court's findings 6 were sufficient with respect to the "otherwise extensive" standard. 7 A "participant" for purposes of § 3B1.1 is "a person who is criminally responsible for 8 the commission of the offense, but need not have been convicted." Guidelines § 3B1.1 Application 9 Note 1. The defendant himself is to be counted as one of the participants. See , e.g. , Skys , 637 F.3d 10 at 158; United States v. Paccione , 202 F.3d 622, 625 (2d Cir.), cert. denied , 530 U.S. 1221 (2000). 11 In imposing an enhancement for the defendant's ro le in the offense, the sentencing court must make 12 findings sufficient to permit meaningful appellate review. See , e.g. , Skys , 637 F.3d at 152. 13 Norman argues that the district court failed to make sufficient findings that four people 14 other than himself were criminally responsible fo r the commission of the offense, rather than being 15 "simply unknowing or unwitting participants." (Norman brief on appeal at 26.) This contention is 16 contrary to the record. The district court found that the culpable persons who participated in Norman's 17 scheme included Bowen, Dodakian, Palmer, Billi ngsley, Norman's longtime accountant John Bailey, 18 and Norman's former girlfriend Ann Henshaw. (S.Tr. 19.) The record easily supports the finding that 19 at least four of those persons were culpable participants in the crime rather than unknowing or 20 unwitting pawns. 21

23Bowen and Dodakian were in fact convictedof conspiring to commit wire fraud with 1 Norman. As to other participants, the court noted that "defense counsel argued that Billingsley, 2 Bailey and Henshaw are shown not to be part of the crime"; but the court stated that the testimony of 3 "Norman himself makes clear that they were, in fact , part of it," and in addition that "the documentary 4 evidence well and truly implicates these individuals repeatedly in the scheme." (Id .) 5 The record included evidence that Billingsley was a major solicitor for Norman and 6 that it was at Billingsley's suggestion that No rman gave investors promissory notes (seeTr. 915-16). 7 The notes promised the investors their extravagan t returns within days; no such returns were ever 8 paid; and Billingsley continued to solicit investors, to promise rewards within days, and to reassure 9 them that there was no risk. For example, Dr. Gr egory Rodriguez testified that, before investing in 10 the Jim Norman Program, he had a conference call with Billingsley in late November or early 11 December 2004 (seeid . at 326), in which Billingsley toldhim he could make $750,000 profit on an 12 investment of $10,000, and "[ t]here was no risk" (id . at 327). After Rodriguez made an investment 13 in December 2004, Billingsley called to ask him whether he could invest more. (Seeid . at 367.) 14 Rodriguez made a second investment in January 2005, and Billingsley told him the promissory note 15 would be paid within a week. (Seeid . at 377.) By that time, investments totaling more than 16 $1.1 million had been wired into Norman's Centura account (seeGX 327, at 1), and not a single 17 investor had ever received the promised return. The evidence was ample to permit the finding that 18 Billingsley was a knowing participant in Norman's fraud. 19 Henshaw, Norman testified, was one of the persons who helped him to keep the Jim 20 Norman Program in operation after March 31, 2005, when his Centura account was closed by the 21

24bank. (SeeTr. 766, 835-36.) After that date, Henshaw allo wed investors to wire money into her bank 1 account, and she transferred money out as instructed by Norman. (Seeid .) 2 Even before Norman needed to have Henshaw use her account to receive and wire 3 money in order to keep the Jim Norman Program in operation, however, he made six wire transfers 4 to Henshaw from his Centura account in amounts ranging from $1,205 to $11,000: From November 5 22, 2004, through February 9, 2005, he sent Henshaw a total of $42,805 of investor money from that 6 account. (SeeGX 327, at 3.) When Norman was asked why he made these transfers to Henshaw 7 when he was operating the Jim Norman Program from the Centura account--and when he had no 8 inkling that, many weeks later, the bank would cau se the account to be closed--Norman gave no clear 9 explanation. (See Tr. 846.) There was no evidence as to what Henshaw did with that money; the 10 period in which she received it coincided with th e period in which Norman was spending investors' 11 money most lavishly on himself (see GX 329, at 18-25). 12 Although Norman testified that Henshaw had been his girlfriend several decades earlier 13 and that they had become merely friends long before 2004-2005 (seeTr. 844, 725), Norman lived in 14 Henshaw's condominium after he lost his own apartment in 2005 (seeid . at 724-26); and Owen 15 testified that in 2007 Norman told her that Henshaw was his girlfriend, sent Owen a picture of himself 16 with Henshaw, and instructed Owen to wire money directly to Henshaw (seeid . at 207-09). Norman 17 testified that Henshaw allowed her own account to be used for the Jim Norman Program because she 18 knew "there was an injunction against" Norman's bank account. (Id . at 766.) While a witness is 19 normally not permitted to testify to the state of another person's mind, the district court was entitled 20 to credit Norman's testimony that Henshaw knew there was an injunction barring use of his bank 21

25accounts, for "[i]n resolving any dispute con cerning a factor important to the sentencing 1 determination, the court may consider relevant information without regard to its admissibility under 2 the rules of evidence applicable at trial, provi ded that the information has sufficient indicia of 3 reliability to support its probable accuracy." Gu idelines § 6A1.3(a). Norman's relationship with 4 Henshaw--including his living in her condominium s hortly after the closing of the Centura account, 5 Henshaw's allowing her own account to be used to receive money from investors and wiring the 6 money to others in accordance with Norman's in structions, and Henshaw' s unexplained receipt from 7 Norman of $42,805 of investor money before Norman had any idea that the use of her account would 8 be needed for that purpose--provided such indicia. 9 On this record, we see no clear error in the district court's finding, by a preponderance 10 of the evidence, that Henshaw too was a culpable, rather than an unwitting, participant in perpetrating 11 the Jim Norman Program. Given the evidence as to Bowen, Dodakian, Billingsley, and Henshaw, the 12 court did not err in finding that, including Norman, there were five participants in his crime. 13

4. Obstruction of Justice 14 The Guidelines provide, inter alia , that a convicted defendant 's offense level is to be 15 increased by two steps 16 [i]f (1) the defendant willfully obstructed or impeded, or attempted to obstruct 17 or impede, the administration of justice with respect to the investigation, 18 prosecution, or sentencing of the instan t offense of conviction, and (2) the 19 obstructive conduct related to . . . the de fendant's offense of conviction and any 20 relevant conduct. 21 Guidelines § 3C1.1. This enhancement applies to, inter alia , "committing . . . perjury," id . Application 22 Note 4(B), and "providing materially false information to a judge," id . Application Note 4(F). 23 26"A witness testifying under oath or affirm ation violates" 18 U.S.C. § 1621, the federal 1 perjury statute, "if she gives false testimony concerning a material matter with the willful intent to 2 provide false testimony, rather than as a result of confusion, mistake, or faulty memory." Dunnigan , 3 507 U.S. at 94. "[I]f a defendant objects to a sentence enhancement resulting from her trial testimony, 4 a district court must review the evidence and make independent findings necessary to establish a 5 willful impediment to, or obstruction of, justice, or an attempt to do the same, under th[is] perjury 6 definition." Id . at 95. "[I]t is preferable for a district court to address each element of the alleged 7 perjury in a separate and clear fi nding," but "[t]he district court's determination that enhancement is 8 required is sufficient, . . . if . . . the court make s a finding of an obstruction of, or impediment to, 9 justice that encompasses all of the factual predicates for a finding of perjury." Id

. 10 In Dunnigan , the Court found that the sentencing court's findings that "'the defendant 11 was untruthful at trial with respect to material matters in th[e] case'" and that her false testimony was 12 "'designed to substantially affect the outcome of the case '" were sufficient to support a Sentencing 13 Guidelines enhancement for obstruction of justice pursuant to § 3C1.1. Dunnigan , 507 U.S. at 95 14 (emphases in Dunnigan ). In the present case, the district court found that numerous aspects of 15 Norman's trial testimony were untruthful. Most prominent was Norman's insistence that he was 16 soliciting investments in order to free up moneys that he and his Espavo Foundation held in accounts 17 in European branches of the World Bank and the IMF and that he repeatedly received emails from 18 those offices warning that additional fees were required in order to preserve and unlock those 19 accounts. The court was not required to credit this testimony by Norman in th e face of other evidence 20 that revealed his mendacity. Witnesses who were officials of the IMF and the World Bank testified 21

27that their respective institutions had no accounts inthe names of Norman or his Espavo Foundation; 1 that the World Bank does not maintain any account s for private individuals or nonprofit foundations; 2 and that the World Bank had no record of employi ng the individual with whom Norman claimed to 3 have dealt. In addition, while Norman pointed to emails that he claimed to have received from 4 European offices of those institutions demanding mone y, those emails, to the extent that they revealed 5 any point of origin, indicated on their face that th ey originated from the west coast of the United 6 States. 7 The district court credited the testimony of the World Bank and IMF witnesses and 8 made explicit findings that Norman's testimony on thes e matters was intentionally false. It found that 9 Norman testified about such "accounts . . . under oath. They were testified to exist at the IMF and at 10 the World Bank. It is impossible for such accounts to exist at either of those institutions. That was 11 discussed by Mr. Norman under oath." (S.Tr. 24.) The court found that 12 the lies were so numerous and so brazen that it is breathtaking. He lied about 13 the existence of third parties. He lied about the existence of what third parties 14 told him. He lied about the location of third parties. When e-mails clearly 15 indicated that they were located on the west coast on the face of the e-mails he 16 testified that they were located in a far flung foreign jurisdiction. 17 (Id . at 25) The court found that Norman "acted cons ciously with a purpose of obstructing justice" (id

. 18 at 26-27) and that his "specific perjurious testimony [was] designed ," if "credited[,] to have the[] jury 19 acquit him of the charge of which he had been accused" (id . at 24 (emphasis added)). Norman's 20 adamant adherence to his false testimony in the face of squarely contrary testimony from officials of 21 the World Bank and the IMF as to the records and operating structure of those institutions--(see , e.g. , 22 Tr. 946-47 ("Q. You heard the testimony thatthe World Bank doesn't have any accounts for 23

28individuals or foundations, correct? A. Yes, yes. . . . Q. You heard the testimony that those emails 1 from Mrs. T were a fake; they were not real, right? A. Yes, I heard that. . . . Q. But it is your 2 testimony today that none of that matters, that you still emphatically believe that [the Jim Norman 3 Program] is real? A. Yes."))--supported the court' s finding that Norman testified falsely by design, 4 rather than as a result of confusion or mistake. 5 Finally, the district court correctly found that Norman's intentionally untruthful 6 testimony centered on a material matter, for if indeed Norman and the Espavo Foundation had 7 established accounts at the World Bank and the IM F, and if those institutions had, as Norman 8 testified, demanded and received fees from Norman in order to unlock the moneys in those accounts, 9 those facts would have seriously undermined the ch arge that Norman had conspired to commit wire 10 fraud against investors. 11 In sum, we see no basis for overturning the district court's findings that Norman 12 willfully perjured himself at trial for the purpose of obstructing justice. 13 Finally, we note that even if we were to identify any procedural error in the district 14 court's Guidelines calculations--which we do not--w e would find such an error harmless in light of 15 the court's conclusion (seeS.Tr. 53) that the appropriate sent ence for Norman included the statutory 16 maximum term of imprisonment regardless of the range of imprisonment recommended by the 17 Guidelines. 18

29D. The Claim of Substantive Unreasonableness 1 In claiming substantive unreasonableness, Norman contends principally that his 2 240-month prison term was too long, considering that the prison terms imposed on Bowen (after a 3 plea of guilty to two counts) and Dodakian (after a trial resulting in verdicts of guilty on two counts) 4 were 63 and 95 months, respectively, and that Robert Ingram, the leader of the conspiracy charged 5 in Count Two of the indictment, who had caused mo re than $7 million in losses, was sentenced to a 6 prison term of 144 months. (SeeNorman brief on appeal at 35-36.) Norman also argues that the 7 sentence was longer than necessary because he was 65 years of age at the time of his sentencing, had 8 no prior criminal record (seeid . at 35-37), and--according to his view--"did not profit substantially" 9 from his crime (id . at 36). We find no merit in his contentions. 10 Where, as here, we have found no procedural unreasonableness in sentencing, our 11 review of a claim of substantive unreasonableness is narrow, akin to review for abuse of discretion, 12

see , e.g. , Gall , 552 U.S. at 46; United States v. Coppola , 671 F.3d 220, 249 (2d Cir. 2012), cert. 13 denied , 133 S. Ct. 843 (2013); Un ited States v. Rigas , 583 F.3d 108, 121 (2d Cir. 2009), cert. denied , 14 131 S. Ct. 140 (2010); Cavera , 550 F.3d at 187-88. In conducting su ch review, we "evaluat[e] the 15 length of the sentence imposed in light of the f actors enumerated under 18 U. S.C. § 3553(a)." United 16 States v. Ahders , 622 F.3d 115, 119 (2d Cir. 2010) (internal quotation marks omitted); see , e.g. , 17 United States v. Villafuerte , 502 F.3d 204, 206 (2d Cir. 2007). Consis tent with abuse-of-discretion 18 review, 19 we will not substitute our own judgment fo r the district court's on the question 20 of what is sufficient to meet the [18 U.S.C.] § 3553(a) considerations in any 21 particular case. See United States v. Fernandez , 443 F.3d 19, 27 (2d 22 Cir.2006). We will instead set aside a district court's substantivedetermination 23

30only in exceptional cases where the trial court's decision cannot be located 1 within the range of permissible decisions. 2 Cavera , 550 F.3d at 189 (emphasis in Cavera ) (internal quotation marks omitted); see , e.g. , United 3 States v. Coppola , 671 F.3d at 249, 254; United States v. Rigas , 583 F.3d at 121-22. 4 In determining the prison term to be served by Norman, the district court stated that 5 it had "taken all of the 3553([a]) factors into account to achieve . . . a sufficient but not greater than 6 necessary sentence." (S.Tr. 47.) Adverting in part to its findings made in calculating Norman's 7 Guidelines offense level (seeid . at 48), the court stated that it had considered, inter alia , the 8 "elaborate" nature of the fraud (id . at 52), the seriousness of Norman's crime, including its effect on 9 his victims, some of whom had lost their homes and their livelihoods (see , e.g. , id . at 50), and 10 Norman's personal characteristics, including his willingness, without compunc tion, to defraud persons 11 Norman knew were financially vulnerable (see , e.g. , id . at 49-50) while he, as he testified at trial, inter 12 alia , "bought a $180,000 car as transportation" (S.Tr. 50). 13 The court expressed particular concern for the need to protect the public and deter 14 Norman from committing further frauds, in light of the "scope" and "duration of [Norman's] conduct" 15 (id . at 49), which began as early as 2002 and persisted well into 2013. Norman himself testified that 16 he was attempting to raise money for the Jim Norman Program even during the trial. (SeeTr. 896.) 17 The court had noted also that after being found gu ilty by the jury, Norman wrote letters containing 18 "lies" to the court, "to try to con" the court "i n the context of sentencing" by "indicat[ing that] some 19 money had been received" for his investors (S.Tr. 26) and claiming that he merely needed to "raise 20 money" to get that money here (id . at 51). The court concluded: 21

31There's no doubt in my mind that if you were let out you would continue your 1 scheme . Indeed, the e-mail that I received from the government this morning 2 is indicative of your continuing your scheme. The letters you sent me are 3 indicative of you continuing your scheme . Indeed, I think of it as your last big 4 play trying to play the Court that the money has come in, . . . that at long last 5 everybody's going to be paid out if only you can raise money for the air fare 6 to get people to fly into town to support you but there's nobody running 7 through the doors. That is where we are. 8 And you would engage in the fraud if I let you out in a nanosecond 9 because you are engaged in fraud today

. 10 (S.Tr. 51-52 (emphases added).) The court stated that the statutory maximum sentence of 20 years' 11 imprisonment "is not necessarily sufficient" and that the court would impose a longer sentence if that 12 were permissible, but that the maximum was "necessary" in order to prevent Norman from 13 "continu[ing] the kind of criminal behavior [he ha d] been engaging in with so many victims." (Id

. 14 at 53.) 15 As to the need to avoid unwarranted sentencing disparities, the court pointed out that 16 the person most comparable to Norman--Ingram, w ho was convicted of conspiring with Bowen and 17 Dodakian as charged in Count Two of the indictment but not charge d with Norman in Count One--had 18 pleaded guilty and that his circumstances were unlike those of Norman. In particular, the court noted 19 that, in addition to Ingram's acceptance of responsibility for his crime, there was no indication that 20 Ingram had continued to pursue his fraudulent ac tivity in the interim between his plea and his 21 sentence. (Seeid . at 48.) 22 In light of this record, we cannot concl ude that the sentence imposed on Norman was 23 substantively unreasonable. 24

32CONCLUSION 1

We have considered all of Norman's contentions on this appeal and have found them 2 to be without merit. The judgment of the district court is affirmed. 3

33