UNITED STATES COURT OF APPEALS 

 TENTH CIRCUIT

UNITED STATES OF AMERICA, 

 Plaintiff–Appellee, 

v. 

JAMES LEE LOMAN, 

Defendant–Appellant. 

No. 14-6029 

(D.C. No. 5:12-CR-00265-M-1) 

(W.D. Okla.) 

ORDER AND JUDGMENT*

Before KELLY, LUCERO, and HARTZ, Circuit Judges. 

 

 James Loman appeals his convictions for several charges related to an illegal 

kickback scheme he engaged in while employed at Tinker Air Force Base in Oklahoma 

City. He also challenges his below-Guidelines sentence as procedurally and 

substantively unreasonable. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm. 

 

* This order and judgment is not binding precedent, except under the doctrines of 

law of the case, res judicata, and collateral estoppel. This court generally disfavors the 

citation of orders and judgments; nevertheless, an order and judgment may be cited under 

the terms and conditions of 10th Cir. R. 32.1. 

FILED 

United States Court of Appeals 

Tenth Circuit 

January 21, 2015

Elisabeth A. Shumaker 

Clerk of Court

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I

 Loman worked in various civilian positions at Tinker Air Force Base from 1976 to 

2007. In the course of a separate investigation, law enforcement learned that Loman 

accepted $843,200 from Henry McFlicker, a seller of surplus airplane parts, between 

2002 and 2006. During this time period, Loman was employed as an item manager at 

Tinker Air Force Base. In this position, he was responsible for locating airplane parts on 

the surplus market and soliciting bids from suppliers. Although he did not personally 

decide which parts to purchase, Loman wielded significant influence over the 

procurement process by deciding which bids would be included in the packages sent to 

contracting officials. 

 McFlicker and Loman entered into an arrangement under which Loman would be 

paid a percentage of the contracts awarded to McFlicker’s companies for parts solicited 

by Loman. On several occasions, Loman traveled to Florida, where McFlicker’s 

companies were located, to obtain cash payments. 

 Loman was indicted by a federal grand jury on November 7, 2012. On May 21, 

2013, he was charged by superseding indictment with one count of conspiracy to defraud 

through bribery in violation of 18 U.S.C. §§ 1343 and 1346, one count of accepting a 

bribe in violation of 18 U.S.C. § 201(b)(2), and one count of being a federal employee 

with an illegal private financial interest in violation of 18 U.S.C. § 208(a). The first two 

counts alleged activities occurring between May 2002 and November 2006. Count three 

was based on a specific transaction on January 11, 2005. Following a hearing, the district 

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court found that Loman was competent to stand trial. A jury convicted Loman on all 

three counts. His advisory Guidelines range was 121 to 151 months. Citing 71-year-old 

Loman’s poor health, the court elected to vary downwards and imposed a sentence of 30 

months’ imprisonment. Loman timely appealed. 

II

 Loman first challenges the district court’s finding that he was competent to stand 

trial. A defendant is incompetent if “the court finds by a preponderance of the evidence 

that the defendant is presently suffering from a mental disease or defect rendering him . . 

. unable to understand the nature and consequences of the proceedings against him or to 

assist properly in his defense.” 18 U.S.C. § 4241(d). The defendant bears the burden of 

establishing incompetency. Cooper v. Oklahoma, 517 U.S. 348, 355 (1996). We review 

a district court’s competency finding for clear error, reversing only if this court is “left 

with the definite and firm conviction that a mistake has been committed.” United States 

v. deShazer, 554 F.3d 1281, 1286 (10th Cir. 2009) (quotation omitted). 

 The district court heard testimony from two psychologists who interviewed 

Loman. Dr. Sean Roberson testified on behalf of the government that Loman performed 

extremely poorly on the Dementia Rating Scale, Second Edition. Dr. Roberson then 

attempted to administer the Validity Indicator Profile, a test intended to measure whether 

the subject is responding in an honest manner. Because Loman took so long on that test, 

Dr. Roberson decided to switch to a different malingering exam, the Test of Memory 

Malingering (“TOMM”). On three TOMM trials, Loman scored lower than individuals 

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who had been instructed to malinger. Dr. Roberson also noted other signs that Loman 

was feigning incompetence: Loman made comments suggesting he was mentally 

impaired even though most individuals suffering dementia are unaware of their condition; 

Loman’s treating physician had not noted signs of dementia in his notes; and Loman’s 

symptoms were not present in conversations recorded during the prior two years. 

Roberson opined that Loman was capable of understanding the proceedings against him 

and of assisting his counsel, and that he was feigning impairment. 

 Loman presented testimony from Dr. Curtis Grundy, who reached the opposite 

conclusion. Dr. Grundy testified that Loman’s house was in disrepair, Loman was unable 

to recall basic details of his personal history (including his daughters’ last names), and

that Loman’s treating physician stated that he “wouldn’t be surprised if Mr. Loman was 

incompetent.” Loman performed poorly on the Reynolds Intellectual Assessment Scale, 

the Mini Mental Status Examination, and the MacArthur Competency Assessment Tool 

administered by Dr. Grundy. However, he scored well on the TOMM with Dr. Grundy, 

indicating that he was not malingering. Dr. Grundy testified that in his opinion, Loman 

was incompetent to stand trial. 

 Dr. Grundy made several concessions during his cross-examination. He testified 

that he would seriously consider malingering if Loman had performed as poorly on the 

TOMM as he did with Dr. Roberson. And Dr. Grundy acknowledged that Loman’s 

medical records did not indicate a history of stroke despite his earlier belief to the 

contrary. Further, Dr. Roberson explained that individuals often malinger only when 

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they believe they need to do so, and thus it is not a static behavior. The district court also 

heard lay testimony indicating that Loman did not appear impaired during his interactions 

with family members and others. Loman provided a rambling statement at the close of 

the hearing. 

 The district court thoroughly considered this partially conflicting evidence. It 

found by a preponderance of the evidence that Dr. Roberson’s malingering opinion was 

persuasive and that Loman was competent. Giving due regard to the district court’s factfinding role, see United States v. Pompey, 264 F.3d 1176, 1179 (10th Cir. 2001), we 

cannot say the district court’s conclusion was clearly erroneous. 

III

 Loman also challenges the timeliness of the superseding indictment. “Generally, 

we review the grant or denial of a motion to dismiss an indictment for an abuse of 

discretion.” United States v. Giles, 213 F.3d 1247, 1248 (10th Cir. 2000). If the motion 

to dismiss turns on an issue of statutory interpretation, however, our review is de novo. 

Id. at 1248-49. 

 The offenses at issue in this case are subject to a five-year limitations period. See 

18 U.S.C. § 3282(a). In the May 2013 superseding indictment,1 Loman is charged with 

 1

 “[A] super[s]eding indictment relates back to the original indictment’s date if the 

super[s]eding indictment does not broaden or substantially amend the original charges.” 

United States v. Qayyum, 451 F.3d 1214, 1218 (10th Cir. 2006) (quotation omitted). 

Because we conclude the charges were timely using the date the superseding indictment 

was filed, we need not consider whether it relates back to the original indictment. 

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conduct ending in November 2006 as to counts one and two, and occurring in January 

2005 as to count three. Loman contends that under § 3282(a), these charges had to be 

filed by November 2011 and January 2010, respectively. The government counters that 

the limitations period was tolled by the Wartime Suspension of Limitations Act 

(“WLSA”), 18 U.S.C. § 3287. 

 The present version of WLSA provides: 

When the United States is at war or Congress has enacted a specific 

authorization for the use of the Armed Forces, as described in section 5(b) 

of the War Powers Resolution (50 U.S.C. 1544(b)), the running of any 

statute of limitations applicable to any offense (1) involving fraud or 

attempted fraud against the United States or any agency thereof in any 

manner, whether by conspiracy or not, or (2) committed in connection with 

the acquisition, care, handling, custody, control or disposition of any real or 

personal property of the United States, or (3) committed in connection with 

the negotiation, procurement, award, performance, payment for, interim 

financing, cancelation, or other termination or settlement, of any contract, 

subcontract, or purchase order which is connected with or related to the 

prosecution of the war or directly connected with or related to the 

authorized use of the Armed Forces, or with any disposition of termination 

inventory by any war contractor or Government agency, shall be suspended 

until 5 years after the termination of hostilities as proclaimed by a 

Presidential proclamation, with notice to Congress, or by a concurrent 

resolution of Congress. 

Id. This version of the statute includes a set of amendments passed on October 14, 2008. 

See Duncan Hunter National Defense Authorization Act for Fiscal Year 2009, Pub. L. 

No. 110-417, § 855, 122 Stat. 4356, 4545-46 (2008). Prior to that date, the statute 

extended the limitations period by three rather than five years, and applied only if the 

United States was “at war”—an authorization for the use of force was not specifically 

referenced. Id.; see also 18 U.S.C. § 3287 (2006) (amended). 

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 Loman does not argue that the charges against him would be untimely under the 

present version of WLSA. We will accordingly assume that the 2001 and 2002 

Congressional authorizations for the use of force qualify under the post-amendment 

WLSA, and that the tolling periods triggered by those authorizations have yet to 

terminate. See Authorization for Use of Military Force Against Iraq Resolution of 2002, 

Pub. L. No. 107-243, 116 Stat. 1498; Authorization for Use of Military Force, Pub. L. 

No. 107-40, 115 Stat. 224 (2001); see also United States ex rel. Carter v. Halliburton Co., 

710 F.3d 171, 179 (4th Cir. 2013) (“Neither Congress nor the President had met the 

formal requirements of [WLSA] for terminating the period of suspension . . . .”). 

 Rather than challenging the timeliness of the charges under the current version of 

WLSA, Loman advances a two-part argument. He claims that the post-amendment 

version of WLSA cannot be applied to him without violating the Ex Post Facto Clause, 

U.S. Const. art. 1, § 9, cl. 3, and that the pre-amendment version of WLSA is inapplicable 

because the United States was not “at war” at the time of his offenses. Because our 

circuit precedent forecloses us from accepting Loman’s first premise, we reject his 

argument without considering the second. 

 “[T]he application of an extended statute of limitations to offenses occurring prior 

to the legislative extension, where the prior and shorter statute of limitations has not run 

as of the date of such extension, does not violate the ex post facto clause.” United States 

v. Taliaferro, 979 F.2d 1399, 1402 (10th Cir. 1992); see also United States v. Grimes, 142 

F.3d 1342, 1351 (11th Cir. 1998) (“[A]ll of the circuits that have addressed the issue 

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under other statutes have uniformly held that extending a limitations period before the 

prosecution is barred does not violate the Ex Post Facto Clause.”). By contrast, the 

Supreme Court has held that a statute that revives a limitations period that has already 

expired would offend the Ex Post Facto Clause. See Stogner v. California, 539 U.S. 607, 

609 (2003). But the Court expressly stated that this rule does not apply to unexpired 

limitations periods. See id. at 618 (“[C]ourts have upheld extensions of unexpired 

statutes of limitations[,] extensions that our holding today does not affect . . . .”) 

(parenthetical omitted). 

 Our holding in Taliaferro controls. Loman was charged with committing an 

offense that occurred in January 2005 and two offenses that continued until November 

2006. Congress amended WLSA in 2008, well within the pre-existing five-year 

limitations period for all three offenses. See 18 U.S.C. § 3282. Accordingly, the postamendment version of WLSA extended the limitations period applicable to Loman’s 

crimes without violating the Ex Post Facto Clause. And because Loman does not contest 

the application of the post-amendment version of WLSA, we conclude that the charges 

against him were timely.2

 2

 Loman briefly states that a potentially interminable limitations period would 

raise issues regarding the ability to mount a proper defense many years after the alleged 

crime was committed. To the extent Loman is raising a due process challenge to WLSA, 

we decline to consider it for inadequate briefing. See Bronson v. Swensen, 500 F.3d 

1099, 1105 (10th Cir. 2007) (“[C]ursory statements, without supporting analysis and case 

law, fail to constitute the kind of briefing that is necessary to avoid application of the 

forfeiture doctrine.”). 

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IV

 Lastly, Loman argues that his sentence is procedurally and substantively 

unreasonable. Specifically, he claims that the district court committed procedural error 

by failing to adequately explain the reasons for the sentence imposed. See United States 

v. Vigil, 696 F.3d 997, 1001 (10th Cir. 2012) (concluding inadequate explanation is a 

procedural reasonableness issue). Ordinarily, when considering a district court’s 

sentencing decisions, we review its legal interpretations de novo and its factual findings 

for clear error. See United States v. Parker, 553 F.3d 1309, 1321 (10th Cir. 2009). 

However, because Loman did not object to the adequacy of the district court’s 

explanation below, we review for plain error. See United States v. Romero, 491 F.3d 

1173, 1177 (10th Cir. 2007) (holding that plain error review applies to “unpreserved 

challenges to the method by which the district court arrived at a sentence, including 

arguments that the sentencing court failed to explain adequately the sentence imposed 

under the statutory factors”). Plain error occurs “when there is (1) error, (2) that is plain, 

(3) which affects substantial rights, and (4) which seriously affects the fairness, integrity, 

or public reputation of judicial proceedings.” Id. at 1178. 

 Under 18 U.S.C. § 3553(c), “[t]he court, at the time of sentencing, shall state in 

open court the reasons for its imposition of the particular sentence . . . .” Id. A district 

court is not “required to recite any magic words to show us that it fulfilled its 

responsibility to be mindful of the factors that Congress has instructed it to consider 

before issuing a sentence.” United States v. Cordova, 461 F.3d 1184, 1189 (10th Cir. 

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2006) (quotation omitted). Instead, “[t]he sentencing judge should set forth enough to 

satisfy the appellate court that he has considered the parties’ arguments and has a 

reasoned basis for exercising his own legal decisionmaking authority.” Rita v. United 

States, 551 U.S. 338, 356 (2007). This explanation must “allow for meaningful appellate 

review.” Gall v. United States, 552 U.S. 38, 50 (2007). 

 The district court correctly calculated the Guidelines range of 121-151 months, but 

elected to vary downwards. It found that a 30-month sentence was “sufficient under the 

totality of all of the circumstances, but certainly not more than necessary to comply with 

title 18, Section 3553(a).” The court expressed its concern in balancing “the magnitude 

of what was involved here, the crime, taking, as a public official . . . nearly a million 

dollars” with Loman’s “health status at this point.” It also specifically referenced the 

§ 3553(a) factors, including the need for the sentence to reflect the seriousness of the 

offense, promote respect for the law, provide just punishment for the offense, and to 

protect the public from further crimes. See id. We conclude that this explanation was 

adequate and thus the district court did not plainly err in describing its reasons for the 

sentence imposed. 

 Loman also argues that his sentence was substantively unreasonable. We presume 

that a below-Guidelines sentence is substantively reasonable when challenged by a 

defendant. United States v. Balbin-Mesa, 643 F.3d 783, 788 (10th Cir. 2011). Under the 

deferential abuse of discretion standard applicable to substantive reasonableness 

challenges, “we will reverse a determination only if the court exceeded the bounds of 

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permissible choice, given the facts and the applicable law in the case at hand.” United 

States v. McComb, 519 F.3d 1049, 1053 (10th Cir. 2007) (quotation omitted). “In any 

given case there could be a range of reasonable sentences that includes sentences both 

within and outside the Guidelines range.” United States v. Martinez-Barragan, 545 F.3d 

894, 904 (10th Cir. 2008) (quotation omitted). 

 As noted above, the district court concluded that Loman’s poor health and 

advanced age called for a below-Guidelines sentence. But it also concluded that the 

magnitude of Loman’s offense called for a sterner punishment than the probation-only 

sentence he requested. “We may not examine the weight a district court assigns to 

various § 3553(a) factors, and its ultimate assessment of the balance between them, as a 

legal conclusion to be reviewed de novo.” United States v. Smart, 518 F.3d 800, 808 

(10th Cir. 2008). “Instead, we must give due deference to the district court’s decision 

that the § 3553(a) factors, on a whole, justify the extent of the variance.” Id. We 

conclude that the district court’s sentencing decision was within the range of permissible 

choice, and thus hold that the court did not abuse its discretion by imposing a 30-month 

sentence. 

V

AFFIRMED. 

Entered for the Court 

Carlos F. Lucero 

Circuit Judge 

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