UNITED STATES COURT OF APPEALS 

 TENTH CIRCUIT

UNITED STATES OF AMERICA,

 Plaintiff - Appellee,

v.

MANJUR ALAM,

 Defendant - Appellant.

No. 14-3169

(D. Kansas)

(D.C. No. 6:13-CR-10057-MLB-1)

ORDER AND JUDGMENT*

Before, HARTZ, TYMKOVICH, and BALDOCK, Circuit Judges. 

 

Defendant Manjur Alam pleaded guilty in the United States District Court for the 

District of Kansas to one count of conspiracy to commit wire fraud for his involvement in 

a mortgage-fraud scheme. See 18 U.S.C. §§ 1343, 1349. Defendant appeals, challenging 

his sentence as procedurally and substantively unreasonable. He argues that the court 

 

*

 After examining the briefs and appellate record, this panel has determined unanimously 

to honor the parties’ request for a decision on the briefs without oral argument. See Fed. 

R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without 

oral argument. This order and judgment is not binding precedent, except under the 

doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, 

however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 

32.1. 

FILED 

United States Court of Appeals 

Tenth Circuit 

August 14, 2015

Elisabeth A. Shumaker 

Clerk of Court

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erred in calculating the loss amount and abused its discretion in varying upward from the 

guidelines sentencing range. We have jurisdiction under 28 U.S.C. § 1291 and affirm. 

I. BACKGROUND 

Defendant was convicted in 2006 of conspiracy to defraud the United States 

Department of Housing and Urban Development. He was sentenced to 12 months’ 

probation. While on probation he implemented a new scheme to defraud mortgagelending institutions. Between 2006 and April 2008 he recruited and organized 

unqualified buyers to submit home-loan applications that included false representations. 

He submitted supporting documentation for the applicants that included false 

verifications of rent and false letters of credit. The buyers defaulted on the loans and the 

lenders eventually sold the properties for less than the original loan amounts. 

Defendant was indicted and pleaded guilty to a superseding indictment. At 

sentencing in July 2014, the district court calculated a loss of $485,192.70, which 

resulted in a total offense level of 22. When combined with a criminal-history category 

of II, the advisory guidelines range was 46 to 57 months. The court varied upward to 72 

months’ imprisonment based on factors set forth in 18 U.S.C. § 3553(a). 

II. DISCUSSION

“We review sentences under an abuse of discretion standard for procedural and 

substantive reasonableness.” United States v. Washington, 634 F.3d 1180, 1184 (10th 

Cir. 2011). “Procedural review asks whether the sentencing court committed any error in 

calculating or explaining the sentence.” United States v. Alapizco-Valenzuela, 546 F.3d 

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1208, 1214 (10th Cir. 2008). “Substantive review involves whether the length of the 

sentence is reasonable given all the circumstances of the case in light of the factors set 

forth in 18 U.S.C. § 3553(a).” Id. at 1215 (internal quotation marks omitted). 

A. Loss Calculation

Under the guidelines the base offense level applicable to a crime involving fraud 

depends on the amount of loss. See USSG § 2B1.1(b)(1) (2013). Loss “is the greater of 

actual loss or intended loss,” and actual loss is “the reasonably foreseeable pecuniary 

harm that resulted from the offense.” Id. § 2B1.1 cmt. n.3(A). “In a case involving 

collateral pledged or otherwise provided by the defendant, the amount the victim has 

recovered at the time of sentencing from disposition of the collateral” is deducted from 

loss. Id. cmt. n.(3)(E)(ii). “Where a lender has foreclosed and sold the collateral, the net 

loss should be determined by subtracting the sales price from the outstanding balance on 

the loan.” Washington, 634 at 1184. “[F]actual findings regarding loss calculations are 

reviewed for clear error and loss calculation methodology de novo.” Id. 

The district court followed the methodology approved in Washington by deducting 

the sales price from the outstanding balance on the loan. Nonetheless, Defendant argues 

that the district court should have used the price paid by the lending institution at an 

auction required under state foreclosure law, not the price the property sold for following 

the auction. But his argument is contrary to Washington, where the sales price used was 

the amount recovered in sales on the open market following the lenders’ acquisition of 

the properties at auction. See id. at 1183. 

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Defendant also argues that the district court should have used the fair market value 

of the properties rather than the sales price. But fair market value independent of the 

sales price is to be considered only when the property has not been sold by the time of 

sentencing. See USSG § 2B1.1 cmt. n.3(E)(ii). He further argues that the court should 

have considered the manner in which the lending institution managed and sold the 

property, which may have decreased the amount recovered. But Defendant does not 

identify any impropriety—any unreasonable action—in the open-market sales by the 

lenders, nor does he suggest that any lender held a property as an investment after 

foreclosure.

B. Upward Variance

Much of Defendant’s criticism of the variance repeats his complaints about the 

loss calculation, which we need not revisit. To the extent that he also raises a challenge 

to the substantive reasonableness of the sentence, we review the district court’s 

application of the § 3553(a) factors for abuse of discretion. See Alapizco-Valenzuela, 

546 F.3d at 1216. 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. (internal quotation 

marks omitted). 

Defendant argues that the facts relied on by the district court impermissibly 

“duplicate points already added to the base guideline level.” Aplt. Br. at 23. But “district 

courts have broad discretion to consider particular facts in fashioning a sentence under 

18 U.S.C. § 3553(a), even when those facts are already accounted for in the advisory 

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Guidelines range.” Alapizco-Valenzuela, 546 F.3d at 1222. The district court considered 

the seriousness and scope of the offense. It emphasized that Defendant committed the 

offense while on probation from a conviction for “essentially the same conduct,” R., 

Vol. 3 at 228, and concluded that “there is very little evidence that he respects the law,” 

id. at 229. It also considered that his “crimes required thorough planning, deliberate 

dishonesty and the recruitment of others,” and were “not merely incidental ‘mistakes’ in 

an otherwise lawful life.” Id. The court did not abuse its discretion in varying upward. 

Finally, Defendant points out that his codefendants received only probation. 

“Disparate sentences, however, are permissible when the disparity is explicable by the 

facts of the particular case.” Alapizco-Valenzuela, 546 F.3d at 1223. The district court 

said that the disparity was “hardly unwarranted given the nature of the case, 

[D]efendant’s involvement and the other factors . . . covered.” R., Vol. 3 at 230. 

Defendant has not challenged this statement with any description of the roles of the 

codefendants who were sentenced less severely. 

II. CONCLUSION 

We AFFIRM Defendant’s sentence. 

ENTERED FOR THE COURT 

 Harris L Hartz 

Circuit Judge 

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