NOT RECOMMENDED FOR FULL-TEXT PUBLICATION 

File Name: 17a0606n.06 

No. 15-5525 

UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA, 

 Plaintiff-Appellee, 

v. 

JOYCE E. ALLEN, 

 Defendant-Appellant. 

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ON APPEAL FROM THE 

UNITED STATES DISTRICT 

COURT FOR THE EASTERN 

DISTRICT OF TENNESSEE 

BEFORE: KEITH, McKEAGUE and STRANCH, Circuit Judges. 

DAMON J. KEITH, Circuit Judge. Defendant Joyce E. Allen (“Allen”) appeals her 

convictions of one count of conspiracy to commit mail fraud and wire fraud, in violation of 18 

U.S.C. § 1349, one count of conspiracy to commit wire fraud, in violation of 18 U.S.C. § 1349, 

two counts of conspiracy to commit money laundering, in violation of 18 U.S.C. § 1956(h), and 

six counts of uttering fraudulent securities, in violation of 18 U.S.C. § 513(a). On appeal, Allen 

argues that: (1) the evidence was insufficient to support her convictions; (2) the district court 

erred in instructing the jury on “deliberate ignorance”; and (3) the sentence imposed by the 

district court is procedurally and substantively unreasonable and excessive. For reasons set forth 

below, we AFFIRM. 

I. BACKGROUND 

Beginning in 2001, a Knoxville, Tennessee-based corporation known as Benchmark 

Capital, Inc. (“Benchmark”) was used to defraud would-be investors and obtain their money. 

The operators of Benchmark fraudulently induced their victims to purchase “investments” 
No. 15-5525, United States v. Allen 

2 

through Benchmark. However, rather than purchasing the advertised investments, the 

Benchmark operators converted victims’ funds to personal use. The maintenance of this scheme 

depended on the constant recruiting of new victims in order to afford quarterly “investment 

returns” payments to existing victims. Simply put, Benchmark operated a “Ponzi scheme”. 

In 2002, Benchmark hired Allen, an independent insurance agent, to sell its “annuity 

investments.” Over the next 10 years, Allen sold Benchmark products to numerous victims. In 

2012, the head of Benchmark, Charles Candler (“Candler”), committed suicide in the midst of an 

investigation conducted by the Securities and Exchange Commission (“SEC”). Thereafter, 

federal agents executed search warrants at Candler’s and Allen’s offices, which led to the 

uncovering of the criminal scheme. 

In a third superseding indictment, Allen was indicted on ten counts: one count of 

conspiracy to commit mail fraud and wire fraud, in violation of 18 U.S.C. § 1349, one count of 

conspiracy to commit wire fraud, in violation of 18 U.S.C. § 1349, two counts of conspiracy to 

commit money laundering, in violation of 18 U.S.C. § 1956(h), and six counts of uttering 

fraudulent securities, in violation of 18 U.S.C. § 513(a). 

At the subsequent seven-day trial, the jury heard testimony from over thirty witnesses, 

including Allen, and viewed dozens of exhibits. After the close of the government’s presentation 

of evidence, Allen moved for a judgment of acquittal pursuant to Federal Rule of Criminal 

Procedure 29. The district court denied the motion. After the close of all the evidence, and 

before closing arguments were made, Allen renewed her Rule 29 motion. The district court 

again denied the motion. The jury found Allen guilty of all counts. 

On April 20, 2015, the district court sentenced Allen to a prison term of 360 months. On 

May 12, 2015, Allen appealed, arguing that: (1) the evidence presented at trial was insufficient to 
No. 15-5525, United States v. Allen 

3 

support her convictions; (2) the district court erred in instructing the jury on “deliberate 

ignorance”; and (3) the sentence imposed by the district court is procedurally and substantively 

unreasonable and excessive under 18 U.S.C. § 3553. 

II. DISCUSSION 

A. Sufficiency of the Evidence 

Allen first argues that the district court erred in denying her Rule 29 motion because the 

evidence presented at trial was insufficient to support her convictions. We review a challenge to 

the sufficiency of the evidence de novo. United States v. Garcia, 758 F.3d 714, 718 (6th Cir. 

2014) (citation omitted). However, “[w]e can neither independently weigh the evidence, nor 

make our own assessment of the credibility of the witnesses who testified at trial.” Id. (internal 

citation omitted). Instead, “the critical inquiry . . . [is] to determine whether the record evidence 

could reasonably support a finding of guilt beyond a reasonable doubt.” Jackson v. Virginia, 

443 U.S. 307, 318 (1979). “[T]he relevant question is whether, after viewing the evidence in the 

light most favorable to the prosecution, any rational trier of fact could have found the essential 

elements of the crime beyond a reasonable doubt.” Id. at 319 (emphasis in original). 

This court “will reverse a judgment for insufficiency of evidence only if this judgment is 

not supported by substantial and competent evidence upon the record as a whole, and . . . this 

rule applies whether the evidence is direct or wholly circumstantial.” United States v. Stone, 

748 F.2d 361, 363 (6th Cir. 1984). “It is not necessary for the evidence to exclude every 

reasonable hypothesis except that of guilt.” United States v. Beddow, 957 F.2d 1330, 1334 (6th 

Cir. 1992) (citation omitted). 

“The general hesitancy to disturb a jury verdict applies with even greater force when a 

motion of acquittal has been thoroughly considered and subsequently denied by the trial judge.” 
No. 15-5525, United States v. Allen 

4 

United States v. Lee, 359 F.3d 412, 418–19 (6th Cir. 2004). “Indeed, a defendant bears a ‘very 

heavy burden’ when he challenges the sufficiency of the evidence, lest the matter of his guilt be 

re-litigated.” United States v. Owens, 426 F.3d 800, 808 (6th Cir. 2005) (quoting United States 

v. Spearman, 186 F.3d 743, 746 (6th Cir. 1999)) (internal citation omitted). 

1. Conspiracy Crimes 

Allen was convicted of one count of conspiracy to commit mail fraud and wire fraud, and 

one count of conspiracy to commit wire fraud, both in violation of 18 U.S.C. § 1349. Allen was 

also convicted of two counts of conspiracy to commit money laundering, in violation of 

18 U.S.C. § 1956(h). 

In order to establish the crime of conspiracy, the government must demonstrate that “two 

or more persons conspired, or agreed, to commit the [substantive] crime . . . and that the 

defendant knowingly and voluntarily joined the conspiracy.” United States v. Rogers, 769 F.3d 

372, 377 (6th Cir. 2014)).1

 

In appealing her conspiracy convictions for insufficiency of the evidence, defense 

counsel argues, “It is apparent from the proof Allen was not aware Benchmark was a Ponzi 

scheme. She was deceived and used by Candler. . . . While the prosecution highlighted several 

facts consistent with its theory, and established that Allen’s reliance on Candler’s representations 

was unwise and foolish, the weight of the evidence regarding Allen’s [sic] knew Benchmark was 

fraudulent predominates against the jury’s verdict.” Allen’s main contention, therefore, involves 

the second essential element of the conspiracy crime—whether she knowingly joined the existing 

conspiracies to commit mail fraud, wire fraud, and money laundering. 

 

1

 For conspiracy offenses in violation of 18 U.S.C. §§ 1349 , 1956(h), “the United States Supreme Court has 

disavowed the need for proof of an overt act in furtherance of [the] conspiracies . . . .” Rogers, 769 F.3d at 381; see 

also Committee Commentary to Sixth Circuit Pattern Criminal Jury Instruction 3.01A. 
No. 15-5525, United States v. Allen 

5 

“Once a conspiracy is shown beyond a reasonable doubt however, a defendant’s 

connection to the conspiracy ‘need only be slight.’ Moreover, a defendant’s knowledge of and 

participation in a conspiracy may be inferred from his conduct and established by circumstantial 

evidence.” United States v. Martinez, 430 F.3d 317, 330 (6th Cir. 2005) (quoting United States 

v. Avery, 128 F.3d 966, 971 (6th Cir. 1997)) (internal citations omitted). 

One means of establishing a defendant’s knowledge is the concept of “deliberate 

ignorance.” In order to use “deliberate ignorance” to establish that a defendant knowingly joined 

a conspiracy, it must be proven that the defendant “deliberately ignored a high probability that 

[the illegal activity was occurring] . . . .” Pattern Crim. Jury Instr. 6th Cir. 2.09 (2013 ed.). 

In other words, it must be proven that “the defendant deliberately closed his eyes to what was 

obvious.” Id. 

A review of the trial transcript reveals that the prosecution introduced abundant 

circumstantial evidence, relying on the jury to infer Allen’s active participation in the 

conspiracy, or her “deliberate ignorance” of it, from her conduct. As previously stated, our task 

is to view this evidence in the light most favorable to the prosecution and determine whether 

such evidence could have reasonably led a rational jury to find that Allen knowingly joined the 

conspiracy. Due to the fact that most of the prosecution’s evidence was circumstantial, a 

somewhat detailed review of the most salient evidence is required to understand the grounds on 

which the jury made its findings. 

a. Allen’s experience and Benchmark’s operations 

The jury heard evidence relating to Allen’s years of work experience in tax preparation, 

accounting, and selling insurance and annuities. In order to be licensed to sell insurance 

products and annuities, Allen took a state licensing exam and completed periodic “continuing 
No. 15-5525, United States v. Allen 

6 

education” courses throughout the years she was licensed. Allen worked in the industry and held 

her insurance license for approximately fifteen years before she was invited to sell annuities for 

Benchmark. 

At trial, Allen testified that she believed Candler when he falsely told her that Benchmark 

was a large national corporation headquartered in Chicago, and that he represented the 

company’s southeast region. However, Allen also testified that she never spoke to anyone from 

the Chicago headquarters, never received training or promotional materials from the Chicago 

headquarters, and never received any paperwork from Chicago confirming that she, as an 

independent agent, was authorized to sell Benchmark products. Allen testified that, based on her 

years of experience with other companies, she knew this was unusual. 

Allen testified that, in her experience, other companies’ applications required prospective 

investors to fill out around 15 pages of information so that they could be properly vetted for 

legitimate investments, but Benchmark’s application consisted of only one page. The 

prosecution presented evidence that every one of these one-page applications listed the same 

“Deposit Control Number”—a number that is supposed to be unique to each application so as to 

differentiate between applicants. The top of each application read, “Deposit Control Number 

NAOO 165466.” However, the six-digit number at the end appeared in a different font, 

suggesting that it was unique to that application form. Allen testified that, in her ten years at 

Benchmark, she had somehow never noticed that. 

Allen also testified that she received her sales commissions by writing checks to herself 

from an account that Candler set up, funded with $75,000 of his personal funds, and to which he 

made her a signatory. She testified that she believed the Chicago headquarters paid her 

commissions to Candler, and that Candler had made this separate account so that she could draw 
No. 15-5525, United States v. Allen 

7 

her commissions herself. When asked, she admitted that none of the other companies for whom 

she’d sold products had ever operated in this way. She testified that she believed the company’s 

policy dictated such an arrangement, despite having never received any policy materials from the 

supposed headquarters in Chicago. 

b. Munsey lawsuit 

The jury also heard evidence related to a 2008 lawsuit brought by Teresa Munsey 

(“Munsey”), who claimed that Allen ignored her requests to withdraw the funds her family had 

invested in Benchmark. Munsey’s complaint also alleged, inter alia, that: 1) neither Candler nor 

Benchmark was licensed to sell insurance products in Tennessee; 2) the corporation known as 

“Benchmark Capital” had been dissolved by the State of Tennessee in 2002; 3) there was no 

“Benchmark Capital” registered in Illinois as conducting business in Tennessee; 4) Benchmark’s 

marketing materials and website were fraudulently advertising that Benchmark was a member of 

a non-existing entity called “North American Association for Life and Health,” in an effort to 

mislead others into confusing it with the legitimate North American Company for Life and 

Health Insurance; 5) Candler and Allen committed fraud by entering into an unlawful annuity 

contract and then refusing to return funds as required by the contract; and 6) Candler and Allen 

were selling unlicensed insurance products and fraudulently misrepresenting their products. 

Allen was a named defendant in this lawsuit, and she testified that she kept a copy of the 

paperwork containing these allegations; the paperwork was found in her office when law 

enforcement searched it in 2012. When asked about her response to these allegations, Allen 

testified that she ignored them and called Candler so he could deal with the lawsuit. 
No. 15-5525, United States v. Allen 

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c. TDCI investigation 

The jury also heard evidence that Munsey’s lawsuit triggered an investigation by the 

Tennessee Department of Commerce and Insurance (“TDCI”), a state agency that issues licenses 

to sell insurance and investigates insurance fraud. In July 2008, the TDCI sent Allen a letter 

asking her to appear at TDCI offices to be interviewed, and to bring certain documents related to 

the insurance products she was selling. Allen did not appear, and the interview was rescheduled 

two more times. After Allen failed to appear the third time, the TDCI issued a subpoena for her 

to appear and bring the requested documentation. 

 Allen testified that she told Candler about the subpoena and that he said she did not need 

to comply because the only consequence for her noncompliance would be the revocation of her 

license to sell insurance. According to Allen, this did not concern her because Candler told her 

she would still be licensed “through Benchmark.” Allen testified that she blindly believed 

Candler’s lie, despite its being at odds with her 23 years of experience as a licensed insurance 

salesperson, including the initial licensing test and the periodic continuing education courses she 

had completed. Her supposed lack of suspicion about this lie is also at odds with the fact that the 

Munsey lawsuit had specifically put her on notice of allegations that Benchmark had no such 

license. 

In November 2009, after notifying Allen, the TDCI held a hearing at which Allen again 

failed to appear. As a result, the TDCI revoked Allen’s license. Allen did not appeal the 

revocation. Nevertheless, Allen continued to sell Benchmark products. When asked about the 

fact that every victim’s application was missing the required insurance license number, Allen 

testified that she did not think there was a problem because Candler assured her everything was 
No. 15-5525, United States v. Allen 

9 

fine. Again, this supposed belief in Candler’s lies is at odds with her knowledge of, and 

extensive experience in, the insurance industry. 

The jury also heard evidence that contradicted Allen’s testimony on this topic. Allen’s 

former associate testified that, in 2010, Allen directed an employee to take an insurance course 

and obtain an insurance license. The associate testified that Allen stated, “We just need someone 

in here that has an insurance license.” This contradicts Allen’s testimony that she believed the 

personnel in her office were allowed to sell insurance products under the license she supposedly 

believed Benchmark held. In the end, that employee did not obtain an insurance license. 

Nevertheless, there was evidence presented that Allen continued to sell Benchmark products 

until a few weeks before law enforcement officers executed their search warrants in early 2012. 

d. Barkhursts 

The jury also heard evidence that the TDCI investigation caused the Barkhursts, 

Benchmark investors, to become concerned. Prior to the TDCI investigation, the Barkhursts had 

already experienced a troubling encounter with Allen. The Barkhursts had first purchased 

Benchmark products from Allen and one of her associates, Joan Black (“Black”), long before the 

TDCI investigation. After Black stopped selling Benchmark products and separated from Allen, 

the Barkhursts continued to do business with Black. Black sold the Barkhursts what she claimed 

was the same type of annuities that she had sold them when she was working with Allen. After 

several months, the Barkhursts stopped receiving payments from Black, prompting them to file a 

police report. They then learned that Black’s “investments” were actually part of a Ponzi 

scheme. Mr. Barkhurst testified that, when he notified Allen of the things he had learned about 

Black, Allen replied that they should have informed her instead of going to the police so that she 

and Candler could have handled it “in-house.” 
No. 15-5525, United States v. Allen 

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Having had this prior experience, the Barkhursts contacted the TDCI investigator in 

Allen’s case when they became aware of the TDCI investigation. Upon learning that Allen’s 

license had been revoked and that Benchmark was not licensed to sell insurance products, the 

Barkhursts sent a letter to Allen requesting evidence of which companies were holding the 

Barkhursts’ investments. The Barkhursts never received any such evidence. Instead, Allen and 

Candler held a meeting with the Barkhursts, during which Allen falsely told them that she had 

been to Chicago and met with the owners of Benchmark many times. The jury also heard 

testimony that Allen told a similar lie to at least two other Benchmark customers. 

e. Moore letter 

The jury also heard evidence regarding Lori Moore (“Moore”) and her experience selling 

Benchmark products for Allen in Florida. Moore, a Florida accountant, testified that she became 

concerned about the operations of the business after working for Allen for approximately two 

months. She stated that she attempted to contact Allen many times about her concerns, but was 

ignored. At trial, the prosecution introduced an April 2011 letter that Moore sent to Allen, in 

which she stated: 

I have made several attempts to get basic questions answered by your firm such as 

the following: 

1. What is your license number? 

2. What states are you licensed in to sell Annuities? 

3. What is the name of the agent or agency appointed with the insurance 

commissioner and their insurance license number? 

4. How come I can sign these documents and not be required to have a 

license in the State of Florida, for which Charles Candler has repeatedly 

told me there was none required? 

5. Is J. Allen and Associates licensed to do business in Florida and if so 

under what business name are you using? 

6. Why would the application state that it is being signed in Alcoa, TN 

when it is really being signed in Florida? 
No. 15-5525, United States v. Allen 

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7. When you sign the application, why does it only have your company 

name and address under the license number, and not an actual license 

number? Where is the license number? 

Anybody that is involved in the insurance business and properly licensed to 

perform these services would not hesitate to give these straight forward answers 

to my questions or to any client. Although, still to this date I have not been given 

any straight forward answers to these questions. When I call Benchmark Capital I 

only get voicemail recordings and no return phone calls back. Why is it that when 

I call Benchmark Capital in Illinois that Charles Candler is listed as a 

representative and has a voicemail with Benchmark Capital? Another question 

arises, why would and how is Charles Candler involved with Benchmark Capital 

in Chicago Illinois? 

Due to the insufficient answers from your company regarding these questions, I 

have done my own independent research into licenses requirements for all parties 

involved with the State Insurance Commissioners from Florida, Tennessee and 

Illinois. I have not been able to verify any licenses information on J. Allen and 

Associates Inc, Charles Candler, Benchmark Capital (BCS) or any individuals 

associated with these corporations. . . . 

I have been misinformed and mislead by Charles Candler and J. Allen and 

Associates Inc, regarding the requirements on licensing. I was informed by 

Charles Candler on several occasions that no licenses were needed by me to 

perform the application process. After contacting the State Insurance 

Commissioners in Florida, Tennessee and Illinois, the answer became totally 

apparent that a license is required by all parties involved in the process of 

completing applications and selling annuities in all states involved that the parties 

are located in. 

. . . Due to the misleading and lack of information to the questions that I have 

asked of J. Allen and Associates Inc, Charles Candler and Benchmark Capital 

(BCS) I do not feel confident or comfortable doing any type of business with your 

company. Therefore, I wish to no longer be affiliated or associated with your 

business practice in any way. 

Allen testified that she skimmed Moore’s letter, but ultimately did not pay “much 

attention” to it. Allen never responded to Moore. 

f. Mahers 

The jury also heard evidence that Moore sold Benchmark products to William Joseph and 

Rogene Maher, a Florida couple. Around the time Moore sent her letter to Allen in April 2011, 

she shared her concerns with the Mahers. The Mahers testified that they received the same 
No. 15-5525, United States v. Allen 

12 

promise from Allen that Munsey alleged in her lawsuit—that the investment funds could be 

withdrawn at any time. In April 2011 the Mahers wrote a letter to Allen and Candler, requesting 

the return of their investments funds. They received no response. 

In May 2011, the Mahers drove to Tennessee to meet with Allen and Candler in order to 

get their investment funds returned to them. In response to their request, Candler threatened to 

“lock up the money with the IRS” so that the Mahers would not be able to access it for several 

years. Allen was present in this meeting, but did not say anything. 

The Mahers met with Allen several more times in an attempt to withdraw some of their 

principal investment, but Allen convinced them that, for tax purposes, it would be better to wait. 

The Mahers testified that Allen gave them a signed “100% guarantee” document, promising that 

her company would guarantee their investment; the prosecution entered this document into 

evidence at trial. When questioned, Allen admitted that she gave “100% guarantee” documents 

to multiple investors but never had any intention of fulfilling those guarantees. The Mahers were 

never able to withdraw their principal investment. 

g. SEC investigation 

The jury also heard evidence related to the SEC’s investigation that eventually uncovered 

this scheme. In January 2012, the SEC contacted Candler and requested information on all 

investments offered by Benchmark, entities that had custody of the invested funds, investors and 

the amounts they invested, investment records, bank statements, etc. Thereafter, Candler 

stopped depositing customers’ checks into the Benchmark bank account. Around the same time, 

at Candler’s direction, Allen told her assistant to open a new bank account at Regions Bank and 

to deposit several checks that Candler had given her. 
No. 15-5525, United States v. Allen 

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On March 1, 2012, Candler committed suicide. The next morning, Allen learned of 

Candler’s death. Shortly thereafter, Allen asked her assistant to go to the bank and cash Allen’s 

personal commission checks. Her assistant testified that this seemed strange because Allen had 

always wanted her checks deposited, rather than cashed. Later, Allen directed her assistant to 

withdraw over $900,000 from the new Regions Bank account and have the bank issue cashier’s 

checks in different amounts for Allen, Allen’s husband, Allen’s assistant, and some family and 

friends. 

Later that same day, law enforcement executed a search warrant at Allen’s office. The 

jury heard testimony that, when asked to name all her business and personal bank accounts, she 

omitted the Regions Bank account. When law enforcement discovered evidence of the account’s 

existence and confronted Allen, she admitted that Candler had directed her to open that account 

and deposit customers’ funds into it. She also admitted that she had withdrawn the money and 

gotten cashier’s checks made that very day. She told law enforcement that she had fraudulently 

taken that money. 

h. Analysis 

The foregoing represents only a fraction of the evidence presented in Allen’s trial. We 

find that this evidence, viewed in the light most favorable to the prosecution, could reasonably 

have led a rational trier of fact to find, beyond a reasonable doubt, that Allen knowingly took 

part in the alleged conspiracies, whether through active participation or deliberate ignorance. 

2. Uttering Fraudulent Securities 

Allen was convicted of six counts of uttering fraudulent securities, in violation of 18 

U.S.C. § 513(a) (“§ 513”). Section 513(a) criminalizes the uttering of counterfeited securities 

“of an organization . . . .” 18 U.S.C. § 513(a). “[T]he term ‘organization’ means a legal entity, 
No. 15-5525, United States v. Allen 

14 

other than a government, established or organized for any purpose, and includes a corporation, 

company, association, firm, partnership, . . . or any other association of persons which operates 

in or the activities of which affect interstate or foreign commerce . . . .” 18 U.S.C. § 513(c)(4). 

Allen argues that the evidence is insufficient as a matter of law to support her § 513(a) 

convictions because Benchmark was a fictitious entity and, therefore, could not constitute an 

“organization” operating in interstate commerce. 

Allen cites our previous decision in United States v. Wade, in which the defendant was 

convicted of passing checks that bore the names of fictitious, non-existent entities but contained 

the legitimate account numbers of legal entities. United States v. Wade, 266 F.3d 574, 577-78 

(6th Cir. 2001). There, we stated that “fictitious entities are not organizations under 18 U.S.C. 

§ 513(a).” Id. at 581. As support, Allen also cites United States v. Barone, a Ninth Circuit case 

holding that non-existent shell companies could not qualify as “organizations” because they “did 

not affect interstate commerce.” United States v. Barone, 71 F.3d 1442, 1443-44 (9th Cir. 1995). 

Here, in contrast, Benchmark had offices, active bank accounts, and employees. There 

was also evidence that Benchmark solicited interstate business through a website, conducted 

business through interstate mail and electronic mail, and made payments through checks and 

wire transfers. Accordingly, we find that Benchmark qualified as an “organization” that affected 

interstate commerce, in accordance with § 513(a). 
No. 15-5525, United States v. Allen 

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B. Jury Instruction

 Allen next argues that the district court erred in instructing the jury on “deliberate 

ignorance.” “We review a district court’s choice of jury instructions according to an abuse 

discretion standard.” United States v. Beaty, 245 F.3d 617, 621 (6th Cir. 2001). The district 

court instructed the jury as follows: 

One more thing about proving a defendant’s knowledge. No one can avoid 

responsibility for a crime by deliberately ignoring the obvious. If you are 

convinced that the defendant deliberately ignored a high probability that 

Benchmark was a fraudulent scheme and that funds received by Benchmark were 

not actually being invested, then you may find that she knew Benchmark was a 

fraudulent scheme and that funds received by Benchmark were not actually being 

invested, unless she actually believed to the contrary. 

To find deliberate ignorance, you must be convinced beyond a reasonable doubt 

that the defendant was aware of a high probability that Benchmark was a 

fraudulent scheme and that funds received by Benchmark were not actually being 

invested, and that the defendant deliberately closed her eyes to what was obvious. 

Carelessness, or negligence, or foolishness on her part is not the same as 

knowledge, and is not enough to convict. This, of course, is all for you to decide. 

Allen argues that the district court erred in denying her requests to amend the instruction. 

Allen requested that the jury be instructed that Allen’s actual belief in Benchmark as a legitimate 

operation could be a defense to the conspiracy charges. Allen also requested that the instructions 

state that the defendant would have had to take “deliberate actions” to avoid confirming the high 

probability of illegality, rather than merely stating that the defendant “closed her eyes.” Allen 

argues that giving the instruction without these additions effectively does away with the mens 

rea requirement of knowledge, allowing a conviction on the basis of mere negligence. See 

Glob.-Tech Appliances, Inc. v. SEB S.A., 563 U.S. 754, 769 (2011) (holding that a finding of 

deliberate ignorance requires the defendant to “take deliberate actions to avoid learning of 

[wrongdoing].”). 
No. 15-5525, United States v. Allen 

16 

We addressed this same argument in United States v. Reichert, stating: 

Reichert argues that the instruction failed to properly reflect that a defendant is 

willfully blind only if he took ‘deliberate action’ to avoid actual knowledge. 

[Citation to Global–Tech Appliances, Inc.]. But Reichert is incorrect. The 

deliberate ignorance instruction given in this case tracks the language of Sixth 

Circuit Pattern Criminal Jury Instruction § 2.09. The pattern instruction explicitly 

incorporates the requirement that a defendant act “deliberately” to avoid full 

knowledge, and we have “repeatedly” held the instruction to be an accurate 

statement of the law. 

United States v. Reichert, 747 F.3d 445, 451 (6th Cir. 2014) (citing United States v. Mitchell, 

681 F.3d 867, 876 n.51 (6th Cir. 2012)). 

Allen agrees that the district court substantially followed the Sixth Circuit Pattern Jury 

Instruction on “deliberate ignorance.” Therefore, we find that the district court did not abuse its 

discretion in denying Allen’s requested amendments to the instruction. 

Allen also argues that the “deliberate ignorance” instruction was prejudicial to her 

because it was given after the instruction on “conspiracy.” Allen claims this confused the jury 

about the mental state required to join a conspiracy. We need not analyze whether the district 

court’s instruction put the jury at risk of confusion because, as we have stated on this issue, “at 

worst, any [such] error in giving the instruction was harmless.” United States v. Williams, 

612 F.3d 500, 508 (6th Cir. 2010). Therefore, we find that the district court did not abuse its 

discretion in giving the “deliberate ignorance” instruction after the “conspiracy” instruction. 

C. Reasonableness of the Sentence 

Allen argues that the sentence imposed by the trial court is procedurally and substantively 

unreasonable and excessive. “[C]ourts of appeal must review all sentences—whether inside, just 

outside, or significantly outside the Guidelines range—under a deferential abuse-of-discretion 

standard.” Gall v. United States, 552 U.S. 38, 41 (2007). 
No. 15-5525, United States v. Allen 

17 

At sentencing, the district court found that Allen had a criminal history category of I and 

an offense level of 42, which yielded a Guidelines range of 360 months to life. The district court 

sentenced Allen to a prison term of 360 months. 

1. Procedural Reasonableness 

We “must first ensure that the district court committed no significant procedural error, 

such as failing to calculate (or improperly calculating) the Guidelines range . . . .” Id. Allen 

claims that her sentence is procedurally unreasonable because the district court improperly 

calculated her Guidelines range in three ways. 

a. U.S.S.G. § 3B1.3

United States Sentencing Guidelines (“U.S.S.G.”) § 3B1.3 prescribes a two-level increase 

in the offense level “[i]f the defendant abused a position of public or private trust . . . in a manner 

that significantly facilitated the commission or concealment of the offense . . . .” U.S.S.G. 

§ 3B1.3. Allen argues that she was not in a position of trust because she was merely a sales 

representative who had only an arms-length contractual relationship with her customers. 

We disagree. Allen used the client list from her previous tax preparation business as a 

recruitment tool after she transitioned to selling Benchmark annuities. Having established this 

prior relationship of trust with her tax preparation clients, Allen abused that position of trust 

when she involved them with Benchmark. See United States v. Sedore, 512 F.3d 819, 825 (6th 

Cir. 2008) (holding that a tax preparer held a “position of trust” with his clients sufficient to 

support application of the § 3B1.3 adjustment). 
No. 15-5525, United States v. Allen 

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b. U.S.S.G. § 2B1.1(b)(16)(B)(iii) 

Under the Guidelines in effect at the time Allen was sentenced, § 2B1.1(b)(16)(B)(iii)2

prescribes a four-level increase in the offense level if the defendant “substantially endangered the 

solvency or financial security of 100 or more victims . . . .” 

At sentencing, the district judge justified the application of this enhancement by stating, 

in part, that he had reviewed over 100 victim impact statements. Allen argues that the 

enhancement is nonetheless inappropriate because the district judge’s ruling did not include a 

finding of the “specific individuals who were affected.” 

Reviewing this issue under the Gall standard for procedural reasonableness, we find that 

it was not an abuse of discretion for the district judge to find, by a preponderance of the 

evidence, that Allen substantially endangered the solvency or financial security of at least 100 

victims. 

c. Double counting 

Allen argues that the district judge engaged in prohibited “double counting” of 

adjustments and enhancements when he applied the § 3B1.3 adjustment, the 

§ 2B1.1(b)(16)(B)(iii) enhancement, an enhancement for the number of victims, and an 

adjustment for targeting vulnerable victims. 

“[D]ouble counting occurs when ‘precisely the same aspect of the defendant’s conduct is 

factored into his sentence in two separate ways.’” United States v. Volkman, 797 F.3d 377, 399 

(6th Cir. 2015) (quoting United States v. Lay, 583 F.3d 436, 447 (6th Cir. 2009)) (finding no 

double counting where a doctor received both a “special skill” adjustment and a “vulnerable 

victims” adjustment when he unlawfully distributed controlled substances to his drug-addicted 

 

2

 In their briefs, both parties incorrectly cite the disputed Guidelines section as § 2B1.1(b)(15)(B)(iii). 
No. 15-5525, United States v. Allen 

19 

patients). Double counting occurs “where a single aspect of the defendant’s conduct both 

determines his offense level and triggers an enhancement.” United States v. Eversole, 487 F.3d 

1024, 1030 (6th Cir. 2007) (quotation marks and citation omitted). 

“On the other hand, where separate enhancements penalize distinct aspects of the 

defendant’s conduct, no double counting will be found.” Id. (quotation marks and citation 

omitted). “Absent an instruction to the contrary, enhancements under Chapter Two [and] 

adjustments under Chapter Three . . . are to be applied cumulatively. In some cases, such 

enhancements [and] adjustments . . . may be triggered by the same conduct. For example, 

shooting a police officer during the commission of a robbery may warrant an injury enhancement 

under §2B3.1(b)(3) and an official victim adjustment under §3A1.2, even though the 

enhancement and the adjustment both are triggered by the shooting of the officer.” U.S.S.G. 

§ 1B1.1 n.4(B). 

We find that there was no impermissible double counting here because each of the 

adjustments and enhancements Allen received penalized distinct aspects of her conduct. Here, 

no single aspect of Allen’s conduct both determines her offense level and triggers her 

enhancements and adjustments. As the Guidelines example illustrates, multiple enhancements 

and adjustments can permissibly be triggered by the same conduct. Such is the case here. 

2. Substantive Reasonableness 

“If the sentence is deemed procedurally reasonable, we must then determine if it is 

substantively reasonable. The sentence may be substantively unreasonable if the district court 

chooses the sentence arbitrarily, grounds the sentence on impermissible factors, or unreasonably 

weighs a pertinent factor. . . . Moreover, an appellate court should not overturn a sentence just 

because it might reasonably have concluded that a different sentence was appropriate.” United 
No. 15-5525, United States v. Allen 

20 

States v. Brooks, 628 F.3d 791, 796 (6th Cir. 2011) (quotation marks and internal citations 

omitted). 

a. Flawed Guidelines 

Allen argues that her sentence was substantively unreasonable because the Sentencing 

Guidelines are “deeply flawed,” and the district judge abused his discretion by “giving too much 

weight to [them].” Allen’s argument alleges that the Guidelines are arbitrary and that fraud 

offenses are accompanied by a “cluster” of practically-inevitable enhancements, concluding that 

the resulting sentences are “inordinately harsh.” 

The district judge found that the Presentence Investigation Report correctly calculated 

Allen’s offense level to be 43, which yielded a Guidelines range of life. After hearing defense 

counsel’s arguments regarding the flaws in the Guidelines, the district judge decided to continue 

the sentencing to another day so he could consider those arguments and the government’s 

response to them. At the subsequent sentencing hearing, the district judge explained at length 

the consideration he had given to the parties’ arguments. As a result of his analysis of the factors 

delineated in 18 U.S.C. § 3553(a), the district judge reduced Allen’s offense level from 43 to 42, 

yielding a Guidelines range of 360 months to life. The district judge then imposed a sentence of 

360 months. Although, as Allen points out, this is still effectively a life sentence given her age, 

imposing a below guidelines sentence evidences that the sentencing judge treated the guidelines 

as advisory and considered the § 3553(a) factors. The district judge’s lengthy discussion of the 

§ 3553(a) factors provides further evidence of this. Under the deferential abuse of discretion 

standard, we do not conclude that the district court gave undue weight to the Guidelines. 
No. 15-5525, United States v. Allen 

21 

b. Excessiveness 

Allen’s final argument is that her sentence is substantively unreasonable because it is 

excessive. Allen points out that, under her current sentence, she will not likely be released until 

she is in her 90s. She calls this a de facto life sentence and claims that such a sentence is 

incompatible with the goal of rehabilitation. 

We previously considered and rejected a similar argument because it “implie[d] that 

being nearer the grave confers a license to violate the law, or at least a discount on the 

consequences.” United States v. Lamb, 431 F. App’x 421, 427 (6th Cir. 2011). Here too, we 

find that the district court did not abuse its discretion when it sentenced Allen. 

III. CONCLUSION 

For the abovementioned reasons, we AFFIRM.