FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

No. 08-50109 Plaintiff-Appellee,

D.C. No.

v.  8:06-cr-00129-AG-1

EDWARD SHOWALTER,

OPINION Defendant-Appellant. 

Appeal from the United States District Court

for the Central District of California

Andrew J. Guilford, District Judge, Presiding

Argued and Submitted

April 8, 2009—Pasadena, California

Filed June 26, 2009

Before: Harry Pregerson and David R. Thompson,

Circuit Judges, and Jeremy D. Fogel*, District Judge.

Opinion by Judge Thompson

The Honorable Jeremy D. Fogel, United States District Judge for the

Northern District of California, sitting by designation. 

8129
COUNSEL

Ezekiel E. Cortez, San Diego, California, for the defendantappellant.

Mieke Biesheuvel, Assistant United States Attorney, Santa

Ana, California, for the appellee.

OPINION

THOMPSON, Senior Circuit Judge:

Appellant Edward Showalter (“Showalter”) pleaded guilty

to one count of wire fraud in violation of 18 U.S.C. § 1343.

He now appeals the order denying his motion to withdraw that

guilty plea and his sentence. We have jurisdiction under 28

U.S.C. § 1291. We affirm the denial of Showalter’s motion to

withdraw his guilty plea, but we vacate his sentence and

remand for resentencing.

UNITED STATES v. SHOWALTER 8133
I. Background

From 2003 to 2005, Showalter owned and operated High

Park Investments (“High Park”). He raised capital to improve

real property and then sell it for a profit. Showalter promised

investors returns of 10% to 26%. As security for the investments, he was supposed to record deeds of trust on the properties in favor of investors who provided money for the

improvements. The deeds of trust, however, often were not

recorded, and if they were, the properties were overencumbered. 

Showalter raised more than $15 million from investors, but

he diverted money he received for uses other than the promised improvements to the properties. This included making

other investments, paying High Park operating expenses, and

using money for personal purposes.

The government filed an information against Showalter,

charging him with one count of wire fraud in violation of

Title 18 U.S.C. § 1343 for defrauding his investors. Pursuant

to a plea agreement, Showalter pleaded guilty to that charge.

Approximately seven months later, Showalter moved to withdraw his guilty plea on the basis of newly discovered/available evidence. The district court denied the motion.

Showalter was sentenced to 151 months imprisonment followed by three years of supervised release, $15,418,500 in

restitution, and a $100 special assessment. This appeal followed.

II. Discussion

A. Withdrawal of Guilty Plea

The first issue we consider is whether the district court

abused its discretion by denying Showalter’s motion to withdraw his guilty plea. 

8134 UNITED STATES v. SHOWALTER
We review for abuse of discretion a district court’s denial

of a motion to withdraw a guilty plea. United States v.

Ortega-Ascanio, 376 F.3d 879, 883 (9th Cir. 2004). Findings

of fact that underlie the district court’s exercise of its discretion are reviewed for clear error. Nostratis, 321 F.3d at 1208.

[1] The decision whether to permit the withdrawal of a plea

“is solely within the discretion of the district court.” Nostratis,

321 F.3d at 1208. Before the imposition of a sentence, however, withdrawal of a guilty plea should be freely allowed if

a defendant “can show a fair and just reason for requesting the

withdrawal.” Fed. R. Crim. P. 11(d)(2)(B). We have

explained that “[f]air and just reasons for withdrawal include

inadequate Rule 11 plea colloquies, newly discovered evidence, intervening circumstances, or any other reason for

withdrawing the plea that did not exist when the defendant

entered his plea.” United States v. McTiernan, 546 F.3d 1160,

1167 (9th Cir. 2008) (internal citation omitted). The defendant

has the burden of demonstrating the existence of at least one

of these conditions. Fed. R. Crim. P. 11(d)(2)(B); United

States v. Davis, 428 F.3d 802, 805 (9th Cir. 2005). 

1. Adequacy of District Court’s Analysis

Showalter argues the district court erred in denying his

motion to withdraw his guilty plea because it failed to analyze

two of the three fair and just reasons he offered as grounds for

withdrawing his plea. He contends the district court focused

on only whether there was “newly discovered evidence”

despite his presentation of three distinct “fair and just reasons”: (1) newly discovered evidence; (2) newly available

evidence; and (3) change in circumstances.

a. Newly Available Evidence

[2] Although Showalter argues the district court ignored his

“newly available evidence” argument, he does not make clear

how that argument differs from his “newly discovered eviUNITED STATES v. SHOWALTER 8135
dence” argument. Although he presents the two arguments

separately, both rely on the same witness declarations, and

both are assertions that these “new” declarations are a fair and

just reason justifying withdrawal of the guilty plea. The district court’s analysis and conclusion that Showalter’s proffered evidence was not new adequately resolved both

contentions. The district court made a factual finding that

Showalter was “aware of the potential evidence [the witnesses] could supply” and “could have not pleaded guilty and

compelled these same witnesses to testify on his behalf at

trial.” This finding was not clearly erroneous.

Even if the district court had failed to address Showalter’s

“newly available evidence” argument, that argument is meritless because “newly available evidence” does not constitute

“newly discovered evidence” justifying withdrawal of a guilty

plea. See United States v. Lockett, 919 F.2d 585, 591-92 (9th

Cir. 1990). In Lockett, we affirmed the district court’s denial

of a motion to withdraw a guilty plea where a co-defendant,

who previously asserted her right not to testify, offered

“newly available” testimony that exculpated the defendant. Id.

We stated that “great caution” must be exercised in considering evidence “newly discovered” when it existed all along. Id.

(citing United States v. Jacobs, 475 F.2d 270, 286 n.33 (2d

Cir. 1973)).

b. Change in Circumstances

Showalter also contends the district court ignored his argument that there was a “change in circumstances” that constituted a fair and just reason for him to withdraw his guilty

plea. He does not make clear how such “change in circumstances” or “intervening circumstances” differs from the

“newly discovered evidence” on which his motion was based.

The district court reasonably assumed that the alleged intervening circumstances were the proffered declarations of witnesses and Showalter’s alleged realization that the

government had overstated the strength of its case against

8136 UNITED STATES v. SHOWALTER
him. He argued that, “Between the new facts that have

emerged and Mr. Showalter’s realization that the

SEC/Government have been overstating their case at best if

not flat out creating facts at worst, Mr. Showalter is in a significantly different position today than he was one year ago

when he pleaded guilty.” 

[3] Just as the proffered declarations do not constitute

newly discovered evidence, they do not constitute an intervening circumstance. As we have stated, the district court

properly addressed this argument and concluded the witnesses

were known to Showalter at the time he pleaded guilty and

could have been called to testify for him at trial. Showalter

does not explain how witnesses known to him at the time he

entered his plea can be considered an intervening circumstance. 

c. Strength of Government’s Case

[4] The district court also thoroughly addressed Showalter’s argument that the SEC and government exaggerated

the strength of their case against him. It explained why it was

not persuaded by the argument:

In Brady v. United States, 397 U.S. 742 (1970), the

Supreme Court rejected the idea that a defendant

could withdraw his guilty plea simply upon discovering that the State would have a weaker case against

him than anticipated. Specifically the Court stated:

Often the decision to plead guilty is heavily

influenced by the defendant’s appraisal of

the prosecution’s case against him and by

the apparent likelihood of securing leniency

should a guilty plea be offered and accepted

. . . . A defendant is not entitled to withdraw

his plea merely because he discovers long

UNITED STATES v. SHOWALTER 8137
after the plea has been accepted that his calculus misapprehended the quality of the

State’s case or the likely penalties attached

to alternative courses of action. Brady, 397

U.S. at 756-57.

Defendant has merely shown that he has reevaluated

the government’s purportedly “rock solid” case

against him and second-guessed his decision to plead

guilty. But Defendant’s claim that he did not see all

the government’s cards before pleading guilty does

not entitle him to withdraw his plea. United States v.

Schmidt, 373 F.3d 100, 102 (2d Cir. 2004).

For the reasons set forth in the district court’s order, Showalter’s belief that the government had a weaker case than he

originally thought does not constitute a fair and just reason to

withdraw his guilty plea.

d. New Fact

[5] Lastly, Showalter mentions a “new fact,” which appears

to be related to his “changed circumstances” argument. He

asserts that, after he pleaded guilty, the properties that he represented would be improved were developed and sold, reducing the amount of the previously anticipated loss. He

characterizes this as a “material change in circumstances.”

The government addresses this argument accurately:

[Showalter] is mistaken, however, that this ‘new

fact’ constitutes a material change in circumstances.

[Showalter] was charged with and pled guilty to wire

fraud for misappropriating investors’ money. That

properties he used to lure people to ‘invest’ their

money in High Park Investments may have sold is in

no way connected to whether [Showalter] defrauded

investors and whether he intended to defraud them.

8138 UNITED STATES v. SHOWALTER
[6] Even if Showalter were correct in asserting that the loss

amount turned out to be less than it was anticipated to be, the

only possible impact from that would be to decrease the applicable Guideline range, and potentially lessen his sentence.

But, a defendant may not withdraw a guilty plea because his

sentence may be different from that which was originally

anticipated. See Nostratis, 321 F.3d at 1211. 

[7] The district court adequately considered and correctly

resolved all of Showalter’s arguments pertaining to his motion

to withdraw his guilty plea. 

2. Application of Correct Legal Standard

Showalter also argues the district court applied the wrong

legal standard in determining whether he offered newly discovered evidence. He contends the evidence should have been

deemed “new” because (1) “he had no way of knowing that

[the investors he was alleged to have defrauded] would later

be willing to swear under oath that they did not feel defrauded

by him,” (2) he “was not in a position to compel the ‘victims’

in this case to favorably testify on his behalf,” and (3) he

“could not foresee that these ‘victims’ would one day come

forward to provide exonerating evidence.” According to

Showalter, the district court adopted a heightened legal standard for what constitutes new evidence, improperly relying on

law applicable to motions for a new trial, which motions are

granted only in exceptional cases. 

[8] Showalter’s argument lacks merit. The district court

applied the proper legal standard as to what constitutes newly

discovered evidence justifying a defendant’s withdrawal of a

guilty plea. Indeed, the district court demonstrated that it

understood the applicable standard by setting forth the very

standard that Showalter alleges it failed to apply:

“A defendant may withdraw a plea of guilty or nolo

contendere after the court accepts the plea, but

UNITED STATES v. SHOWALTER 8139
before it imposes sentence if the defendant can show

a fair and just reason for requesting the withdrawal.”

Fed. R. Crim. P. 11(d)(2)(B). “The decision to allow

withdrawal of a plea is solely within the discretion

of the district court.” United States v. OrtegaAscanio, 376 F.3d 879, 883 (9th Cir. 2004) (quoting

United States v. Nostratis, 321 F.3d 1206, 1208 (9th

Cir. 1993). The Ninth Circuit has held that fair and

just reasons for withdrawal include “inadequate Rule

11 plea colloquies, newly discovered evidence, intervening circumstances, or any other reason for withdrawing the plea that did not exist when the

defendant entered his plea.” Ortega-Ascanio, 376

F.3d at 883.

If, as Showalter argues, the district court believed that it

should apply the legal standard applicable to a motion for a

new trial, the court presumably would have stated that the

motion should be granted “only in exceptional cases in which

the evidence preponderates heavily against the verdict.”

United States v. Pimental, 654 F.2d 538, 545 (9th Cir. 1981).

It did not do so. 

The district court’s analysis itself demonstrates that the

court used the appropriate standard. The court followed

United States v. Garcia, 401 F.3d 1008, 1010-11 (9th Cir.

2005), in which we considered the question of when a witness’s declaration will constitute “newly discovered evidence” sufficient to justify the withdrawal of a defendant’s

guilty plea. 

In Garcia, after pleading guilty to a charge of manufacture

of methamphetamine and a firearm charge, the defendant

moved to withdraw his guilty plea because he found a witness

who stated in a declaration that the defendant did not live in

the house where methamphetamine was manufactured, she

did not believe the firearms found in the house belonged to

the defendant, and she had never seen firearms in the defen8140 UNITED STATES v. SHOWALTER
dant’s possession. Id. at 1009-10. We explained that a defendant claiming to have new evidence provides a “fair and just

reason” for withdrawing his guilty plea if the evidence is both

(1) newly discovered, and (2) plausibly could have motivated

a reasonable person in the defendant’s position to not plead

guilty had he known about the evidence before pleading. Id.

at 1011-12. We determined that the subject declaration constituted “newly discovered evidence” because the witness was

unknown to the defendant when he entered his guilty plea. Id.

at 1010 n.2. The declaration also directly contradicted the testimony of another witness, distancing the defendant from the

house where firearms and drug paraphernalia were seized. Id.

at 1010. The declaration, thus was evidence that could have

“at least plausibly motivated a reasonable person in [the

defendant’s] position” not to have pleaded guilty had he

known about it. Id. 

[9] Applying Garcia, the district court in this case

explained:

In contrast [with Garcia], here [Showalter] knew

each of the declarants before he pleaded guilty.

Thus, he was also aware of the potential evidence

they could supply through declarations before he

pleaded guilty. Further, [Showalter] was fully aware

that he could have not pleaded guilty and compelled

these same witnesses to testify on his behalf at trial.

[10] The record supports the district court’s reasoning. One

declarant worked for Showalter as a construction worker, then

a foreman, and finally a project manager. Showalter knew

him before the government filed its criminal charge. Another

declarant was a large investor who gave Showalter approximately $900,000. Showalter had met him three times before

he made his investment. Showalter also knew the third declarant, an investor since 2003 who had a business relationship

with Showalter for approximately three years. 

UNITED STATES v. SHOWALTER 8141
Showalter does not dispute he knew of these three declarants before he pleaded guilty. However, he contends that the

declarants were not available before he pleaded guilty because

he could not compel them to testify favorably for him and he

could not foresee that they would later come forward with

exonerating testimony. The record does not support these contentions. 

At Showalter’s change of plea hearing, the district court

advised him of his ability to compel these witnesses to testify,

and all three of them stated their current testimony would be

the same as it would have been before he pleaded guilty.

Although Showalter attempted to rebut this evidence with

statements in the declarations, the statements do not refute the

notion that the declarants would have been willing to testify

consistently with their declarations. The witnesses stated that

they “only recently agreed to sign” the declarations and had

not made a “commitment to sign” the declarations earlier.

This does not constitute an admission that they were unavailable to Showalter earlier. 

3. Reaching the Merits

Showalter argues that, in denying his motion to withdraw

his guilty plea, the district court improperly reached the merits

of his proffered defense. He contends the district court’s negative characterization of his position and the court’s assertion

of an improper motive for him moving to withdraw his guilty

plea prove that the court actually ruled on the merits of his

case. He bases his argument on the district court’s use of

phrases such as “investors allegedly,” “defendant contends,”

“defendant claims,” “defendant has merely shown,” and “defendant’s mere reevaluation of his tactical strength.” 

This language was used in the context of the district court’s

summary of the arguments presented by the parties, not an

evaluation of the merits of the case or Showalter’s defense.

What Showalter calls “negative characterization” is actually

8142 UNITED STATES v. SHOWALTER
common language used by attorneys and the court to discuss

legal claims. It would be difficult for a court to discuss a case

without using words such as “allegedly,” “contends,” and

“claims.” As correctly stated by the government, “[t]he

court’s qualifying language was merely a method of recounting the facts and arguments as alleged or asserted by the parties without making unnecessary factual findings.” 

4. United States v. McTiernan 

On October 21, 2008, after Showalter filed his opening

brief in this appeal, but before the government filed its

answering brief, we issued an opinion in United States v.

McTiernan, 546 F.3d 1160 (9th Cir. 2008). Showalter devoted

his entire reply brief to arguing that McTiernan is dispositive

of this appeal in his favor. We disagree. 

In McTiernan, we stated that bad legal advice can constitute a fair and just reason justifying withdrawal of a defendant’s guilty plea. See McTiernan, 546 F.3d at 1167

(“[e]rroneous or inadequate legal advice may also constitute

a fair and just reason for plea withdrawal” (citing Davis, 428

F.3d at 806)). We remanded the case to the district court for

an evidentiary hearing because the declaration submitted concerning whether McTiernan was advised properly lacked sufficient clarity and precision that would allow a conclusion that

the defendant was properly and adequately advised. Id. at

1168. 

While a factual question remained in McTiernan as to

whether the defendant in fact had been adequately advised of

his right to bring a motion to suppress before he pleaded

guilty, no factual question exists in this case. The issue before

this court is whether the district court abused its discretion

when it determined the declarations proffered by Showalter

did not constitute “newly discovered evidence” under Garcia.

401 F.3d at 1008. McTiernan does not overrule or change

UNITED STATES v. SHOWALTER 8143
Garcia, the case upon which the district court primarily relied

in its decision.

B. Sentencing

We next consider whether the district court abused its discretion in sentencing Showalter to 151 months of imprisonment. In the plea agreement, Showalter stipulated that he: (1)

owned High Park Investments which “took in over $15 million in investors[‘] money;” and (2) “victimized at least 10

people an[d] caused a loss of at least $1 million but not more

than $20 million.” The plea agreement contained a provision

that allowed Showalter and the government to argue for sentence adjustments outside of the facts stipulated to in the plea

agreement. 

The probation office submitted a pre-sentence report

(“PSR”). The PSR stated that Showalter victimized 117 investors. The basis for this figure was a phone conversation

between a probation officer and the bankruptcy trustee of

Showalter’s now defunct business, High Park. The PSR also

included as an attachment a list of victims that showed a “loss

amount” next to each victim’s name. The total amount of the

loss was $15,418,500. The PSR also included narratives

describing the circumstances of seventeen of the victims. 

Showalter objected to the PSR’s statements that there were

fifty or more victims and that the loss amount was in excess

of $7 million, claiming that “the government has not produced

any of the documents upon which the PSR’s loss calculation

is based.” 

Federal Rule of Criminal Procedure 32(i)(3)(A) provides

that at sentencing, the court “may accept any undisputed portion of the presentence report as a finding of fact.” Additionally, Rule 32(f) states that “[w]ithin 14 days after receiving

the presentence report, the parties must state in writing any

objection.” Although Showalter submitted no objections to

8144 UNITED STATES v. SHOWALTER
the original PSR, he filed timely objections to the addendum

to the PSR, containing the list of alleged victims, by filing

“Additional Materials for Sentencing and for Bail Pending

Appeal” on February 27, 2008. Specifically, Showalter contended that “there is insufficient evidence for [the district

court] to impose four levels, rather than two for the number

of victims.” The factual allegations of the PSR regarding the

number of victims and loss calculation thus were disputed. 

Solely on the basis of the factual statements in the PSR, the

district court imposed two sentence enhancements that are at

issue in this appeal. The district court imposed: (1) a 4-level

enhancement for “50 or more victims;” and (2) a 20-level

enhancement for a loss of “more than $7 Million.” See

U.S.S.G. § 2B1.1(b)(1)(K) (20-level enhancement for loss of

more than $7 Million); U.S.S.G. § 2B1.1(b)(2)(B) (4-level

enhancement if offense involved “50 or more victims”). As a

result of these enhancements, the district court determined

that Showalter’s total offense level was 33 and his Criminal

History Category was 1. These determinations resulted in an

advisory guideline range of 135-168 months imprisonment.

The district court’s sentence of 151 months was in the middle

of this range.

We review for clear error a district court’s factual findings

supporting a sentence enhancement. United States v. Zolp,

479 F.3d 715, 718-19 (9th Cir. 2007). “If the district court

makes a material miscalculation in the advisory guidelines

range, even after Booker, we must vacate the sentence and

remand for resentencing.” Zolp, 479 F.3d at 721 (citing

United States v. Cantrell, 433 F.3d 1269, 1280 (9th Cir.

2006)). 

[11] “[T]he government bears the burden of proving, by a

preponderance of the evidence, the facts necessary to enhance

a defendant’s offense level under the Guidelines.” United

States v. Burnett, 16 F.3d 358, 361 (9th Cir. 1994). District

courts have broad discretion to “consider information relevant

UNITED STATES v. SHOWALTER 8145
to the sentencing determination . . . provided that the information has sufficient indicia of reliability to support its probable

accuracy.’ ” United States v. Berry, 258 F.3d 971, 976 (9th

Cir. 2001) (quoting USSG § 6A1.3(a)). Additionally, “the district court may rely on undisputed statements in the PSR at

sentencing . . . . However, when a defendant raises objections

to the PSR, the district court is obligated to resolve the factual

dispute, and the government bears the burden of proof . . . .

The court may not simply rely on the factual statements in the

PSR.” United States v. Ameline, 409 F.3d 1073, 1085-86 (9th

Cir. 2005) (en banc); see also Fed. R. Crim. P. 32(i)(3)(B)

(requiring court to rule on disputed matters at sentencing). 

[12] The Guidelines provide that a sentence enhancement

under § 2B1.1(b)(1) (enhancement for “monetary loss”), may

be based on an “estimate” of the monetary loss. U.S.S.G.

§ 2B1.1, cmt. n.3(C). The Guidelines do not, however, allow

a district court to “estimate” the number of victims to enhance

a sentence under § 2B1.1(b)(2). See U.S.S.G. § 2B1.1(b)(2).

Relying upon on Zolp, the government argues that it need

not “prove every victim.” However, Zolp does not stand for

the proposition that the number of victims may be estimated.

While Zolp supports the government’s argument that the

enhancement for the estimated monetary loss under

§ 2B1.1(b)(1) was reasonable, Zolp does not address sentence

enhancements for the number of victims under § 2B1.1(b)(2).

In allowing estimates of monetary loss, the Guidelines note

expressly the difficulty of calculating monetary loss accurately and specifically list various factors that sentencing

courts should take into consideration when estimating monetary loss. See U.S.S.G. § 2B1.1, cmt. n.3(C)(i-v). The difficulties inherent in calculating monetary loss, however, do not

exist when determining the number of victims. 

8146 UNITED STATES v. SHOWALTER
1. The District Court Erred in Determining There Were

50 Or More Victims

[13] The district court erred in applying a 4-level enhancement for “50 or more victims,” rather than applying the twolevel enhancement for “10 or more victims.” The court’s additional two-level enhancement raised the advisory guideline

range from 108-135 months to 135-168 months and resulted

in a sentence that was at least sixteen months longer than

should have been imposed. Because the district court imposed

a sentence at the mid-point of an inappropriate Guideline

range, we may not presume that it would have imposed the

same sentence had the Guideline range been determined correctly. 

[14] Although Showalter stipulated in his plea agreement

that there were at least 10 victims, he objected to the PSR’s

statement that there were fifty or more victims. After Showalter objected to this statement, the district court was obligated to do more than simply adopt it. Ameline, 409 F.3d at

1086. Rather, Showalter’s timely objection to the PSR

required the government to produce at least some evidence to

support its contention that there were fifty or more victims.

See Burnett, 16 F.3d at 361 (“[T]he government bears the burden of proving, by a preponderance of the evidence, the facts

necessary to enhance a defendant’s offense level under the

Guidelines.”). The district court did not require the government to meet this burden. 

[15] The record reveals that the only basis for the district

court’s finding that there were fifty or more victims was: (1)

the PSR’s statement regarding a phone call to the bankruptcy

trustee; and (2) the list of victims attached to the PSR. The

district court did hear from roughly a dozen victims at Showalter’s sentencing. However, this testimony was insufficient to

establish that there were fifty or more victims. 

[16] The PSR did not provide any details of the probation

officer’s conversation with the bankruptcy trustee, nor did it

UNITED STATES v. SHOWALTER 8147
offer any explanation of how the bankruptcy trustee determined the total number of victims or indicate the source of the

list of victims attached to the PSR. It is impossible to determine from the record whether the probation office ever

inquired into the accuracy of the victim list or of the individual dollar amounts associated with the names on the list.

Essentially, it appears that the probation office said there were

117 victims because the bankruptcy trustee said so, without

any explanation as to how the trustee came up with this number. This does not justify a conclusion that the government

met its burden of establishing that there were “50 or more victims.” Accordingly, while Showalter’s stipulation in the plea

agreement that there were “10 or more victims” provided a

sufficient basis for a 2-level enhancement, there was insufficient evidence to support a 4-level enhancement for “50 or

more victims.” 

2. The District Court Committed No Error In Finding The

Loss More Than $7 Million

[17] A sentence enhancement for the amount of loss under

§ 2B1.1(b)(1) involves a fundamentally different calculation

than a sentence enhancement for the number of victims under

§ 2B1.1(b)(2). The commentary to the Guidelines allows the

district court to “estimate” the monetary loss. U.S.S.G.

§ 2B1.1, cmt. n.3(C). In calculating monetary loss under the

Guidelines, the court may consider both “actual loss” and “intended loss.” U.S.S.G. § 2B1.1, cmt. n.3(A). The Guidelines,

however, define “victim,” in relevant part, to include only

those people who suffered part of the “actual loss” determined under U.S.S.G. § 2B 1.1(b)(1). See U.S.S.G. 2B 1.1

cmt. n.1. (emphasis added). 

[18] The court’s estimate of monetary loss can be based on

“[t]he approximate number of victims multiplied by the average loss to each victim” or “[m]ore general factors, such as

the scope and duration of the offense and revenues generated

by similar operations.” U.S.S.G. § 2B1.1, cmt. n.3(C)(iii) &

8148 UNITED STATES v. SHOWALTER
(v). Moreover, the calculation of monetary loss may be based

on the amount put at risk or the actual loss. United States v.

Munoz, 233 F.3d 1117, 1126 (9th Cir. 2000). Thus, a district

court has a number of permissible methods for determining

monetary loss, and “need not make its loss calculation with

absolute precision.” Zolp, 479 F.3d at 719. 

[19] Given the number of permissible methods for estimating loss, the district court’s loss estimate of “more than $7

million” was not clearly erroneous. Showalter acknowledged

in his plea agreement that High Park “took in over $15 million in investors[’] money” and that he “caused a loss of at

least $1 million but not more than $20 million.” These admissions provided a sufficient basis for a finding that the “actual”

or “intended” losses exceeded $7 million.

III. Conclusion

[20] We affirm the denial of Showalter’s motion to withdraw his guilty plea, but we vacate the sentence imposed upon

him and remand for resentencing.

AFFIRMED IN PART; SENTENCE VACATED and

REMANDED FOR RESENTENCING.

UNITED STATES v. SHOWALTER 8149