* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, or coll ateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### MAR 5 1999 

### PATRICK FISHER Clerk 

### UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. RICHARD PANYARD, Defendant-Appellant. No. 98-1117 (D.C. No. 96-CR-231-B) (Colorado)



### ORDER AND JUDGMENT *

Before SEYMOUR , Chief Judge, BALDOCKand HENRY , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he cause is therefore ordered submitted without oral argument.-2-

The defendant, Mr. Richard Panyard, pled guilty to one count of conspiracy to commit mail fraud, wire fraud and securities fra ud in violation of 18 U.S.C. §§ 1341 and 1343; 15 U.S.C. §§ 78 j(b), 78ff; 17 C.F.R . § 240.10b-5; and 18 U.S.C. § 371. In addition to thirty months of incarcerati on, the district court ordered Mr. Panyard to pay restitution to the victims in the am ount of $534,469.60. Mr. Panyard appeals the district court’s assessment of his ability to make monetary restitution and the calculation of attributable los s affecting his sentence. We AFFIRM. Mr. Panyard along with two other co-defendants controlled Pros International, Inc. (Pros), an investment company. Mr. Panyard was also the minister and spiritual leader of Followers of the W ay International Church in Boulder, Colorado, a small Christian congregation. To finance Pros, Mr. Panyard and his co-defendants began to fraudulently induce private individuals, primarily church members, to invest in Pros. Under Mr. Panyard’s guidance, dozens of people directly invested money into Pros; others pl edged collateral to help Pros secure loans. One of the largest guarantors was Kathleen Shea, a member of the Followers church, who pledged her full inheritance of over $170,000 in stock as collateral to secure loans. When Pros collapsed in1991, the financial investments in the company had accumulated to over $700,000. M ost of the money was lost, and Ms. Shea’s stock was forfeited to offset losses from defaulted loans. Leaving-3-

behind this debt and his ministry, Mr. Panyard fledwith his wife and daughter from Colorado to Washington, where he easily acquir ed a lucrative job as a car salesman. Mr. Panyard and his co-defendants were indicted on twenty-eight counts. Mr. Panyard entered a guilty plea to one count of c onspiracy to commit mail fraud, wire fraud and securities fraud in exchange for dismissal of the remaining counts. In the plea agreement, he reserved the rig ht to contest certain sentencing issues, in particular the calculation of loss. The Pre-sentence Report (PSR) calculated the loss attributable to the offense as $710,760.79. The PSR stated in relevantpart that while in Washington, Mr. Panyard earned $25,000 - $56,000 a year, totaling over $270,000 from 1992-1998, and that he supported a young wife and a teenage daughter. Mr. Panyard had no known assets and a personal debt to his mother of $45,000 for legal fees. Due to his impending incarceration, Mr . Panyard lost his managerial job. The PSR concluded that [b]ased on the above information, it would be reaso nable to extrapolate that over time, the defendant’s earning s would return to his previous [high] levels. Therefore, while his c urrent ability to pay restitution . . . is limited, that ability would in crease in the future. Of course, a sentence to incarceration would essential ly negate this projected assessment. PSR at 26. The PSR also concluded Mr. Panyard did not have an ability to pay any restitution. Id.1 Attributable loss for sentencing purposes may inclu de intended and actual

losses. U.S.S.G. § 2F1.1 comment. n. 7 (1997). Th e total can differ from the restitution amount, which would not include intende d losses.

-4- At the sentencing hearing, pursuant to a number of Mr. Panyard’s objections, the district court reduced the attribut able loss to $550,986.80. Surpassing a $500,000 threshold, this total trigger ed a ten-point increase in Mr. Panyard’s level of offense. U.S.S.G. § 2F1.1(b)(1) (K). The court sentenced him to the top of the guidelines, thirty months incarce ration and three years supervised release with detailed conditions of supervision. C ontrary to the conclusions in the PSR, the court found Mr. Panyard did have the abili ty to pay and ordered restitution in the amount of $534,469.60. Aplt. Ap p. at 166. 1
1. Restitution Mr. Panyard first challenges the district court’s a ssessment of his ability to pay, arguing his record reflects a lack of assets and earning potential. We review the district court's findings of fact underlying a restitution order for clear error and the amount of restitution for abuse of discreti on. See United States v. Copus, 110 F.3d 1529, 1537 (10th Cir.1997). In determining a restitution order, the court must consider the financial resources of the defendant, as well as the financia l needs and earning ability of the defendant and the defendant’s dependents. 18 U .S.C. § 3664(f)(2) (Supp. II-5-

1996). We have held that a restitution order shoul d be consistent with the defendant’s ability to pay. “A restitution order w ill be upheld if the evidence indicates a defendant has some assets or earning po tential and thus possibly may be able to pay the amount ordered.” United States v. Rogat , 924 F.2d 983, 985 (10th Cir. 1991). “A sentencing court is not requi red to make specific findings as to a defendant’s ability to pay, provided sufficien t information was available to and considered by the court.” United States v. Kunzman , 54 F.3d 1522, 1532 (10th Cir. 1995). As long as the court follows thi s standard, even indigency is not a bar to restitution. Rogat , 924 F.2d 985. In his brief, Mr. Panyard relies on United States v. Haddock, 50 F.3d 835, 837 (10th Cir. 1995), as favorable precedent. Ther e, however, we found the record insufficient to demonstrate that the sentenc ing court had adequately considered the defendant’s ability to pay. Id. at 838-39. By contrast, transcripts and other documents here indicate a thorough recordthat the court carefully considered. Moreover, the defendant in Haddock was serving a sentence of life imprisonment, a far more serious detriment to his l ong-term earning potential than Mr. Panyard’s two and a half year term. We believe Kunzman , 54 F.3d at 1533, is a more apposite case. In
Kunzman , the defendant was a healthy fifty-five year old m an with some college credit. He averaged $48,000 a year as a successful businessman prior to-6-

incarceration. Like Mr. Panyard, the defendant in Kunzman supported a wife and a teenage child, and he declared he was bankrupt wi th minimal assets. He was sentenced to a six-year term. The district court f ound the defendant in Kunzman had the ability to pay and ordered restitution of o ver $300,000. We affirmed. The record before us reflects a similar set of fact s. The PSR describes Mr. Panyard as a forty-seven year old man with good phy sical and mental health. He attended at least two years of college and was easi ly employed. In fact, after fleeing to Washington, he accompanied his friend to buy a car and immediately received a job offer from the car dealership. As acar salesman, he earned up to $56,000 a year. In short, while Mr. Panyard’s rest itution amount is greater than the defendant’s in Kunzman , Mr. Panyard is younger, has a shorter sentence, and was able to earn more before incarceration. We con clude, as we did in Kunzman , that the district court did not abuse its discretio n in determining an ability to pay.
2. Attributable Loss Mr. Panyard next seeks to reduce his offense level by reducing the loss attributable to him. We review the court’s determi nation of monetary loss under U.S.S.G. § 2F1.1 as a factual finding under the cle arly erroneous standard, giving due deference to the sentencing court, and we revie w issues of law de novo. See United States v. Janusz , 135 F.3d 1319, 1324-25 (10th Cir. 1998). The sentencing guidelines note the determination of attributable l oss “need not be determined-7-

with precision. The court need only make a reasona ble estimate of the loss, given the available information.” U.S.S.G § 2F1.1. comme nt. n.8 (1997). The guideline gives the court discretion to depart upward when the attributable loss does not “capture the harmfulness and seriousness o f the conduct.” Id. at comment. n. 10. Adopting the spirit of the guideli nes, we have said, “the purpose of the loss calculation under the Sentencing Guidel ines is to measure the magnitude of the crime at the time it was committed .” Janusz , 135 F.3d at 1324. Mr. Panyard contends the court miscalculated loss o n three theories of error. We address each issue in turn. First, Mr. Panyard argues that the district court erred in accepting the government’s calculati on of loss over the victims’ written testimony. After reviewing the evidence, t he sentencing judge stated: “I have made a factual determination that the most rel iable and credible evidence before me today is that schedule submitted by Ms. C hamberlain [the government’s witness]. And that I will adhere to.” Aplt. App. at 135. Ms. Chamberlain was a certified public accountant who supported her calcu lations with receipts, amortization schedules, bank deposits and detailed interest analysis. No equivalent evidence supported the victims’ calculat ions. There was no clear error in accepting Ms. Chamberlain’s calculations as the more credible. Second, Mr. Panyard contests the inclusion as victi ms of those he terms “commercial lenders,” asserting these individuals w ere not deceived and several-8-

were fully collateralized and therefore not exposed to actual loss. After reviewing the record, we are persuaded Mr. Panyard’ s plea agreement covers liability for the lenders at issue. His plea reads in relevant part: There were aspects of the way Pros was run that ope rated as a fraud and deceit upon the investors and lenders: (1) Pros did not have profits sufficient to repay a ll principal and interest payments due the investors and lenders who demanded repayment under the notes. Aplt App. 24. This plea includes Mr. Panyard’s res ponsibility to any lender to Pros, commercial or otherwise. Any argument to the contrary undermines the credit Mr. Panyard was given for acceptance of resp onsibility. Alternatively, Mr. Panyard argues that there was no loss on any of the loans which were guaranteed by Ms. Shea’s stock of $170,0 00. He contends the court should have subtracted these collateralized loans f rom the loss attributed to him, reducing it to under $500,000. The district court recognized, however, that if the collateralized loans were subtracted, then Ms. Shea ’s pledged stock value must be added. Mr. Panyard’s inducement of Ms. Shea’s guar antee was clearly one part of his scheme to defraud lenders. No doubt her loss w as foreseeable, intended, and actual within 2F1.1. If we subtract the collateral ized loans of roughly $170,000, and add back Ms. Shea’s stock value of the same amo unt, Mr. Panyard’s loss is unchanged. Finally, Mr. Panyard argues that the interest on se veral loans was-9-

miscalculated. He did not raise this issue below. “Normally, failure to alert the trial court to an error precludes review.” United States v. Saucedo, 950 F.2d 1508, 1511 (10th Cir. 1991). Furthermore, the guid elines require only estimates, not precision. U.S.S.G § 2F1.1. We decline to add ress the issue further. We conclude the district court did not err either i n setting the amount of restitution or in calculating the attributable loss . Accordingly, we AFFIRM.

ENTERED FOR THE COURT
Stephanie K. Seymour Chief Judge