IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-10381

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee

v.

VINCENT BAZEMORE, 

 Defendant - Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:12-CR-319-1

Before JOLLY, WIENER, and CLEMENT, Circuit Judges.

EDITH BROWN CLEMENT, Circuit Judge:*

Vincent Bazemore (“Bazemore”) was convicted by a jury of four counts of 

mail fraud in violation of 18 U.S.C. § 1341 for his participation in a scheme to 

obtain commissions by inducing insurance companies to issue life insurance 

policies to unqualified applicants. The district court imposed a 24-level 

enhancement based on the intended loss of the scheme under U.S.S.G. § 2B1.1

and sentenced Bazemore to 292 months in prison. The district court also

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

April 21, 2015

Lyle W. Cayce

Clerk

 

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ordered Bazemore to pay $4,014,627.13 in restitution. Bazemore appeals his 

conviction, sentence, and restitution order. For the reasons that follow, we 

AFFIRM Bazemore’s conviction but VACATE his sentence and restitution 

order and REMAND for resentencing.

FACTS AND PROCEEDINGS

Bazemore’s scheme involved tricking insurance companies into issuing 

stranger-owned (or originated) life insurance (“STOLI”) policies to unqualified 

applicants. In general, a life insurance policy will pay out a death benefit to 

the insured’s beneficiaries when the insured dies, so long as the insured makes 

the required premium payments. Wealthy individuals may take out large life 

insurance policies for estate planning purposes. The proceeds of these policies 

are not taxed when they are transferred to the insured’s heirs, and a wealthy 

senior can spend his assets on premium payments on the policy, which will, 

upon his death, pay out tax free to his beneficiaries.

A STOLI policy is a life insurance policy held by a third party that has 

no insurable interest in the insured. The insurers that issued policies to 

Bazemore’s applicants would, without exception, deny life insurance policies to 

applicants that intended from the outset to transfer the policy to a third party. 

To prevent the issuance of STOLI policies, the insurers’ applications 

specifically asked whether the applicant intended to transfer the policy to a 

third-party investor. The application further required applicants to state their 

net worth and whether the premiums would be financed by a third party, which 

would also indicate whether the policy was intended for an investor.

Bazemore, in his role as an insurance agent, convinced senior citizens of 

modest means, many of them relatives or family friends, to apply for multimillion dollar life insurance policies meant for high net-worth individuals. 

Bazemore promised these applicants that they would not have to pay anything 

out of pocket for the insurance, and after two years—when the contestability 

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period lapsed—he would sell the policy and pay them a lump sum. After 

securing a recruit, Bazemore would grossly inflate their net worth and income

on the policy application and falsely claim that the applicant did not intend to 

transfer the policy to a third party. Bazemore did not, however, misrepresent 

the age or health status of an applicant. If a policy was issued, Bazemore would 

take out a loan to pay the premiums for the first two years, at which point he 

planned to sell the policy to an investor and use part of the proceeds to pay 

back the loan. As the agent responsible for the sale, he would receive a 

commission on each issued policy roughly equivalent to the cost of the first 

year’s premium payment.

Bazemore was charged and convicted of four counts of mail fraud, each 

relating to a STOLI policy for which he received a commission payment. The 

district court calculated a guidelines range of 292 to 365 months’ imprisonment 

based on an offense level of 39 and a criminal history category of II. The offense 

level was largely the product of a 24-point enhancement for the scheme’s 

intended loss to the insurers, which the district calculated to be $81 million, 

the sum of the death benefits for all of the policies issued to Bazemore’s 

applicants. The district court sentenced Bazemore to a 292-month term of 

imprisonment, 240 months for each count, to run partially concurrently and 

partially consecutively. The court also ordered Bazemore to pay $4,014,627.13 

in restitution for the commissions paid to him by the insurers and for some of 

the notes issued by banks to finance the premiums.

Bazemore timely appealed his conviction, sentence, and restitution 

order.

DISCUSSION

I. Conviction

To support a mail fraud conviction under 18 U.S.C. § 1341, a jury must 

find: (1) a scheme to defraud a victim of money or property; (2) use of the mails 

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to execute that scheme; and (3) the specific intent to defraud.1 United States 

v. Lucas, 516 F.3d 316, 339 (5th Cir. 2008); United States v. Ratcliff, 488 F.3d 

639, 644 (5th Cir. 2007). To satisfy the “intent to defraud” element, the 

government “must prove that the defendant contemplated or intended some 

harm to the property rights of the victim.” United States v. Leonard, 61 F.3d 

1181, 1187 (5th Cir. 1995). “The government does not need to prove that the 

harm actually came about, however.” United States v. Loney, 959 F.2d 1332, 

1337 (5th Cir. 1992). “The [g]overnment must also prove that the scheme to 

defraud involved a materially false statement.” United States v. Harms, 442 

F.3d 367, 372 (5th Cir. 2006). “A statement is material if it has a natural 

tendency to influence, or is capable of influencing, the decision of the decisionmaking body to which it was addressed.” Id. 

Bazemore challenges his conviction on three grounds: (1) the commission 

payments were not “money or property” within the meaning of the mail fraud 

statute; (2) the McCarran-Ferguson Act prohibits federal prosecutions under 

the mail fraud statute for fraudulent procurements of life insurance policies; 

and (3) the prosecution in closing argument urged conviction on grounds 

prohibited by the jury instruction.

A. Commission Payments

Bazemore first argues that his conviction should be overturned because 

there was insufficient evidence from which the jury could have found that he 

intended to deprive the insurers of money or property. Tracking the 

indictment, the district court instructed the jury that, to find a scheme to 

defraud, the government must prove that Bazemore “intended to obtain 

substantial commissions by inducing life insurance companies to issue policies” 

1 The government did not charge Bazemore with “honest services” fraud under 18 

U.S.C. § 1346.

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to unqualified applicants. The district court stated that “[i]t is not sufficient 

for the [g]overnment to show that [ ] Bazemore created a scheme to obtain 

money at the expense of some person or party different than the insurance 

companies named in the indictment nor is it sufficient for the [g]overnment to 

show that [ ] Bazemore’s conduct harmed these insurance companies in some 

way other than losing money by paying commissions to him.”2 Bazemore 

argues on appeal that the object of a scheme to defraud must be property the 

victim would have lawfully possessed but for the defendant’s actions. He 

reasons that, because the commission payments were the only loss the jury 

could consider, and the insurers always received premiums exceeding the cost 

of the commissions before they paid them, they were not deprived of any money 

or property.

Although Bazemore presents his challenge as one to the sufficiency of 

the evidence, it is really a claim that, as a matter of law, money a victim 

possesses only because of a fraudulent scheme does not constitute money or 

property for purposes of the mail fraud statute. We review this legal question 

de novo. See Loney, 959 F.2d at 1334.

Bazemore’s but-for deprivation argument fails. As an initial matter,

Bazemore’s theory is premised on his assumption that a commission is paid 

entirely out of the “profits” of the first premium payment. But a commission 

is not paid in exchange for the first premium; it is not an isolated transaction 

in which the insurers simply give back some of the money Bazemore has given 

to them. The commission is paid to the agent in exchange for the sale of the 

policy and it is the liquidated value of a portion of that policy. In this sense 

2 The district court’s instruction was flawed insofar as it suggested that the jury must 

find that the insurance companies were “harmed” by “losing money by paying commissions” 

to Bazemore. The mail fraud statute requires only intent to harm, not actual harm. Thus, 

while this portion of the instruction may be error, it is error that inured to Bazemore’s benefit.

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the commission is no different than the death benefits the insurer ultimately 

pays out; they are both costs that factor into the value of the product—the fact 

that the commission is paid up-front is immaterial. The commission payments 

were clearly money that legally belonged to the insurers. 

Bazemore’s argument that a scheme to defraud must involve money or 

property the victim would have possessed in the absence of the scheme also 

fails as a legal proposition. Following this logic, the mail fraud statute would 

not extend to a fraudulent scheme to induce a seller to sell a product at a 

discounted but still profitable price because the seller would not have made 

any profit at all but for the fraud. But “[s]uch a scheme, where the accused 

intends to gain money or property at the expense of the victim of the scheme, 

is clearly within the purview of § 1341.” United States v. Stewart, 872 F.2d 

957, 960 (10th Cir. 1989); see United States v. Ali, 620 F.3d 1062, 1068 (9th 

Cir. 2010) (holding that Microsoft’s “lost revenue when [its] products were sold 

at a discount as a result of [ ] fraud” was money or property under the mail 

fraud statute); Stewart, 872 F.2d at 960 (holding that a scheme “to deprive [ ] 

manufacturers of money which they should have received on sales of 

pharmaceuticals” by tricking the manufacturers into selling drugs at reduced 

prices was a “scheme relating to property rights”). Accordingly, Bazemore’s 

contention that a mail fraud scheme does not deprive a victim of money or 

property so long as the victim earns some profit from the scheme is 

unpersuasive. 

The insurers paid Bazemore millions of dollars in commissions for value 

they did not receive: insureds that met their qualifications. Those commission 

payments were unquestionably money or property under the mail fraud 

statute.

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B. McCarran-Ferguson Act

Bazemore next contends that the district court erred by refusing to 

dismiss his indictment because his federal prosecution is reverse preempted by 

Texas insurance law under the McCarran-Ferguson Act. “We review the 

sufficiency of an indictment de novo, taking the indictment’s allegations as 

true.” Ratcliff, 488 F.3d at 643.

The McCarran-Ferguson Act provides that “[n]o Act of Congress shall be 

construed to invalidate, impair, or supersede any law enacted by any State for 

the purpose of regulating the business of insurance, . . . unless such Act 

specifically relates to the business of insurance.” 15 U.S.C. § 1012(b). “[A] 

state law reverse preempts federal law only if: (1) the federal statute does not 

specifically relate to the business of insurance; (2) the state law was enacted 

for the purpose of regulating the business of insurance; and (3) the federal 

statute operates to invalidate, impair, or super[s]ede the state law.” Am. 

Bankers Ins. Co. of Fla. v. Inman, 436 F.3d 490, 493 (5th Cir. 2006) (internal 

quotation marks omitted). “When federal law does not directly conflict with 

state regulation, and when application of the federal law would not frustrate 

any declared state policy or interfere with a State’s administrative regime, the 

McCarran-Ferguson Act does not preclude its application.” Humana Inc. v. 

Forsyth, 525 U.S. 299, 310 (1999).

Bazemore makes two related claims as to why the use of the federal mail 

fraud statute to prosecute misrepresentations in life insurance applications 

would “invalidate, impair, or supersede” Texas insurance law. First, he 

contends that the definition of materiality in the mail fraud statute is broader

than the definition of a material misrepresentation that would permit an

insurer to void a life insurance policy within the contestability period. See Tex. 

Ins. Code Ann. § 705.051 (providing that a misrepresentation only defeats

recovery under a policy if it “affects the risks assumed” by the insurer). Second, 

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he alleges that the five-year limitations period to bring a mail fraud 

prosecution would displace the two-year state incontestability period because 

it would permit the insurer to recover any payout of the policy through 

restitution.

Bazemore’s arguments fail. With regard to the first, it is immaterial that 

a criminal prosecution for fraud could be commenced even if the policy 

procured by the fraud could not be defeated by the insurer. The federal 

prosecution would have no effect on the operation of the state law. As to 

Bazemore’s concern that an insurer could effectively rescind a policy beyond

the contestability period through court-ordered restitution, it has nothing at 

all to do with a conviction for fraud, but rather a possible consequence of the 

conviction. Moreover, Bazemore overlooks that the state statutes he claims 

are impaired by his federal prosecution protect policyholders and their 

beneficiaries, of which he is neither. See Humana, 525 U.S. at 310 (“[W]hen 

application of the federal law would not frustrate any declared state policy or 

interfere with a State’s administrative regime, the McCarran-Ferguson Act 

does not preclude its application.” (emphasis added)). Accordingly, there is no 

plausible argument that Bazemore’s prosecution under the mail fraud statute 

violates the McCarran-Ferguson Act.

C. Closing Statement

Bazemore’s final challenge to his conviction is premised on remarks 

made by the prosecution at closing argument. The district court instructed the 

jury that it could not convict Bazemore unless it found that he created a scheme 

to obtain commission payments from the insurers and that no other victim or 

theory of deprivation would suffice. Bazemore claims that three remarks in 

the prosecution’s closing suggested conviction on impermissible grounds: (1) 

certain insurers were harmed because they paid commissions but canceled the 

STOLI policies and refunded premiums; (2) Bazemore’s misrepresentations 

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induced one of the insurers to issue an $8 million policy; and (3) one of the 

applicants incurred attorneys’ fees as a result of his fraud. Because Bazemore 

did not object to the prosecutor’s comments at trial, we review his claim for 

plain error. See United States v. Aguilar, 645 F.3d 319, 323 (5th Cir. 2011).

Bazemore’s objections to the first two comments fail at the outset 

because they do not contravene the jury instructions. Bazemore was charged 

with deceiving insurers into issuing expensive life insurance policies so that he 

could obtain commissions on those policies and the jury was instructed that 

they must find such a scheme existed. These remarks relate directly to the 

charged and instructed scheme. In any case, Bazemore must show, inter alia, 

that “the prosecutor’s remarks cast serious doubt on the correctness of the 

jury’s verdict.” United States v. Gracia, 522 F.3d 597, 603 (5th Cir. 2008) 

(internal quotation marks omitted). Bazemore argues that the government 

could not have secured his conviction without the supposedly improper closing 

remarks because the evidence at trial showed that the commissions were not 

money or property under the mail fraud statute, so the jury must have relied 

on one of the allegedly impermissible theories of deprivation suggested in the 

government’s closing. As explained, Bazemore’s contention that the 

commissions were not money or property because they were paid after receipt 

of the first premium is meritless. Because that claim fails, so too does this one. 

Bazemore concedes that his misrepresentations induced the insurers to issue 

policies to unqualified insureds and pay him commissions on those policies. 

Any improper comment by the prosecution would not cast doubt on the verdict.

II. Sentencing

Bazemore also challenges the 24-level enhancement the district court 

applied based on an intended loss of $81 million, the combined value of the 

death benefits of the policies the insurers issued to Bazemore’s applicants. The 

district court calculated a criminal history category of II and a total offense 

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level of 39 based on: (1) a base offense level of 7 for the mail fraud convictions; 

(2) a 24-level increase for an intended loss of $81 million; (3) a 2-level 

enhancement for use of sophisticated means; (4) a 4-level enhancement for 

Bazemore’s role as an organizer of the fraud; and (5) a 2-level enhancement for 

abusing a position of private trust. The resulting guidelines range was 292 to 

365 months, and the district court sentenced Bazemore to 292 months’ 

imprisonment.

“A district court’s sentencing decision is reviewed for abuse of discretion.” 

United States v. Harris, 597 F.3d 242, 250 (5th Cir. 2010). “However, the 

district court’s interpretation or application of the Sentencing Guidelines is 

reviewed de novo, and its factual findings are reviewed for clear error.” Id.

(internal quotation marks and alteration omitted). The district court’s method 

of calculating loss is an application of the guidelines that we review de novo. 

United States v. Klein, 543 F.3d 206, 214 (5th Cir. 2008). The amount derived 

from the calculation is a factual finding reviewed for clear error. Id.

The district court erred in using the face value of the insurance policies 

to calculate the intended loss of Bazemore’s scheme. Under U.S.S.G. § 2B1.1, 

the offense level assigned to a fraud conviction depends upon the amount of 

loss inflicted on the victim or intended by the defendant. The loss figure used 

to determine the enhancement is “the greater of actual or intended loss.” 

U.S.S.G. § 2B1.1 app. n. 3(A). “‘Actual loss’ means the reasonably foreseeable 

pecuniary harm that resulted from the offense.” Id. § 2B1.1 app. n. 3(A)(i). 

“‘Intended loss’ . . . means the pecuniary harm that was intended to result from 

the offense.” Id. § 2B1.1 app. n. 3(A)(ii). The government must “prove by a 

preponderance of the evidence that the defendant had the subjective intent to 

cause the loss that is used to calculate his offense level.” United States v. 

Sanders, 343 F.3d 511, 527 (5th Cir. 2003). Subjective intent, however, may 

be inferred from a defendant’s recklessness. Harris, 597 F.3d at 255.

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The government argues that the intended loss of the scheme is the total

amount of the death benefits obtainable under the policies—$81 million—

because that was “the dollar amount placed at risk” by Bazemore’s fraud. See 

United States v. Oates, 122 F.3d 222, 225 (5th Cir. 1997). As this court has 

explained, however, determining intended loss by the maximum value of a 

financial product is proper only “under certain factual circumstances.” Harris, 

597 F.3d at 252; see id. at 251-56 (discussing instances in which intended loss 

was calculated as the dollar amount placed at risk by a scheme). The 

government argues that fraudulently-obtained life insurance policies fall 

within this ambit because such policies are analogous to fraudulently-obtained 

loans, for which we have found that the intended loss is the full amount of the 

loan when the defendant is “consciously indifferent or reckless” as to whether 

the fraudulently obtained funds can be repaid. See United States v. Morrow, 

177 F.3d 272, 301 (5th Cir. 1999).

We reject the government’s analogy. There is an obvious difference in 

the financial risk presented by a fraudulently-procured loan and the STOLI 

policies at issue here. The proceeds of a loan are extended to the borrower upfront, and thus the risk of non-payment exposes the lender to a loss of the total 

amount of the loan. But a life insurance policy lapses in the event of nonpayment, in which case the insurer is entitled to retain the premiums paid 

until that point and has no obligation to pay out death benefits when the 

insured dies. Thus, whereas the risk to a lender is non-payment on the loan, 

the primary risk to an issuer of a fraudulently-induced life insurance policy is 

that an insured will die more quickly than anticipated by the actuarial model,

forcing the insurer to pay death benefits before receiving the expected amount 

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of premiums.3 Because the insurers would not be responsible for paying the 

death benefits unless compensatory premium payments continued to be made

until the death of the insured, it is inappropriate to use the face value of the 

loans as the intended loss.4

The correct way to calculate the intended loss, if any, of Bazemore’s 

scheme presents a more difficult question. At a minimum, the intended loss 

figure must account for the premium payments Bazemore intended the 

policyholder to make to keep the policy in place until the insured died and 

death benefits could be paid. This is the formula the Eighth Circuit approved 

in United States v. Jenkins. See id., 578 F.3d 745, 749-50 (8th Cir. 2009) 

(holding that the intended loss to insurers of a scheme to fraudulently obtain 

insurance policies was the face value of the death benefits of the policies minus

an estimate of the premiums the schemers intended to pay). In that case, 

however, the defendants misrepresented the age and health condition of many 

of the applicants, and it was actually “likely that they would die soon after the 

fraudulently-obtained policies were issued.” Id. at 750. 

The government’s own argument reveals the infirmity of that approach 

to the STOLI policies at issue here. The government reasons that the intended 

loss should be the full face value of the policies because the “the insured would 

have had to have lived for 20 to 30 additional years” for the yearly premiums 

to catch up with the value of the death benefits. The flaw in this logic, of 

course, is that the insurers issued the policies under the belief that the 

3 There may be other, more immediate financial consequences to insurers due to 

premium payments being made by institutional investors instead of individual policyholders, 

but the government has not identified any.

4 It is immaterial that a third-party investor would take over the premium payments 

after the contestability period terminated and Bazemore sold the policy. The current 

policyholder would still have to make the requisite premium payments to prevent the policy 

from lapsing.

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applicants’ representations were truthful—that is the very point of this 

prosecution. Put another way, the death benefits and premium costs were 

calculated based on the qualifications of the applicants the insurers thought 

they were getting. So, even if the applicants were as wealthy as they 

represented themselves to be, they would still have had to live to be 

centenarians for the insurers to make a profit under such a crude financial 

analysis. Accordingly, simply subtracting the intended premium payments 

from the death benefits would create a false positive: a legitimate policy would 

show an intended loss because the premiums paid over the course of the 

insured’s expected lifetime would not reach the face value of the policy. 

To apply the intended loss enhancement, the government has the burden 

to prove by a preponderance of the evidence that Bazemore intended pecuniary 

harm to result from his scheme. See Sanders, 343 F.3d at 527; U.S.S.G. § 2B1.1

app. n. 3(A)(ii). This requires the government to establish that the STOLI 

policies imposed a financial risk to the insurers beyond the risk they believed 

they were receiving in issuing life insurance to Bazemore’s applicants. To be 

sure, the government proved that the insurers paid Bazemore commissions for 

value they were promised but did not receive in the form of qualified insureds—

namely, insureds who met the insurers’ net worth requirement and who did 

not intend to transfer their policies to third-party investors. While this is 

sufficient to satisfy the mail fraud statute, it is not sufficient to prove that 

Bazemore intended pecuniary harm to result from the offense.5 

5 A misrepresentation is material under the mail fraud statute if it “has a natural 

tendency to influence, or is capable of influencing, the decision of the decision-making body 

to which it was addressed.” Lucas, 516 F.3d at 339 (internal quotation marks omitted); see 

also Neder v. United States, 527 U.S. 1, 22 n.5 (quoting the Restatement (Second) of Torts §

538, for the proposition that a statement is material if “a reasonable man would attach 

importance to its existence or nonexistence in determining his choice of action” or “the maker 

of the representation knows or has reason to know that its recipient regards or is likely to 

regard the matter as important in determining his choice of action, although a reasonable 

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The government concedes that Bazemore did not misrepresent the age 

or health status of his applicants. Therefore, to prove intended loss, it must 

prove that his misrepresentations as to the applicants’ financial status and 

third-party financing arrangements posed a risk of financial harm to the 

insurers that would not have existed if the information provided in the 

insurance applications were true. The government has not attempted to make 

this showing, let alone quantify any purported economic harm. We accordingly 

VACATE Bazemore’s sentence. On remand, an intended loss enhancement 

cannot be applied unless the government proves by a preponderance of the 

evidence that the STOLI policies posed a risk of financial loss to the insurers 

that the same policies issued to qualified insureds—the applicants the insurers 

thought they were getting—did not.

Finally, the government contends that any error in applying an intended 

loss enhancement was harmless because the district court stated that it would 

have imposed the same sentence regardless of whether it incorrectly applied 

the enhancement. A district court’s error in the guidelines calculation is 

harmless if the government “convincingly demonstrates both (1) that the 

district court would have imposed the same sentence had it not made the error, 

and (2) that it would have done so for the same reasons it gave at the prior 

sentencing.” United States v. Richardson, 676 F.3d 491, 511 (5th Cir. 2012) 

(internal quotation marks omitted). “This is a heavy burden, and one that 

requires the proponent to point to evidence in the record that will convince the 

appellate court that the district court had a particular sentence in mind and 

would have imposed it, notwithstanding the error.” Id. (internal quotation 

marks and alteration omitted).

man would not so regard it”). Bazemore concedes that his misrepresentations were material 

in that the insurers would not have issued the STOLI policies had the applications been 

truthful.

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The government cannot meet this heavy burden. The district court 

sentenced Bazemore to the lowest end of the miscalculated guidelines range. 

The court stated that the lengthy sentence was necessary because his scheme 

was a “massive fraud.” This determination of the scale of the fraud was 

necessarily based on the district court’s conclusion that Bazemore intended to 

cause an $81 million loss. Because the government did not offer any evidence 

of financial loss at all, we remand the case to the district court for resentencing 

in light of our holding as to the required showing for an intended loss 

enhancement.

III. Restitution

The district court ordered Bazemore to pay $4,014,627.13 pursuant to 

the Mandatory Victims Restitution Act (“MVRA”), 18 U.S.C. § 3663A. “This 

court reviews the legality of a restitution order de novo. If the restitution order 

is legally permitted, the order is reviewed for an abuse of discretion.” United 

States v. Taylor, 582 F.3d 558, 565 (5th Cir. 2009) (internal citation omitted). 

“The burden of proof is on the government to demonstrate by a preponderance 

of the evidence the amount of loss sustained by a victim. The MVRA does not 

permit restitution awards to exceed a victim’s loss.” United States v. Beydoun, 

469 F.3d 102, 107 (5th Cir. 2006) (internal citation omitted).

The presentence report (“PSR”) recommended restitution in the amount 

of $4,558,416.13 and the district court adopted the figure, save for the removal 

of commission payments not induced by the scheme to defraud. The PSR 

calculated the actual losses to the insurers as the commissions paid to 

Bazemore based on its determination that, “[w]hen the fraud was discovered, 

the insurance companies revoked the policies and remitted the paid premiums 

to the lenders.”

“[T]he district court is entitled to rely upon the information in the PSR 

as long as the information bears some indicia of reliability.” United States v. 

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Scher, 601 F.3d 408, 413 (5th Cir. 2010). Before sentencing, the government

informed the district court that it could not support some of the loss amounts 

specified in the PSR because certain insurers had retained the premiums they 

received or had not verified their losses. The government agreed with 

Bazemore that paid premiums should be offset against commissions and 

argued that the amounts it identified should not be ordered as restitution. The 

district court evidently ignored both Bazemore’s and the government’s 

objections to the PSR. 

On appeal, the government contends that the restitution order should 

stand because Bazemore did not carry his “burden of presenting rebuttal 

evidence to demonstrate that the information in the PSR is inaccurate or 

materially untrue.” Id. It is unclear why the government now advocates for 

an award it previously argued was inappropriate. In any case, the defendant’s 

burden of rebutting inaccurate information in the PSR is satisfied where the 

government elects to do it for him. The actual loss on a rescinded STOLI policy 

is the commission the insurer paid to Bazemore less any premium payments 

that it retained. Accordingly, we VACATE the order of restitution.

CONCLUSION

For the foregoing reasons, we AFFIRM Bazemore’s conviction but 

VACATE his sentence and restitution order and REMAND the case for 

proceedings consistent with this opinion.

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