UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. PETER VINCENT CAPRA, Defendant - Appellant. No. 15-1000 (D.C. No. 1:12-CR -00178-RBJ-1) (D. Colo.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before BRISCOE , BACHARACH , and McHUGH , Circuit Judges.

________________ _________________ Defendant Peter Vincent Capra owne d Golden Design Group (“GDG”), a company that built and sold homes in the Denver metropolitan area. He was convicted after a jury trial of fourteen count s of wire fraud, two counts of mail fraud, and ten counts of money laundering, arisin g out of a scheme to defraud mortgage

* After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not ma terially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### June 14, 2016
Elisabeth A. Shumaker Clerk of Court2 lenders. 1 Although the advisory guidelin e range was 210 to 262 months’ imprisonment, the district court depart ed downward and sentenced Mr. Capra to 144 months in prison. The court also ordered restitution in the amount of $11,009,934. Mr. Capra now appeal s from his convictions and sentence. 2 I. Background
A. The Superseding Indictment The Superseding Indictment charged Mr . Capra in count one with obstruction of justice related to the al leged shredding of documents that were responsive to a grand jury subpoena. The remaining counts for wire fr aud, mail fraud, and money laundering, related to Mr. Ca pra’s alleged scheme to de fraud mortgage lenders. The scheme involved the submission of loan ap plications with fa lse information and structuring transactions to give cash back to the buye rs of GDG homes at closing without the lenders’ knowledge. This sc heme made it possibl e for GDG to sell a large volume of homes to otherwis e unwilling or unqualif ied buyers.

1 Mr. Capra was found not guilty of count one in the Superseding Indictment, which charged him with obs truction of justice.

2 Mr. Capra’s court-appointed counsel in itially filed an ope ning brief raising one sentencing challenge and the government filed a response br ief addressing that issue. Mr. Capra subsequen tly filed a motion seeking leav e to file a pro se brief raising five challenges to the sufficiency of the evidence and additional sentencing challenges. We granted Mr. Capra’s motion, accepted his pro se br ief for filing, and directed the government to file a supplemen tal response brief. The government filed a supplemental response br ief and Mr. Capra filed a pro se reply brief.3 The Superseding Indictment alleged that Mr. Capra and others arranged for the buyers to submit loan appli cations for first and second mortgages to support their purchases of GDG homes. Many of the buyers bought multiple properties at or near the same time. Loan appli cations were submitted throug h several different mortgage brokers, including Justin Knight 3 , whom Mr. Capra knew would assist with providing, or at least fail to question the accuracy of, fals e information submitted in connection with the applicati ons. The applications cont ained materially false and fraudulent representations about the buyers ’ income, liabilities, source of down payment, and intent to occupy the prope rties as their prim ary residences. According to the Superseding Indict ment, Mr. Capra would arrange for distributions of cash back to the buyers in ways that prevented the lenders from discovering that these funds were actually going to the buyers. These distributions usually involved one of three methods. Under the first method, Mr. Capra caused the disbursement of funds to limited liability companies (“LLCs” ) created by Brian Waring 4 or by the buyers themselves based on fraudulent invoices fo r those LLCs that purported to reflect additional property improvements such as landscaping or carpeting. Under the second method, Mr. Capra caused buyers to sign false documents indica ting either that GDG would

3 Mr. Knight worked as a loan officer for Mr. Capra’s co mpany, Distinctive Mortgages, which was an in-hous e mortgage company for GDG.

4 Mr. Waring worked in the real esta te business and owned a company called Red Eagle Investments.4 pay for work not yet completed on the hom e at the time of closing or that GDG would pay the buyers in exchange for a wa iver of their otherwise applicable home warranties based on alleged cons truction defects. In fact, either all work on the home was complete or the buyers had not identif ied any construction de fects. GDG would then issue checks dir ectly to the buyers immediately after closing which were not reflected in the HUD-1 closing statements. Under the third method, Mr. Capra caused the filing, prior to closings, of a statutory lien purporting to reflect a debt by GDG to Cambridge Real Estate Consulting (“Cambridge”) or Chateau Real Estate Invest ments (“Chateau”). These companies were sham companies that Mr. Capra os tensibly set up as marketing companies, but the compan ies in fact did no work marketing any of the GDG properties. At closings, f unds would be distributed to Cambridge or Chateau and then Mr. Capra would cause a portion of thos e funds to be distributed to the buyers purchasing the properties. In furtherance of the scheme, Mr. Capr a also caused additi onal loan proceeds to be paid both to others helpin g recruit home buyers for GDG, including Mr. Waring, Benjamin Serrano 5 , and Kristin (Clark) Vaughn 6 , and to the people who appeared to control Cambridge and Chat eau, Beverly Hemond a nd Donald Johnson.

5 Mr. Serrano was the sales director for GDG.

6 Ms. Vaughn brokered loans in the real estate business. She worked with Mr. Capra to market GDG properties.5 He also caused the use of th e mail and of interstate wire transmissions to transmit documents and funds related to the buyers ’ purchases of GDG homes. Finally, he engaged in monetary transa ctions involving criminally derived property from the mail and wire fraud by transferring am ounts from the Cambridge bank account to Ms. Hemond’s personal account. 7
B. Trial Testimony At trial, the government introduced signi ficant evidence of Mr . Capra’s role in devising and furthering the scheme to defraud the le nders. Although Mr. Waring proposed the first cash-back method to Mr. Capra, it was Mr. Capra who then took control and implemented the scheme as a way to increase the sales volume of his GDG homes. Mr. Waring, Mr. Knight, Ms . Vaughn, and Mr. Serrano all testified that Mr. Capra decided the home prices a nd the amount of cash going back to the buyers. Mr. Waring testified that he discussed everything with Mr. Ca pra and that if he ran into a problem with a file or credit score or loan ge tting declined, he would talk to Mr. Capra about it. He testified Mr. Capra was very detail- oriented and focused on the financial aspects of th e transactions. He further testified that Mr. Capra knew he was using false loan documents to s upport loan applications. Mr. Waring also explained that he was trying to get multiple loan applications fo r multiple properties

7 Ms. Hemond testified that she was in a romantic relationship with Mr. Capra and that he was using the Cambridge ba nk account as a way to give her money without his wife knowing about it.6 purchased by a single buyer filed within a 45-day window. The 45-day window was important because then the multiple loan applications would not show up on the buyer’s credit report. He te stified that Mr. Capra knew he was doing this and that Mr. Capra “instructed [him] to do whatever [he] had to do to get the loans done.” R., Vol. 4 at 24. Mr. Waring testified that he heard about a complaint from a lender involving false information on a loan application (the home was not being used as a primary residence and multiple properties had b een purchased but not disclosed on the application). Although the complaint did not involve a home that was sold by GDG, it was in a neighborhood with GDG hom es and the borrower owned GDG homes. Mr. Waring told Mr. Capra about the comp laint and Mr. Capra to ld him they were going to need to cha nge their approach. Mr. Capra’s new approach was to use voi ded warranties or warranty waivers. But Mr. Waring testified that he was not aware of any buyers doing walk-throughs and, in many cases, the buyers did not kno w what properties they owned until after they closed. He further te stified that he was not aw are of any buyers identifying significant problems with the GDG homes. He said he would see buyers signing the warranty waiver forms at closing and they would then receive checks directly from GDG. Mr. Knight testified th at these warranty-waiver pa yments did not show up on the HUD-1 settlement statements . When he questioned Mr . Capra about whether the payments should be reflected on the HUD-1 statements, Mr. Capra told him they did7 not need to be disclosed b ecause they were si mply up-front settlements on any future work that would need to be done on the houses. Mr. Capra subsequently came up w ith another cash-b ack method using statutory liens. He had Mr. Waring sign a master marketing agreement and told him “it was a cleaner way to . . . deal with the cash at close” and that “it created additional layers.” Id . at 55. Mr. Capra explained to Mr. Waring how the new methodology would work—statutory liens would be recorded in the name of Red Eagle (Mr. Waring’s company), and then at closing, the liens would be paid off by the title company. Mr. Waring would ge t the money through Red Eagle and then he would keep a portion for hi mself and give the rest back to the buyer. Mr. Waring testified that no one at GDG knew more ab out the financial ma tters related to GDG homes than Mr. Capra. The testimony also showed that Mr. Capra set up two sham companies— Chateau and Cambridge—to further the cash -back method using statutory liens. Ms. Hemond, who was Mr. Capra’s girlfriend in Las Vegas, testified that Mr. Capra told her to set up a company (Cambridge) a nd to list herself as the CEO. But she testified that she “[n]ever did anything” once the company was formed. R., Vol. 3 at 1196. Mr. Capra determined the amount of liens that would be placed against the properties and he would dictate how the money should be disbursed. He directed that Ms. Hemond should receive $25,000 for every transaction involving Cambridge even though she did no work.8 Ms. Vaughn testified that Mr. Capra used Chateau a nd Cambridge liens to get money to her through her investment comp any (K&K) and she would then disburse the money back to the buyers. Mr. Capra want ed it done that way, “[s]o it wouldn’t look like [the money] was coming from the builder.” Id . at 1483-84. She was “told to actually open up more LLCs or S [corpor ations] because a lot of money was just going directly into K&K.” Id . at 1484. She and Mr. Capr a also had conversations about the need to create a “paper trail” and she helped create fake invoices for Cambridge and Chateau to fa cilitate that process. Id . at 1483-84, 1486. Mr. Serrano testified that Mr. Capra managed everything with respect to the GDG business. He stated that Mr. Capra “was very detail oriented and nothing got past him.” Id . at 932. At various times, Mr . Knight, Ms. Vaughn and Mr. Serrano expressed concerns about the legality of some of the actions Mr. Capra was asking them to take. Mr. Capra re assured them that everythi ng was going to be okay and they were not doing anything wrong. Mr. Capra also told them that he was acting on the advice of his attorney, Laur in Quiat. But Mr. Quiat te stified that he never told Mr. Capra he could give cash back to th e buyers and not disclose it on the HUD-1 settlement statements.
C. Rule 29 Motion After the government rested, the defense also chose to rest its case without putting on any further evidence. At that time, the defens e made an oral motion for a judgment of acquittal pursuant to Rule 29 of the Federal Rules of Criminal Procedure.9 In the motion, defense counsel argued that there was significant proof of Mr. Capra’s good faith in following the advice of Mr. Quiat, when he was using the cash-back methods described at trial. Defense counsel fu rther asserted that because Mr. Capra was acting in good faith based on Mr. Quiat’s advice, he lacked the criminal intent necessary fo r the jury to convict him of the mail and wire fraud counts. Defense counsel also moved for acquittal on the money laundering counts, arguing that Mr. Capra truly believed th at the money he wa s making from GDG as a result of these methodologi es was lawfully derived. The district court denied the motion, explaining that although Mr. Quiat had approved the use of warranty waivers and the creation of Cambridge and Chateau as marketing companies, he had denied ever giving Mr. Capra advice that he could use the waivers or the marketing companies as a disguised way to funnel money back to the buyers. Although Mr. Capra’s associates testified that he told them Mr. Quiat had approved these methods and the way Mr. Capra was using them, Mr. Quiat flatly denied doing so. The district court explai ned that the jury was going to have to determine whether Mr. Quiat’s testimony was credible. And if the jury found the testimony to be credible, it would negate Mr. Capra’s advice-of -counsel defense. The district court therefore determined th ere was sufficient evid ence for the jury to find Mr. Capra guilty. II. Discussion On appeal, Mr. Capra challenges the suff iciency of the evidence to support his convictions. He also challe nges the substantive and proce dural reasonableness of his10 sentence and the imposition of a four-level e nhancement for his role as an organizer or leader.
A. Sufficiency of the Evidence Mr. Capra argues that: (1) the government failed to prove that he submitted any false or fraudulent information to any lender; (2) the governme nt failed to prove the jurisdictional elements of mail and wire fraud; (3) he did not have any legal duty or obligation of disclosure to the lenders ; (4) the use of the Chateau and Cambridge liens did not violate the mail and wire fraud statutes; and (5) the government failed to prove the concealment element necessa ry for the money laundering charges. The first problem with Mr. Capra’s ch allenges to the su fficiency of the evidence is that they come too late. “The Rules of Criminal Procedure do not allow a defendant to wait until appeal to raise such a challenge.” United States v. Goode , 483 F.3d 676, 680 (10th Cir. 2007). Rather, claims of in sufficient evidence must be presented in the first instance to the dist rict court through a Fed. R. Crim. P. 29 motion. See Goode , 483 F.3d at 680-81. Although Mr. Capra’s trial counsel did move for a judgment of acquittal under Rule 29, that motion was not predicated on any of the grounds Mr . Capra now raises to challenge the sufficiency of the evidence. Instead, tr ial counsel argued that the jury could not convict Mr. Capra because there was significant ev idence that he had acted in good faith on the basis of his atto rney’s advice and therefore there was no criminal intent to support a guilty verdict. “When a defendant ch allenges in district court the sufficiency of th e evidence on specific grounds, all grounds not specified in11 the motion are waived.” Id. at 681 (internal quot ation marks omitted); see also United States v. Kimler , 335 F.3d 1132, 1141 (10th Cir. 2003). “Although we have described the failure to raise a challenge in district court as a ‘waiver,’ it is mo re precisely termed a forfeiture . . . .” Goode , 483 F.3d at 681. “Because of [Mr. Capra’s] forfeiture we re view [his challenges to ] the sufficiency of the evidence under the plain-error doctrine.” Id . Under that doctrine, Mr. Capra “must show: (1) an error, (2) that is plain, which means clear or obvious under current law, and (3) that a ffects substantial rights.” Id . (internal quotation marks omitted). As we discuss below, we see no error, pl ain or otherwise, requiring reversal due to insu fficient evidence. 1. Wire and Mail Fraud Mr. Capra first argues that the government failed to prove that he mailed or wired any false information to any lender. He devotes a portion of his brief to discussing the individual counts attempting to illustrate the lack of evidence in that regard. But the government was not require d to prove that Mr. Capra personally mailed or wired false informa tion. “[T]he central focus of the first el ement [of the wire and mail fraud statutes] is the existence of a scheme.” United States v. Kennedy , 64 F.3d 1465, 1475 (10th Cir. 1995). To prove that element, the government only needed to show that Mr. Capr a devised a scheme to defraud. 8 “The offense of a

8 “To prove a violation of the mail [or wi re] fraud statute, the government must prove . . . the devising of a scheme or artifice . . . to defraud.” Kennedy , 64 F.3d at 1475; 18 U.S.C. §§ 1341, 1343.12 scheme to defraud focuses on the intende d end result, not on whether a false representation was necessary to effect the result. Scheme s to defraud, therefore, may come within the scope of the [wire and mail fraud] statute[s] even absent an affirmative misrepresentation.” United States v. Cronic , 900 F.2d 1511, 1513-14 (10th Cir. 1990), overruled on other grounds by United States v. Iverson , 818 F.3d 1015 (10th Cir. 2016). The government was therefore not required to show that Mr. Capra personally submitted any misrepre sentations to the lenders to prove the existence of a scheme to defraud. Mr. Capra also argues that the governme nt failed to prove the jurisdictional elements for the mail and wire fraud stat utes, which require an interstate wire transmission or a mailing in furthe rance of the fraudulent scheme, see 18 U.S.C. § 1343 (wire fraud); id . § 1341 (mail fraud). But Mr. Ca pra’s trial counsel stipulated to the facts that satisfied t hose jurisdictional elements. See R., Vol. 3 at 1816-17. “‘A stipulation is an agreemen t between the parties as to a fact of the case, and, as such, it is evidence introduced by both of the parties.’” United States v. Cruz-Rodriguez , 570 F.3d 1179, 1184 (10th Cir. 2009) ( quoting United States v. Hawkins , 215 F.3d 858, 860 (8th Cir. 2000)). “‘Generally, a party introducing evidence cannot complain on appeal that th e evidence was erroneously admitted.’”13 Id . ( quoting Ohler v. United States , 529 U.S. 753, 755 (2000)). We see no basis to depart from this general prin ciple in Mr. Capra’s case. 9
The evidence at trial show ed that the cash going back to the buyers was not disclosed on the HUD-1 statements. But Mr. Capra asserts that he did not violate the mail and wire fraud statutes with the use of his cash-back method s because he did not have any independent legal duty or obligati on to disclose anything to the lenders. The government’s expert te stified at trial, however, that the HUD-1 settlement statement, which is prepar ed for the closing, require s any payments between the buyer and seller to be reflec ted on that statement. R., Vol. 3 at 1646-47. And both the buyer and seller have to sign the HUD-1 settlement statement attesting to its
accuracy. Id . at 1647-48. Moreover, even if Mr. Capra did not have a legal duty to the lenders to disclose the cash ba ck to the buyers, “a misleading omi ssion is actionabl e as fraud if it is intended to induce a fa lse belief and resulting action to the advantage of the misleader and the disadvantage of the misled.” United States v. Gallant , 537 F.3d 1202, 1228 (10th Cir. 2008) (internal quotation marks omitted). Mr. Waring told Mr. Capra that the lenders would not approve the loan applications if they knew that

9 Mr. Capra also objects that th e mail fraud c ounts are based on Federal Express shipments as opposed to mailings through the United States postal service, but the statute expressly crimina lizes not only the use of the United States postal service, but also “any matter or thi ng” sent or delivered “by any private or commercial interstate carrier” for purposes of executing the scheme to defraud, see 18 U.S.C. § 1341.14 GDG was giving money back to the buyers “b ecause in essence you’re paying the buyer to buy the property.” R., Vol. 4 at 13-14. Many of the buyers did not have sufficient income or assets to qualify for the loans. By not disclosing the cash-back payments to the lenders, Mr. Capra actively concealed information that was material to the lenders in making their decisions to approve the loan applications. Such “deceitful concealment of material fact s” is sufficient evidence to support Mr. Capra’s wire and mail fraud convictions. See Gallant , 537 F.3d at 1228 (internal quotation marks omitted). Finally, Mr. Capra contends that the us e of the Chateau and Cambridge liens did not violate the mail and wire fraud statut es. But the testimony at trial established that the Chateau and Cambridge compan ies never marketed any properties or performed any other work related to the pr operties. These comp anies and their liens were simply used as vehicles to con ceal the money going back to the buyers. Ms. Vaughn, who worked with Mr. Capra, testified that invoices were created for Chateau and Cambridge reflecting the amount that was going back to the buyer and it was done that way to cr eate a “paper trail” for th e GDG file so that there was an invoice for every home. R., Vol. 3 at 1483. After closing, the money was wired from Chateau or Cambridge to Ms. Vaugh n’s company, K&K Investments. She would keep any money owed to her, and then she would wire the rest of the money to the buyer. Id . It was done this way so that “i t wouldn’t look like [the money] was coming from [GDG].” Id . at 1484. To her knowled ge, neither Chateau nor Cambridge ever did any work to market the properties. Id . Both Mr. Johnson and15 Ms. Hemond, the alleged corporate heads of Chateau and Cambridge, testified that they did no work for thes e companies and these compan ies performed no work for
GDG. See id . at 620-624 (Johnson testimony); id . at 1196-1200 (Hemond testimony). Mr. Capra also argues that he did not vi olate the mail and wire fraud statutes because he disclosed the Chateau and Ca mbridge liens to the lenders on the HUD-1 settlement statements. But the HUD-1 settl ement statements did not disclose those companies actually performed no work fo r GDG and that a large portion of the money being paid to Chateau and Cambridge was then going back to the buyers. Mr. Capra’s use of the Chateau and Cambri dge companies deceit fully concealed the payments that were going back to the buye rs and furthered his scheme to defraud the lenders. 2. Money Laundering Mr. Capra argues that there was in sufficient evidence to prove money laundering because the government did not s how that the transfer s of money from the Cambridge account to Ms. Hemond’s account were designed to conceal anything. Mr. Capra relies on 18 U.S.C. § 1956 for hi s argument. That statute does require the government to prove that “the transaction is designed in whole or in part . . . to conceal or disguise the nature, the location, the source, the ownership or the control of the proceeds of specified unlawful activity.” 18 U.S.C. § 1956. But Mr. Capra was charged and convicted of violating 18 U. S.C. § 1957, which does not contain that element. Section 1957 requires the gove rnment to prove that the defendant16 “knowingly engage[d] . . . in a monetary transaction in cr iminally derived property of a value greater than $10,000 and is deri ved from specified unl awful activity.” Because § 1957 does not require the gove rnment to prove that the monetary transactions were designed to conceal anything, Mr. Capr a has not shown any failure of proof regarding the m oney laundering counts.
B. Sentencing issues Mr. Capra argues his sentence is substan tively and procedurally unreasonable. We review for abuse of discretion the reasonableness of a sentence. United States v. Martinez , 610 F.3d 1216, 1223 (10th Cir. 2010). He also ar gues that the district court erred in imposing a fou r-level enhancement under U. S.S.G § 3B1.1 for his role as an organizer or leader of the scheme to defraud. We review for clear error the district court’s factua l finding to support the § 3B1.1 enhancement. See United States v. Shengyang Zhou , 717 F.3d 1139, 1149 (10th Cir. 2013). 1) Substantive reasonableness Mr. Capra asserts that the length of hi s sentence (12 years) is substantively unreasonable. “Review for substantive re asonableness focuses on whether the length of the sentence is reasonable given all the circumstances of the case in light of the factors set forth in 18 U.S.C. § 3553(a).” 10 United States v. Friedman , 554 F.3d 1301, 1307 (10th Cir. 2009) (internal quota tion marks omitted).

10 Those factors include: “the nature a nd circumstances of the offense and the history and characteristics of the defendant;” “the n eed for the sentence imposed [:] . . . to reflect the seriousne ss of the offense, to promot e respect for the law, and to (continued)17 In challenging the length of his senten ce, Mr. Capra argues that he relied on the advice of counsel, Mr. Quiat, who approv ed the cash-back meth ods. He further argues that the other partic ipants in the scheme re ceived significantly lower sentences. As the district court pointed out, however, th e jury rejected Mr. Capra’s defense that he relied in good faith on Mr . Quiat’s advice. As for the sentencing disparity, Mr. Capra was charged with and convicted of a significantly higher number of crimes than any other defendant who wa s involved in the scheme and most of the other defendants were working for him. Also, the other defendants accepted responsibility for their conduct, cooperated with the government, and entered into guilty pleas. The government argued that a guide lines sentence (17-22 years) was appropriate. The probation office proposed a downward variance to 15 years. Ultimately, the district court rejected bot h of those positions and imposed an even lower sentence. The 12-year sentence the court imposed was a downward variance of 5 1/2 years (or 66 months) from the bottom of the guidelines range. The district court spent time at sentencing discussi ng the § 3553 factors with respect to Mr. Capra, providing reasons to support the sentence it imposed. Mr. Capra has

provide just punishment for the offense; to afford adequate de terrence to criminal conduct; [and] to protect the public from further crimes of the defendant;” “the need to avoid unwarranted senten ce disparities among defendants with similar records who have been found guilty of similar conduct;” and “the need to provide restitution to any victims of the offens e.” 18 U.S.C. § 3553(a).18 failed to show how the district court a bused its discretion in imposing his 12-year

sentence. 2) Procedural reasonableness Mr. Capra argues that the district court incorrectly calculat ed the loss amount for purposes of determining his offense level under U.S.S. G. § 2B1.1 and the amount of the restitution award ($11,009,934). In general, alleged errors in calculating the sentence implicate the procedural reasonableness of the sentence. See, e.g. , United States v. Alapizco-Valenzuela , 546 F.3d 1208, 1214 (10th Cir. 2008). Before we can consider thes e issues, we must address whether they were raised below. Mr. Capra initially a ppeared to challenge the distri ct court’s loss calculation in his motion for a depa rture and variance. See R., Vol. 1 at 197-98. But at the sentencing hearing when the government wa s prepared to prove the loss amounts, defense counsel told the court, “[w]e do not contest the figures that are contained in the exhibit to the Government’s sentencing motion.” id ., Vol. 3 at 111. Those figures reflected the loss amounts, broken out by lende r, and are contained in the presentence report. Because Mr. Capra withdrew his obj ection to the loss calculations and did not object at sentencing to the restitution award, we review those issues for plain error. On appeal, Mr. Capra argues that the losse s were not a result of his actions. He claims the losses were “the result of actions of others,” 11 or were “due to the

11 Although Mr. Capra seeks a reducti on in his loss amo unt due to the allegedly fraudulent actions of the lenders and the buyers, he is responsible for all reasonably foreseeable acts and omissions of ot hers in furtherance of a jointly (continued)19 market crash resulting from th e recession.” Pro Se Open ing Br. at 73. He also claims the loss amounts failed to take into consideration “other sources of payments to the lenders,” such as r eceipt of mortgage payments made by buyers, bankruptcy payments, and “short sales.” Id . at 74. Under U.S.S.G. § 2B1.1(b), a defendant ’s base offense level for fraud is increased according to loss. The court should use the gr eater of actual or intended loss. Id . § 2B1.1, cmt. n. 3(A) . “‘Actual loss’ means the reasonably foreseeable pecuniary harm that resu lted from the offense.” Id ., cmt. n. 3(A)(i). “‘Reasonably foreseeable pecuniary harm’ means pecuniary harm that the defendant knew, or under the circumstances, reasona bly should have known, wa s a potential result of the offense.” Id ., cmt. n. 3(A)(iv). Losses attributable to mortgage fraud ar e determined by subt racting the sale prices of the homes from th e outstanding loan balances. See United States v. Washington , 634 F.3d 1180, 1184 (10th Cir. 2011) . Although Mr. Capra contends that the district court did not take into account mortgage payments made by the buyers or payments received from the bank ruptcy estate, the methodology approved
in Washington —which was used without objection in this case—already takes into account the payments received by the lenders because it uses th e outstanding loan balances. undertaken criminal activity, see U.S.S.G. § 1B1.3(a)(1)(B). The fact that others helped Mr. Capra to carry out deceitful acti ons in furtherance of the scheme does not absolve him of responsib ility for the losses.20 Mr. Capra further contends that mark et conditions caused a decline in the value of the properties and should be cons idered in determining actual loss. In Washington , 634 F.3d at 1185, we noted that “in a mortgage fraud scheme . . . , the loss is not the decline in va lue of the collateral; the lo ss is the unpaid portion of the loan as offset by the valu e of the collateral.” Id . Only the unpaid portion of the loan needs to be foreseeable, wher eas the credits against the loss, such as the proceeds from a foreclosure sale, do not need to be foreseeable. See Crowe , 735 F.3d at
1237-38. Mr. Capra is not entitled to a reduc tion in the actual loss amount due to any diminished value of the credit agains t the loss from market or other economic conditions. It was reasonably foreseeable to Mr. Capra that his fraudulent scheme could cause the lenders to lo se the unpaid loan balances. This is so because “an unqualified borrower’s default is clearly a reasonably foreseeable potential result of the offense.” Id . at 1238 (internal quotation mark s omitted). As for any credit against the loss from th e sale of the properties, courts deduct from the calculated loss the amount actually recovered. Id . “This calculation is ma de as of the time of sentencing and without regard for whether this amount was reasonably foreseeable.” Id . at 1238-39 (internal quotation marks omit ted). Mr. Capra is therefore “only entitled to a cred it against loss in the amount act ually recovered by the banks from the sale of the subject properties.” Id. at 1239 (internal quota tion marks omitted). Mr. Capra also challenges th e restitution award. He argues that restitution awards must be based on actua l losses to victims and he as serts that the award “does21 not reflect actual loss to dow nstream note holders, because th ey could have paid less [than] the unpaid balance to acquire the loans and notes.” Aplt. Pro Se Br. at 76. He relies on our recent decision in United States v. Howard , 784 F.3d 745 (10th Cir. 2015) to support his position.
In Howard , there was evidence that some of the mortgage notes had been sold by the original lenders to downstream lenders. Id . at 747. In the district court, the defendant asserted that the restitution calcu lations “were flawed because they did not examine the purchase prices paid by downstream holders of the mortgage notes.” Id . at 751. The government did not put on evidence in response to defendant’s argument and, on appeal, the defendant ch allenged the method of calculating loss to the downstream lenders as it rela ted to the restitution award. See id . at 749, 751. We ultimately remanded to the district court with instructions to “r edetermine the amount of actual loss to identified dow nstream-noteholder victims.” Id . at 752 (emphasis added). Howard is not applicable here, howev er, because there was no evidence presented to the district court that there were any downs tream noteholders. Mr. Capra’s claim is speculativ e and he does not identify any downstream lenders in his brief on appeal. Moreover, even if Mr. Capra did have information regarding downstream noteholders, he di d not raise this argument be low and “factual disputes regarding sentencing not brought to the atten tion of the district court do not rise to the level of plain error,” United States v. Lewis , 594 F.3d 1270, 1288 (10th Cir. 2010) (brackets and internal quot ation marks omitted).22 3) Organizer/leader enhancement Mr. Capra argues that the district cour t erred in enhancing his sentence for being an organizer or leader under U.S.S.G. § 3B1.1 becau se the court did not make sufficient factual findings and the trial reco rd does not support the enhancement. The commentary to § 3B1.1 explains that: Factors the court should consider incl ude the exercise of decision making authority, the nature of th e participation in the co mmission of the offense, the recruitment of accomplices, the clai med right to a larger share of the fruits of the crime, the degree of partic ipation in planning or organizing the offense, the nature and scope of th e illegal activity, and the degree of control and authority exercised over others. U.S.S.G. §3B1.1, note 4 (2014). But, “[t]he Guidelines do no t require that each of these factors be satisfied for a section 3B.1.1 enhancement to apply.” United States v. Wacker , 72 F.3d 1453, 1476 (10th Cir. 1995). In rejecting defendant’s argument that he was not an organizer or leader, the district court stated: He was the captain of the ship. He was the CEO of the company. There was testimony throughout the trial that the buck always stopped there. He’s the one that had the girlfriend in that [sic] Nevada. He’s the one that set up the phony companies so he could siphon off money to her. R., Vol. 3 at 134. The court also found: The facts are that he was, Mr. Capra was the overall organizer and manager of a scheme to defraud mortgage le nders. As part of the fraud, they misrepresented the financial abilit y of buyers of homes in this neighborhood of ni ce homes that Mr. Capra’s company built, making it appear at least on the application form s that the [buyers] were much more financially sound than they in fact were. Id . at 202.23 As noted above, “[w]e review the di strict court’s fact ual finding that the defendant acted as a leader or orga nizer under § 3B1.1 for clear error.” Shengyang Zhou , 717 F.3d at 1149. “Under this standard, we will not reverse the district court’s finding unless, on the entire evidence, we are left with the definite and firm conviction that a mistake has been committed.” Id . (internal quotation marks omitted). Although it may have been preferable if the district court had been more thorough in articulating the reasons for th e enhancement, the court’s findings were specific enough to provide a clear picture of the reasoning the court employed. Id . at 1150. The trial testimony shows that Mr. Capra was exte nsively involved in devising and implementing the various aspect s of the cash-back me thods at the core of the scheme to defraud, he had signi ficant decision-making authority on issues related to the cash-back methods, and he ex ercised control over othe rs involved in the scheme. We see no clear erro r in the district court’s fi nding that Mr. Capra was an organizer or leader. III. Conclusion For the foregoing reasons, we affirm the district court’s judgment. We grant the motion to withdraw filed by Mr. Capra’s c ourt-appointed attorney, Robert Berger.24 We also grant Mr. Capra’s motion for leave to accept hi s pro se reply brief and permit him to proceed pro se. Entered for the Court
Carolyn B. McHugh Circuit Judge