United States v. Griffin

• Court: Court of Appeals for the First Circuit
• Decided: December 19, 2025
• Docket: 24-1541
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

Nos. 24-1475 24-1540 24-1541

UNITED STATES OF AMERICA,

Appellee,

v.

WILLIAM W. ROBERTSON and DANIEL J. GRIFFIN,

Defendants, Appellants.

APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Margaret R. Guzman, U.S. District Judge]

Before

Gelpí, Lynch, and Thompson, Circuit Judges.

William W. Fick, with whom Daniel N. Marx, Amy Barsky, and Fick & Marx, LLP, were on brief, for appellant Robertson.

Thomas M. Hoopes, with whom Jason M. Strojny and Libby Hoopes Brooks & Mulvey, P.C., were on brief, for appellant Griffin.

Randall E. Kromm, Assistant United States Attorney, with whom Leah B. Foley, United States Attorney, was on brief, for appellee.

December 19, 2025 THOMPSON, Circuit Judge. Between 2015 and 2017,

Lieutenant Daniel Griffin and Sergeant William Robertson of the

Massachusetts State Police ("MSP") clocked hundreds of hours of

overtime to the tune of practically $100,000. (And that's not

counting the troopers they supervised.)

The problem? A lot of that time, they weren't actually

working. Instead, they routinely showed up late or cut out early

yet still charged for the whole shift. They also began overtime-

specific tasks during their normal work hours but still billed

like they had worked a separate overtime shift later in the day,

an impermissible form of double-dipping. And they regularly

encouraged their subordinates to do all that, too.

The Feds were none too pleased once they caught wind of

this scheme, because the money that these troopers (and their

supervisees) stole came from federal grants funding overtime hours

for law enforcement initiatives to promote highway safety. (Think

DUI checkpoints and "Click-It-Or-Ticket" programs.) So Robertson

and Griffin were charged with a host of fraud-based federal crimes.

After an extended trial featuring more than twenty

testifying witnesses, a jury convicted the duo of all the charges:

wire fraud, theft of federal funds, and conspiracy to commit the

latter. (And on the brink of trial, Griffin separately pled guilty

to a set of tax falsification charges and some unrelated wire fraud

charges.) The district court then sentenced Robertson and Griffin

- 2 - to some time behind bars, and it ordered each defendant to fork

over what they made during the scheme (and some more) via

substantial restitution and forfeiture orders.

On this omnibus appeal, the pair protests the propriety

of the prior proceedings practically soup-to-nuts. Mostly, we

affirm, though with a bit of disquietude about the district court's

tone during Robertson's sentencing (more on that later). But we

vacate and remand one narrow issue: the forfeiture order against

Griffin. Read on as we explain what led to this mega-appeal.

We'll start with Griffin and Robertson's time with the MSP, their

fraud(s), the investigation, and the proceedings below.

HOW WE GOT HERE

A. The Defendants

We kick things off with a bit about our defendants'

histories, both personal and professional.1 A Massachusetts native

To start our recitation of the facts, we note a wrinkle 1

complicating our presentation of the record. One of Robertson's claims is a challenge to the sufficiency of the evidence, and "we typically recite those facts relevant to sufficiency claims" in "the light most favorable to the verdict." United States v. Burgos-Montes, 786 F.3d 92, 99 (1st Cir. 2015). But that's not the only challenge here, and for others (like the constitutional challenge or the facts underlaying the application of a sentencing enhancement), we're instead supposed to take a more "balanced" treatment where we "objectively view the evidence of record." Id. (cleaned up). Yet we can't "simultaneously recite the facts in both manners," so we'll instead "limit our initial summary of this lengthy record to those details essential to framing the issues on appeal." Id. Further complicating this is (1) that the district court is afforded some discretion in factfinding for sentencing

- 3 - with a blue-collar upbringing and a college education, Griffin

joined the MSP in 1986 at age 23. In 2011, he was promoted to

Lieutenant, a rank he held until his retirement in 2020. And from

2011 to 2019, he led MSP's Traffic Programs Section ("TPS"), the

division whose conduct gave rise to this case. (More on TPS

shortly.) While at MSP, Griffin also founded a private security

company. (More on that company shortly, too.)

Robertson, also a Massachusetts native, joined the force

in 1986 (the same year as Griffin) at age 26. He served for

thirty-two years, and throughout that long tenure (all as a

Massachusetts State Trooper), he earned several awards for his

service and departed at the rank of Sergeant. And while those

accolades are surely commendable, they aren't why we write.

Instead, relevant to this appeal, Robertson joined TPS as a

Sergeant in 2008 and got involved with its doings (both good and

not so good) until he was transferred in 2018.

So, what is TPS? It's a small division (usually around

five troopers at a time) that seems best understood in large part

as a federal/state administrative go-between: it receives hundreds

of thousands of dollars in grants from the U.S. Department of

Transportation, and then it oversees the distribution of those

grants into funding for traffic safety initiatives throughout the

purposes and (2) that some facts relate not to the trial but to Griffin's guilty plea. But we'll get more into each later.

- 4 - Commonwealth.2 The TPS's leader (at the time relevant here,

Griffin) is also responsible for applying for grants to fund these

programs. Along with all those administrative responsibilities,

TPS also directly operates some programs itself.

That last point is what really matters for our purposes.

The trial focused closely on Griffin and Robertson's overtime fraud

related to two buckets of federally funded traffic safety programs

that TPS directly implemented: sobriety checkpoints and safety

initiatives (like "Click-It-Or-Ticket"). So that's where we next

turn.

B. The Scheme

We'll start with the sobriety checkpoints and how they

were supposed to be operated. On Friday and Saturday nights,

troopers could sign up to work eight-hour shifts at BAT (short for

"breath alcohol testing") checkpoints on highways. Much of that

time would be spent in the "BAT Mobile," a camper parked by a

sobriety checkpoint and manned by troopers where identified drunk

2 We'd be wrong to say TPS is the only go-between. So too is the Executive Office of Public Safety and Security, another branch of Massachusetts's government that also works with the federal government to secure money and, for at least some of these grants, was the direct source of the money. But we'll spare the reader from more details of this seemingly endless bureaucratic labyrinth unless they're legally material here (or otherwise absolutely necessary).

- 5 - drivers would be processed and held until they could get escorted

to jail.3

The eight-hour shifts were often geared towards evening

surveillance, with a start time of 8:00 p.m. and running until

4:00 a.m. It was generally understood that because the overtime

was governed by federal rules and interdepartmental service

agreements (or "ISAs"), troopers were obligated to work the full

eight-hour shift in order to be paid for the full shift.4 (That's

apparently unlike other MSP-governed shifts, which aren't as

stringent in their billing practices.)

The Griffin-Robertson fraudulent twist on these? For

one, the TPS trooper team members often wouldn't report to the

barracks (where they'd load up onto the BAT Mobile) until 10:00

p.m., despite the billing clock starting at 8:00 p.m. Griffin, on

at least one instance, arrived at 11:30 p.m. And the troopers

often would wrap up and go home at 1:00 or 1:30 a.m., but, at

3 We assume that the name of the "BAT Mobile" finds its origins in the famous vehicle of the same name owned by the Caped Crusader and Dark Knight himself: the DC Comics superhero "Batman." We'll note that corrupt coppers also play an important part in Christopher Nolan's The Dark Knight (2008), but thankfully, the inappropriate conduct of the MSP troopers in this case doesn't come close to matching the deep-rooted corruption and greed in the Gotham Police Department on display throughout the legendary film. 4For instance, one ISA required that personnel "paid under this grant must actively participate in the enforcement effort." According to one government official, it was expected that reported overtime hours "would be accurate for actual hours worked."

- 6 - Griffin's direction, would still bill as if they worked until 4:00

a.m. to get their "full time" pay. Troopers testified to knowing

it was wrong but still doing it anyway -- relying on Griffin's

orders.

Along with sobriety checkpoints were a hodgepodge of

other federally funded road safety initiatives, our second bucket.

These initiatives paid for shifts where troopers would conduct

traffic stops specifically for unbelted drivers (to encourage

seatbelt use) and those glued to their phone or otherwise

inattentive at the wheel (to discourage distracted driving).

Troopers could sign up to do four-hour blocks on these shifts, but

importantly, they couldn't "pyramid" their shifts, meaning they

couldn't charge time for federally funded initiatives while they

were still on the clock for their normal MSP work hours.

Ordinarily, a federally funded traffic shift would start at 3:30

p.m., after the regular TPS workday (which ran from 7:00 a.m. to

3:30 p.m.) ended.

The Griffin/Robertson nefarious spin on these is a bit

more nuanced. For one, the TPS troopers would indeed "pyramid"

shifts, and thus improperly double dip. (And we know that they

pyramided because the troopers, on at least once instance, issued

a grant-related safety ticket at 3:25 p.m., despite their regular

TPS hours running until 3:30 p.m.) For another, after the officers

would write eight or nine tickets at the first location that they

- 7 - posted up at, Griffin would give them a signal over the radio:

"Let's move to another location." But that other location wasn't

really a cue to move to a new spot on the interstate; it was his

code to his team to pack it up and go home. Griffin (as the

officer-in-charge of TPS) would then approve for a full four hours'

worth of labor, despite only an hour or two actually worked. In

one trooper's recollection, TPS "never" worked the full shift, and

the troopers knew it was wrong the whole time.

This went on for years under the radar and without

notice. But there is one noteworthy episode to mention here that,

as you will learn, crucially factors into the scheme's unraveling.

One day at the barracks in 2017, apparently nervous about the

discovery of similar overtime fraud in other MSP sections,

Robertson approached Trooper Dennis Kelley, a lower-ranking TPS

member.5 Robertson smacked a folder in Kelley's chest and told

Kelley to "get rid of these." Robertson then got in Kelley's face

and said, "Shred these fucking things. Go shred them." Kelley

did, and as the files were going into the shredder, he noticed

that they were "637s," an important billing form. Once he realized

5 Details of the fraud investigation that caused Robertson's outburst are thin in Kelley's testimony. And throughout the trial, discussion of fraud in other units was skirted around, presumably so as to avoid prejudicing the defendants too much. But as the reader will later learn in our discussion of sentencing disparities, Robertson and Griffin certainly aren't the only two MSP troopers with overtime fraud convictions these days.

- 8 - what was happening -- that he was destroying TPS documents that by

federal rule should have been preserved -- he expressed his dismay

to Robertson. But Robertson at that point didn't care: the deed

was done.6

C. The Investigation

By now, the thoughtful reader might be wondering how,

exactly, someone figured out that Griffin, Robertson, and their

small squad were skimming off the top of these programs. If

everyone in TPS was in on it and the files were destroyed, who

would ever know?

The answer: we can point to and commend a scrupulous

federal agent working for the Department of Transportation's

Office of the Inspector General. One day, Agent Tayna Chavez

noticed oddities in TPS's billing while investigating potential

fraud in other MSP units. Thinking it strange that the same

troopers were working the same number of hours at the same time,

6 Later on, Kelley learned that higher-ups (higher than Griffin and Robertson) were sniffing around and looking for important TPS billing forms. Kelley then "got scared" and "did the stupidest thing" he had "ever done." He took home the rest of the files and burned them because he was "afraid" that the MSP higher-ups "were going to find out" that he destroyed other files at Robertson's direction. In his words, all of those files "would have showed everything that we had done there with the times and the hours and everything." Although Kelley didn't say that Robertson told him to do it, Kelley called Robertson to tell him that the files were destroyed; to that news, Robertson simply remarked "Good."

- 9 - week after week (after week), Agent Chavez started to piece

together some more information about their activities.

Some serious sleuthing ensued. Agent Chavez pulled

together the following records:

• "Paystation" data, to see what hours the troopers were

reporting and what the officers were approving;

• additional paperwork (dubbed "636," "637," and "638"

forms) to accomplish those same ends;

• fuel records, to figure out how far, when, and in which

cars the troopers drove;

• cruiser "radio affiliation" data, to discern when the

troopers were turning their cars on and off, and to see

when the cars' radios were pinging certain radio towers

to triangulate their location; and

• citations that the troopers issued during their shifts,

to see what patterns, if any, were discernable from their

ticketing practices.

From all that, Agent Chavez and her DOT compatriots knew something

was way off. So, after postulating from the data that TPS must

have been short-shrifting the shifts, they ran the numbers to

figure out the estimated loss arising from the inside dealing.

And they ultimately attributed hundreds of "loss hours" (time

- 10 - charged but not worked) to the troopers for each year between 2015

and 2017.

D. The Side Hustles

We'll digress here for a minute to talk about what other

info happened to surface during the investigation. All of the

above exposition related to Griffin and Robertson's shared TPS

skullduggery, but as it turned out, Griffin simultaneously had his

own separate unholy schemes on the side. And because the reader

will want to know about that by the time we start discussing the

indictment (coming soon), we'll explain it now.

Recall that we earlier mentioned how Griffin also ran a

private security business. It was called Knight Protection

Services, or "KNIGHTPRO." Back in the 1990s, MSP permitted him to

run KNIGHTPRO (which focused on private security details for

college events as well as art transportation), but it came with an

important caveat: he couldn't let it conflict with his MSP work

hours or responsibilities.

Well, it did. The first conflict for this officer of

the law was straight-up tax fraud: from 2012 to 2019, KNIGHTPRO

records showed about $1.9 million in revenue deposits, but Griffin

only reported $1.2 million to the IRS -- the point being that he

hid over $700,000 of income from the IRS during that period. And

that's especially alarming given that he held KNIGHTPRO out to the

IRS as a money-pit almost every year. But that false reporting

- 11 - wasn't all. Between 2014 and 2019, Griffin also siphoned off tens

of thousands of dollars in KNIGHTPRO money to pay for a country

club membership, home improvements for his Cape Cod property, and

other personal expenses, while, for tax purposes, writing off those

same remittances as business expenses.

And that leads to Griffin's second conflict, this one

specifically MSP-themed. Several times from 2015 through 2017,

Griffin used his KNIGHTPRO credit card to pay for MSP-related

training and travel. Afterward, he wrote off those KNIGHTPRO

charges as business expenses (again, for tax purposes) but also

applied for and collected personal reimbursement from MSP's

federal grant money for those same outlays. (If it isn't obvious,

that kind of double-dipping isn't cool.)

All told, the IRS figured out that Griffin was about

$186,389.00 short on his tax payment obligations through the years.

But the IRS and MSP weren't the only ones that Griffin

pulled a fast-one on. Starting in 2013, he began telling his

children's private school for boys, the Belmont Hill School

("BHS"), that he was making less money than he did. The reason?

So he could benefit from the school's financial aid program.7 Over

7 If the reader will indulge us, we'll share a vignette from the record. At one point, the Griffins were awarded too much financial aid when their application was confused with that of another family. They wrote to the school to let it know about the mix-up. In response, the school sent an official letter correcting the amount. And on the letter, the school's financial aid director

- 12 - seven years, his family obtained $176,700 in financial aid from

BHS. (As we'll later discuss, it's an open question how much of

that, exactly, stems from Griffin's fraud.)

E. The Proceedings Below

All that fraud naturally spawned a court case. And that

case started in 2020, when the government obtained an indictment

against Griffin and Robertson charging the following:

• one count of conspiracy to commit theft concerning

programs receiving federal funds, in violation of 18

U.S.C. § 371;

• one count of theft concerning programs receiving federal

funds, in violation of 18 U.S.C. § 666(a)(1)(A); and

• four counts of wire fraud, in violation of 18 U.S.C.

§ 1343.

These charges all related to the overtime fraud scheme.

Separately, the indictment charged Griffin with four additional

counts of wire fraud relating to the BHS financial aid applications

and ten counts of filing false tax returns related to KNIGHTPRO's

cooked books.8

added a hand-written note to Griffin in large print: "Again, I can't thank you enough for your honesty!" In hindsight, those thanks may have been a bit premature. The careful reader might be wondering where the MSP 8

underlings are in all this. Most of the ordinary troopers involved in TPS took immunity deals with the government to avoid prosecution, and they testified against Griffin and Robertson in

- 13 - Unremarkable pretrial proceedings went on for nearly

three years, teeing up the case for trial.

Before opening arguments, Griffin opted to fess up to

the BHS wire fraud and KNIGHTPRO tax return counts (and thus pled

guilty to them). Then a jury trial commenced to thrash out the

remaining counts. We'll recount a bit more of what happened at

the trial later on, but for now, we'll note that the defendants

thrice moved for judgments of acquittal (at appropriate times) and

the district court thrice denied them. Following eleven days of

trial where it heard from 25 witnesses, the jury returned a guilty

verdict against both defendants on all counts on the twelfth day

of the saga.

In due course, the district court sentenced each

defendant separately. We'll start with Griffin. The court

calculated Griffin's United States Sentencing Guidelines

("U.S.S.G" or "Guidelines") offense level at 25, and his criminal

history as Level 1. (We'll get to the math later.) That

combination resulted in a Guidelines Sentencing Range of 57 to 71

months, and the court sentenced Griffin to 60 months' imprisonment

and three years of supervised release. Along with that, he owed

a special assessment of $2,100, restitution of $329,163.77 (with

exchange for getting off the prosecutorial hook. (We say "most" because we couldn't track down what happened with Trooper Pete Morawiak, who Trooper John Jakobowski testified was in the unit while the fraud happened.)

- 14 - $142,774.77 going to the DOT and $186,389.00 to the IRS), and

forfeiture of $239,796.75 (the bulk of it related to the BHS

financial aid).

Next came Robertson. As to the Guidelines, the court

calculated Robertson's offense level at 21 and his criminal history

as Level 1. (Again, the math will come later.) That pairing

resulted in a Guidelines sentencing range of 37 to 46 months, and

the court sentenced Robertson to 36 months' imprisonment and three

years of supervised release. Along with that, he owed a $600

special assessment, restitution to the DOT totaling $142,774.77

(the same figure as Griffin, because the judge found them jointly

and severally liable), and forfeiture of $32,180.50.

Each timely filed a notice of appeal challenging a litany

of issues related to these proceedings. And here we are.

OUR TWO CENTS

With all that history squared away, we'll turn to the

appellants' arguments. In doing so, we note that because their

claims necessitate that we deploy a few different standards of

review as we undertake our appellate task, we'll infuse those

standards along the way as necessary for our various discussions.

We start then with the appellants' joint constitutional challenge

to the statutes undergirding their convictions before moving into

each trooper's individual protestations. Because there's a lot to

cover, we implore the reader to buckle up for a long, winding ride.

- 15 - A. Combined Constitutional Challenge

First, Griffin and Robertson jointly attack the

constitutionality of their conviction. They argue that neither

had fair notice that billing in four- and eight-hour blocks (rather

than hour-by-hour) was fraud under the wire fraud and federal

program theft fraud statutes; in their view, that lack of notice

makes those statutes unconstitutionally vague as applied to them.

In their briefing they walk through the gamut of MSP customs and

practices that, by their lights, purportedly justified their

billing methodology.

But we don't need to tarry long over this argument

because, as the government correctly points out, the pair lost

their chance to pursue this constitutional claim by raising it too

late. Here's why.

When the indictment issued back in 2020, neither

defendant moved expeditiously to dismiss it based on these alleged

constitutionally inadequate notice defects. Then, as usually

transpires with the district court's trial management

responsibilities, the parties were ordered to submit any pre-trial

filings by November 20, 2023. Well, that day came and went, but

again, neither defendant moved pre-trial to dismiss the charges on

constitutional grounds. Instead, those challenges didn't surface

until mid-trial at the close of the government's case.

- 16 - According to the government, Federal Rule of Criminal

Procedure 12(b)(3) tells us how to think about this one.

Conveniently titled "Motions That Must Be Made Before Trial," the

rule explains (perhaps rather obviously) that arguments falling

under this rule "must be raised by pretrial motion if the basis

for the motion is then reasonably available and the motion can be

determined without a trial on the merits." Fed. R. Crim. P.

12(b)(3). That said, the law isn't so rigid that there are no

exceptions. Elsewhere in the Rule is a fail-safe provision: an

untimely Rule 12(b)(3) filing can be excused if the party can show

"good cause" for the delay. Fed R. Crim. P. 12(c)(3).

So we first ask, does Griffin and Robertson's vagueness

argument fall within the purview of Rule 12(b)(3)? There are some

reasons to think that it does, though the First Circuit has not

had occasion to squarely address the appellants' particular

challenge. See United States v. Seuss, 474 F.2d 385, 387 n.2 (1st

Cir. 1973) (explaining that an unconstitutional vagueness claim

constitutes a "defense of failure of an indictment to charge an

offense" under an older version of Rule 12). As we've past noted,

two other circuits have found Rule 12(b)(3) to encompass

constitutional (but not jurisdictional) attacks. See United

States v. Cardona, 88 F.4th 69, 77 n.6 (1st Cir. 2023) (citing

United States v. Mullet, 822 F.3d 842, 847-48 (6th Cir. 2016);

United States v. Herrera, 51 F.4th 1226, 1282-85 (10th Cir. 2022)).

- 17 - Also, we've considered an as-applied Second Amendment challenge

(another constitutional-but-not-jurisdictional assault on a

prosecution) as falling within Rule 12(b)(3)'s sweep, though

without much resistance. United States v. Turner, 124 F.4th 69,

77 (1st Cir. 2024) ("Turner also does not claim that an as-applied

Second Amendment argument for dismissal of a count of an indictment

falls outside of Rule 12(b)(3)'s scope."). But we need not resolve

the question definitively today given that neither Robertson (in

his reply brief) nor Griffin (who chose not to file a reply brief)

contested the government's position, expressly raised in its

appellee brief, that Rule 12(b)(3) applies to their argument. See

Cardona, 88 F.4th at 77-78 ("Cardona does not dispute that Rule

12(b)(3) applies to his vagueness claim, and so we assume that his

motion is covered by that provision." (collecting cases)); Turner,

124 F.4th at 77.

So now we turn to the "good cause" analysis and dispose

of it with some dispatch: Robertson and Griffin have offered us no

cause, let alone a good one, for not raising their constitutional

claim earlier.

Because we assume that Rule 12(b)(3) covers the

appellants' claim but they failed to show good cause for not

raising the argument in a pre-trial motion, "the consequence is

that the matter is waived on appeal." Turner, 124 F.4th at 77.

And the stakes are unusually high here, because a lack of good

- 18 - cause also means that there's no plain error review, either. See,

e.g., Cardona, 88 F.4th at 75 ("Where a defendant does not show

good cause to consider an unpreserved Rule 12(b)(3) argument on

appeal, he is not entitled to plain error review." (cleaned up));

United States v. Reyes, 24 F.4th 1, 16 n.8 (1st Cir. 2022) (same).

Therefore, consistent with our case law, we soldier on. See

Turner, 124 F.4th at 78; Cardona, 88 F.4th at 78.

B. Robertson's Remonstrances

Seeing no error on the constitutional front, we'll -- to

quote Griffin -- "move to another location" in this combined

appeal and turn to the defendants' individual remonstrations.

We start with Robertson, whose grievances are best split

into four groups. We'll take them in the following order: first

the sufficiency of the evidence, then the Guidelines calculation,

next the sentencing disparity, and finally the restitution. The

bottom line? We don't see errors in any.

i. Proving the Case (Sufficiency of the Evidence)

Now on his own, Robertson contends that there wasn't

enough evidence to convict him on any count. Properly preserved

sufficiency challenges (like this one) are reviewed de novo.

United States v. Reyes-Ballista, 146 F.4th 100, 108 (1st Cir.

2025). So we'll first look at the evidence, "both direct and

circumstantial, in the light most favorable to the prosecution,"

and then "decide whether that evidence, including all plausible

- 19 - inferences drawn therefrom, would allow a rational factfinder to

conclude beyond a reasonable doubt that the defendant committed

the charged crime." Id. at 109 (quoting United States v. Martínez-

Mercado, 132 F.4th 61, 72 (1st Cir. 2025)).

Robertson launches his attack on his conviction from two

different beachheads. The first relates to the sufficiency of the

evidence as to all counts whereas the second addresses the

evidentiary sufficiency of Counts 3 and 4 only.

a. Robertson's Intent to Steal or Defraud

On front one, Robertson opens by contending that the

government failed to prove his intent to steal or defraud, an

essential element of each of the six counts he was convicted for.

In doing so, he incorporates the facts undergirding the waived

constitutional attack -- facts about the longstanding billing

practices and customs at MSP, as well as regulations, guidelines,

and mores about time-keeping protocols (and sometimes a lack

thereof) -- to show how he acted in good faith. And he points the

finger at Griffin, his superior officer, saying that he (meaning

Robertson) was just following his (meaning Griffin's) lead.

In response to Robertson's first point, the government

says there was evidence aplenty to support the jury's verdict.

Witness testimony and documentary evidence were introduced to show

that Robertson knew that his submission of hours violated

applicable rules and that he acted with fraudulent intent in

- 20 - getting paid for hours he didn't spend working. The government

also points out Robertson's presence during an interview (back in

2012) wherein Griffin admitted that he knew over-billing was

illegal. And, of course, the government mentions that Robertson

ordered a subordinate to shred folders containing damning

information implicating the fraudulent billing practices; that

evidence, urges the government, powerfully shows that he knew he

was doing something wrong.

We start our analysis with a well-worn principle we often

repeat -- sufficiency challenges are an "uphill battle" for

defendants. See United States v. Pena-Santo, 809 F.3d 686, 696

(1st Cir. 2015); United States v. Lipscomb, 539 F.3d 32, 40 (1st

Cir. 2008); United States v. O'Shea, 426 F.3d 475, 479 (1st Cir.

2005). As we explained more fully above, "reversal is warranted

only if we find that no levelheaded jury could have found"

Robertson guilty. Reyes-Ballista, 146 F.4th at 109 (cleaned up).

No one contests that intent to steal or defraud, in one

form or another, is, as Robertson contends, relevant to each of

the counts of his conviction: theft of federal funds, conspiracy

of the same, and wire fraud. So we ask ourselves: what, exactly,

did the government need to produce to prove intent? In the

district court's formulation (which we'll use, because Robertson

uses it too and he isn't challenging the jury instructions), the

conspiracy charge required the government to put forth evidence to

- 21 - prove that Robertson "willfully joined in" the "agreement

specified in the indictment, namely to steal, embezzle, [or] obtain

by fraud" the money that he wasn't entitled to. The theft count

similarly required the government to advance evidence showing that

Robertson "embezzled, stole, obtained by fraud, knowingly

converted, or intentionally misapplied property" (here, money)

under the "care, custody, and control" of the MSP. And the wire

fraud counts likewise required the government to factually prove

that Robertson "knowingly and willfully participated in the scheme

with intent to defraud."

In surveying the record in the light most favorable to

the prosecution, we see plenty of evidence of Robertson's intent

to do all that. Most obvious is the trial testimony of several

TPS troopers who worked alongside Robertson and under his command;

they said, over and over again, that they knew what they did was

wrong but that they did it anyway. From their admissions, the

jury could reasonably infer that Robertson, given his superior

perch on the food chain, and his personal participation in filling

out misleading billing forms and ordering the destruction of

records, had the very same intent to steal.

The jurors also heard about codewords (like "let's move

to another location") that Griffin would utilize to dismiss the

troopers early. The words' cloaked meaning was understood by all

involved in the scheme, including Robertson, and the codewords

- 22 - were necessary because (1) other troopers from different troops

were on the same radio frequencies and (2) the TPS squad didn't

want them to know that TPS was leaving. The jury could appreciate

that such codewords would not have been needed if what the TPS

team was doing was copacetic.

And the jury heard testimony from other troopers and MSP

leaders (including some who were not involved in the events of the

case) stating how it was clear that the TPS's billing practices

(i.e., working three or four hours of an eight-hour shift but

charging for the whole thing anyway) were inappropriate for

federally funded programs. No matter what might have been

permitted in unrelated MSP duties, the jury heard from Lieutenant

Eric Bernstein (who now has Griffin's job as head of TPS) that it

was "written into the ISA, in the grant" that "troopers were not

going to get paid" for the full shift "if they went home early."

To underscore the point, the jury heard from Trooper Dennis Kelley

(reading from an email chain between other troopers) that "when

federal money is involved, we must cross all Ts and dot all Is."

All that could lead to the reasonable inference on the

jury's part that Robertson, a sergeant, knew that he wasn't acting

above-board in his billing practices (our shorthand for intent

across these three separate crimes of conviction).

And if that wasn't enough, the jury heard about

Robertson's orders to Kelley to axe the paperwork. For us, that

- 23 - incriminatory directive practically seals the deal for our de novo

review. If Robertson didn't know he was stealing or defrauding,

specifically after investigations into related MSP branches, why

else would he order the files (files that contained the information

that could lead an investigator to uncover the fraud) shredded?

And that this destruction order happened after much of the charged

conduct had occurred is, in our view and despite Robertson's

argument to the contrary, of no matter, because it's well-

established that "later events often may shed light on earlier

motivations." United States v. Rodriguez, 858 F.2d 809, 816 (1st

Cir. 1988).

Robertson whistles past the graveyard with his

alternative arguments. For one, that Robertson was "just following

orders" from Griffin -- what we'll refer to as his "Nuremberg

defense" -- doesn't negate the illegality of the acts on these

facts; the testimony of his subordinates showed that they all

(including Robertson) knew that it was wrong and that they were

stealing. On this record, it would not, as Robertson suggests, be

a reasonable inference to conclude that he would be more ignorant

of the fraudulent scheme than the troopers he helped supervise to

carry it out.

For another, we don't buy Robertson's defense, presented

to but rejected by the jury, that because of longstanding MSP

practices and protocols, his conduct was okay on paper. It's not

- 24 - our place to usurp the jury's role in crediting the live testimony

of troopers testifying about intent saying that they knew what

they did was wrong, over the pile of documents that Robertson threw

at the jury to combat that point -- including the collective

bargaining agreement, division commander orders, ISAs, and others.

See United States v. Vázquez Rijos, 119 F.4th 94, 102 (1st Cir.

2024) (explaining that "we cannot reweigh witness credibility on

a sufficiency challenge"). And again, Robertson's order to Kelley

to shred the incriminating documents shows further why his I-was-

just-following-orders-and-doing-everything-by-the-books defense

fails. If he thought he was following regular MSP department

orders, why would he have needed to give Kelley such a blatantly

questionable directive?

We address one last point before we steer clear of

Robertson's sufficiency argument. Robertson contends that because

he didn't break any internal rules, the convictions can't stand.

There are two reasons why we don't make much of this. First, we

don't think his characterization of the evidence is an accurate

description of the record. Again, the jury heard testimony from

leaders in the MSP discussing how, under both ISAs and the

collective bargaining agreements, work on federally funded grants

couldn't happen at the same time as regular shift work. That

pyramiding was plainly verboten, but Robertson and his compatriots

did it anyway. The jury also heard how certifying false hours ran

- 25 - afoul of the Paystation requirement that hours be truthful. And

the jury heard it was necessary to keep forms for a certain period;

from that, it could readily infer that destroying them (as

Robertson ordered Kelley to do) seemed to run afoul of the formal

requirement that grant-related documents be retained for a period

of six years.

Second, whether Robertson did or did not violate any

internal rules is beside the point: that is "not the basis for his

criminal liability." United States v. Ransom, 642 F.3d 1285, 1291

(10th Cir. 2011). Robertson is "criminally liable because there

was sufficient evidence for a rational jury to convict him on each

element of the charged crimes," including his intent to defraud

the government and steal something of value. Id. at 1291. Those

regulations "helped establish underlying facts necessary to prove

the crimes," but they weren't what he was on trial for. Id. at

1292. So we don't buy this one on the facts or the law.

All that's to say: we see no reason to vacate based on

a purported dearth of evidence of Robertson's intent. Sufficient

evidence supports the jury's verdict.

b. Robertson's Liability for Griffin's Fraud

Recall that we mentioned how Robertson attacked his

convictions from two separate beachheads. Now we'll relocate to

beachhead two, a position from which he attempts to launch a more

targeted advance. Robertson offers an alternative attack on why

- 26 - he should not have been convicted for wire fraud under Counts 3

and 4. He asserts that because those counts only relate to money

deposited into Griffin's bank account, he has no criminal

culpability for this conduct. And while (at least in Robertson's

view) the government relied on an "aiding and abetting" theory to

hold Robertson accountable for Griffin's particular wire fraud,

Robertson protests that he didn't aid or abet Griffin's fraud

because he didn't do anything to facilitate fraudulent payments to

Griffin.9

The government retorts that Robertson misapprehends

what's needed for a wire fraud conviction. Notwithstanding his

aiding-and-abetting disclaimers, Robertson's individual

contributions to the broader "Griffin-Robertson TPS Overtime Fraud

Scheme" were sufficient to convict him even under counts concerning

Griffin's fraud. And as for Robertson's aiding-and-abetting

avoidance argument, it flops (in the government's view) because

the overtime fraud scheme was a bona fide group project -- its

success for one member depended on the support of all participating

members.

9 Robertson also argues that, because the government leaned on an "aiding and abetting" theory of conviction but its evidence didn't line up with the elements of an aiding and abetting conviction, the claim fails. More specifically, Robertson hangs his hat on the "affirmative act to help or cause the charged crime" prong, arguing that he took no affirmative acts to aid Griffin's fraud. But for reasons we'll discuss, we decline to get into that one today.

- 27 - We think the government's right on this one, too. To

prove wire fraud related to Griffin's procurement of payments on

false pretenses, the government needed to show Robertson's

"knowing and willful participation in a scheme to defraud and the

use of interstate wires to further that scheme." United States v.

Tum, 707 F.3d 68, 72 (1st Cir. 2013). But the government doesn't

need to show that Robertson "personally used the wires" that got

Griffin the money -- just "that such use was a reasonably

foreseeable part of the scheme in which he participated." Id.

(cleaned up); see also United States v. Fermin Castillo, 829 F.2d

1194, 1198–99 (1st Cir. 1987) (explaining that "[w]hether or not

the appellant had foreknowledge of the precise series of

[electronic communications] . . . is beside the point," and

stressing that "[a]s long as some use of [wires] in the course of

the endeavor was reasonably to be anticipated, the causation

requirement is met").

Based on the record, the jury could reasonably infer

that payments to Griffin were a "reasonably foreseeable part of

the scheme" that Robertson participated in. Tum, 707 F.3d at 72

(cleaned up). Testimony of troopers showed that Robertson and

Griffin (along with their handful of uncharged compatriots)

jointly cut corners on their overtime duties and on their

timesheets. Part of the scheme required each trooper's individual

submission of false statements through Paystation. And because

- 28 - Robertson submitted false hours on Paystation at Griffin's

instruction, the jury could find that Robertson knew how Griffin,

in order to be paid for his fraudulent hours, also procured the

money relevant to wire fraud Counts 3 and 4 -- via Paystation

submissions containing false hours. So Robertson and Griffin used

the same means to submit the same false hours from the same shifts

as part of the same scheme; Griffin's submissions are thus a

"reasonably foreseeable" part of the scheme "in which [Robertson]

participated." Id. at 72 (cleaned up). That's sufficient to

sustain Robertson's convictions under Counts 3 and 4, especially

given that Robertson didn't need to handle the wires that moved

the money into Griffin's account.

Again, Robertson's arguments to the contrary fail to

persuade. For one, that Robertson didn't enter or approve

Griffin's false overtime in Paystation is irrelevant, because, as

we've explained, Griffin's fraudulent use of the wires was still

a reasonably foreseeable part of their joint scheme, and that's

all that's needed. Id. at 72.

For another, Robertson's handwringing about the

expansion of liability is misplaced. He frets that "every MSP

employee who submitted inaccurate Paystation entries would be

jointly and severally liable for every payment made to every other

MSP employee engaging in the same behavior." But Robertson's

liability for Counts 3 and 4 arises not just from Griffin's use of

- 29 - the same means of Paystation but also from their joint

participation in the specific TPS scheme. See id. at 72 (noting

the necessary connection to "the scheme in which he participated"

(cleaned up)). As to the broader liability concern which he

contends "would unfairly distend the concept of 'foreseeability'

beyond recognition": hypothetically, the handful of TPS troopers

from 2015 to 2017 might have all been on the hook for each other's

wire fraud, because they were all in on the same scheme, but that

wouldn't extend out to every MSP trooper who may have submitted

false information more generally in that timeframe just because

all of them used Paystation. Only the TPS troopers who worked in

concert to further the particular scheme of relevance here would

be foreseeably liable. After all, the jury was instructed that

one way to find Robertson guilty was by finding that he "personally

committed or participated in the particular offense charged," and,

for the reasons explained above, the record supports the jury's

conclusion that Robertson participated in that offense. See United

States v. Pena, 24 F.4th 46, 74 (1st Cir. 2022) ("When a jury

returns a general guilty verdict on a sole

count . . . insufficiency of the evidence as to the other theory

of guilt will not undermine the conviction.").

So, in sum, because (1) Robertson participated in the

scheme that led to Griffin's wire fraud convictions and (2) the

payments to Griffin were a "reasonably foreseeable" part of their

- 30 - joint scheme, we see no issues with Robertson's conviction on these

counts premised upon the arguments he advances before us. And

because we find this theory of conviction supportable, we don't

need to reach the alternative aiding-and-abetting argument that

Robertson proffers. So his convictions will stand and we motor

along to the sentencing challenges.

ii. Calculating the Guidelines

Next, Robertson asserts that the district court made

three mistakes in calculating his Guidelines range.10 First, the

district court failed to apply the "zero-point offender" reduction

to his total offense level. Second, it erred in applying the

"leadership role" enhancement. Third, it inappropriately applied

the "abuse of trust" enhancement.

We'll take these in turn, reviewing "the sentencing

court's interpretation and application of the Sentencing

Guidelines de novo, its factfinding for clear error, and its

exercise of judgment for abuse of discretion." United States v.

10 Here's the quick math on the Guidelines calculation. Robertson's base offense level was 7. The district court added 8 levels because the "loss" (a complex term that we'll have more on later) from his fraud was between $95,000 and $150,000. It added another 2 levels because Robertson abused a position of public trust. Then, it added 2 more levels because he was a leader of the scheme. Finally, it added another 2 levels for willful obstruction of justice. All told, the district court calculated Robertson's total offense level as 21 and his criminal history level as I. That pairing led to a recommended sentencing range of 37 to 46 months.

- 31 - Guía-Sendeme, 134 F.4th 611, 616 (1st Cir. 2025). But to headline

our conclusion, we again see no reversible error.

a. Zero-Point Offender Reduction

Robertson opens his assault on his sentence by arguing

that the district court erred in denying him what's called the

"zero-point offender reduction." In essence, this is a two-level

Guidelines reduction available if a defendant meets a host of

circumstances related largely to their personal history and the

gravity of their crime. See generally U.S.S.G. § 4C1.1(a). So

the result of the court denying Robertson that reduction was that

Robertson's Guidelines offense level was two points higher than if

it had applied.

More than usual, the procedural history undergirding

this enhancement is important, so we'll start there. Griffin and

Robertson's draft presentence reports (or "PSRs") each included

the zero-point offender reduction. When probation issued

Robertson's final PSR, two weeks before Griffin's sentencing, it

reversed course and found Robertson ineligible for the reduction.

Yet Griffin was first to be sentenced, and, at that hearing, the

government brought to the court's attention an intervening U.S.

Supreme Court decision, Pulsifer v. United States, 601 U.S. 124

(2024), which it said changed the reduction's applicability. While

the government recognized that it had not protested Griffin

receiving the reduction and believed it had thus waived its chance

- 32 - to object to it, it noted that it did plan to press the issue at

Robertson's later-in-time sentencing. And that's exactly what it

did. Then, when Robertson faced sentencing, the district

court -- apparently in implicit agreement with the government's

Pulsifer take -- declined to afford him the zero-point reduction.

Such is the alleged error that Robertson contends requires

reversal.

From the court's declination, Robertson identifies three

flubs. First, the district court's change of heart violated the

"law of the case" doctrine. Second, because Robertson and Griffin

were identically situated, an unwarranted disparity arose from

application of the reduction to one but not the other. Third, the

district court incorrectly interpreted the text of the Guidelines

that were in effect at the time of the sentencing, leading it to

the misplaced denial of the reduction. The government contests

all three of those propositions.

We'll jump straight to Robertson's third argument,

because it's the clearest to us, and then work backwards. We agree

with the government that the district court, based on its holding

that Robertson earned a leadership enhancement, correctly declined

to apply the zero-point offender reduction.

Let us say more. At the time of Robertson's sentencing,

§ 4C1.1(a) provided for a two-level reduction if a long list of

- 33 - criteria were met.11 Among them was the condition that "the

defendant did not receive an adjustment under § 3B1.1 (Aggravating

Role)" (what we call colloquially the leadership enhancement) "and

was not engaged in a continuing criminal enterprise, as defined in

21 U.S.C. § 848." U.S.S.G. § 4C1.1(a)(10) (2023 version)

(emphasis added).

Robertson argues that this language -- its use of

"and" -- created "conjunctive" disqualification requirements.

That's a fancy way of saying that the reduction applied unless

Robertson both received a leadership enhancement and was involved

in a continuing criminal enterprise.12 If only one requirement was

met, he remained eligible, because he didn't receive an adjustment

AND participate in a continuing criminal enterprise.

The government responds that the language created two

alternative disqualifiers: if there was either a continuing

criminal enterprise or a leadership enhancement, Robertson could

not get the zero-point offender reduction.

Between the two competing interpretations of the

language, we believe the government offers the better read. One

11The reader will see in a moment why we emphasize the text in effect when Robertson was sentenced. Still, everyone agrees that what we've quoted above is the version of the Guidelines that we should be interpreting. 12Robertson contends also that he should never have received a leadership enhancement, but we'll get to that argument momentarily.

- 34 - important reason is an amendment made to this provision in November

2024, several months after Robertson's sentencing. Then, the

Sentencing Commission amended the section to divide the

"Aggravating Role" and "Continuing Criminal Enterprise"

requirements from Subsection (a)(10) into two separately numbered

grounds of disqualification. See U.S.S.G. § 4C1.1(a)(10)-(11)

(2024). The Commission said that it did so to "clarify [its]

intention that a defendant is ineligible for the adjustment if the

defendant meets either of the disqualifying conditions in the

provision." See 89 Fed. Reg. 36853, 36866 (May 3, 2024). That's

a point in the government's favor.

And so far, every court that's taken a stab at the

pre-amendment language (again, the language that the district

court used to sentence Robertson) has read it the same way as the

government, consistent with what the Commission enacted later in

2024.13 United States v. Milchin, 128 F.4th 199, 201-02 (3d Cir.

2025) (collecting cases). We see every reason to join the trend.

13 Among those cases in this consensus are: United States v. Milchin, 128 F.4th 199, 201-02 (3d Cir. 2025); United States v. Shaw, 2024 WL 4824237, at *1 (4th Cir. Nov. 14, 2024) (per curiam); United States v. Morales, 122 F.4th 590, 594 (5th Cir. 2024); United States v. Ashrafkhan, 129 F.4th 980, 985 (6th Cir. 2025); United States v. Cervantes, 109 F.4th 944, 946-47 (7th Cir. 2024); United States v. de la Cruz, 135 F.4th 1127, 1129 (8th Cir. 2025) (per curiam); United States v. Gonzalez-Loera, 135 F.4th 856, 859- 60 (9th Cir. 2025); United States v. Alvarez, 2025 WL 1450840, at *2 (11th Cir. May 14, 2025) (per curiam). The government identified even more in the consensus in a post-argument 28(j) letter, too.

- 35 - Like others, we find the Supreme Court's recent decision

in Pulsifer v. United States, 601 U.S. 124 (2024), instructive.

There, the Court considered how a different Guidelines provision

applied to defendants with "(A) more than 4 criminal history

points . . . (B) a prior 3-point offense . . . and (C) a prior

2-point violent offense." 601 U.S. at 129 (quoting 18 U.S.C.

§ 3553(f)(1) (emphasis added)). There, as here, the dispute turned

largely on what work the word "and" did to connect the conditions.

And as with our issue under § 4C1.1(a)(10), the parties fiercely

fought over whether the provision applied only to defendants who

satisfied all three criteria or to defendants who satisfied any of

the three criteria. See Pulsifer, 601 U.S. at 130-31.

The Court acknowledged that both interpretations were

"grammatically possible" and looked to "legal context" to

determine the meaning of the provision. Id. at 140-41. And it

held that the provision established an "eligibility checklist"

with three requirements; to benefit from the provision, the

defendant must "not have more than four criminal-history points,

not have a prior three-point offense, and not have a prior two-

point violent offense." Id. at 142 (emphasis added). That was

because reading the section as imposing "conjunctive" requirements

would render other parts of the section's calculation scheme

superfluous (a big no-no in the world of statutory interpretation).

See id. at 143, 153.

- 36 - With that holding in mind, the question posed here is

straightforward. Recall the relevant preface: "If the defendant

meets all of the following criteria," then they receive the

enhancement. U.S.S.G. § 4C1.1(a) (2023). The provision then

enumerates ten items, and in the tenth rests the issue: one of the

necessary criteria is that "the defendant did not receive an

adjustment under § 3B1.1 (Aggravating Role) and was not engaged in

a continuing criminal enterprise, as defined in 21 U.S.C. § 848."

Id. § 4C1.1(a)(10) (2023) (emphasis added). To put the preface

and the criteria together and paraphrase, here's how we read it:

"If the defendant did not receive a leadership adjustment and did

not participate in a continuing criminal enterprise," then they

get the reduction (as long as they satisfy the other conditions,

too). Or more simply, here, "and" means "and," and the defendant

needs to satisfy both criteria to remain eligible. But if they

either have a leadership enhancement or participate in a criminal

enterprise, then they're disqualified.

Robertson's position, that the "and" creates two

separate conditions, both of which must be satisfied to trigger

disqualification under Subsection (a)(10), has it backwards. As

other circuits have explained, "§ 4C1.1(a) does not set out things

that the government must show or that the district court must find

in order to disqualify" Robertson "from receiving the reduction."

United States v. Morales, 122 F.4th 590, 595 (5th Cir. 2024)

- 37 - (summarizing United States v. Cervantes, 109 F.4th 944, 947 (7th

Cir. 2024)). Instead, the provision "sets out requirements that"

Robertson "must meet to qualify for the reduction." Id. So "to

receive the zero-point-offender reduction," Robertson needed to

show "both that he did not receive a § 3B1.1 adjustment and that

he was not engaged in a continuing criminal enterprise," with "the

failure to meet either one of those requirements" dispositive on

the question. Id. (emphasis in original). Or more simply, it's

on Robertson, not the government, to run the table here.

With the law cutting so clearly against Robertson's

position on the provision's plain meaning, Robertson's assertion

that the rule of lenity should apply here has no footing. See

United States v. Place, 693 F.3d 219, 229 (1st Cir. 2012)

(explaining that "the rule of lenity counsels that ambiguities in

criminal statutes should be resolved in a defendant's favor"

(emphasis added)).

Statutory interpretation aside, Robertson offers two

alternative reasons as to why the district court erred in not

granting him the zero-point reduction: the law of the case doctrine

and the ever-present need for federal courts to avoid unwarranted

sentencing disparities. Neither moves the needle.

As for the law of the case, we see the parties as talking

past each other a bit. Let us explain. The law-of-the-case

doctrine establishes that "when a court decides upon a rule of

- 38 - law, that decision should continue to govern the same issues in

subsequent stages in the same case." United States v. Moran, 393

F.3d 1, 7 (1st Cir. 2004) (quoting Arizona v. California, 460 U.S.

605, 618 (1983)). There are "two branches" of the doctrine. Id.

The first, known as the mandate rule, prevents "relitigation in

the trial court of matters that were explicitly or implicitly

decided by an earlier appellate decision in the same case." Id.

That branch is what the government points to; it argues that

because there's no appellate decision, the law of the case doesn't

yet matter.

But that ignores the second branch, which is what

Robertson's talking about. Under the second branch, the doctrine

also establishes that "a legal decision made at one stage of a

criminal or civil proceeding should remain the law of that case

throughout the litigation, unless and until the decision is

modified or overruled by a higher court." Id. Usually, this

branch binds "a successor appellate panel in a second appeal in

the same case" or "a successor trial judge who steps in to complete

a pending case." Id. (collecting cases). But it also more

generally has been described as the principle that "a court

ordinarily ought to respect and follow its own rulings, made

earlier in the same case." Ellis v. United States, 313 F.3d 636,

646 (1st Cir. 2002). And we can understand why Robertson tries to

- 39 - find some refuge in that more general understanding of the

doctrine.

But what Robertson critically overlooks is that the law

of the case doctrine is not without exception. See United States

v. Holloway, 630 F.3d 252, 258 (1st Cir. 2011). Before we get to

the exception that seals the deal against Robertson's argument,

we'll remind the reader of the quirky circumstances that led to

the difference between Robertson's and Griffin's Guidelines

calculations on this point.

Recall that the district court rejected Robertson's

attempt to secure the zero-point offender reduction only days after

the government (during Griffin's earlier sentencing) explained how

Pulsifer (the decision by the Supreme Court that we described just

a few short pages ago) changed things. To be more specific, at

the second day of Griffin's sentencing hearing (again, only days

before Robertson's hearing), the government stated as follows:

So with respect to Mr. Griffin, he was given the zero-point offender reduction of two points. At this point in time, the government has waived any ability to object to it. It's not timely, but in the intervening period our appellate section has looked at a Supreme Court case, Pulsifer [v. United States, 601 U.S. 124], which pertains to the safety valve section of the [G]uidelines; and in brief, the Supreme Court says, If a defendant has to meet every factor of a sentencing guideline, they have to meet every factor.

So for the zero-point offender . . . [t]here's one to ten

- 40 - guideposts that a defendant has to reach. The tenth factor is the defendant cannot have an aggravating role. Our appellate section has pointed that out to us. I think Probation acknowledged that in the Robertson PSR and did not give the zero-point offender two-point reduction for Robertson . . . .

. . . We can't lodge an objection now to those two points [for Griffin] because it's not timely, but just previewing for your Honor, we will be arguing that the zero-point offender should not apply to Mr. Robertson.

True, the government has surmised that it made a mistake when it

did not timely object to Griffin's zero-point reduction based on

Pulsifer. But, as it here noted, Robertson's PSR was timely

"amended" (probation officer's words) to remove the two-level

decrease because he had a leadership enhancement. While Probation

didn't mention Pulsifer in reaching that decision (as far as we

can tell), the timing of the change is consistent with Pulsifer's

publication: it was decided on March 15, 2024, so it was not

available at the time Probation prepared Griffin's PSR (March 6,

2024), but it was available at the time Robertson's was issued

(April 16, 2024). And the government connected the dots explicitly

at Griffin's sentencing, raising the Pulsifer issue and saying it

would press that point at Robertson's sentencing. If that all

wasn't enough, Robertson's sentencing memo also engaged with

Pulsifer's relevance on this point (albeit only in a footnote).

So by the time the district court sentenced Robertson,

it had read an amended PSR using Pulsifer-style reasoning to change

- 41 - the enhancement's applicability, it had heard the government's

argument four days earlier (albeit for a different defendant, but

in the same case) saying that Pulsifer was highly relevant for

Robertson's case, and it had read some more from Robertson about

why Pulsifer didn't actually change the law.

That leads back to the exception we hinted at above: the

law of the case doctrine doesn't apply in these circumstances,

where a change in controlling legal authority is brought to the

court's attention. See Holloway, 630 F.3d at 258. And that's

true even when the decision isn't dead-to-rights on-point (insofar

as Pulsifer concerned a very similar issue but in a different part

of the Guidelines). See id. (explaining how an intervening Supreme

Court opinion need not be directly on point to render the law of

the case doctrine inapplicable); see also United States v. Bad

Marriage, 439 F.3d 534, 537-38 (9th Cir. 2006) (explaining how an

intervening Supreme Court opinion displaces the law of the case,

even under the mandate prong).14 So we don't think the law of the

case doctrine has any applicability here.

14That the district court didn't shout-out Pulsifer by name during Robertson's hearing is to us no matter. For one, the district court ruled in a way consistent with the opinion's rationale as it applies here (saying that Robertson did not qualify under "certainly at least one prong" of § 4C1.1(a)(10)). For another, the district court noted all the documents that it read prior to sentencing, including both the PSR and Robertson's memo. See, e.g., United States v. Romero, 906 F.3d 196, 210 (1st Cir. 2018) (imputing knowledge to district court based on the fact that "the judge started the sentencing hearing by saying that he read

- 42 - As for the unwarranted disparities argument Robertson

offers, it cannot win the day. The heralded principle of "two-

wrongs-don't-make-a-right" has some weight here. Our sibling

circuits have recognized as much in a variety of criminal contexts.

See, e.g., United States v. McNair, 605 F.3d 1152, 1232 (11th Cir.

2010) ("That a district court may have used the wrong version of

the guidelines in a co-defendant's separate sentencing (to the

benefit of a defendant) does not make another defendant's sentence

under the correct version unreasonable in any way."); Kinnard v.

United States, 313 F.3d 933, 936 (6th Cir. 2002) (explaining that

"the fact that one defendant received a benefit to which he was

not entitled" usually "does not entitle another defendant to the

benefit of the same mistake" in the ineffective-assistance-of-

counsel context).

And let's remember that sentencing, as caselaw stresses,

is an individualized affair, and the sentencing court has an

obligation to correctly calculate the Guidelines for each

particular defendant. See Gall v. United States, 552 U.S. 38, 49

(2007). If the Guidelines change (or become clearer) over the

life of a case, it's not an unwarranted disparity if the judge

correctly applies the Guidelines at the time of sentencing, even

the PSR and the parties' sentencing memos"). For a third, everyone else had by this point mentioned Pulsifer -- for example, the government made the point quite clearly at Griffin's sentencing, which the district court presided over only days earlier.

- 43 - if it means a co-defendant was previously sentenced under a

different regime or interpretation. See 18 U.S.C.

§ 3553(a)(4)(A)(ii) (explaining that the court must consider "the

kinds of sentence and the sentencing range established" for "the

applicable category of offense committed by the applicable

category of defendant as set forth in the guidelines" that "are in

effect on the date the defendant is sentenced" (emphasis added)).

So, although we might appreciate Robertson's angst, we

see no abuse of discretion in the district court's decision not to

apply the zero-point reduction to Robertson.

b. Leadership Enhancement

Next, Robertson contests the district court's

application of a two-point leadership enhancement. The relevant

provision here, § 3B1.1(c), allows a two-level enhancement if "the

defendant was an organizer, leader, manager, or supervisor" in a

criminal activity. To apply, the government must demonstrate by

a preponderance of the evidence that the criminal enterprise

involved at least two complicit participants, and that the

defendant, in committing the offense, exercised control over,

organized, or was otherwise responsible for superintending the

activities of at least one of those other persons. United States

v. Cruz-Ramos, 987 F.3d 27, 44 (1st Cir. 2021). In determining

the enhancement's applicability, the judge can look "to a variety

of factors, including the nature and degree of the defendant's

- 44 - participation, planning, and control -- and whether he exercised

decisionmaking authority, drafted collaborators, or claimed a

bigger piece of the spoils." Id. In our examination of

Robertson's claim, we'll note that the "determination of an

individual's role in committing an offense is necessarily fact-

specific," so "appellate review must be conducted with

considerable deference." United States v. Soto-Peguero, 978 F.3d

13, 23 (1st Cir. 2020) (cleaned up).

Robertson argues that the district court didn't have

enough evidence to characterize him as an "organizer, leader,

manager, or supervisor." He accuses the district court of

improperly putting too much weight on his sergeant title, his one-

time after-the-fact document destruction incident, and what he

calls the judge's "vague perceptions" about his role in the scheme

itself. In his view, the record only supports a finding that

Griffin could be deemed a leader. Robertson also raises an

additional challenge that he frames like this: "whether a single

act of direction to another in connection with post-offense

obstruction satisfies § 3B1.3."15

15We pause to note that in our scrutiny of Robertson's briefing, his arguments get quite confusing. He clearly seems to be arguing a couple more things yet ultimately and puzzlingly disclaims them. First, he says that the document destruction directive cannot legally support a leadership enhancement "because it was already the subject of a separate obstruction of justice enhancement" (a finding that he does not contest). Essentially, his briefing seems to advance a theory that amounts to an assertion

- 45 - The government responds with a few points. First, it

emphasizes that Robertson had a position of authority in TPS, and

he exercised that authority over those ranking below him in the

commission of the charged crime, including ordering Kelley to shred

documents. Second, it says that Robertson's continued

participation in the scheme, where he exercised authority over the

troopers, is further evidence of his leadership. Third, the

government submits that the judge's so-called "vague perceptions"

that, because an obstruction enhancement looks to conduct extrinsic to the underlying offense and a leadership enhancement requires conduct that is part of the underlying crime, the shredding directive cannot, as a matter of law, serve as evidence supporting both enhancements. The government understood him to be making this specific argument and responded accordingly in its briefing. However, in his reply brief, Robertson says the government misconstrued his position and that he specifically disclaims making such an argument. Rather, what we've quoted above from his reply was meant to clarify what he set forth in his opening brief and not raise a new argument. So we'll say no more about that. We also note that Robertson's briefing seems to raise a distinct but related leadership enhancement argument: because the underlying offense was completed before the destruction incident occurred, Robertson's directive to Kelley could not have been a leadership act "in committing the offense" because it was later in time and served only to obscure the already-completed offense. But aside from his evidentiary insufficiency claim, Robertson (like we said above) insists he is only advancing the argument that we've quoted above. Finally, we note that the quoted portion of the brief indeed says "§ 3B1.3," which leads the reader to the provision about the abuse of trust enhancement, but we assume (based on context clues, like the placement of that quote within the structure of Robertson's brief) that Robertson meant § 3B1.1, the leadership enhancement provision.

- 46 - were actually well-supported facts in the record. Fourth, it

offers that Robertson's legal argument -- that the destruction of

documents directive is beyond the scope of the leadership

enhancement -- is waived and otherwise bunk.

At bottom and as we explain, we think the district

court's decision to apply the leadership enhancement was

supportable. We first briefly address Robertson's second legal

claim. According to the government as it understood Robertson's

leadership enhancement argument, he failed to raise it below so

plain error should guide our review. Robertson disagrees and

contends his preserved legal argument should be reviewed de novo.

We think the government probably has the better argument on this

front when we zero in on Robertson's two-sentence presentation of

the issue to the district court.16 See United States v. Zannino,

895 F.2d 1, 17 (1st Cir. 1990).

But we need not decide this preservation spat because

Robertson's broader argument as to the enhancement's applicability

16 In totality, Robertson said this:

Probation argues that the enhancement is appropriate because "defendant directed a co-conspirator to shred incriminating TPS records." However, this single alleged act of after-the-fact obstruction, which is already accounted for in a separate Guideline enhancement, does not remotely make Mr. Robertson an "organizer, leader, or manager" of the core underlying criminal activity, which is the ongoing overtime abuse.

- 47 - is built on a fatally faulty factual premise and fails for that

reason alone. More specifically, the district court never

indicated (despite Robertson's contentions) that his directive to

Kelley to destroy records, standing alone, was sufficient to

support a leadership role enhancement. Rather, the district court,

which presided over a twelve-day trial and observed Griffin,

Robertson, and their former subordinates, looked to a mix of

evidence pointing to Robertson's leadership. See Soto-Peguero,

978 F.3d at 23 (accounting for the fact that the district court

oversaw a trial in affirming its decisions on enhancements). And

it concluded that Robertson "had a very significant hand" in the

scheme which warranted application of the enhancement. With the

district court's ruling properly understood, we agree that such

evidence was sufficient.

For one, Robertson was a sergeant, a person who held a

position of authority as second-in-command of his TPS unit. And

while that title by itself may not have demonstrated his leadership

role in the criminal activity, the evidence indicated he did in

fact exercise his authority in furtherance of the core, underlying

criminal scheme. To be a manager or supervisor for § 3B1.1

purposes, we require evidence of "some degree of control or

organizational authority over others," and we see that here.

United States v. Voccola, 99 F.3d 37, 44 (1st Cir. 1996) (cleaned

up). For instance, as the government pointed out, Robertson

- 48 - personally participated in the overtime scheme from 2015 through

2017 and he never sought to extract himself from the normal chain

of command when engaging in the illegal conduct. Instead, the

district court explained how Robertson -- along with

Griffin -- helped put the team together and made sure certain

trustworthy-enough persons were on the team to keep the fraud

running smoothly. Along with that, the district court heard trial

testimony from one trooper that Robertson taught him how to fill

out the forms and from another trooper that he submitted false

timesheets to Robertson, presumably for Robertson's approval.

"Managerial status attaches if there is evidence that a defendant,

in committing the crime, exercised control over, or was otherwise

responsible for overseeing the activities of, at least one other

person." Id. (cleaned up). We think all this evidence clears

that bar.

Yes, Robertson's directive to Kelley to destroy

documents was part of the district court's reasoning, as it

specifically demonstrated to the court Robertson's control over

one scheme participant. Yet we doubt Robertson's argument that

because this single act was extrinsic to the underlying offense it

therefore could not be viewed as leadership in service of the core

crime itself. After all, we've past held that in determining a

defendant's role in the offense for purposes of a leadership

enhancement, "the sentencing court need not look only to the

- 49 - elements underlying the conviction, but may consider the whole of

the defendant's relevant conduct." United States v. Fosher, 124

F.3d 52, 56 (1st Cir. 1997) (cleaned up). But even if Robertson's

argument about the directive's relevance were right, other

evidence was sufficient to satisfy the government's preponderate

burden. So we carry on.

c. Abuse of Trust Enhancement

Finally, Robertson urges us to reverse the district

court's decision to apply the two-level "abuse of trust"

enhancement under U.S.S.G. § 3B1.3. That provision requires a

two-level increase if the "defendant abused a position of public

or private trust" in "a manner that significantly facilitated the

commission or concealment of the offense." U.S.S.G. § 3B1.3.

In our circuit, applying this enhancement is a two-step

pavane. First, the sentencing judge "must see if the defendant

held a position of trust," either public or private. United States

v. Zehrung, 714 F.3d 628, 630 (1st Cir. 2013). Second, "if the

answer is yes, then (and only then) they must see if the defendant

used that position in some significant way to facilitate or conceal

the offense." Id.

Robertson makes a few points cutting against the

enhancement's relevance here. For one, he says that the "position

of trust" analysis is from the point of view of the victims, here

DOT and MSP. And because DOT and MSP didn't view Robertson as a

- 50 - fiduciary, the enhancement is irrelevant. After all (at least in

Robertson's view), there wasn't any evidence that he had special

authority or responsibility over the funds beyond his own time

submissions. And the government's position, Robertson thinks, is

so all-encompassing that if Robertson abused a trust, so did every

other fraud defendant ever.

The government responds that First Circuit caselaw

clearly shows that police officers are in a position of trust,

establishing the first part of the enhancement. As for the second

prong, the government argues that Robertson's repeated theft of

MSP funds depended on his status as a police officer; he couldn't

do it if he didn't work there. And that Robertson was both a

sergeant and the Executive Officer of TPS makes the case all the

clearer.

We can all agree that Step One, the "position of trust"

analysis, is easily satisfied. We've held before that police

officers do qualify, and there's no need to reinvent the wheel (or

reconsider these holdings). See United States v. Flecha-

Maldonado, 373 F.3d 170, 180 (1st Cir. 2004) ("This court has at

least twice said that police officers do occupy a position of

public trust within the meaning of the Guidelines because they

exercise significant discretion." (collecting cases)).

And we discern no abuse of discretion on the district

court's factfinding as to Step Two: that Robertson "used that

- 51 - position in some significant way to facilitate or conceal the

offense." Zehrung, 714 F.3d at 630. The district court pointed

in part to emails of Robertson and Griffin "making sure that

certain people were on" the team "so there wasn't anybody on the

outside of the team" involved in the scheme. The point there, as

we read it, was that Robertson (in tandem with Griffin) exercised

his discretion as a leader to keep the scheme chugging along.

Together, he and Griffin wanted to load the squads only with those

they could see were trustworthy enough to keep the scheme going.

And along with some more obvious facts -- that he abused his

position as a sergeant to "conceal" the offense by ordering Kelley

(his subordinate) to destroy the documents and that he had access

to these public funds in the first place only because he was a

police officer -- we can see how he used his position to

"facilitate" the offense. See id.

Robertson's arguments to the contrary don't persuade us.

For one, we don't think he's characterizing the government's

position right: it wasn't just Robertson's position as a police

officer that justified the enhancement. We agree -- that only

satisfies Step One. But, as we've just explained, Robertson did

more.

For another, Robertson's reliance on United States v.

George is, in our view, misplaced. 841 F.3d 55 (1st Cir. 2016).

George explicitly acknowledged that it dealt with a unique

- 52 - circumstance: "whether -- or under what circumstances -- a high-

ranking employee of a government contractor can be said to occupy

a position of trust vis-à-vis a defrauded government entity." Id.

at 67. In other words, it reckoned with deciding when a private

actor can be held liable for abusing the public trust. Id.

(discussing how "a government agency sometimes may rely too heavily

on a high-ranking employee of a contractor and thereby place that

individual in a position of special trust").

But George's statements about those unique circumstances

don't help us here. By contrast, we see this offense -- a public

official abusing the public trust -- as closer to a public-sector

twist on the Sentencing Commission's Commentary Notes' classic

example of "a bank executive's fraudulent loan scheme." See

U.S.S.G. § 3B1.3 app. n.1.17 And, to Robertson's point that he's

more like the bank teller or hotel clerk whom the Sentencing

Commission specifically disclaimed from this enhancement, we can't

agree. Robertson's second-in-command position in TPS -- the MSP

division responsible for the application and distribution, and in

some cases the direct use, of federal highway funds -- puts him

much closer to the bank executive than the teller. With that in

mind, it's easy to see why MSP and DOT qualified as victims of his

17 The difference, here, is that the bank executive held a private trust while Robertson holds a public trust. But the enhancement applies to either circumstance, and that's why we draw the analogy across the private-public line.

- 53 - fraud -- in the same way the Commentary's hypothetical bank would

be a victim of the twisted bank executive.

Finally, as we've said before, Robertson's argument that

he wasn't a legal fiduciary of TPS or DOT is no matter. See, e.g.,

United States v. Sicher, 576 F.3d 64, 70 n.5 (1st Cir. 2009)

(rejecting the argument that "there must be a fiduciary or

fiduciary-like relationship between the defendant and victim of

the defendant's fraud" because that "is not the law of our

circuit").

All three challenges considered and rejected, we see no

reversible error in the district court's calculation of

Robertson's recommended Guidelines range.

iii. Issuing the Sentence

Guidelines calculations settled, we next turn to the

sentence that Robertson received. Here, he's got one big argument:

that the district court, in giving him a 36-month sentence,

violated its duty to consider the "need to avoid unwarranted

sentence disparities among defendants with similar records who

have been found guilty of similar conduct." 18 U.S.C.

§ 3553(a)(6). He casts this error as both procedural and

substantive.

Like many other sentencing issues, we look at his

disparity arguments through an "abuse of discretion" lens, where

we review "findings of fact for clear error and issues of law de

- 54 - novo" while also giving "due deference to the district court's

analysis of the section 3553(a) factors." United States v.

Freeman, 147 F.4th 1, 37 (1st Cir. 2025) (internal quotations

omitted) (first quote); United States v. Rosario, 143 F.4th 41, 45

(1st Cir. 2025) (second quote).

In his sentencing memo below, Robertson contended that

a substantial prison sentence would create an unwarranted

disparity from other similarly situated defendants. To

illustrate, he included a chart of eleven Massachusetts state

trooper overtime fraud cases -- all but two resulting only in

probation and the two prison sentences only being two and three

months. Eight were federal cases, three were state. Importantly,

the chart included just the defendants' names, docket numbers, and

the sentence received. Robertson noted that three defendants who

got probationary terms were lieutenants, outranking him. Finally,

Robertson observed that a true assessment of disparity should

consider that the government did not charge many troopers, despite

them engaging in the same overtime abuse as Robertson and Griffin.

The district court didn't buy what Robertson was

selling, so it gave him a 36-month prison sentence.

On appeal, Robertson renews his disparity arguments.

And now he contends that the district court "not only refused to

address unwarranted disparities but appeared affirmatively hostile

to the suggestion that it should," a form of procedural error. To

- 55 - prove the point, Robertson pulls these three quotes from the judge

during the sentencing hearing:

• "I take issue, counsel, with a comparison to other judges

and other cases. I've been in the criminal justice

system as a lawyer and a judge for more than 30 years."

• "I -- I take issue [with the argument] that somehow

[Robertson]'s being treated differently. I didn't have

those other cases. I don't know what their evidence

was. And I do know this. He took an oath, and he

violated the oath . . . ."

• "[W]hether we treated other troopers lightly, the

criminal justice system did, well, we didn't do us any

favors. No favors. If it is wrong, it is wrong. There

is no moral equivalence. It's wrong. It was wrong for

those [troopers]. They weren't in my courtroom. I

didn't see their trial. I don't know their evidence."

In Robertson's view, the district court's remarks showed how it

refused to consider the need to avoid unwarranted disparities,

rendering the sentence procedurally invalid.

And Robertson next argues that the sentence was also

substantively unreasonable, an error flowing naturally from the

procedural gaffe just proffered. He observes (again) that in

eleven other Massachusetts police overtime cases, not even one

resulted in more than three months of prison time; nine out of

- 56 - eleven resulted in none. So the district court, in giving

Robertson 36 months, imposed a sentence "twelve times harsher than

the stiffest sentence in that group," making it substantively

unreasonable -- especially given that many more fraudster troopers

were not even charged. He bolsters the point now by drawing from

a broader pool of cases than he did below, too. And, relying on

data from the Sentencing Commission, Robertson also observes that

the district court imposed a sentence fifty-percent higher than

the national average for offenders with the same base-level offense

and Guidelines sentencing range.

He makes one last point: his sentence was also

substantively unreasonable (he says) because of the disparate

treatment between him and his co-defendant Griffin. While Griffin

received the "zero-point" offender reduction, the district court

denied it for Robertson (as we detailed above), while also failing

to address Robertson's lesser role in the offense.

The government counters at almost every turn. Starting

with procedure: in the government's view, the quotes that Robertson

highlighted show why there is no procedural error. After all, the

transcript reflects that the court heard Robertson's arguments but

was unpersuaded by them, and that is not procedural error. And

the remarks go to a more fundamental flaw in Robertson's position,

too; they show that Robertson failed to give the district court

enough information to try to make the requisite "apples-to-apples"

- 57 - comparison to other cases. That failure is fatal for both the

procedural and the substantive parts of his disparity claim.

As for substance, the government retorts that judges may

respond differently to the same sentencing arguments, and the

district court hardly abused its discretion in doing exactly that

by departing from other sentences but still imposing a below-the-

Guidelines punishment. Finally, as for the purported disparity

arising from the district court's decision not to apply the zero-

point offender reduction for Robertson, it fails because Robertson

was not identically situated to Griffin, as is necessary for a co-

defendant unwarranted disparity claim. (The government doesn't

make much of the national statistics that Robertson provided.)

The parties' arguments explained, we now take our best

shot at this one. Starting with some framework: "A credible claim

of sentencing disparity requires that the proponent furnish the

court with enough relevant information to permit a determination"

that he and other defendants "are similarly situated." United

States v. Rodríguez-Adorno, 852 F.3d 168, 177 (1st Cir. 2017).

More simply, the court must have enough information to compare

them "apples to apples." Id. (internal citation omitted).

And that, right there, is where Robertson's claim

falters. He stumbles out of the starting blocks because the

information that he provided to the district court was too sparse,

as shown by United States v. González-Rivera, 111 F.4th 150, 155

- 58 - (1st Cir. 2024). There, the panel rejected a sentencing disparity

claim precisely because the defendant failed to furnish enough

information for the district court to make the necessary "apples

to apples" comparison. Id. (internal quotation omitted). Although

the defendant, in pursuing a disparity argument at the district

court, "provided a barebones description of the facts of the

various cases and chronicled the [proposed comparator] defendants'

sentences," he "did not present even a sliver of pertinent

information about the defendants' criminal histories, total

offense levels, or the various guideline adjustments, up and down,

to which they were entitled." Id. Without that information, "it

was impossible for the district court to conclude that the cases

alluded to by the appellant were substantially similar to the case

at hand," so "any claim that the district court abused its

discretion by not treating the proffered cases as fair congeners

is doomed to failure." Id. at 155–56.

So too here. The table that Robertson provided the

district court -- with just defendants' names, case numbers, and

sentences, and his urging that they arose in similar overtime fraud

contexts -- gave the court either the same or even less to work

with than the descriptions found insufficient in González-Rivera.

(As the reader will see below, we view Griffin's presentation more

favorably.) Robertson's argument at sentencing was similarly

brief on the point. With that in mind, we view the district

- 59 - court's statement that it "didn't have those other cases" and

didn't "know what their evidence was" not as defiance of

§ 3553(a)(6) (as Robertson submits) but rather an expression that

Robertson had not given it enough to work with. And no procedural

error arises from that.

Robertson's response -- that the cases obviously "could

not be more similar" simply because they all involved Massachusetts

law enforcement officers convicted based on overtime

abuse -- misses the mark. Among other things, we can't find where

Robertson told the district court:

• whether the specific charges were similar;

• whether the Guidelines ranges were similar;

• whether the loss calculations (which affect the

Guidelines) were similar;

• whether the defendants' pretrial conduct, including

cooperation with the government, was similar; or

• whether the nature of the schemes (beyond just "overtime

fraud") was similar.18

That's a big problem. See, e.g., Rodríguez-Adorno, 852 F.3d at

177 (rejecting a disparity claim where all that was provided was

18That is, aside from one point Robertson made below: "The government may respond that the other charged cases are distinguishable because those defendants pleaded guilty and those cases did not include document destruction," unlike this one. But that doesn't help his case either.

- 60 - "a barebones list of the various coconspirators and their

sentences," but the defendant "present[ed] no information" about

the proposed comparators' "specific criminal involvement,"

"criminal history," "career offender status," or "cooperation (if

any) with the government"); United States v. Casillas-Montero,

152 F.4th 306, 328-29 (1st Cir. 2025) (rejecting a disparity

argument on similar grounds).

To boot, Robertson's position would put an unnecessary

onus on district courts, requiring them to do the parties' work

for them. If Robertson were right, defendants could just list

cases that they say are similar; the sentencing court would then

have to do the yeoman's work of looking at each docket, sifting

through the filings, and figuring out how similarly situated the

defendants in those cases are, all to avoid the risk of unwarranted

disparities.

But that's not the law. A "credible" disparity claim

"requires that the proponent furnish the court with enough relevant

information to permit a determination that he and his proposed

comparators are similarly situated." González-Rivera, 111 F.4th

at 155 (quoting Rodríguez-Adorno, 852 F.3d at 177). Yet the

natural consequence of Robertson's position is that, if the

sentencing court fails to do that work for the defendant (and then

fails to put, on the record, why the cases aren't similar enough

to warrant the same sentence), reversible error occurs. Both

- 61 - González-Rivera and the party presentation principle caution us to

think otherwise.19 All that is to say: Robertson's general

asseverations that the cases are similar is not enough to sustain

a disparity argument, and he, not the court, bore the burden in

making that point.20

A word about Robertson's unpublished, out-of-circuit

authority on procedural error. For one, his reliance on United

States v. Oba is not convincing. 317 F. App'x 698 (9th Cir. 2009)

(unpublished). It seems (and we say "it seems" because the

decision's rather brief) that the district court there wholly "did

not address Oba's argument" regarding unwarranted disparities.

Id. at 700. In contrast, the district court here did address the

argument, though not in the way Robertson wanted: "I didn't have

those other cases. I don't know what their evidence was."

Meanwhile, the sentencing court that was reversed in United States

19See, e.g., United States v. Sineneng-Smith, 590 U.S. 371, 375 (2020) (explaining that, "in both civil and criminal cases, in the first instance and on appeal . . . we rely on the parties to frame the issues for decision and assign to courts the role of neutral arbiter of matters the parties present") (internal quotation omitted); id. at 376 (explaining that courts "do not, or should not, sally forth each day looking for wrongs to right"). 20 On the chance that Robertson wanted to incorporate Griffin's more extensive discussion in his briefs below, we don't see him make that point anywhere. We'll again note, however, that Robertson's sentencing on April 30, 2024, came after Griffin's on April 26, 2024. So the sentencing court also knew the nuances that Griffin identified (which we'll discuss later) by the time it sentenced Robertson.

- 62 - v. Killen said, specifically, that "sentencing disparity is not a

recognized basis for a sentence to be imposed." 729 F. App'x 703,

717 (11th Cir. 2018) (unpublished). That obviously erroneous

statement of law is miles away from what happened here, where the

district court said it didn't have enough information to do the

requisite comparison.

For the most part, the conclusion that Robertson failed

to furnish enough information would end the matter. See González-

Rivera, 111 F.4th at 156 ("Against this sketchy backdrop, any claim

that the district court abused its discretion by not treating the

proffered cases as fair congeners is doomed to failure."). Without

sufficient information, the district court need not do a deeper

dive into substantive disparities, so we won't try ourselves.

But we would be remiss if we did not pause here to

comment on the district court's rather odd admonishment of

Robertson's counsel for trying to argue the point. We weren't

there and couldn't hear the tone behind what was said, but reading

the cold page of the transcript, we're troubled by the court's

words. We see no need for the district court to "take issue" with

comparisons to other cases; in fact, it's the district court's

duty under the law to think about how one sentence compares to

another (so long as the "another" is properly presented). See 18

U.S.C. § 3553(a)(6).

- 63 - And the district court's suggestion that its experience

in the criminal justice system gave it a pass around that

requirement is equally confounding. The judge's experience should

have made it all the clearer that comparing cases and considering

disparities (again, when properly presented) is part of its job.

Those comments weren't an abuse of discretion, given our holding

about the insufficiency of Robertson's "apples," but they should

be avoided going forward lest they leave the wrong impression.

iv. Ordering Restitution

Lastly, Robertson contests the restitution order. That

order required him (along with Griffin, who's jointly and severally

liable for this one) to pay back $142,774.77, the aggregate amount

of improper overtime paid to all members of TPS during the scheme's

heyday.

Everyone agrees that we review the district court's

decision for abuse of discretion, where we examine "the court's

subsidiary factual findings for clear error and its answers to

abstract legal questions de novo." United States v. Ochoa, 58

F.4th 556, 560-61 (1st Cir. 2023) (internal citation omitted).

Below, Robertson asked the district court to do two

things: (1) direct the government to see what, if any, money has

already been recouped, so as to avoid a windfall and (2) apportion

only $32,180.50 to Robertson, leaving Griffin with the rest. The

district court did neither, and in Robertson's view, disregarded

- 64 - the usual restitution process in three ways: it ignored the

government's initial burden, Robertson's attempts to clarify if a

windfall was in play, and its own statutory authority and

discretion to apportion restitution.

Some table-setting. The restitution order here was the

result of the Mandatory Victims Restitution Act ("MVRA"), 18 U.S.C.

§ 3663A. That statute requires the district court to order a

defendant convicted of "an offense against

property . . . including any offense committed by fraud or deceit"

to "make restitution to the victim of the offense." 18 U.S.C.

§ 3663A(c)(1)(A)(ii) (first quote); id. § 3663A(a)(1) (second

quote). And, relevant to the first argument, the sentencing court

must order that restitution "to each victim in the full amount" of

their losses and "without consideration of the economic

circumstances of the defendant." Ochoa, 58 F.4th at 561 (cleaned

up). That's easy enough when there's only one defendant who's on

the hook for everything. See id.

But it's harder when "more than one miscreant has

contributed to the victims' losses." Id. In those cases, "the

MVRA gives the court a choice between two options." Id. It can

"apportion liability among defendants according to culpability or

capacity to pay," or it can "make each defendant liable for the

full amount of restitution by imposing joint and several

liability." Id. (internal citation omitted). Between those two

- 65 - options, a sentencing court "enjoys broad discretion." Id. So,

as we previously put it, "the court may weigh an individual

defendant's role in the offense when deciding whether to apportion

restitution -- but it is generally free to decide the issue either

way." Id. And in conspiracy prosecutions, this "freedom of choice

is especially appropriate." Id.

We see that caselaw as plainly foreclosing Robertson's

first argument, regardless of whether it was waived (as the

government suggests). The district court could -- but was not

required to -- apportion liability; its decision not to do so is

one that we should hesitate to pick apart. See id. ("In making

this choice, a sentencing court enjoys broad discretion."). Our

previous cases haven't told us when we should do so, and without

more from Robertson, we won't try to enumerate the circumstances.

But we can say, rather comfortably, that this case isn't the right

vehicle to figure that out.

That leaves Robertson's burden and windfall arguments.

"As a general matter, restitution orders should not generate

windfalls." United States v. Carrasquillo-Vilches, 33 F.4th 36,

46 (1st Cir. 2022). And the "government bears the burden of

proving a victim's actual loss by preponderant evidence." United

States v. Naphaeng, 906 F.3d 173, 179 (1st Cir. 2018). But that's

not all. We don't "demand absolute precision in the fashioning of

restitution orders," and district courts aren't "expected to

- 66 - undertake a full-blown trial" in determining what is owed.

Carrasquillo-Vilches, 33 F.4th at 46 (first quote); Naphaeng, 906

F.3d at 179 (second quote).

The district court, in Robertson's sentencing, ordered

from him the same amount that it had already ordered from Griffin,

and it held them jointly and severally liable. We can infer from

that decision that the district court thought the government had

met its burden on those figures during trial or Griffin's

sentencing. The court said as much, too: it explained at

Robertson's sentencing that "I have two defendants in front of me

at one trial, and the trial produced evidence that established a

certain amount of money," meaning the amount in question for

restitution. Given the court's reasonable reliance on the trial

evidence, we don't see how we can hold that it erred in deciding

that the government met its burden.

As for the windfall point, we see no error. Robertson

wanted the government not only to prove its point but also prove

a negative -- that the victims hadn't already recovered. His basis

for doing so, in our view, wasn't grounded in much. His

supplemental sentencing memo only included a paragraph about it,

and he didn't include the article that he now cites before us.

And even if he had, the district court's decision not to force the

government to prove a negative, once it was already satisfied that

the preponderance standard had been met, was not, in our view,

- 67 - erroneous. Robertson provided only speculation about a windfall;

he didn't lay out a plan to figure out if there had been one (aside

from asking the district court to do that for him), nor did he

seek a continuance to try and obtain that information on his own.

As with other parts of restitution, the district court had some

discretion in determining whether a windfall happened and whether

more exploration into the issue was needed. Cf. Carrasquillo-

Vilches, 33 F.4th at 46; Naphaeng, 906 F.3d at 179. In not buying

Robertson's unsubstantiated concerns, it didn't err.

And with that settled, we see no reversible error in the

district court's approach to restitution here.21 Thus concludes

our ride with Robertson.

21 We'll note that Robertson also pointed out some possible misunderstandings on the district court's part that strike us as non-reversible. After Robertson protested the restitution calculation, the district court said his arguments were "premature," because the restitution process was only beginning (in its words, the process was on "day one"). But restitution should wrap up alongside sentencing because it is part and parcel of the sentence. See 18 U.S.C. § 3663(a)(1)(A) (explaining how the court may order restitution "when sentencing a defendant"); United States v. Sasnett, 925 F.2d 392, 399 (11th Cir. 1991) (explaining how that language "suggests that restitution must be ordered at the time of sentencing, and not thereafter"). Yet the court's simultaneous remarks about being satisfied by the trial evidence assure us there was not reversible error from this misunderstanding. We also decline to act on the court's remark that it could adjust the order later, but note that it was probably mistaken in suggesting so. See generally United States v. Harvey, 20 F.4th 71, 75-79 (1st Cir. 2021); 18 U.S.C. § 3664(j)(2) (delineating exceptions).

- 68 - C. Griffin's Grievances

We now turn to Griffin's individualized grievances.

They can be put into three buckets: those related to Guidelines

calculations, those related to the sentence he received, and those

related to the forfeiture order. And we'll take them in that same

order.

i. Calculating the Guidelines

Griffin argues first that the district court, while

calculating the Guidelines, erred in two big ways.22 First, it

overestimated the "loss" (or really, the gain) that the fraud

caused. Second, it improperly grouped the fraud arising from the

overtime scheme with the fraud arising from BHS (to remind, the

"Belmont Hill School"). In Griffin's view, each drove up the

Guidelines offense level erroneously. But in our view, the

district court got it right on both.

22Again, here's the math on the Guidelines. The court split the offenses into two groups. Group I, the overtime abuse and school scheme counts, had a base level of 7. With loss between $250,000 and $500,000, the district court added another 12 points. It added another 2 for Griffin's sophisticated means, another 2 because he abused his position of trust, and another 4 because he was an organizer or leader. So Group I's level was 27. Group II, the tax fraud, had a base level of 16 and no enhancements. The combined offense level, derived from Group I as the higher of the two, was 27. The district court reduced it by 2 points because Griffin was a "zero-point" offender, bringing his total offense level to 25. With no criminal history, that led to a Guidelines range of 57 to 71 months. The district court gave Griffin a sentence of 60 months, within that range.

- 69 - a. Loss/Gain

Griffin first argues that the district court improperly

jacked up the "loss" figure for Guidelines purposes. In his view,

the district court should have figured out how much financial aid

his family would have received from BHS if he hadn't filed

fraudulent papers; the court's decision not to, Griffin posits,

violates our caselaw apparently requiring a nexus between the loss

and the fraud.

We'll start with some basics. Section 2B1.1(b)(1) has

a table that directs a sentencing court "to increase a defendant's

offense level based on the amount of loss attributable to the

defendant's fraud." United States v. Kumar, 112 F.4th 30, 36 (1st

Cir. 2024). And on the rare instance that "there is a loss but it

reasonably cannot be determined," the court can use "the gain that

resulted from the offense as an alternative measure." U.S.S.G.

§ 2B1.1(b)(1) n.(B). The government bears the burden to prove

loss (or gain as its proxy) by a preponderance of the evidence.

Kumar, 112 F.4th at 36. And the sentencing court has "considerable

discretion" to figure out the loss (or gain) in a couple of ways:

in determining what evidence is reliable and in making a

"reasonable estimate" of the calculation. Id. Nothing more than

that reasonable estimate is required from the district court. Id.

Below, Probation calculated the loss in the PSR as to

Counts 7-10 (related to the BHS fraud) as $176,700. That figure

- 70 - was all the financial aid that Griffin and his family received

from 2013 to 2020. Griffin objected to the PSR; he argued that

because there was testimony from school officials stating that

they didn't know exactly how much the fraud altered the financial

aid, the government failed to prove loss by a preponderance.

In response, Probation recognized that "the exact loss

cannot be determined," but "the gain can be," because it was

"secured based on fraudulent documentation submitted via Wire

Fraud." And gain, in Probation's view, was an acceptable stand-

in for loss here. While (in Probation's words and with its

emphases) "some of the [BHS] monies may have been granted

nonetheless, all of it was ultimately 'gained' based on fictitious

representations."

The district court heard Griffin out on this argument

during sentencing and ultimately sided with the government,

rejecting Griffin's objection and adopting the PSR's reasoning.

We see "neither clear nor legal error" with that decision. United

States v. Jiménez, 946 F.3d 8, 14 (1st Cir. 2019).

For one, "although calculating gain as a substitute for

loss is only appropriate in limited scenarios," we don't see

Griffin pressing a direct "challenge to the use of gain as a

measure of loss on this record under U.S.S.G. § 2B1.1." Id. He

writes extensively about loss, references the "loss" provisions in

the Guidelines, and cites cases about loss, but in the ten pages

- 71 - of his brief on the issue, he only uses the term "gain" four times

(all in passing). In none of those instances does he tell us how

to think about gain or why the district court's use of "gain"

(rather than loss) was wrong. So his arguments and the district

court's reasoning (insofar as it adopted the PSR) seem like two

ships passing in the night; that alone could leave us "no choice

but to affirm." United States v. Henry, 848 F.3d 1, 7 (1st Cir.

2017) (holding as much when the defendant failed to challenge "the

district court's alternative basis for denying the motion to

suppress").

But even giving Griffin the benefit of the doubt and

holding his loss arguments up against the district court's "gain"

theory on the merits, we still think they fall flat. To his

credit, it's true that "gain" poses a similar linguistic problem

to the one he identifies with "loss." The Guidelines, in Table

Note (B) of § 2B1.1(b)(1), use the term "the gain that resulted

from the offense," and that language tees up the same type of

causation analysis that we adopted in United States v. Alphas, 785

F.3d 775, 783 (1st Cir. 2015).23

There, we held that, in calculating "intended loss"

(importantly, defined in the Guidelines as "the pecuniary harm

23 The careful reader will note that Alphas was, in part, superseded by amendment to the Guidelines. See Carrasquillo- Vilches, 33 F.4th at 42. But we don't see that as weighing on its applicability here.

- 72 - that was intended to result from the offense"), sentencing courts

should determine "whether and to what extent legitimate claims"

are "embedded in the fraud." Id. That was in large part because

the phrase "results from" in the Guidelines "implies 'a requirement

of actual causality,' which typically 'requires proof that the

harm would not have occurred in the absence of -- that is, but

for -- the defendant's conduct.'" Id. (quoting Burrage v. United

States, 571 U.S. 204, 211 (2014)).

Because of the similarities in language just described,

we think Alphas also applies to the "gain" context, so Griffin

wasn't off base in relying on it. But there's still a problem for

Griffin: the burden-shifting framework that Alphas laid out.

In Alphas, we explained, "in a case such as this -- where

a defendant's claims were demonstrably rife with fraud -- a

sentencing court may use the face value of the claims as a starting

point in computing loss," or, as relevant here, gain. 785 F.3d at

784. After that, the "burden of production will then shift to the

defendant, who must offer evidence to show (if possible) what

amounts represent legitimate claims." Id. Only "after the record

is fully formed, the sentencing court must determine the amount of

loss that the government (which retains the burden of proof) is

able to establish." Id. (cleaned up). But (and here's the

kicker), "depending on the defendant's offer of proof, the court

- 73 - might well conclude that the amount of loss is equal to the face

value of the submitted claims." Id. (cleaned up).

Here, the court found that it would use the value of the

financial aid that Griffin received as the figure for the gain.24

It drew that figure from the PSR and the government's materials.

All that was fine under Alphas Step One.

It thus "fell to" Griffin "to establish which portion of

those amounts represented legitimate claims" of financial aid.

United States v. Rivera-Ortiz, 14 F.4th 91, 103-04 (1st Cir. 2021)

(applying Alphas framework) (cleaned up). The district court even

invited Griffin to make his case: "I will take any evidence that

you wish to present that would call into the question the figures

of the government."

In response, Griffin generally observed that the

$177,600 figure wasn't accurate because of the timing of his

children's attendance at the school. But he did not break down

what he saw as a reasonable alternative, and when specifically

24True, the district court didn't say that the figure would function as the "starting point" in the exact way described in Alphas. But as far as we can tell, Griffin also didn't argue much about Alphas below, so we don't see it as error that the court didn't divine exactly the same framework out of thin air. Even Alphas said that, in calculating loss, we've traditionally "eschewed rigid rules and instead taken a pragmatic, fact-specific approach." 785 F.3d at 781 (cleaned up). With that in mind, what mattered more was that Griffin knew the court trusted the $177,600 figure to start, that he was then invited to cut it down to size, and that he failed to do so.

- 74 - asked, he said that "the answer's zero because the government just

wholly failed to meet its burden." Nor did his exhibits help

clarify this figure, insofar as they primarily consisted of the

financial aid directors (one who wasn't there at the relevant time)

shrugging their shoulders and saying they couldn't be certain of

how it would change things.

The district court didn't need to buy what Griffin was

peddling for a couple of reasons. First, we've held that a very

similar argument to Griffin's is a loser in the Alphas context.

See Rivera-Ortiz, 14 F.4th at 103-04.25 We don't see much daylight

between that rejected argument (quoted in the preceding footnote)

and the one Griffin now offers.

Second, Griffin's alternative, that the loss figure

should jump to zero, strikes us as unconvincing. "A loss of zero

is presumptively wrong" for BHS, because "it does not even remotely

approximate" Griffin's "wrongdoing" in filing false information

25 Here's the losing argument from that case fleshed out a bit more: On appeal . . . Rivera does not point to any evidence delineating what portion of the benefits were legitimate, or even how he could establish such a figure. Rather, he argues that it remained the government's burden to show the amount of fraudulent, as opposed to legitimate, claims. But that contention is inconsistent with the framework outlined in Alphas. Rivera-Ortiz, 14 F.4th at 103-04.

- 75 - there for years. United States v. Parsons, 141 F.3d 386, 392 (1st

Cir. 1998). And a zero-figure loss would run up against the

purpose of the loss calculation: to serve "as a measure of the

seriousness of the offense and the defendant's relative

culpability." U.S.S.G. § 2B1.1 cmt. background.

So, considering Griffin's "failure to meet his

evidentiary burden, we conclude that the court reasonably

concluded that the amount of [gain] was equal to the face value"

of the financial aid that Griffin received. Rivera-Ortiz, 14 F.4th

at 104. All told, we see no error in the district court's approach

in calculating the gain.

b. Grouping

Next, Griffin contests the district court's approach to

its "grouping" of separate offenses in calculating his offense

level. It's a technical argument that we'll break down piece by

piece.

In Griffin's view, he was convicted of three "buckets"

of crimes. He sees Counts 1-6 as "TPS" counts, because they

concern "conduct involving the Massachusetts State Police Traffic

Programs Section and related monies." Counts 7-10 are the second

bucket, related to fraudulent financial aid applications for BHS,

where his children attended school during the relevant years. And

Counts 11-21 are the "tax" counts, "strictly related" to tax issues

about his business and personal tax returns.

- 76 - And here's where Griffin sees the problem: the district

court (by adopting Probation's recommendation) combined the TPS

counts and the BHS counts into one "group," separating only the

tax charges into a second group. That combined group created a

higher aggregate loss number, driving up his overall Guidelines

offense level (and thus his recommended range). Griffin argues

that its approach was erroneous under the relevant Guidelines

provision, § 3D1.2.

Before we go any further, it's worth walking through

that provision. Under § 3D1.2, "[a]ll counts involving

substantially the same harm shall be grouped together into a single

Group." The provision then provides four times when counts involve

"substantially the same harm," including three relevant here:

(a) When counts involve the same victim and the same act or transaction.

(b) When counts involve the same victim and two or more acts or transactions connected by a common criminal objective or constituting part of a common scheme or plan . . . .

(d) When the offense level is determined largely on the basis of the total amount of harm or loss, the quantity of a substance involved, or some other measure of aggregate harm, or if the offense behavior is ongoing or continuous in nature and the offense guideline is written to cover such behavior.

- 77 - U.S.S.G. § 3D1.2(a)-(b), (d).26 But that's not all the relevant

text. Right after those four times, the provision explains that

offenses "covered by the following guidelines are to be grouped

under this subsection," referring to Subsection (d), and the

provision proceeds to list thirteen rows of Guidelines provisions.

And after that, it "specifically" excludes all offenses under

another eleven rows' worth of offenses for Subsection (d).

Griffin essentially thinks that Subsections (a) and (b)

should have guided the district court's analysis. In his view, it

should have looked at whether the charges involved the "same victim

and the same act or transaction" or a "common scheme or plan,"

rather than just if they were on the same row. And under Griffin's

test, it would have been obvious that the TPS counts and the BHS

counts can't be grouped together: they involve different victims

(the DOT for the former, the school for the latter); different

acts (filing false hours at work for the former, filling out a

school's financial aid form falsely for the latter); and constitute

different forms of harm (TPS monies better seen as a loss, while

BHS monies better seen as a gain).

The government points instead to Subsection (d). No one

disputes that the TPS counts (federal programs fraud conspiracy,

26No one argues that provision (c) was relevant, so we passed by it to save some keystrokes -- hence, the ellipses after part (b).

- 78 - federal programs fraud, and wire fraud) and the BHS counts (wire

fraud) are all covered by the same provision, § 2B1.1. And § 2B1.1

is one of the Guidelines "to be grouped" under Subsection (d), so

the government posits that the TPS counts and the BHS counts must

"be grouped" together to comply with § 3D1.2(d).

Importantly, we aren't writing on a blank slate here.

We previously held that two counts that were "listed in the same

row" under § 3D1.2(d) were "automatically" to be grouped. United

States v. Zanghi, 189 F.3d 71, 85 (1st Cir. 1999). By Zanghi's

logic, this case is even easier: not only are the different counts

under provisions listed in the same row, but they're even under

the same provision, § 2B1.1. That seems to settle things in favor

of the district court's approach.

Bolstering our conclusion that the district court

correctly grouped the counts is the Sentencing Commission's

commentary to § 3D1.2. As one example, it provides: "The defendant

is convicted of five counts of mail fraud and ten counts of wire

fraud. Although the counts arise from various schemes, each

involves a monetary objective. All fifteen counts are to be

grouped together." U.S.S.G. § 3D1.2, cmt. 6, ex. 3. We don't see

much difference between Griffin's case and this example.

It's true that other courts have viewed the requirements

of § 3D1.2(d) differently. See, e.g., United States v. Lenoci,

377 F.3d 246, 254 (2d Cir. 2004) (explaining that "the view that

- 79 - we must group counts that fall under the same 'to be grouped'

guideline has not [been] met with universal agreement"). And at

oral argument, Griffin asked us to disavow Zanghi and instead adopt

an approach closer to that taken in Lenoci.

Here's the problem with that argument: in our

multi-panel circuit system, the law of the circuit doctrine

controls, meaning that new panels are "bound by prior panel

decisions closely on point." United States v. Barbosa, 896 F.3d

60, 74 (1st Cir. 2018) (cleaned up). And although there are

"narrowly circumscribed" exceptions to that rule whose incidence

are "hen's teeth rare," Griffin does not explain, based on our

precedent, why they would be applicable here.27 Id. ("Unless a

litigant can demonstrate that one of these exceptions applies to

a prior panel decision, a newly constituted panel must continue to

adhere to the earlier holding.").

27In his opening brief, Griffin didn't address the law of the circuit issue at all. And we can quickly dispense with the arguments that he unveiled for the first time at oral argument. See Piazza v. Aponte Roque, 909 F.2d 35, 37 (1st Cir. 1990) ("Except in extraordinary circumstances not present here, a court of appeals will not consider an issue raised for the first time at oral argument."). For one, Griffin emphasized that Zanghi was pre-Booker, issued amid the Guidelines' adolescence. For another, Griffin generally averred to more recent Guidelines commentary (in its introduction) about how the power and impact of one Guidelines determination should not drive sentencing. And for a third, Griffin argued that the alternative approach should look at the factors listed in Subsections (a) and (b) and explain the overlapping victims and harms. Even if right, none of those arguments come close to meeting the high standards set out in our caselaw. See Barbosa, 896 F.3d at 74.

- 80 - Those challenges both settled, we see no error in the

calculation of Griffin's sentence.

ii. Issuing the Sentence

Griffin, like Robertson, also takes aim directly at his

sentence. And like Robertson, his argument is based on unwarranted

disparities, so the place to begin is below.

In his sentencing memo, Griffin argued that similarly

situated defendants received lesser sentences than the one that

the government sought here. He detailed the prosecution of

Massachusetts state troopers in overtime cases, noting that the

government's preferred sentence was twenty-five times greater than

the sentences received by all (save one) of the other troopers,

his ideal comparators. And unlike Robertson, Griffin did make

this point lucidly in his memo and developed it further in a five-

page attached exhibit. But to his credit (and, as the reader will

see shortly, also his doom), Griffin identified some key

differences between this case and those: the addition of a

conspiracy charge, the longer period alleged in the indictment,

the role enhancement Griffin received, and his guilty pleas in the

tax charges.

At sentencing, the parties debated the import of these

comparator cases. The government went out of its way to

distinguish them. Ultimately, the district court agreed with the

- 81 - government that a prison sentence was appropriate; it gave Griffin

a within-Guidelines sentence of 60 months.

Now on appeal, Griffin similarly argues that his

60-month sentence is unwarrantedly disparate based on the "wildly

lighter" sentences imposed in other cases. (Unlike Robertson, he

seems to pursue only a substantive claim.) As proof, he includes

a two-and-a-half-page chart detailing what he casts as similar

Massachusetts cases. Griffin does so to show that his sentence

was "twenty-five times more" than the sentence received by all but

two similarly situated officers. And he, like Robertson, argues

that the government's decisions not to charge others should factor

into the equation.

The government responds with a few quick points. First,

the inquiry focuses on "national," rather than "district-based,"

disparities, so Griffin's comparisons to Massachusetts are

incomplete. (The reader might think that the government would

itself then frame this in national terms, but it doesn't.) Second,

Griffin failed to provide the requisite information for us to make

the apples-to-apples comparison now. Third, a closer look at the

cases cited reveals key differences: his extra conspiracy charge,

the greater length of the scheme, the differing Guidelines

calculations, and his choice to go to trial rather than cooperate.

Fourth, there is no precedent to support the proposition that a

defendant can sustain a disparity claim based on uncharged conduct

- 82 - for others. Finally, along with some other facts, Griffin's status

as a leader in TPS heightened his culpability as compared to

Robertson and others.

Now, our take. Unlike Robertson, Griffin has given us

enough to try to make the apples-to-apples comparison. But the

information that he furnished reveals that his case and his

recommended benchmarks are more like apples and oranges, so his

claim fails.

Recall that the disparity claim flops "if material

differences between the defendant and the proposed comparators

suffice to explain the divergence," and material differences

include "dissimilar criminal involvement, criminal histories, or

cooperation with the government, to name just a few." United

States v. Romero, 906 F.3d 196, 211–12 (1st Cir. 2018) (cleaned

up). Griffin himself highlighted some of these differences below.

Taking him at his word:

• "No other defendant was charged with conspiracy so as to

increase the loss figure by some multiple."

• "The period of time for the overtime fraud charged in

the [proposed comparator] Quincy police officer case was

7 months. The period of time charged in virtually all

the Troop E cases [other proposed comparators] was a

year or occasionally two. Here, the time period was

three years -- the most of any case," and the "three-

- 83 - year conspiracy was multiplied by at least five (5)

participants to generate a loss figure more than five

times any other defendant."

• "None of the four (4) lieutenants charged to date

suffered a role enhancement of any kind, let alone four

(4) levels."

• "The defendant here (Griffin) also pleaded to tax

charges and what is in essence, financial aid fraud."

Alone, each seems material enough to justify a different sentence.

Romero, 906 F.3d at 212; Freeman, 147 F.4th at 39 (explaining that

"[n]one of the cited cases include tax evasion charges" and that

inclusion of a leadership enhancement is a material difference).

Together, it's all the clearer. And to boot, at least some of

those cases involved cooperation, but Griffin chose to go to trial

(albeit not on every count, as his partial guilty plea evinces).

See Romero, 906 F.3d at 212 ("But unlike Guzman, Maldonado,

Wallace, and Reynoso, Romero did not cooperate with the

government."); see also Freeman, 147 F.4th at 39 (same result when

co-defendants pled guilty but Freeman didn't). Those are plenty

of material differences.28

28Griffin also relied on some state-law cases, both here and below. While we haven't yet expressly said that state prosecutions are poor comparators, it flows naturally from the caselaw's emphasis on needing close federal Guidelines ranges and the same federal charges to do the analysis. See Freeman, 147 F.4th at 38 n.35 (comparing federal Guidelines ranges); United States v.

- 84 - To be fair to Griffin, he highlights those differences

to make almost the opposite point: that his charges "are

essentially similar, the conduct is essentially similar, and the

criminal records are definitely similar," and that the

government's reasons for pursuing a higher sentence are bogus.

But in highlighting those distinctions he seems to foreclose his

own disparity claim; the very disparities that he points out

"suffice to explain the divergence" in the sentencing judge's

decision. United States v. Demers, 842 F.3d 8, 15 (1st Cir. 2016).

Both the others' cooperation and Griffin's additional

conduct "make the sentencing disparities reasonable." Romero, 906

F.3d at 212. And while we hear Griffin's points about the

potential unfairness in the charging decisions and the

government's strategy in pursuing this case in this way, compared

Bishoff, 58 F.4th 18, 26 (1st Cir. 2023) (rejecting sentencing disparity claim in part because co-defendants were charged with different federal gun-related offenses). Those federal issues aren't at play in state court prosecutions. And it's well-accepted that the emphasis is generally on "national" disparities, which we read to mean federal. See, e.g., Bishoff, 58 F.4th at 25 (explaining that § 3553(a)(6) is "primarily aimed at national disparities, rather than those between codefendants"). All that seems to preclude state prosecutions from being apples-to-apples. To wit, our judicial superiors in Washington have also emphasized that the uniformity the Guidelines seek to achieve is across federal courts, not all courts. See, e.g., Hughes v. United States, 584 U.S. 675, 684 (2018) ("A principal purpose of the Sentencing Guidelines is to promote uniformity in sentencing imposed by different federal courts for similar criminal conduct." (cleaned up)). So those three state comparators probably don't get us very far.

- 85 - to those cases in different ways, we aren't really able to

adjudicate that in the disparity context, given that it creates an

"apples and oranges" scenario.

At sentencing, the government made a couple additional

points to show why Griffin's conduct was distinct from his proposed

comparators. One set of the comparator cases involved "a bunch of

renegade troopers using ten different ways to steal money," rather

than the coordinated Griffin-Robertson scheme. And the other

troopers "only stole overtime," unlike Griffin who was also

"running side businesses committing fraud and stealing money and

defrauding a private school." We didn't see much of a rebuttal

from Griffin, but those differences matter, too. Demers, 842 F.3d

at 15 (explaining how "a sentencing disparity claim may easily be

repulsed if material differences between the defendant and the

proposed comparator suffice to explain the divergence").

Only one of Griffin's arguments is left standing.

Griffin posits that, because other troopers who committed fraud

were not charged but Griffin's on the hook for five years in

prison, there's an unwarranted disparity. That position doesn't

find any support in law, as far as we can tell, and there's good

reason why.

While there's obviously a disparity between Griffin and

these uncharged troopers, it's not one that we are well-positioned

to assess. The disparity analysis is closely tethered to holding

- 86 - cases up against each other; if there's no charges, there's no

case to compare it to. Or more colorfully, if Griffin's an apple

and the other sentenced troopers are oranges, the uncharged

troopers are salmon -- part of an entirely different food group.

With all that in mind, Griffin's sentence, like

Robertson's, "rests on a plausible rationale" and "represents a

defensible result." United States v. Ortiz-Pérez, 30 F.4th 107,

113 (1st Cir. 2022) (cleaned up). That's true even if it is longer

than most, and so we affirm it.

iii. Ordering Forfeiture

Finally, Griffin sets his sights on the forfeiture order

of $177,600, which the reader will remember was the full sum of

financial aid that the Griffin family received from BHS between

2013 and 2020. Here's where we agree with him.

Again, we start with some table-setting. Under 18 U.S.C.

§ 981(a)(1)(C) (the civil forfeiture statute), "[a]ny property,

real or personal, which constitutes or is derived from proceeds

traceable to a violation of" the wire fraud statute is subject to

forfeiture to the United States. The standards for determining

"proceeds" vary depending on whether the forfeiture falls under

§ 981(a)(2)(A) or § 981(a)(2)(B). And while the different

definitions of "proceeds" have generated some caselaw, Griffin

seems to assume that the financial aid is indeed a form of

"proceeds" (though neither he nor the district court tell us which

- 87 - kind). He instead draws our attention to a statutory phrase not

defined in the statute and, by our lights, not often argued about:

"traceable to." See United States v. George, 886 F.3d 31, 41 n.6

(1st Cir. 2018) (declining to interpret "traceable to" because the

"proceeds" question was clear).

Griffin argues that the government failed to prove that

any or all of the $177,600 in financial aid that the Griffin family

received was "traceable to" the offense. He relies on our decision

in George, 886 F.3d at 42, where we explained that, to "undergird"

a forfeiture order, the district court "ultimately had to determine

by a fair preponderance of the evidence" that the proceeds "were

either directly or indirectly obtained as fruit of the charged"

crime. And he points to a pair of district court cases rejecting

the government's proposed forfeiture when it failed to prove that

the proceeds were indeed traceable. Applying all that here, he

argues (as he did above in the Guidelines calculation) that the

BHS witnesses couldn't verify exactly how much of the aid resulted

from the fraud, so the forfeiture order is bunk.

The government responds simply that the aid was the

"direct result" of his fraudulent applications, so they're

obviously "traceable." And it argues that at least one of the

district court cases relies on Eighth Amendment reasoning that's

wholly irrelevant here.

- 88 - On this point, Griffin's got the better argument. For

one, the government bears the burden of proving, by a preponderance

of the evidence, the amount of proceeds that are subject to

forfeiture. That's straight from the statute. See 18 U.S.C.

§ 983(c)(1) ("In a suit or action brought under any civil

forfeiture statute for the civil forfeiture of any

property -- (1) the burden of proof is on the government to

establish, by a preponderance of the evidence, that the property

is subject to forfeiture."). And our fellow circuits have held

the same. See, e.g., United States v. Asomani, 7 F.4th 749, 754

(8th Cir. 2021); United States v. 5208 Los Franciscos Way, 385

F.3d 1187, 1193 (9th Cir. 2004).

And the government didn't quite hold up its end of the

bargain here. That's because it didn't carve out what portion of

financial aid Griffin would have received, as distinct from what

portion he wouldn't have sans the fraud. The district court's

decision to adopt the government's figure in full and not to carve

that out, we think, is reversible error. And we see that as true

no matter which definition of "proceeds" applies.

We aren't alone in that approach. Consider the Seventh

Circuit's decision in United States v. Hodge, 558 F.3d 630 (7th

Cir. 2009). There, that court vacated a forfeiture order for all

the revenues of a purported massage parlor and spa that served as

a front for a prostitution business. Id. at 637. The forfeiture

- 89 - statute, in the Seventh Circuit's view, covered "only income and

assets obtained from the unlawful deeds," meaning the

prostitution. Id. at 635 (citing 18 U.S.C. § 981(a)(2)(A)). But

that led to an issue: "somewhere between 20% and 50% of the spa's

customers never signed a second credit slip." Id. And from that,

one could draw dueling inferences about which proceeds were

traceable to the criminal conduct: it "could mean that a

substantial fraction of the spa's business was the provision of

lawful massages" or that "these customers paid the prostitutes in

cash." Id. Yet the district court "did not attempt to sort this

out." Id. That was error, the Seventh Circuit held, because "the

difference matters." Id. Only those proceeds related to the

illegal conduct were forfeitable. Id.

The same principle undergirded the affirmance of a

forfeiture order in United States v. Torres, 703 F.3d 194 (2d Cir.

2012). That case (which also fell under § 981(a)(2)(A)) concerned

a defendant who had understated her household earnings to get

rental subsidies. Id. at 197. The PSR stated, and the defendant

did not dispute, "that the sum she was excused from

paying . . . because of her fraud was $11,724." Id. The

forfeiture order was permissible because it represented "a

discrete sum of money saved by Torres, exactly corresponding to

the reduction she was granted on her rent, and available for her

use as a direct result of her fraud." Id. at 201.

- 90 - By contrast, consider the government's approach here.

It says that Griffin omitted material information from his

financial applications and received a total of $177,600 in aid,

and that all of it is thus forfeitable. And that's true, the

government says, even though Griffin offered statements from BHS

officials that they could not say whether the financial aid amount

would have been different had Griffin provided true information.

But "the difference matters." Hodge, 558 F.3d at 635.

The approach taken by the government and accepted by the court

falls short of the particularized approach affirmed in Torres,

held necessary in Hodge, and rooted in principles already accepted

in our caselaw. After all, "to undergird its forfeiture order,

the district court ultimately had to determine by a fair

preponderance of the evidence that the [financial aid] [was] either

directly or indirectly obtained as fruit" of the wire fraud.

George, 886 F.3d at 42 (cleaned up). By declining to determine

what came from the fraud and what would have been doled out anyway,

we don't think the district court did that.

And, as we explained earlier, we see that inquiry as

necessary no matter which of the two definitions of "proceeds"

applies.29 True, Hodge and Torres both applied the definition in

Frankly, we aren't sure which definition was applied here, 29

as it isn't evident from the district court's forfeiture order. Griffin doesn't address it either. The government, for its part, argues that the definition in § 981(a)(2)(B) applies. But that

- 91 - § 981(a)(2)(A). But we don't see that analysis as changing for

§ 981(a)(2)(B) either, because both definitions stem from

§ 981(a)(1)(C), requiring that the property subject to forfeiture

must be "traceable to" the offense. If that money were coming

into Griffin's pockets anyway, we struggle to see how it's

"property" that "constitutes or is derived from proceeds

traceable" to the offense, no matter how "proceeds" is defined.

18 U.S.C. § 981(a)(1)(C).

We'll pause here for a second. We recognize that, on

its face, there's some incongruity between our holdings as to gain

and loss under the Sentencing Guidelines above and forfeiture here.

How could the government have met its burden up there as to the

only governs "cases involving lawful goods or lawful services that are sold or provided in an illegal manner." 18 U.S.C. § 981(a)(2)(B). Yet, at least in our view, what Griffin did was neither a "lawful good" nor a "lawful service" provided in an illegal manner. Instead, the wire fraud perpetrated here (filing false applications to a school) probably fits more neatly into § 981(a)(2)(A), which applies instead to "cases involving illegal goods, illegal services, unlawful activities, and telemarketing and health care fraud schemes" (emphasis added). And that section defines "proceeds" as "property of any kind obtained directly or indirectly, as the result of the commission of the offense giving rise to forfeiture, and any property traceable thereto." Id. § 981(a)(2)(A). Still, we're well aware that "the classification of an offense of conviction can have a profound effect on the amount that may be subject to forfeiture in a particular case," so we don't hold for certain that his conduct fit under 18 U.S.C. § 981(a)(2)(A). George, 886 F.3d at 40. Instead, we don't think it matters for the question we were asked to decide.

- 92 - BHS financial aid, but not down here? Don't both apply a

preponderance standard?

We get it. But let us explain ourselves, because we see

a few differences that reconcile these outcomes. For one, the

calculation process is different. Our caselaw requires that the

"gain/loss" calculation be governed by Alphas' burden-shifting

framework. Once the government made the initial showing that there

was $177,600 paid out and the district court thought that number

reasonable, the burden shifted to Griffin to knock that figure

down for Guidelines purposes. And, for the reasons explained

above, the district court reasonably didn't accept any of his

arguments.

But in the forfeiture context, the government bears the

burden of proving the particularities of forfeiture all the way

through.30 See 18 U.S.C. § 983(c)(1) ("In a suit or action brought

under any civil forfeiture statute for the civil forfeiture of any

establish, by a preponderance of the evidence, that the property

is subject to forfeiture."); cf. United States v. Flete-Garcia,

925 F.3d 17, 38 (1st Cir. 2019) (noting, in a parallel context,

Except, of course, any "direct costs" under § 981(a)(2)(B), 30

which we've previously held that the defendant must show. United States v. Carpenter, 941 F.3d 1, 10 (1st Cir. 2019). Yet (at least by the parties' characterizations) this case doesn't concern "direct costs," so that's no matter.

- 93 - that "there are significant differences between the proper method

of calculating loss and the proper method of calculating

restitution").

For another, these different results also make sense

considering the different purposes they serve in the criminal

justice process. Cf. Flete-Garcia, 925 F.3d at 37 (comparing

purposes of Guidelines loss and restitution). The loss calculation

serves "as a measure of the seriousness of the offense and the

defendant's relative culpability." U.S.S.G. § 2B1.1 cmt.

background. More practically, the loss calculation plays only one

part of a larger, non-binding calculation that the district court

must undertake. That's why we're alright with settling for a

"reasonable estimate" (read: a rough proxy) in the loss context.

United States v. Curran, 525 F.3d 74, 78 (1st Cir. 2008) (internal

citations omitted).

Forfeiture orders play a more concrete role: they "help

to ensure that crime does not pay," because they "at once punish

wrongdoing, deter future illegality, and lessen the economic power

of criminal enterprises." Kaley v. United States, 571 U.S. 320,

323 (2014) (cleaned up). And in stark contrast to the non-binding

and sometimes abstract-feeling loss calculation, they do so in a

very material way: the defendant must cough up exactly as much as

is found to be forfeitable. See id. (explaining how "forfeitures

are imposed upon conviction to confiscate assets used in or gained

- 94 - from certain serious crimes.").31 Requiring a bit more precision

from the government in this context seems natural.32

So we vacate the district court's order and remand for

proceedings consistent with this opinion. We'll summarize what we

mean: to revive the past forfeiture order (in full or in part),

the government will need to show what financial aid specifically

was "traceable to" (i.e., resulted from, as explained earlier in

the opinion) the fraud. What wasn't "traceable to" the fraud

(i.e., what Griffin would have gotten if he had submitted honest

forms) can't be subject to forfeiture. And if the government can't

separate wheat from chaff here in a way that the district court

(with our guidance in mind) finds satisfactory, forfeiture is not

appropriate.

31True, Kaley involved the criminal forfeiture statute. But we think its general observations about the role of forfeiture ring true for the civil forfeiture statute, too. 32 We'll also note the somewhat concerning context of this forfeiture order. Originally, the government sought both restitution and forfeiture for the financial aid amount. But BHS didn't want restitution, and it wouldn't say it would not have granted financial aid but-for the fraud, so the court didn't order any restitution on that point. Yet the government still pursued forfeiture of that money. It's worth remembering that "forfeiture and restitution are distinct remedies." United States v. Webber, 536 F.3d 584, 602 (7th Cir. 2008) (cleaned up). "Forfeiture serves no remedial purpose, is designed to punish the offender, and cannot be imposed upon innocent owners," United States v. Bajakajian, 524 U.S. 321, 332 (1998) (cleaned up), and we don't think that forfeiture of the full financial aid amount should be used to punish Griffin where BHS cannot say it would not have granted financial aid if he provided all true information.

- 95 - PARTING THOUGHTS

All that's to say: we affirm as to everything but the

forfeiture order against Griffin. On that, and that alone, we

vacate and remand for more litigation consistent with this opinion.

- 96 -