United States v. LeFebvre

• Court: Court of Appeals for the Tenth Circuit
• Decided: July 25, 2006
• Docket: 05-1358
• Status: Unpublished

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES CO URT O F APPEALS July 25, 2006 TENTH CIRCUIT Elisabeth A. Shumaker Clerk of Court

U N ITED STA TES O F A M ER ICA,

Plaintiff-Appellee,

v. No. 05-1358 (D . Colo.) CLAUD E LEFEBV RE, (D.Ct. No. 02-CR-485-RB)

Defendant-Appellant.

OR D ER AND JUDGM ENT *

Before TA CH A, Chief Circuit Judge, and BARRETT and BROR BY, Senior Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

* This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. Following his waiver of a jury trial, a district court convicted Appellant

Claude LeFebvre of seven counts of wire fraud in violation of 18 U.S.C. §§ 2 and

1343; eight counts of engaging in monetary transactions in criminally derived

property in violation of 18 U.S.C. §§ 2 and 1957, and one count of forfeiture

under 18 U.S.C. § 982(a)(1). M r. LeFebvre appeals his convictions and

sentences, contending the district court erred in: 1) failing to require the

government to elect a theory of prosecution on the wire fraud counts; 2) failing to

advise him, during and after his waiver of a jury trial, of his right to jury findings

of fact regarding his sentence enhancement under United States Sentencing

Guidelines M anual (USSG) § 2B1.1; and 3) enhancing his sentence under § 2B1.1

on the basis of an intended monetary loss of $64,850,000, rather than the actual

loss in an amount under $4,000,000. W e exercise jurisdiction pursuant to 18

U.S.C. § 3742 and 28 U.S.C. § 1291 and affirm M r. LeFebvre’s convictions and

sentences.

For the purposes of this appeal, we find it unnecessary to recount in detail

the scheme involved or representations made, other than to provide a general

account of the nature of the scheme, some of the pertinent representations made,

and the intended losses attributable to M r. LeFebvre. To start, M r. LeFebvre and

his co-defendant, Dennis Herula, devised a sophisticated scheme to defraud

wealthy investors of huge sums of money; M r. LeFebvre and the others involved

-2- in the scheme represented to investors that a specialized leverage trading

program, authorized by the federal government, existed, in w hich M r. LeFebvre

could very lucratively invest their money in double-A or triple-A rated

instruments for at least a 75% return per week. M r. LeFebvre held himself out as

a licensed federal trader with the knowledge and ability necessary to trade in this

specialized program; however, no such program existed and he held no federal

trader's license. As part of the scheme, M r. LeFebvre and his intermediaries

solicited individuals to invest a minimum of $10,000,000 in the program. Based

on M r. LeFebvre’s verbal and written false representations about the investment

program and himself, one potential investor seriously considered investing

$10,000,000, transferred $10,000,000 into a certificate of deposit, and faxed a

copy of the certificate of deposit to M r. LeFebvre at his request as proof of funds

for investment, but ultimately declined to make the investment based on the

advice of his attorney. However, two Colorado investors, through their company

Comet Enterprises, invested $40,000,000, and a Japanese firm invested

$14,850,000.

As part of the scheme, M r. LeFebvre and M r. Herula opened a series of

accounts at a Texas branch office of M errill Lynch, and on or about July 2, 2002,

arranged for the Comet Enterprises investors to wire their $40,000,000 investment

to a designated account. Based in part on M r. LeFebvre’s verbal representations

-3- and written documents he presented, the Comet Enterprises investors: 1)

procured a $40,000,000 treasury bill for use as margin collateral for M errill

Lynch to release funds on the account; and 2) understood their $40,000,000

investment would be used only to purchase double-A rated instruments. Based,

again, in part on certain representations and advice from M r. LeFebvre, one of the

Comet Enterprises investors authorized M errill Lynch to release money on margin

in the amount of $20,000,000 to another account, on which M r. LeFebvre and M r.

Herula had signature authority, for investment by M r. LeFebvre in double-A rated

bonds. As soon as the money moved into the second account, M r. Herula

transferred $6,000,000 to M r. LeFebvre’s and his and his wife’s M errill Lynch

accounts and they began spending the money for their own purposes without

authorization from the investors. In total, they spent just over $4,000,000 of

Comet Enterprises’ funds on items such as cars, jewelry, expensive hotels, gifts to

family members, and payment of past debts. After an employee at M errill Lynch

noticed the unauthorized expenditures, M r. LeFebvre and M r. Herula falsely

reported they used other funds to purchase the promised double-A rated bonds for

the investors from a company called Bondhub, thereby allowing them to use the

investors’ money for their own purposes. However, no money was ever invested

in any A-rated instruments on behalf of Comet Enterprises, and its investors never

received any of the promised profit returns.

-4- M eanwhile, sometime on or about July 22, 2002, M r. LeFebvre helped

persuade the Japanese firm to wire its $14,850,000 investment to a Texas M errill

Lynch account over w hich he, M r. Herula, and another person retained signature

authority. Again, the money was used to buy a treasury bill which could be used

as security for M errill Lynch to release money to them on m argin. On July 25,

2002, an associate of M r. LeFebvre’s attempted to open an account at M errill

Lynch in Paris, France, using one of the M errill Lynch Texas accounts opened by

M r. LeFebvre and M r. Herula. The associate told employees at the Paris office he

intended to deposit into the Paris account $4,000,000 per week for thirteen weeks

and then distribute the funds to his partners. The Paris office refused to open the

account and notified the M errill Lynch New York office, which, on making

inquiries, discovered a pending Securities and Exchange Commission action

against M r. Herula and his w ife; it then immediately froze all of the Texas M errill

Lynch accounts associated with M r. Herula.

Not deterred, M r. LeFebvre directed an associate to create a document

purporting that he, M r. LeFebvre, needed to wire $10,000,000 to Germany

immediately; then M r. LeFebvre and M r. Herula attempted to persuade M errill

Lynch to release their Texas funds because of their obligation to purchase a bond

in Europe. M errill Lynch refused. M r. LeFebvre then attempted to persuade

M errill Lynch to open another account solely in his name in order to remove it

-5- from the freeze on M r. Herula’s assets, which it also refused to do. During this

time, the Securities and Exchange Commission commenced an investigation into

M r. LeFebvre’s and his colleagues’ activities, which ultimately resulted in an

order freezing M r. LeFebvre’s and the other individuals’ accounts. Due to the

freeze on these accounts, none of the Japanese firm’s funds were spent and

M errill Lynch returned its money. Later, through forfeiture, the government

recovered various assets from M r. LeFebvre and M r. Herula, leaving the amount

of restitution owed to the Comet Enterprises investors at $3,945,189.07.

In early November 2004, the district court held a hearing on M r.

LeFebvre’s request to waive his right to a jury trial in favor of a bench trial and,

after a lengthy colloquy with M r. LeFebvre regarding his relinquishment of that

right, granted his motion. Several months prior to trial, M r. LeFebvre also filed a

motion asserting the government must elect a theory of prosecution on the w ire

fraud counts, given the superceding indictment stated he devised a scheme to both

“defraud” investors and obtain money by materially “false and fraudulent

pretenses.” In response, ten months and then six months before the trial, the

government stated it intended to prove both a scheme to “defraud” and a scheme

to obtain money by materially “false and fraudulent pretenses” at the trial. In

later dismissing M r. LeFebvre’s alternative theory motion, the district court

determined the government disclosed it would proceed on both theories in

-6- sufficient time for M r. LeFebvre to prepare and organize his defense in advance

of trial in accordance with his due process rights, and that wire fraud, under 18

U.S.C. § 1343, creates dual theories of prosecution which are not mutually

exclusive; therefore, no election was necessary between the scheme to defraud or

to obtain money by false and fraudulent pretenses.

At M r. LeFebvre’s trial, the government offered overwhelming evidence to

establish his guilt with respect to each count of the indictment, as well as the

intended loss perpetrated under the scheme in the amount of $64,850,000, for the

purpose of supporting a twenty-four-level enhancement under § 2B1.1. After

considering all of the evidence presented, the district court found M r. LeFebvre

guilty on all counts charged. Based on the evidence offered, the district court

also concluded the government established the scheme’s intended loss w as more

than $50,000,000, but less than $100,000,000, for the purpose of the twenty-four-

level offense enhancement under U SSG § 1B1.1(b)(1)(M ).

Prior to sentencing, a probation officer prepared a presentence report

calculating M r. LeFebvre’s base offense level at six under U SSG § 2B1.1(a)(2).

The probation officer then applied a twenty-four-level upward adjustment under

§ 2B1.1(b)(1)(M ) based on the fact the intended loss underlying the scheme was

more than $50,000,000 and less than $100,000,000. Specifically, the probation

-7- officer determined the intended loss totaled $64,850,000, which included the

$10,000,000 one potential investor contemplated investing, Comet Enterprises’

actual $40,000,000 investment, and the Japanese firm’s actual $14,850,000

investment. After applying various other enhancements and adjustments, as w ell

as factoring in M r. LeFebvre’s Category I criminal history, the probation officer

calculated his sentencing guideline range at 210 to 262 months imprisonment.

M r. LeFebvre objected to the government enhancing his sentence based on

the intended loss figure of $64,850,000, claiming the actual loss of $3,945,189 to

Comet Enterprises should apply instead, resulting in a much lower eighteen-level

enhancement and a lower sentencing guideline range. At the July 2005

sentencing hearing, M r. LeFebvre’s counsel renewed the same objection and also

argued for the first time that M r. LeFebvre’s jury trial w aiver did not apply to

findings relating to the § 2B1.1 enhancement, and, instead, those findings must be

made by a jury under United States v. Booker, 543 U.S. 220 (2005). During this

argument, M r. LeFebvre’s counsel stated she was not “speaking to the validity of

that waiver at this point.” M r. LeFebvre also testified at the sentencing hearing,

but rather than acknowledging any wrongdoing, responsibility, or remorse for his

actions, he made insinuating, insulting, and defiant remarks about those involved

in the investigation and litigation of his criminal proceeding.

-8- The government responded to M r. LeFebvre’s and his counsel’s remarks,

asserting that the lack of a jury finding on the § 2B1.1 enhancement did not

violate either Blakely or Booker. The government also pointed out M r.

LeFebvre’s comments and attitude evidenced: 1) his failure to accept

responsibility for his actions or acknowledge wrongdoing; 2) his continuing threat

and danger to the public; and 3) his unlikely possibility of rehabilitation. 1 W ith

respect to the amount of intended loss applied for an enhancement, the

government recounted in detail the circumstances showing M r. LeFebvre’s

persistence in attempting to transfer money out of the accounts of the investors,

even after a freeze stymied his access, thereby demonstrating he did not abscond

with all of the money invested only because he could not access it.

The district court considered the sentencing factors in 18 U.S.C. § 3553,

the applicable advisory sentencing guidelines, the facts of the case, the applicable

law, and the parties’ arguments before concluding M r. LeFebvre should be

sentenced to lengthy, concurrent terms of imprisonment totaling 240 months. In

so concluding, the district court considered the sentencing guidelines as advisory

1 In support of a lengthy sentence, the government also suggested the circumstances surrounding M r. LeFebvre’s offenses showed they were carefully planned and artfully executed; his network of bold and willing facilitators made him a danger in the future; a substantial sentence would deter the members of his group from committing future crimes; and his age of sixty-one should not mitigate a lengthy sentence, given his advanced age is, in fact, an asset, giving him the appearance of wisdom in the area of international finance.

-9- in nature and rejected M r. LeFebvre’s argument intended loss should not be used

in calculating the sentence enhancement, concluding: 1) intended loss is the

focus of the advisory sentencing guidelines, and 2) M r. LeFebvre should not be

rewarded nor his punishment mitigated merely because of intervening

circumstances, serendipity, or fortuity, which saved the victims from the losses

intended to be perpetrated. In applying the twenty-four-level enhancement for the

$64,850,000 intended loss, the district court determined the evidence supporting

such an enhancement was “essentially unrefuted.”

On appeal, M r. LeFebvre renews his claim the district court erred by: 1)

failing to require the government to elect a theory of prosecution on the w ire

fraud counts between a scheme to “defraud” or a scheme to obtain money “by

false and fraudulent pretenses”; 2) failing to advise M r. LeFebvre of his right to

jury-made findings of fact regarding the § 2B1.1 enhancement; and 3) enhancing

M r. LeFebvre’s sentence on the intended loss rather than the actual loss of

$3,945,189.07. For the first time on appeal, M r. LeFebvre also asserts in a

cursory one-paragraph argument, without record citation or citation to legal

support, that “[t]he district court failed to engage in a sufficient colloquy with M r.

LeFebvre regarding his decision to waive his right to trial by jury,” his waiver

was not “knowing, intelligent, and voluntary at the time it was accepted,” and his

“convictions must be vacated and [the] case remanded for jury trial.”

-10- W e begin by addressing M r. LeFebvre’s argument the district court erred in

failing to require the government to elect between two alternative theories of w ire

fraud by proving either a scheme to defraud or to obtain money by false pretenses

or representations. He claims such an election was necessary for him “to defend

against the elements of each offense” and “in anticipation of a unanimity

instruction request during trial.” He also points out the district court did not rule

on his motion to elect a theory until the first day of the trial but fails to provide

any explanation on how this prejudiced his defense. In turn, the government

assesses M r. LeFebvre’s argument as one involving denial of due process based

on a duplicitous indictment charging him with two separate offenses in the same

count, but contends no error occurred because, in part, it informed him both ten

months and six months before the trial that it intended to prove both theories.

The indictment in this case uses language similar to the wire fraud statute

at issue which requires a “scheme ... to defraud, or for obtaining money or

property by means of false or fraudulent pretenses, representations, or promises.”

See 18 U.S.C. § 1343 (emphasis added). 2 However, one difference is the

2 W e have concluded “a scheme to defraud is conduct intended or reasonably calculated to deceive persons of ordinary prudence or comprehension” and “focuses on the intended end result ... [where] affirmative misrepresentations are not essential; by contrast a scheme to obtain money by false pretenses, representations or promises focuses instead on the means by which the money is obtained and particular false pretenses, representations or promises must be (continued...)

-11- indictment in this case uses the conjunctive word “and” rather than the disjunctive

word “or” between the scheme to defraud and to obtain money by false pretenses.

In either case, it appears M r. LeFebvre is arguing two independent grounds exist

for conviction, from which the government is required to elect only one. W e

disagree.

To begin, we have, as M r. LeFebvre contends, recognized two separate

offenses or independent grounds for conviction exist with respect to a scheme to

defraud and a scheme to obtain money by false pretenses. See United States v.

Cronic, 900 F.2d 1511, 1513 (10th Cir. 1990) (holding an indictment, including

both a scheme to defraud and to obtain money under false pretenses, posed

separate offenses for conviction); United States v. Clausen, 792 F.2d 102, 105

(8th Cir. 1986) (determining an indictment under 18 U.S.C. § 1343 written in the

conjunctive to include both a scheme to defraud “and” obtain money by false

representations posed alternative offenses for conviction under the statute).

However, this court has determined that when both a scheme to defraud and to

obtain money are charged in one indictment or in a single count and are

2 (...continued) proved.” United States v. Cochran, 109 F.3d 660, 664-65 (10th Cir. 1997) (quotation marks and citations omitted). In other words, a scheme to defraud may include false representations but still comes w ithin the scope of the wire or mail fraud statutes absent a false representation or regardless of how the intent to defraud manifests itself. See United States v. Frankel, 721 F.2d 917, 920 (3d Cir. 1983).

-12- connected in the conjunctive, they are not duplicitous, and it will suffice to prove

any one or more of the charges. See Troutman v. United States, 100 F.2d 628,

631 (10th Cir. 1938); see also Kitchens v. United States, 272 F.2d 757, 760-61

(10th Cir. 1959) (holding “if a statute embraces several separate and distinct acts

as a crime, an ... indictment in the language of the statute alleging more than one

of the statutory offenses is not duplicitous, if pleaded in the conjunctive”).

M oreover, we have held that even if duplicity were an issue, any perceived

problem in charging both a scheme to defraud and to obtain money by false

pretenses may be cured by a jury instruction explaining unanimous agreement

must be reached that the government proved, beyond a reasonable doubt, at least

one or the other — i.e., either a scheme to defraud or to obtain money by false

pretenses. See United States v. Trammell, 133 F.3d 1343, 1354-55 & n.2 (10th

Cir. 1998). Even when a unanimity instruction is not given with respect to the

wire fraud statute, we have held, “[w]hen a jury returns a guilty verdict on an

indictment charging several acts in the conjunctive, ... [a general] verdict stands if

the evidence is sufficient with respect to any one of the acts charged.” United

States v. Fredette, 315 F.3d 1235, 1243 (10th Cir. 2003) (quoting United States v.

Haber, 251 F.3d 881, 889 (10th Cir. 2001)).

In this case we have no jury for the purpose of unanimity instruction

concerns, and a review of the record establishes the evidence overwhelmingly

-13- supported both grounds for conviction, which the government timely notified the

defendant it intended to pursue to ensure conviction under the statute. M oreover,

it is clear the district court determined the government proved either or both when

it concluded “each essential element, which by law comprises w ire fraud ... in

violation of 18 U.S.C. Sections 1343 and 2, as charged in Counts 1 through 7 of

the second superseding indictment, has been established by proof beyond a

reasonable doubt.” Nor do we perceive a Sixth Amendment due process notice

problem. W hile every accused has the right to be informed of the nature and

cause of the accusations filed against him in a timely manner, see Hunter v. State

of New M exico, 916 F.2d 595, 598 (10th Cir. 1990) (per curiam), in this case, M r.

LeFebvre received ample notice ten months and six months in advance of trial

that the government intended to offer evidence proving both a scheme to defraud

and a scheme to obtain money by false pretenses. Finally, given the advance

notice M r. LeFebvre received, he has not shown how the district court’s ruling on

his motion on the first day of the trial prejudiced him.

Next, we turn to M r. LeFebvre’s new ly-raised, cursory argument his jury

waiver was unknowing, unintelligent, and involuntary. W e have made it clear

that “perfunctory and cursory reference” to an issue “without citation to authority

in support of a legal argument is inadequate to warrant consideration.” United

States v. Almaraz, 306 F.3d 1031, 1041 (10th Cir. 2002). M oreover, we generally

-14- will not consider an issue raised for the first time on appeal, see Walker v. M ather

(In re Walker), 959 F.2d 894, 896 (10th Cir. 1992), except when, for example,

failure to address the issue would result in a miscarriage of justice. See Shoels v.

Klebold, 375 F.3d 1054, 1062 (10th Cir. 2004), cert. denied, 543 U.S. 1147

(2005). In this case, M r. LeFebvre’s counsel explicitly advised the district court

at the sentencing hearing she was not “speaking to the validity of that waiver at

this point,” and M r. LeFebvre did not otherwise raise the issue until his cursory

argument on appeal. For these reasons, we decline to address M r. LeFebvre’s

newly-raised argument on appeal, other than to note our review of the record,

including the transcript of the waiver of jury hearing and the colloquy between

M r. LeFebvre and the district court, suggests his w aiver was knowing, intelligent,

and voluntary. Under these circumstances, it does not appear our failure to

address the issue would result in a miscarriage of justice. To the extent M r.

LeFebvre is arguing his jury waiver was unknowing, unintelligent, or involuntary

because of the subsequent issuance of Booker two months after he waived that

right, we have held a written waiver of the Sixth Amendment right to a jury trial

is not rendered unknowing or involuntary by the subsequent issuance of Booker.

See United States v. Leach, 417 F.3d 1099, 1104 (10th Cir. 2005).

Next, we disagree with M r. LeFebvre’s assertion at sentencing and now on

appeal that the district court improperly denied him the right to have a jury make

-15- findings of fact regarding the § 2B1.1 enhancement, as required by Booker. W e

have generally held a defendant who waives without qualification the right to a

jury trial cannot assign constitutional Booker error for the lack of a jury

determination on facts relevant to sentencing. See Leach, 417 F.3d at 1104.

However, we have acknowledged the same defendant may challenge the sentence

for non-constitutional Booker error if the district judge applied the sentencing

guidelines in a mandatory fashion. See United States v. Visinaiz, 428 F.3d 1300,

1315-16 (10th Cir. 2005) (holding “Booker, quite clearly, does not prohibit the

district court from making factual findings and applying the enhancements and

adjustments to ... [a] sentence as long as it did not view or apply the Guidelines as

mandatory”), cert. denied, 126 S. Ct. 1101 (2006).

In this case, M r. LeFebvre waived his right to a jury trial without

qualification, thereby precluding him from challenging his sentence on grounds

the district court committed constitutional Booker error by not affording him a

jury determination on facts relevant to sentencing. In addition, because M r.

LeFebvre w as sentenced after Booker, the district court was free to find questions

of fact without running afoul of Booker. See United States v. Rockey, 449 F.3d

1099, 1104-05 n.3 (10th Cir. 2006). Even if constitutional error was at stake, the

error would be harmless, given the sentencing enhancement imposed by the

district court was based on factual findings amply supported by the record and

-16- which would have been found by a jury beyond a reasonable doubt. 3 As to non-

constitutional Booker error, none exists. This is because the district court

considered the sentencing guidelines in an advisory capacity in making its

sentencing decision.

Finally, we consider M r. LeFebvre’s contention his sentence enhancement

under § 2B1.1 should be based on actual, rather than intended, loss. “W hen

reviewing a district court’s application of the sentencing guidelines, we review

legal questions de novo and any factual findings for clear error, giving due

deference to the district court’s application of the guidelines to the facts”; in so

holding, we have concluded a district court’s loss calculation, like the one made

in this case, is a factual question we review under the clearly erroneous standard.

Leach, 417 F.3d at 1105 & n.8.

Applying our standard of review , we conclude M r. LeFebvre’s argument is

precluded by the commentary to USSG § 2B1.1, this court’s plain precedent in

applying that guideline, and the facts contained in the record. W e begin with an

examination of the applicable commentary to § 2B1.1, which explicitly defines

3 Because M r. LeFebvre raised his Blakely/Booker objection in the district court, this court applies a harmless error standard of review in which the government bears the burden of proving beyond a reasonable doubt that the constitutional error w as harmless. United States v. Calzada-M aravillas, 443 F.3d 1301, 1306-07 (10th Cir. 2006).

-17- “loss” for the purposes of a sentencing enhancement as the “greater of actual loss

or intended loss.” Cmt. n.3(A) (emphasis added). It further states “[i]ntended

loss ... means the pecuniary harm that was intended to result from the offense, and

... includes intended pecuniary harm that would have been impossible or unlikely

to occur ....” Cmt. n.3(A)(ii). W hile we recognize this sentencing guideline

comm entary is now advisory rather than mandatory under the principles

announced in Booker, it continues to be a factor the district court must consider in

imposing a sentence. See United States v. Kristl, 437 F.3d 1050, 1053 (10th Cir.

2006) (per curiam).

Second, this court has repeatedly affirmed the use of the intended loss

calculation suggested in § 2B1.1 and another similar guideline applying the same

loss calculation, § 2F1.1. See Leach, 417 F.3d at 1105-06 (applying § 2B1.1);

United States v. Lin, 410 F.3d 1187, 1192-94 (10th Cir. 2005) (same); United

States v. Burridge, 191 F.3d 1297, 1301-04 (10th Cir. 1999) (applying § 2F1.1,

which recommends enhancements be based on the greater of either intended or

actual loss); United States v. Janusz, 135 F.3d 1319, 1324 (10th Cir. 1998)

(same). In calculating intended loss, we “focus on the amount that the scheme

placed at risk, not the amount of money ... stolen.” Lin, 410 F.3d at 1192

(quotation marks and citations omitted). The purpose of using intended loss is “to

measure the magnitude of the crime at the time it was committed.” Janusz, 135

-18- F.3d at 1324. In calculating the amount of loss, the sentencing court “need only

make a reasonable estimate of the loss,” and “its reasonable estimate of the

intended loss will be upheld on appeal.” United States v. Grant, 431 F.3d 760,

762 (11th Cir. 2005) (quotation marks and citations omitted).

Next, we consider the overwhelming evidence in the record which

establishes the loss M r. LeFebvre intended to perpetrate from the scheme included

the $10,000,000 one potential investor contemplated investing, Comet

Enterprises’ actual $40,000,000 investment, and the Japanese firm’s actual

$14,850,000 investment. Under these circumstances, we conclude the district

court did not err in calculating and applying the total foreseeable pecuniary harm

associated with M r. LeFebvre’s investment scheme in enhancing his sentence by

twenty-four offense levels under § 2B1.1(b)(1)(M ). Clearly, intended loss was

the appropriate measure for an enhancement under § 2B1.1, and, based on the

overwhelming evidence in the record, the district court’s total intended loss

calculation reasonably included all potential investors and the amount of money

they intended to or did invest as a result of his scheme. As the district court

indicated, only intervening circumstances, serendipity, or fortuity “saved victims

from the losses intended to be perpetrated.” Under the circumstances presented,

the district court did not err in focusing on the amount the scheme placed at risk

and not merely the smaller amount of money actually stolen. See Lin, 410 F.3d at

-19- 1192. As a result, the district court’s intended loss calculation of $64,850,000

was a reasonable estimate reflecting the loss intended to be perpetrated by M r.

LeFebvre under his investment scheme.

For these reasons, we A FFIRM M r. LeFebvre’s convictions and sentences.

Entered by the C ourt:

W ADE BRO RBY United States Circuit Judge

-20-