Appellate Case: 21-1285 Document: 010110711430 Date Filed: 07/15/2022 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT July 15, 2022 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 21-1285 (D.C. No. 1:19-CR-00098-CMA-1) LEONARD LUTON, a/k/a Leonard L. (D. Colo.) Luton,
Defendant - Appellant. _________________________________
ORDER AND JUDGMENT* _________________________________
Before TYMKOVICH, Chief Judge, BRISCOE, and MATHESON, Circuit Judges. _________________________________
Leonard Luton was involved in a fraudulent lottery scheme that defrauded
victims of almost $1,000,000. He was charged in a superseding indictment with one
count of conspiracy to commit mail fraud and nine counts of aiding and abetting mail
fraud, in violation of 18 U.S.C. §§ 1341, 1349, and 2. After a jury trial in the United
States District Court for the District of Colorado, Luton was convicted on all but one
count and was sentenced to 108 months on each count, to run concurrently, with three
years of supervised release. Luton now appeals his sentence. We AFFIRM.
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 21-1285 Document: 010110711430 Date Filed: 07/15/2022 Page: 2
I
A. Factual Background
Between February 2018 and January 2019, Luton’s coconspirator Rajay Dobson1
convinced an elderly woman, S.O., that she had won a $2.8 million lottery and a
Mercedes Benz. ROA, Vol. III at 50–51. Going by the alias “Frank White,” Dobson
convinced S.O. that she needed to mail cash, cashier’s checks, and cellphones via UPS
and FedEx to pay the “fees” required to receive her prizes. Id.; Supp. ROA, at 41–60.
Dobson directed S.O. to mail these payments to Luton and to other friends and
associates, including a woman with the initials S.P. who lived in Grandville, Michigan.
ROA, Vol. III at 50–51; Supp. ROA, at 45–60, 65–66, 121–36. S.P. was another victim
of the lottery scheme. S.P. also was told she had won a lottery (in her case, a prize of $5
million dollars) and that in order to receive her winnings, she needed to receive money
from others and send it on. ROA, Vol. III at 50–51. S.P. was instructed to deposit the
cashier’s checks she received from S.O. and then obtain cashier’s checks made payable to
Luton, which were then deposited into Luton’s bank account. Id.; Supp. ROA, at 126,
136. In total, S.O. sent over $150,000 to S.P. at Dobson’s direction. ROA, Vol. III at
50–51.
Dobson also directed S.O. to hand over cash in person on two separate occasions.
The first occurred on October 3, 2018, when he directed S.O. to give $65,000 in cash to
1 At all relevant times, Dobson lived in Jamaica. ROA, Vol. I at 112, 176. Luton knew Dobson from Jamaica, and the last time Dobson was in the United States was in 2017. Id. at 112; Supp. ROA, at 114. 2 Appellate Case: 21-1285 Document: 010110711430 Date Filed: 07/15/2022 Page: 3
people who came to her home in Estes Park, Colorado. Id. at 51; Supp. ROA, at 61, 83.
At approximately 12:30 a.m., a man knocked on S.O.’s door. He identified himself as an
“FBI agent,” showed S.O. what appeared to be a real FBI badge, and directed her to hand
over the cash. Supp. ROA, at 61–62. S.O. hesitated and told him that Dobson had
instructed her to give the money to a “merchant banker” named “Mr. Wither.” Id. The
“FBI agent” walked S.O. to a car waiting in front of her house to meet “Mr. Wither,” who
rolled down the window to speak with her. Id. “Mr. Wither” instructed S.O. to give the
cash to the “FBI agent,” and S.O. complied. Id. Luton later testified that he was in the
car during this hand-to-hand transaction with the “FBI agent” and “Mr. Wither,” as he
had been hired to “share in the driving” to Estes Park, but he had no recollection of the
event because he was “fast asleep” during the entire transaction. ROA, Vol. I at 92–96.
The second cash hand-off occurred on January 22, 2019, when Dobson again
directed S.O. to give approximately $39,000 in cash to people who would come to her
home. ROA, Vol. III at 51; Supp. ROA, at 78–80. By this time, law enforcement agents
were involved, and they had set up a covert operation to apprehend whoever showed up
at S.O.’s home to pick up the money. ROA, Vol. III at 51. When Luton and his
girlfriend arrived at S.O.’s home, they were both arrested. Id. Luton later testified that
he had left his home in Brooklyn, New York, to go to S.O.’s home in Estes Park because
Dobson promised to give him $1,000 to pick up a package there. ROA, Vol. I at 85, 99–
100.
S.O. was ultimately defrauded of $971,455.41, and S.P. sustained a loss of $3,500.
ROA, Vol. II at 112, 115.
3 Appellate Case: 21-1285 Document: 010110711430 Date Filed: 07/15/2022 Page: 4
B. Procedural Background
On July 10, 2019, Luton was charged in a ten-count superseding indictment with
one count of conspiracy to commit mail fraud (Count 1) and nine counts of aiding and
abetting mail fraud (Counts 2–10). ROA, Vol. I at 48–53.
At the jury trial, the Government presented copious evidence regarding Luton’s
involvement with the lottery scheme. Luton’s iPhone was identified as one of the
iPhones that S.O. had purchased, and on the phone were multiple phone numbers for
Dobson and a photograph of the $65,000 in cash that S.O. had provided to the
conspirators. Id. at 171–72; Supp. ROA, at 179, 204–05, 215. Luton’s phone revealed
that he and Dobson had exchanged approximately 1,000 text messages between February
2018 and January 2019, or about 2.5 messages a day. Supp. ROA, at 205. The call
details on Luton’s phone confirmed his presence on nineteen occasions at the address
where Dobson had directed S.O. to send packages around the time of their expected
delivery. Id. at 209–25. Certified bank records established withdrawals from S.O.’s bank
accounts, money transfers to S.P., and S.P.’s deposits into Luton’s bank accounts. Id. at
121–35. Text messages and shipping receipts showed that Luton directed others to wire
funds to Jamaica on multiple occasions and that he paid his friends hundreds of dollars
around the time packages from S.O. were delivered to their addresses. Id. at 164–69.
Luton also testified that he set up a 702 MagicJack2 account for Dobson to use when
2 MagicJack is a type of phone service that allows users to make telephone calls over the Internet. Supp. ROA, at 102. 4 Appellate Case: 21-1285 Document: 010110711430 Date Filed: 07/15/2022 Page: 5
making calls to S.O. because “you cannot use a Jamaican credit card to set up a
MagicJack.” ROA, Vol. I at 138, 174–75.
The jury convicted Luton on all but one count (Count 4). ROA, Vol. II at 89–90.
At the outset of the sentencing hearing, the district court heard testimony and argument
about the losses involved in Luton’s lottery scheme. Id. at 105–12. The Government’s
expert witness calculated total losses attributable to Luton to be $974, 955.41 and
restitution to be $881,447.41. Id. at 115–17.
The district court then turned to the Presentence Investigation Report (“PSR”) and
overruled a series of Luton’s objections to the PSR. As relevant to this appeal, the
district court overruled Luton’s objection to a two-level increase under U.S.S.G.
§ 2B1.1(b)(10)(B) for committing a substantial part of the fraudulent scheme from
outside the United States. The district court agreed with the Government that “this
conspiracy begins, ends, and at all times throughout, has significant events taking place in
Jamaica.” Id. at 138–40. Based on the trial evidence, including Luton’s testimony, the
district court found that the co-conspirators’ “efforts to defraud [S.O.] were successful
because of Dobson’s constant communications and coordinations from Jamaica with
[Luton] back in the United States.” Id.
After overruling Luton’s objections, the district court denied Luton’s request for a
two-level decrease under U.S.S.G. § 3B1.2(b) for his alleged minor role in the offense.
Id. at 141–44. The district court discussed the facts in relation to the five factors to be
considered in determining whether a minor role adjustment was appropriate. Id. It then
ruled that Luton “failed to meet his burden of proving that he [was] substantially less
5 Appellate Case: 21-1285 Document: 010110711430 Date Filed: 07/15/2022 Page: 6
culpable than the average participant in a lottery scheme in general, and in this case, as
compared to the role played by Dobson specifically.” Id. at 144.
The district court also denied Luton’s request for a variance “based on [its] review
of this case and after consideration of the [18 U.S.C. §] 3553 factors.” Id. at 157. It
determined that Luton’s total offense level was 29 (criminal history category I), resulting
in a guidelines range of 87 to 108 months in prison. Id. at 170. The district court
ultimately imposed a sentence at the top of the advisory guidelines range of 108 months
on each count, to run concurrently, with three years of supervised release. Id. at 171.
Luton has filed a timely appeal.
II
Luton presents three arguments: (1) the district court erred in the increase of two
offense levels when it determined that a substantial part of the scheme was committed
from outside the United States; (2) the district court erred in denying Luton a two-level
decrease in the offense level for his minor role; and (3) the district court unreasonably
imposed a top-of-the-guidelines sentence because it did not explain any reasons for doing
so. We will address each argument in turn.
A. “Outside the United States” Enhancement
Luton contends the district court erred in the increase of two offense levels under
U.S.S.G. § 2B1.1(b)(10)(B) when it determined that a substantial part of the fraudulent
scheme was committed from outside the United States. Under U.S.S.G.
§ 2B1.1(b)(10)(B), if “a substantial part of a fraudulent scheme was committed from
outside the United States . . . , increase by 2 levels.” Luton objected to this enhancement
6 Appellate Case: 21-1285 Document: 010110711430 Date Filed: 07/15/2022 Page: 7
in his Sentencing Statement. ROA, Vol. II at 68. The court applied § 2B1.1(b)(10)(B) to
the facts and overruled Luton’s objection because the conspiracy began, ended, and “at
all times throughout, ha[d] significant events taking place in Jamaica.” Id. at 138–40.
We review the district court’s interpretation of the guidelines de novo and any
factual findings for clear error, giving due deference to the district court’s application of
the guidelines to the facts. United States v. Patton, 927 F.3d 1087, 1100–01 (10th Cir.
2019) (quotations omitted). Determination of whether facts satisfy a prescribed standard
is a mixed question of fact and law. Id. (citing Campbell v. Bartlett, 975 F.2d 1569, 1574
(10th Cir. 1992)). We review “mixed questions under the clearly erroneous or de novo
standard, depending on whether the mixed question involves primarily a factual inquiry
or the consideration of legal principles.” Id. (quotations omitted). Because a
determination that a substantial part of a fraudulent scheme was committed from outside
the United States is fact-focused, we review for clear error. See id. (explaining that
application of certain guidelines “is so fact-focused that we review for clear error”); see
also United States v. Singh, 291 F.3d 756, 762 (11th Cir. 2002) (reviewing application of
§ 2B1.1(b)(10)(B) for clear error).
Luton argues that the district court erred in applying a two-level increase under
U.S.S.G. § 2B.1(b)(10)(B) because “[m]ost, if not the entire scheme, was committed in
the United States.” Aplt Br. at 16–17. Luton contends that all of the victims, bank
accounts, and co-conspirators in the scheme—with the exception of Dobson—were
physically present in the United States when the actions in furtherance of the scheme
were committed. Id. The district court therefore should not have applied this
7 Appellate Case: 21-1285 Document: 010110711430 Date Filed: 07/15/2022 Page: 8
enhancement “merely because one person, in a multiperson scheme, who was in Jamaica,
smooth talked [S.O.] and told various co-conspirators what to do—actions that all of the
co-conspirators did in the United States.” Id. at 17. In making this argument, Luton
attempts to distinguish the facts in his case from other cases in which district courts
applied the enhancement, including United States v. Oshobe, 145 F. App’x 243 (10th Cir.
2005) (unpublished), and Eleventh Circuit cases. Id. at 17–21.
We conclude that the district court did not err in applying this two-level
enhancement. As the district court explained, a preponderance of the evidence
proves that a substantial part of the fraudulent scheme was committed from outside
the United States. The district court cited the following evidence illustrating how
Dobson orchestrated the scheme from Jamacia with Luton’s help: (1) Dobson lived in
Jamaica during the entire scheme; (2) Luton set up the MagicJack phone for Dobson
so he could make numerous calls from Jamaica; (3) Dobson used the MagicJack
phone to make calls to S.O. from Jamaica; (4) Luton picked up packages for Dobson
during the same time period that Dobson had been directing S.O. to mail packages
related to the lottery fraud; (5) Dobson texted Luton the names and tracking numbers
for these packages so Luton would know when and where to go and what to pick up;
(6) Luton then texted Dobson addresses for receipt of these packages; and (7) Luton
coordinated with others in the United States in order to wire money back to Jamaica.
ROA, Vol. II at 138–40. The record also shows that Dobson spoke to Luton on the
phone up to five times a day and texted at least a couple of times a day. ROA, Vol. I
at 113, 177. Dobson also arranged for Luton and others to travel cross-country to
8 Appellate Case: 21-1285 Document: 010110711430 Date Filed: 07/15/2022 Page: 9
pick up money from one of the victims. Id. at 93–94, 97–100. In short, the district
court observed that all of Dobson’s conspiratorial conduct took place in Jamaica and
“those efforts to defraud [S.O.] were successful because of Dobson’s constant
communications and coordination from Jamaica with Luton back in the United
States.” ROA, Vol. II at 139. The evidence therefore amply supports the application
of the § 2B1.1(b)(10)(B) enhancement to the calculation of Luton’s offense in this
case.
Furthermore, Luton’s cited cases do not change our analysis. First, Luton
attempts to distinguish his case from United States v. Oshobe, 145 F. App’x 243
(10th Cir. 2005) (unpublished). In Oshobe, a Nigerian citizen living in Kansas
received merchandise delivered to his home that had been fraudulently ordered over
the internet using computers located in Europe and Africa. Id. at 245, 257. This
defendant kept and used some of the items that were delivered to him, but he
repackaged and shipped most of the items to another person in Nigeria. Id. Luton
argues that his conduct is distinguishable because (1) “the method of fraudulently
obtaining the merchandise in Oshobe was by computer automation that took place
solely outside of the United States,” as opposed to Dobson’s phone calls to S.O. that
technically took place both outside and inside the United States, and (2) “the
fraudulently obtained objects in Oshobe were merchandise while the fraudulently
obtained objects in . . . [Luton’s case] were money only,” and because money is
easier to ship internationally, “the participation of Luton is substantially less than that
of the defendant in Oshobe.” Aplt. Br. at 17–19.
9 Appellate Case: 21-1285 Document: 010110711430 Date Filed: 07/15/2022 Page: 10
Luton’s arguments are unpersuasive. The § 2B1.1(b)(10)(B) enhancement
only requires that a substantial part of the scheme be committed from outside the
United States, not that all of the scheme occurred outside the United States or that the
scheme originated outside the United States. Numerous courts have held that the
enhancement applies even when a particular defendant has not personally acted from
outside the United States, in part due to the well-established principle that an act may
be imputed from one co-conspirator to another. See, e.g., United States v. Arnaout,
431 F.3d 994, 998–99 (7th Cir. 2005); Singh, 291 F.3d at 759, 762.3 Moreover,
Luton’s assertion that his money scheme required less participation than Oshobe’s
merchandise scheme because “[money] is much easier to ship” ignores Luton’s
substantial efforts in obtaining the money. Aplt. Br. at 18–19. For instance, the
record shows that Luton drove cross-country on two occasions to pick up the money,
coordinated nearly daily with Dobson, and set up various accounts for receiving and
transferring the money. ROA, Vol. II at 142, 156–57.
3 Other cases outlining this principle include United States v. Chukwu, 842 F. App’x 314, 323 (11th Cir. 2021) (per curiam) (unpublished); United States v. Williams, 838 F. App’x 493, 495 (11th Cir. 2020) (per curiam) (unpublished); United States v. King, 623 F. App’x 962, 968 (11th Cir. 2015) (per curiam) (unpublished); and United States v. Cox, 462 F. App’x 646, 646–47 (8th Cir. 2012) (per curiam) (unpublished). 10 Appellate Case: 21-1285 Document: 010110711430 Date Filed: 07/15/2022 Page: 11
Second, Luton attempts to distinguish his case from United States v. De
Aguiar, 453 F. App’x 927 (11th Cir. 2012) (per curiam) (unpublished).4 In De
Aguiar, the defendant and his co-conspirators stole credit card numbers in Brazil,
used the fraudulent credit cards to obtain goods, and then sent those goods to Brazil
and sold them for profit. Id. at 929. The Eleventh Circuit determined that the
defendant’s conduct “easily satisfie[d]” § 2B1.1(b)(10)(B) because “parts of the
beginning, middle, and end of [the defendant’s scheme] took place outside of the
United States.” Id. Luton argues that his conduct is distinguishable because his
lottery scheme “began in Jamaica and the United States . . . and ended with the mere
sending [of] money, not merchandise to Jamaica.” Aplt. Br. at 21 (emphasis added).
In addition, the money in De Aguiar “was actually produced in Brazil by selling the
merchandise for a profit in Brazil.” Id. (emphasis in original).
4 Luton in passing also accuses the district court of improperly “us[ing] a standard to determine this enhancement based upon Eleventh Circuit precedent.” Aplt. Br. at 19. We interpret Luton’s statement as a challenge to the district court’s interpretation of the guidelines, which we review de novo. In undertaking this de novo review, we consider the language of the guidelines, the Tenth Circuit’s decisions, and the interpretations of other circuits. United States v. Gonzales, 931 F.3d 1219, 1221 (10th Cir. 2019). Here, the Eleventh Circuit has addressed the § 2B1.1(b)(10)(B) enhancement more often than any other circuit. See, e.g., Chukwu, 842 F. App’x at 323; Williams, 838 F. App’x at 495; King, 623 F. App’x at 968; De Aguiar, 453 F. App’x at 929; Singh, 291 F.3d at 759, 762. Furthermore, the Seventh and Eighth Circuits have agreed with the Eleventh Circuit’s holding that the enhancement applies even when a particular defendant’s conspiratorial conduct occurred within the United States. See, e.g., Cox, 462 F. App’x at 646–47; Arnaout, 431 F.3d at 998–99. Oshobe, the sole Tenth Circuit case that Luton cites, does not contradict these cases and is in line with their reasoning. Luton’s challenge therefore fails. 11 Appellate Case: 21-1285 Document: 010110711430 Date Filed: 07/15/2022 Page: 12
But again, Luton’s arguments are unpersuasive. De Aguiar does not suggest
that its decision turned on the fact that the fraudulent scheme involved merchandise
rather than money. Instead, De Aguiar suggests that when applying the
enhancement, courts should consider where the most important aspects of the
fraudulent scheme occurred. 453 F. App’x at 929. The most important aspects of De
Aguiar’s scheme—stealing credit card numbers and selling the goods for profit—
occurred outside the United States in Brazil. Id. Likewise, the most important
aspects of Luton’s scheme—Dobson convincing the victims to hand over their money
and orchestrating the mailing of money or packages—occurred outside the United
States in Jamaica. Dobson’s acts then are imputed to Luton as they are reasonably
foreseeable and in furtherance of the jointly undertaken criminal activity. See id.
(citing Singh, 291 F.3d at 761–62). Consequently, like the defendant in De Aguiar,
Luton’s conduct “easily satisfies” § 2B1.1(b)(10)(B).
The district court did not clearly err in imposing the § 2B1.1(b)(10)(B)
enhancement.
B. “Minor Participant” Adjustment
Luton next contends the district court erred in denying him a two-level
decrease in his offense level for his minor role. At sentencing, Luton asserted that he
was entitled to a two-level downward “minor participant” adjustment under U.S.S.G.
§ 3B1.2(b). ROA, Vol. II at 70–71. The district court ultimately denied Luton’s
request for a “minor participant” adjustment because he had failed to meet his burden
12 Appellate Case: 21-1285 Document: 010110711430 Date Filed: 07/15/2022 Page: 13
of proving he was substantially less culpable than the average participant in the
lottery scheme, compared to the role Dobson played. ROA, Vol. II at 141–44.
U.S.S.G. § 3B1.2(b) provides that “[i]f the defendant was a minor participant
in any criminal activity, decrease by 2 levels.” The defendant has the burden of
establishing by a preponderance of the evidence that he was “substantially less
culpable than the average participant in the criminal activity.” § 3B1.2, cmt. n.3(A);
see United States v. Nkome, 987 F.3d 1262, 1277 (10th Cir. 2021). The “crux of
§ 3B1.2 is a defendant’s relative culpability.” Nkome, 987 F.3d at 1273 (citing
United States v. Yurek, 925 F.3d 423, 446 (10th Cir. 2019)). Accordingly, a “minor
participant” is a defendant “who is less culpable than most other participants in the
criminal activity, but whose role could not be described as minimal.”5 § 3B1.2, cmt.
n.5.
The determination of whether to apply the two-level downward “minor
participant” adjustment “is based on the totality of the circumstances and involves a
determination that is heavily dependent upon the facts of the particular case.”
§ 3B1.2, cmt. n.3(C); see Nkome, 987 F.3d at 1271. The commentary provides a
“non-exhaustive list” of five factors a court should consider in making this
determination:
(i) the degree to which the defendant understood the scope and structure of the criminal activity;
5 For comparison, “minimal participants” are defendants “who are plainly among the least culpable of those involved in the conduct of the group” and “lack knowledge or understanding of the scope and structure of the enterprise and of the activities of others.” § 3B1.2, cmt. n.4. 13 Appellate Case: 21-1285 Document: 010110711430 Date Filed: 07/15/2022 Page: 14
(ii) the degree to which the defendant participated in planning or organizing the criminal activity;
(iii) the degree to which the defendant exercised decision-making authority or influenced the exercise of decision-making authority;
(iv) the nature and extent of the defendant’s participation in the commission of the criminal activity, including the acts the defendant performed and the responsibility and discretion the defendant had in performing those acts; and
(v) the degree to which the defendant stood to benefit from the criminal activity.
§ 3B1.2, cmt. n.3(C).
We review the district court’s denial of a mitigating-role adjustment for clear
error because it is a factual determination. Nkome, 987 F.3d at 1268–69; see also
§ 3B1.2, cmt. n.3(C) (noting that the application of a mitigating-role adjustment is “a
determination that is heavily dependent upon the facts of the particular case”). Under
this deferential standard, if the district court’s account of the evidence is plausible in
light of the record viewed in its entirety, we may not reverse it even if we may have
weighed the evidence differently. Nkome, 987 F.3d at 1276–77 (internal quotation
marks and citations omitted). And while district courts “should consider” the
commentary’s five non-exhaustive factors, we do not require a district court “to make
detailed findings, or explain why a particular adjustment [under the guidelines] is or
is not appropriate.” Id. at 1273 (internal quotation marks and citations omitted);
14 Appellate Case: 21-1285 Document: 010110711430 Date Filed: 07/15/2022 Page: 15
Luton argues that the district court erred in making the factual determination
that he did not qualify for a “minor participant” adjustment. Luton contends that at
bottom, he was no more than a minor participant, and he presents two arguments in
support: (1) the district court’s analysis of the second, third, and fourth factors
applies “almost exclusively, if not totally exclusively” to Dobson and (2) the district
court’s failure to grant Luton a “minor participant” adjustment is inconsistent with its
assessment of the “outside the United States” enhancement because there the district
court found that Dobson masterminded the scheme from Jamaica. Aplt. Br. at 23–24.
We conclude that Luton has not adequately shouldered his burden of
demonstrating that the district court erred in denying his request for a “minor
participant” adjustment. As to Luton’s first argument, Luton essentially is asking
this court to reweigh the evidence. To constitute clear error, we “must be convinced
that the sentencing court’s finding is simply not plausible or permissible in light of
the entire record on appeal, remembering that we are not free to substitute our
judgment for that of the district judge.” United States v. Torres, 53 F.3d 1129, 1144
(10th Cir. 1995). Luton concedes that he provided names and addresses to Dobson;
obtained addresses and tracking numbers for the retrieval of packages; regularly
communicated with Dobson by text, email, and cell phone; planned and organized
picking up packages; and “allegedly sent some of the proceeds to Jamaica.” Aplt. Br.
at 24–25. The district court pointed to this exact evidence in its analysis of the
second, third, and fourth factors when making culpability comparisons and
determining that Luton was not substantially less culpable than the average
15 Appellate Case: 21-1285 Document: 010110711430 Date Filed: 07/15/2022 Page: 16
participant in the lottery scheme, namely Dobson. ROA, Vol. II at 141–43. Yet
Luton contends that the district court should have concluded based on this evidence
that he did not plan “any part of the conspiracy” and that he “was merely one of
numerous others that helped in executing [Dobson’s] plan.” Aplt. Br. at 24–25.
But Luton’s claims that others were also involved in the scheme or that
Dobson may have been more culpable do not entitle him to a mitigating-role
adjustment. A defendant “is not entitled to a minor-participant reduction merely
because ‘he is the least culpable among several participants in a jointly undertaken
criminal enterprise.’” United States v. Adams, 751 F.3d 1175, 1179 (10th Cir. 2014)
(quoting United States v. Lockhart, 37 F.3d 1451, 1455 (10th Cir. 1994)). Even if
Luton claimed that his role in the lottery scheme was merely as a “money mule,”
such conduct would not necessarily entitle him to a mitigating-role adjustment.
Nkome, 987 F.3d at 1277 (collecting cases). Here, the district court provided
multiple reasons for rejecting the “minor participant” adjustment based on the
entirety of the record and the totality of the circumstances. For instance, Luton
“drove cross country from New York to Colorado to [S.O.]’s home to pick up large
sums of cash,” “set up bank accounts into which money and checks could be
deposited and from which he could transfer money to Jamaica,” and “picked up a
substantial number of packages,” sometimes receiving up to $5,000 for a package.
ROA, Vol. II at 141–43. The district court’s factual findings are plausible, supported
by the record, and not clearly erroneous.
16 Appellate Case: 21-1285 Document: 010110711430 Date Filed: 07/15/2022 Page: 17
As to Luton’s second argument, Luton asserts that the district court’s denial of
his mitigating-role adjustment was premised on “incompatible” conclusions. Aplt.
Br. at 24. In the district court’s assessment of the “outside the United States”
enhancement, the district court found that Dobson masterminded the scheme from
Jamaica; yet in its assessment of Luton’s mitigating-role adjustment, the district court
found that Luton played more than a minor role. Id. Luton opines that “the district
court wants it both ways.” Id.
But as the district court noted, these conclusions are not mutually exclusive.
The district court explained that it is not “inconsistent to say that, yes, Dobson was
the mastermind, that he was the smooth-talker and that is greatly culpable, but that
doesn’t lessen [ ] the culpability of Mr. Luton.” ROA, Vol. II at 151. The district
court found that Luton’s role was “crucial and critical to the completion of the fraud”
because Dobson “wouldn’t have completed [the scheme] if it hadn’t been for Mr.
Luton.” Id. at 142, 151. Dobson “could have talked all he wanted [the victims] into
doing it, but until somebody came around who would pick up the money or go pick it
up where it was mailed and come personally to her home, he could not have
completed the scheme.” 6 Id. at 151.
6 Luton also asserts that regarding the fifth factor, “there was no evidence that Luton benefited.” Aplt. Br. at 25. As the district court pointed out, the record patently contradicts his assertion. ROA, Vol. II at 143–44. For example, Luton testified that he picked up a substantial number of packages in this case and received up to $5,000 for a package depending on how far he had to travel. Id. at 144. 17 Appellate Case: 21-1285 Document: 010110711430 Date Filed: 07/15/2022 Page: 18
The district court’s denial of the “minor participant” adjustment therefore does
not amount to clear error. The evidence supports the district court’s finding that
Luton was an integral part of the scheme and was deeply involved in it.
C. Top-of-the-Guidelines Sentence
Luton’s final argument is that the district court’s imposition of a top-of-the-
guidelines sentence was unreasonable because the district court “did not explain why
it sentenced Luton to the high-end of the range.” Aplt. Br. at 25–27. Importantly,
Luton does not dispute that his sentence falls within the applicable guidelines range,
nor does he claim that the district court incorrectly calculated the range. He only
argues that the district court did not adequately explain why it imposed a top-of-the-
guidelines sentence.
Our review of a sentence “includes both a procedural component,
encompassing the method by which a sentence was calculated, as well as a
substantive component, which relates to the length of the resulting sentence.” United
States v. Henson, 9 F.4th 1258, 1284 (10th Cir. 2021), pet. for cert. filed, No.
21-6736 (U.S. Dec. 28, 2021). Luton asserts that his 108-month sentence is
unreasonable because the district court did not explain why it chose to impose a
sentence at the top of the range. Aplt. Br. at 25–27. This is a procedural
reasonableness challenge. Henson, 9 F.4th at 1284 (explaining that review for
procedural error entails “considering whether the district court committed any error
in calculating or explaining the sentence”) (citations, brackets, and quotations
omitted).
18 Appellate Case: 21-1285 Document: 010110711430 Date Filed: 07/15/2022 Page: 19
Because Luton failed to contemporaneously object to the district court’s
explanation of its sentencing decision, we review Luton’s challenge for plain error.
Id. at 1289–90; ROA, Vol. II at 178–79. Luton must show “(1) an error, (2) that is
plain, which means clear or obvious under current law, and (3) that affects substantial
rights—and, if he satisfies these criteria, we may, in our discretion, correct the error
if (4) it seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” United States v. McGehee, 672 F.3d 860, 876 (10th Cir. 2012)
(cleaned up) (quoting United States v. Cooper, 654 F.3d 1104, 1117 (10th Cir.
2011)).
We conclude that the district court did not plainly err in its explanation of
Luton’s within-guidelines sentence. This court has repeatedly emphasized that when
imposing a sentence within the properly calculated guidelines range, “(1) the district
court need provide only a general statement noting the appropriate guideline range
and how it was calculated; (2) such statement need involve no ritualistic incantation
to establish consideration of a legal issue or recitation of any magic words to prove
that the court considered the various factors Congress instructed it to consider; and,
more broadly, (3) [this court] will only step in and find error when the record gives
[it] reason to think that [its] ordinary . . . presumption that the district court knew and
applied the law is misplaced.” Henson, 9 F.4th at 1287 (citations, internal quotation
marks, and brackets omitted). In other words, the district court need not
“specific[ally] expla[in] . . . a sentence falling within the Guidelines range.” United
States v. Ruiz-Terrazas, 477 F.3d 1196, 1201 (10th Cir. 2007).
19 Appellate Case: 21-1285 Document: 010110711430 Date Filed: 07/15/2022 Page: 20
In Luton’s case, the district court clearly indicated that it had reviewed the
PSR and considered the § 3553(a) sentencing factors, including the nature and
characteristics of the lottery scheme, the impact the crime had on S.O., the length and
extent of Luton’s involvement, his lack of acceptance of responsibility or remorse,
and the need to deter Luton from committing similar criminal conduct. ROA, Vol. II
at 152–57. The district court also acknowledged Luton’s request for a variant
sentence but explained that a downward variance was unwarranted “when the history
and characteristics of the defendant, as well as the nature and circumstances of this
offense[,] are juxtaposed with the goals of sentencing, pursuant to 18 United States
Code Section 3553(a).” Id. at 170. The district court then found that a top-of-the
guidelines sentence “reflect[s] the seriousness of this offense, and it is a sufficient,
but not greater than necessary, sentence to achieve the objectives of sentencing.” Id.
at 178. A more detailed sentencing explanation is not required because Luton does
not dispute that he was sentenced within the applicable guidelines range. See
Ruiz-Terrazas, 477 F.3d at 1202. And even if the district court inadequately
explained its reasons for imposing the within-guidelines sentence, Luton has not
attempted to show that any such error affected his substantial rights, as required to
satisfy the demanding plain error standard.
The district court did not err in imposing a top-of-the-guidelines sentence as
its explanation went beyond the minimum level of detail required to establish its
procedural reasonableness.
20 Appellate Case: 21-1285 Document: 010110711430 Date Filed: 07/15/2022 Page: 21
III
For the foregoing reasons, we AFFIRM.
Entered for the Court
Mary Beck Briscoe Circuit Judge