United States v. Molly Irene McKinnon

• Court: Court of Appeals for the Sixth Circuit
• Decided: November 22, 2024
• Docket: 23-5773
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR PUBLICATION File Name: 24a0465n.06

Case Nos. 23-5766/5773

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED ) Nov 22, 2024 UNITED STATES OF AMERICA, ) KELLY L. STEPHENS, Clerk Plaintiff-Appellee, ) ) ON APPEAL FROM THE UNITED v. ) STATES DISTRICT COURT FOR ) THE EASTERN DISTRICT OF DOUGLAS WILLIAM VANCE (23-5766); ) KENTUCKY MOLLY IRENE MCKINNON (23-5773), ) Defendants-Appellants. ) OPINION )

Before: SUTTON, Chief Judge; READLER and BLOOMEKATZ, Circuit Judges.

CHAD A. READLER, Circuit Judge. With the aid of millions from outside investors,

Douglas Vance and Molly McKinnon ran a “clean coal” company in the heart of Kentucky coal

country. Their business, Nex-Gen, purportedly heat-treated biomass and coal and sold the

resulting high-energy product to other industrial concerns. In practice, that was not the case. Nex-

Gen did little business. Worse yet, fraudulent business records provided to investors hid the

company’s true financial health. Investors were likewise oblivious as to who had a stake in the

enterprise. Nex-Gen’s management largely misappropriated and squandered the company’s funds.

After one of Nex-Gen’s employees alerted an investor to the business’s troubles, a federal

investigation ensued, ultimately leading to a jury finding Vance and McKinnon guilty of an array

of fraud and money laundering crimes. On appeal, both attack their convictions and resulting

sentences on many a front. We affirm. Case Nos. 23-5766/73, United States v. Vance / United States v. McKinnon

I.

Douglas Vance, a former coal miner, constructed a calciner, a machine that heats raw

biomass or coal to produce biochar or calcinated coal. Such high-energy carbon products can then

be sold to energy, industrial, or agricultural companies. From a small operation in Virginia, Vance

hoped to expand to a site near Hazard, Kentucky. Enter Molly McKinnon. After meeting Vance

in the spring of 2016, McKinnon began working with him, helping Vance with finances, while

Vance focused on the business’s operations. Vance and McKinnon generally referred to their

business as Nex-Gen.

Vance and McKinnon found investors and lenders for Nex-Gen. One investor was Allan

Deware. In August 2016, he agreed to provide a quarter million dollars in needed capital, creating

a new corporate entity to oversee the operation. Around the same time, Vance and McKinnon

convinced a charitable foundation called the Shumard Foundation to similarly invest in Nex-Gen.

There were others that put money into Nex-Gen, as well, including Koch Industries and Vance’s

long-time friend, Joan Faybik.

But not all was what it seemed with Nex-Gen. While the company’s investors and lenders

each operated on the understanding that they were the exclusive partners with Vance and

McKinnon, the reality was that there were many fingers in the Nex-Gen pie. And Nex-Gen never

seemed to ship large quantities of processed biomass or coal to any customers, despite continued

assurances made to those with a financial stake in the company about pending sales. Indeed, many

of the supposed sales and financial records that Nex-Gen’s investors and lenders relied on to lend

money to Nex-Gen were misleading at best. In truth, Nex-Gen was living hand to mouth. No

income was coming into the company, bills were not being paid, and employee paychecks often

bounced. The cash the company brought in from investors and lenders was sometimes distributed

2 Case Nos. 23-5766/73, United States v. Vance / United States v. McKinnon

back in bits and pieces. But more often it was being misappropriated for personal use, and the

company kept operating in a Ponzi-like fashion only because of the infusion of additional cash

from unwary investors.

Eventually, the scheme became difficult to conceal. In the spring of 2017, Nex-Gen’s

office manager, April Francis, noticed sizeable outlays on Nex-Gen’s bank statements. Alarmed,

Francis turned to McKinnon, who became irate that Francis had examined the bank statement and

knew the details of the company’s finances. Suspecting that things were not on the up and up,

Francis reached out to Deware, who she knew was one of the company’s investors, and alerted

him to Nex-Gen’s financial woes. After reviewing financial documents sent by Francis, Deware

realized he was not the only investor in Nex-Gen. He likewise recognized that McKinnon had

fabricated documents to hide Nex-Gen’s serious financial problems. Deware reached out to

federal law enforcement, who, in turn, began investigating Vance and McKinnon in early 2018.

The ensuing investigation unearthed many similar improprieties associated with Vance and

McKinnon’s business. That led to a grand jury indicting Vance and McKinnon on charges of

committing wire fraud, conspiring to commit wire fraud, and conspiring to launder money from

August 2016 through December 2018. After a six-day trial in which Vance and McKinnon

testified, the jury returned guilty verdicts across the board. The district court sentenced Vance to

174 months and McKinnon to 156 months of imprisonment, respectively.

II.

A. 1. Vance challenges his underlying conviction on two grounds. He first argues that his

trial was flawed because the jury never heard about a letter that McKinnon penned more than two

years into the scheme that he says exonerates him. Vance never introduced that letter in his case

in chief and only pressed the issue in seeking to reopen that phase of the trial. In turn, the district

3 Case Nos. 23-5766/73, United States v. Vance / United States v. McKinnon

court denied Vance’s request on three grounds: one, Vance failed to adequately explain why the

letter was not introduced earlier in the trial; two, the document was not disclosed to prosecutors

under the reciprocal disclosure requirements of Fed. R. Crim. P. 16(b)(1)(B)(ii); and three, the

letter was impermissible hearsay.

Vance has forfeited the issue on appeal. Vance’s opening appellate brief only took aim at

the third ground. He never mentioned the first, and his only engagement on the district court’s

Rule 16 ruling in his opening brief is the bare assertion that an FBI agent was aware of the letter’s

existence. See Buetenmiller v. Macomb Cnty. Jail, 53 F.4th 939, 946 (6th Cir. 2022) (considering

“[i]ssues . . . adverted to in a perfunctory manner, unaccompanied by some effort at developed

argumentation,” forfeited (first alteration in original) (citation omitted)). By choosing to do battle

on the substantive front while ignoring the process-based reasons for denying his request, Vance

has forfeited the issue. See Glennborough Homeowners Ass’n v. U.S. Postal Serv., 21 F.4th 410,

414 (6th Cir. 2021); see also Blick v. Ann Arbor Pub. Sch. Dist., 105 F.4th 868, 884 (6th Cir. 2024).

Against all this, Vance asks that we excuse his opening brief’s silence because the excluded

evidence would have proved his innocence. True, we can excuse forfeiture to avoid a “miscarriage

of justice,” Am. Trim, LLC v. Oracle Corp., 383 F.3d 462, 477 (6th Cir. 2004), a phrase that

necessarily includes a “plain forfeited error that causes the conviction or sentencing of an actually

innocent defendant,” United States v. Olano, 507 U.S. 725, 736 (1993); United States v. Andrews,

681 F.3d 509, 532 (3d Cir. 2012) (comparing excusing forfeiture for failing to raise an issue in an

opening brief to plain error review). But even assuming the forfeited arguments for excluding the

letter were beyond reasonable dispute or were otherwise a serious affront to the legal system, see

Puckett v. United States, 556 U.S. 129, 135 (2009); United States v. Al-Maliki, 787 F.3d 784, 794

(6th Cir. 2015), the letter itself does not come close to proving Vance “actually innocent.” Olano,

4 Case Nos. 23-5766/73, United States v. Vance / United States v. McKinnon

507 U.S. at 736. Proving as much requires a showing that “no reasonable juror would have

convicted him in light of the new evidence.” Schlup v. Delo, 513 U.S. 298, 327 (1995).

Written well after the Nex-Gen FBI investigation began, McKinnon’s letter asserts that

Gary Chamblee, the chief investment officer of the Shumard Foundation, forced her to alter Nex-

Gen’s financial statements, and that Vance “had no knowledge of what Chamblee had told [her]

to do.” R. 262-1, PageID#2525–30. At bottom, the letter is a suspiciously timed, unsworn

statement by McKinnon seeking to lay the groundwork for a duress defense contradicted by the

record. Given that a reasonable juror could very well find the letter less than compelling, no

miscarriage of justice excuses Vance’s forfeiture.

2. Vance also contends that the prosecutor’s closing comments at trial amounted to a due

process violation. (Vance forfeited the argument that the prosecutor also engaged in misconduct

during cross-examination because he raised it for the first time in his reply brief. See Am. Trim,

LLC, 383 F.3d at 477.) Vance would typically face a steep uphill climb to show prosecutorial

misconduct based on commentary during summation. We require that any comments, as judged

by the whole record, be not just improper, but flagrantly so. United States v. Gonzalez, 512 F.3d

285, 292 (6th Cir. 2008). After all, our role is not to screen for inappropriate comments in the

government’s closing in otherwise fair proceedings. United States v. Young, 470 U.S. 1, 11 (1985).

Nor do we require prosecutors to deliver sterile closings “devoid of all passion.” United States v.

Boyd, 640 F.3d 657, 670 (6th Cir. 2011) (quotation omitted); United States v. Henry, 545 F.3d

367, 377 (6th Cir. 2008) (affording the government “wide latitude” during summation). Yet as

Vance never lodged an objection in the district court, his climb is all the steeper. Plain error review

in this setting is “doubly deferential,” requiring Vance to show that the prosecutor’s closing was

5 Case Nos. 23-5766/73, United States v. Vance / United States v. McKinnon

“exceptionally flagrant.” Al-Maliki, 787 F.3d at 795; Gonzalez, 512 F.3d at 292 (quotation

omitted).

Vance highlights three aspects of the closing that he thinks were exceptionally flagrant.

First up are the prosecutor’s repeated references to Vance lying. As a general rule, a prosecutor

cannot gratuitously comment on a defendant’s mendacity devoid of any reference to the record.

See Cristini v. McKee, 526 F.3d 888, 901–02 (6th Cir. 2008). At the same time, due process is not

violated any time prosecutors question a defendant’s truthfulness. For “[i]f prosecutors could not

question a defendant’s credibility, they could never win a case in which the defendant presented

an alibi or contradicted the [government’s] theory.” Stermer v. Warren, 959 F.3d 704, 744 (6th

Cir. 2020) (Sutton, J., dissenting). The prosecutor’s approach here was well within the bounds of

propriety. The closing argument cataloged Vance’s many misrepresentations throughout the trial

and even quoted at length from trial testimony to cast doubt on Vance’s truthfulness. That

approach was particularly appropriate here since Vance testified. As we have recognized, when a

“defendant testifies[,] . . . a prosecutor may attack his credibility to the same extent as any other

witness,” including by “assert[ing] that a defendant is lying” during closing arguments and by

“emphasizing discrepancies between the evidence and that defendant’s testimony.” United States

v. Francis, 170 F.3d 546, 551 (6th Cir. 1999); see also Portuondo v. Agard, 529 U.S. 61, 69 (2000).

Second up are the prosecutor’s more specific comments about Vance’s body language and

mannerisms. Had the prosecutor been opining on Vance’s demeanor outside the witness stand,

perhaps such commentary could be out of bounds. See Cunningham v. Perini, 655 F.2d 98, 100

(6th Cir. 1981) (per curiam) (recognizing that a defendant’s “personal appearance at the trial is

irrelevant to the question of his guilt or innocence”). But the prosecutor’s remarks concerned

Vance’s testimony, specifically his eye contact and mumbling during that testimony. Because

6 Case Nos. 23-5766/73, United States v. Vance / United States v. McKinnon

Vance “placed his own demeanor in evidence by taking the stand to testify,” id., the prosecutor

was permitted to highlight how Vance testified, see United States v. Gooch, 506 F.3d 1156, 1160–

61 (9th Cir. 2007). By commenting on Vance’s demeanor on the stand, the prosecutor only

emphasized evidence that the jury can consider in determining witness credibility. See Reagan v.

United States, 157 U.S. 301, 308 (1895); see also Pattern Crim. Jury Instr. 6th Cir. 1.07(2)(D)

(2023) (instructing the jury to evaluate “how the witness acted while testifying”). We see nothing

amiss with the prosecutor doing as much. See Portuondo, 529 U.S. at 69.

That leaves Vance’s concerns that the prosecutor improperly vouched for April Francis’s

testimony. Improper vouching can occur when a prosecutor expresses a personal belief that a

witness testified credibly, or implies a witness was truthful based on facts not in the record. United

States v. Reynolds, 86 F.4th 332, 352 (6th Cir. 2023). Vance takes umbrage at the prosecutor

referring in summation to the former Nex-Gen employee as “courageous” for becoming a

whistleblower. That was not improper vouching. For one, to say Francis was courageous does

not suggest her testimony was credible. Courage refers to bravery or lack of fear. It says nothing

about whether Francis should be believed, the central concern of improper vouching. See Francis,

170 F.3d at 551. And more to the point, the comment was not a naked assertion of the prosecutor’s

personal opinion. The remark was based on evidence in the specific context of describing what

led Francis to reach out to Deware. See Reynolds, 86 F.4th at 353 (distinguishing improper

vouching from “evidence-rooted arguments” assessing a witness’s credibility); see, e.g., United

States v. Birdsong, 330 F. App’x 573, 578–79 (6th Cir. 2009) (referring to a witness as “brave”

for “com[ing] forward” to testify did not imply that the prosecutor “personally believed” the

witness or had undisclosed knowledge about the witness’s truthfulness). In any event, the

prosecutor’s isolated comment was insignificant when viewed in the context of the entirety of the

7 Case Nos. 23-5766/73, United States v. Vance / United States v. McKinnon

trial. United States v. Wettstain, 618 F.3d 577, 590 (6th Cir. 2010). All said, the prosecutor’s

closing statement was not improper, let alone exceptionally flagrantly improper commentary.

Gonzalez, 512 F.3d at 292.

B. Turn then to Vance’s arguments that his 174-month sentence was unreasonable. A

sentence can be unreasonable based on an errant process used to derive the sentence, as well as

simply being off as to its bottom line. See United States v. Johns, 65 F.4th 891, 893 (6th Cir.

2023). While Vance contends his sentence was both procedurally and substantively unreasonable,

his arguments as to the latter simply echo the former—namely, that the district court erroneously

calculated the governing Guidelines range of 151 to 188 months, an issue of procedure. United

States v. Bailey, 931 F.3d 558, 562 (6th Cir. 2019). So with our focus on the Guidelines

calculation, we review preserved challenges to the district court’s legal determinations de novo

and factual findings for clear error. Id. Unpreserved challenges get plain error review, requiring

a showing of an obvious error that affected both the defendant’s substantial rights and the fairness,

integrity, or public reputation of the judicial proceedings. United States v. Vonner, 516 F.3d 382,

385–86 (6th Cir. 2008) (en banc). Vance points to four errors with the Guidelines calculation.

1. First up is a loss-amount enhancement. Section 2B1.1(b)(1)(I) instructs a district court

to increase a defendant’s base offense level by 16 for a “loss” exceeding $1,500,000 but less than

$3,500,000. See United States v. Agrawal, 97 F.4th 421, 436 (6th Cir. 2024). Loss includes

“pecuniary harm” that the defendant “knew, or under the circumstances, reasonably should have

known . . . was a potential result of the offense.” United States v. Maddux, 917 F.3d 437, 450 (6th

Cir. 2019) (quoting U.S. Sent’g Guidelines Manual § 2B1.1 cmt. n.3(A)(i), (iv) (U.S. Sent’g

Comm’n 2024)). The district court here determined a loss amount north of $2.7 million. While

the parties debate whether Vance preserved the two fact-bound arguments he makes here, his

8 Case Nos. 23-5766/73, United States v. Vance / United States v. McKinnon

challenges to the loss amount cannot survive under the deferential clear-error standard, let alone

under plain error review. See United States v. Riccardi, 989 F.3d 476, 481 (6th Cir. 2021).

First, Vance says the loss total swept in amounts dating from before he knew about the

fraud, which he claims was February 2018. The district court committed no clear error in agreeing

with the jury’s conclusion that Vance’s crimes began well before 2018. Plenty of evidence showed

as much. Crediting that evidence, the district court included in the loss calculation amounts that

Vance reasonably could have contemplated when he first engaged in the fraud. Maddux, 917 F.3d

at 450. That Vance had a different story to tell—that he was oblivious to the fraud until 2018—

does not move the ball. See United States v. Guerrero, 76 F.4th 519, 534 (6th Cir. 2023) (“While

[the defendant] argues that these facts could be read in a different way—painting himself as less

involved . . . —two different plausible interpretations of the facts does not constitute clear error

. . . .”).

Second, Vance contends that the district court should not have included roughly $500,000

in loss attributed to Joan Faybik. But any error related to Faybik’s inclusion in the loss calculation

is at best harmless. Not counting that loss amount would still have resulted in an amount more

than $1,500,000, warranting application of the 16-level enhancement. See United States v. Hills,

27 F.4th 1155, 1198 (6th Cir. 2022) (concluding that “any error” that does not affect the final range

under Guidelines § 2B1.1 is harmless).

2. Next Vance challenges the applicability of a two-level “substantial financial hardship”

enhancement, an argument he preserved below. That provision is triggered when the underlying

offense resulted in such a hardship to at least one victim. U.S. Sent’g Guidelines Manual

§ 2B1.1(b)(2)(A)(iii) (U.S. Sent’g Comm’n 2015). Gauged by the victim’s specific financial

circumstances, the loss must be “more than minimal or trivial.” United States v. Skouteris, 51

9 Case Nos. 23-5766/73, United States v. Vance / United States v. McKinnon

F.4th 658, 672 (6th Cir. 2022) (quotation omitted). The district court concluded that Joan Faybik’s

losses amounted to a substantial financial hardship. And no wonder. A hairdresser and close

friend of Vance’s, Faybik was an early investor in Nex-Gen who, like others, thought that she was

the only other investor (besides Vance) in the company. Faybik provided Vance with whatever

money he needed for Nex-Gen, including lending out cash, providing Vance with her personal

credit card, and even wiring money from her retirement investment accounts. All told, the FBI

investigator estimated that Faybik lent Vance roughly half a million dollars. This resulted in

Faybik racking up considerable credit card debt and eating into her retirement savings. On this

record, we see no error in the district court concluding that Faybik suffered “more than [a] minimal

or trivial” loss. Id. (quotation omitted); see also U.S. Sent’g Guidelines Manual § 2B1.1 cmt.

n.4(F)(iii)–(vi) (U.S. Sent’g Comm’n 2024) (recognizing that losses of retirement funds are

relevant considerations in determining a substantial financial loss).

Vance pushes back. He begins by noting that Faybik, in a statement to the district court,

claimed that she was not harmed by Vance. But whether Faybik suffered substantial financial

hardship is judged by the connection between the offense and the “extent of the harm” that results,

Skouteris, 51 F.4th at 672 (citation omitted), not by whether she subjectively views herself as

harmed, United States v. Tacke, 233 F. App’x 649, 651 (9th Cir. 2007); cf. United States v. Teadt,

653 F. App’x 421, 428 (6th Cir. 2016). Vance offers another argument, highlighting that FBI

agents could trace only $42,500 coming from Faybik to Vance on her bank records alone. But the

government offered evidence that Faybik invested much more. The FBI agent investigating

Faybik’s losses testified that the $42,500 mark was “wildly inaccurate.” Faybik herself admitted

to the FBI that she provided well more than that amount to Vance. As did her son. So at best, we

10 Case Nos. 23-5766/73, United States v. Vance / United States v. McKinnon

are left reviewing the district court’s choice between “two different plausible interpretations of the

facts,” which is not clear error. Guerrero, 76 F.4th at 534.

3. Vance also challenges the application of a two-level enhancement for committing an

offense involving “sophisticated means,” an argument he preserved below. U.S. Sent’g Guidelines

Manual § 2B1.1(b)(10)(C) (U.S. Sent’g Comm’n 2015). Vance essentially concedes that

“sophisticated means” were used to defraud Nex-Gen’s investors. Use of false documents and

artificial corporate entities to further the fraudulent scheme—the essence of the fraud at issue

here—“typically justifies the sophisticated means enhancement.” United States v. Bertram, 900

F.3d 743, 753 (6th Cir. 2018). But Vance says McKinnon alone brought sophisticated means to

bear on the fraudulent scheme.

Two problems plague Vance’s position, one factual and one legal. As to the facts, Vance’s

fingerprints are all over the concededly sophisticated means of the conspiracy. He signed the

agreements creating the fraudulent corporate entities that purported to provide exclusive rights in

Nex-Gen to both Deware and the Shumard Foundation. And trial testimony detailed Vance’s role

in providing phony financial records that gave the false impression that Nex-Gen was financially

healthy.

As to the law, McKinnon’s use of sophisticated means does not absolve Vance of

responsibility in this setting. “Where there exists ‘jointly undertaken criminal activity,’ the base

offense level is determined not only by acts committed by the defendant but also ‘all reasonably

foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal

activity.’” United States v. Wilson, 168 F.3d 916, 922 (6th Cir. 1999) (quoting U.S. Sent’g

Guidelines Manual § 1B1.3(a)(1)(B) (U.S. Sent’g Comm’n 2015)); United States v. Crosgrove,

637 F.3d 646, 666 (6th Cir. 2011). And it was not clear error for the district court to reject Vance’s

11 Case Nos. 23-5766/73, United States v. Vance / United States v. McKinnon

assertion that he was simply ignorant of McKinnon’s mischief and to instead find his ostrich

defense incredible. After all, that would have required believing that Vance, who was aware of

Nex-Gen’s anemic operations, saw nothing amiss when willing investors and lenders continued to

pour millions into Nex-Gen’s coffers, money which often found its way into Vance’s personal

bank account. A reasonable alternative to Vance’s position was that he was in cahoots with

McKinnon, making any means that she undertook to deceive Nex-Gen’s investors and lenders

reasonably foreseeable to Vance. Here too, Vance seems to be asking us to find clear error based

on a simple disagreement as to how to interpret the facts presented to the district court, which we

cannot do. Guerrero, 76 F.4th at 534.

4. Finally, Vance, renewing an argument he made to the district court, challenges the

application of a two-point enhancement for abusing a position of trust. That provision

contemplates two elements: first, that Vance occupied a position of trust, and second that Vance

“abused” that position “in a manner that significantly facilitated the commission . . . of the

offense.” U.S. Sent’g Guidelines Manual § 3B1.3 (U.S. Sent’g Comm’n 1990); see United States

v. White, 270 F.3d 356, 371 (6th Cir. 2001). There is little question whether Vance was in a

position of trust, which we understand to be one in which the defendant operates with meaningful

autonomy or discretion. See United States v. Hudson, 491 F.3d 590, 595–96 (6th Cir. 2007). The

quintessential example of such a position is an executive of an organization, see United States v.

Humphrey, 279 F.3d 372, 382 (6th Cir. 2002), which was Vance’s role with Nex-Gen. And there

is not much debate over whether Vance’s role as head of Nex-Gen “significantly facilitated” the

underlying crimes here. The fraud that resulted was a direct product of Vance convincing

investors, who had little say in or knowledge as to Nex-Gen’s specific operations, to rely on him

and his clean coal expertise as a trustworthy steward of their investment. United States v. Brogan,

12 Case Nos. 23-5766/73, United States v. Vance / United States v. McKinnon

238 F.3d 780, 783 (6th Cir. 2001) (recognizing that the sentencing enhancement punishes violating

a fiduciary duty, such as “when a person or organization intentionally makes himself or itself

vulnerable to someone in a particular position, ceding to the other’s presumed better judgment

some control over their affairs”).

Pointing the finger again at McKinnon, Vance maintains that “no evidence” showed that

he exercised control over the victims’ property. This is wrong on both the facts and the law. First

the facts. Plenty of evidence revealed that Vance exercised control over his victims’ finances.

Indeed, Vance admitted during cross-examination at trial that he “took” money invested in Nex-

Gen to pay off a “personal debt.” Then turn to the law. Section 3B1.3’s application simply does

not hinge on Vance having power over Nex-Gen’s finances. Rather, the enhancement requires

that Vance’s abuse of his position “significantly facilitated” the underlying crimes—that is, the

“position of public or private trust must have contributed in some significant way” to make the

crimes possible. U.S. Sent’g Guidelines Manual § 3B1.3 cmt. n.1 (U.S. Sent’g Comm’n 2005);

see United States v. Duerson, 25 F.3d 376, 383 (6th Cir. 1994) (requiring that for § 3B1.3 to apply,

the crime need have been “far more difficult . . . to commit” if the defendant had not been in a

position of trust). And the record abounds in evidence that without Vance at the helm of Nex-Gen,

the underlying fraud simply could not have occurred. In all events, McKinnon’s abuse of her

position of trust does not absolve Vance, as the Guidelines’ relevant-conduct provision governs

the position-of-trust enhancement as well, see United States v. Nance, 50 F. App’x 295, 297 (6th

Cir. 2002), sweeping into Vance’s ambit the reasonably foreseeable acts that McKinnon took in

her position of trust to facilitate the fraud, see U.S. Sent’g Guidelines Manual § 1B1.3(a)(1). Given

all of this, we cannot say the district court erred in applying the position-of-trust enhancement to

Vance’s Guideline calculation.

13 Case Nos. 23-5766/73, United States v. Vance / United States v. McKinnon

III.

A.1.a. Like Vance, McKinnon challenges her underlying conviction on two grounds. First,

McKinnon argues that the district court, following McKinnon’s proffer, erroneously refused to

allow her to testify in support of an affirmative defense of duress. We review with fresh eyes

whether the district court erred in concluding that McKinnon failed to establish a prima facie case

of duress. United States v. Johnson, 416 F.3d 464, 468 (6th Cir. 2005). To engage in that review,

we first need to set the table as to both the procedure the district court employed in requiring

McKinnon to first proffer her testimony, as well as the specifics of that affirmative defense.

Start with the procedure at issue. In line with the Fifth and Sixth Amendment rights to due

process and a jury trial, a criminal defendant is entitled to present an affirmative defense like duress

that “finds some support in the evidence and in the law.” Id. at 467 (quotation omitted). To

facilitate this presentation, it is incumbent on the trial court to play a gatekeeping role by “limiting

evidence in a trial to that directed at the elements of the . . . affirmative defense[].” United States

v. Bailey, 444 U.S. 394, 416 (1980). Otherwise subjecting the jury to a “potpourri” of evidence

that is irrelevant to its ultimate task “wast[es] valuable trial resources” and risks hijacking the jury

for alternate, impermissible purposes. Id. at 417. To these ends, the district court’s gatekeeping

role includes requiring the defendant to first proffer evidence that is legally sufficient to support

an affirmative defense before presenting to the jury. United States v. Ridner, 512 F.3d 846, 849

(6th Cir. 2008); see also United States v. Capozzi, 723 F.3d 720, 725 (6th Cir. 2013). To open the

gate, “it is essential that the testimony . . . proffered meet a minimum standard as to each element

of the defense so that, if a jury finds it to be true, it would support an affirmative defense.” Bailey,

444 U.S. at 415. That burden is a light one and is met with even weak supporting evidence. Ridner,

512 F.3d at 849. So the trial court, to avoid engaging in fact-finding reserved to the jury, must

14 Case Nos. 23-5766/73, United States v. Vance / United States v. McKinnon

accept as true the evidence proffered by the defendant. Lakin v. Stine, 80 F. App’x 368, 377 (6th

Cir. 2003). But when a defendant cannot muster even weak evidence as to each element in the

proffer, she cannot present that defense to the jury. See Johnson, 416 F.3d at 468.

Turn to the affirmative defense that was the focus of the proffer here. Duress, a concept

that dates to the common law, see 4 William Blackstone, Commentaries *30, is an affirmative

defense excusing a defendant who has engaged in conduct that would otherwise be criminal if the

defendant was compelled to do so by threat of an imminent, serious, and unavoidable bodily injury,

see 2 Wayne R. LaFave, Substantive Criminal Law § 9.7 (3d ed. Supp. 2024); 1 Jens David Ohlin,

Wharton’s Criminal Law § 15:7 (16th ed. Supp. 2024). Duress is only available in “rare

situations.” United States v. Singleton, 902 F.2d 471, 472 (6th Cir. 1990). After all, the defense

wholly excuses an individual from conduct that plainly “violates the literal language of the

criminal law” only because the defendant entirely “lacked a fair opportunity to avoid acting

unlawfully.” See LaFave, supra, § 9.7(a) (quotation omitted).

Several elements of a duress defense must be met, all built around the “keystone of the

analysis” of whether the defendant could have avoided violating the law, either before or during

the crime. Singleton, 902 F.2d at 473. A few are of particular relevance here. For instance, the

defendant must not have placed herself in a situation where criminal conduct was “probable” in

the first place. Johnson, 416 F.3d at 468 (quotation omitted). By “getting into the difficulty,” the

defendant squanders the opportunity to avoid the ultimate criminal act from the get-go. See

LaFave, supra, § 9.7(b). Likewise, the defendant must show there was “no reasonable, legal

alternative” to the crime, Johnson, 416 F.3d at 468 (quotation omitted), such as alerting law

enforcement or disengaging from the criminal enterprise, see United States v. Sharron, 986 F.3d

810, 815 (8th Cir. 2021). And the defendant’s unlawful conduct must have occurred no “longer

15 Case Nos. 23-5766/73, United States v. Vance / United States v. McKinnon

than absolutely necessary.” Johnson, 416 F.3d at 468 (quotation omitted). So when criminal

conduct lasts several days or months longer, “it is logical to conclude” that a defendant must have

had “ample opportunity” to end the criminality but chose not to. United States v. Newcomb, 6 F.3d

1129, 1137 (6th Cir. 1993).

b. Consider then McKinnon’s proffer. She would have testified that, starting as early as

June 16, 2017, Chamblee, the Shumard Foundation’s chief investment officer, began demanding

that McKinnon alter the bank statements she was sending to another Shumard Foundation

employee. In so doing, Chamblee allegedly suggested “bad things could happen” and followed up

with text messages containing surreptitiously taken photos of McKinnon. McKinnon thereafter

complied with Chamblee’s demands. A month passed, and Chamblee, per McKinnon’s proffer,

asked for more phony bank statements, which McKinnon created and disseminated. Another

similar demand was made in September, this time with Chamblee supposedly threatening

McKinnon over the phone that he would “punch her in the face.” Later that month, an unidentified

person mugged McKinnon. McKinnon’s misfortunes continued into 2018, with her home burning

down that June, and with her being assaulted in a hotel room a few days later. After the mugging,

fire, and assault, Chamblee allegedly made comments implying he was involved with each

incident. And McKinnon would have testified that later in June 2018, Chamblee “grabbed her by

the throat and pushed her against the wall.” During this entire saga, McKinnon never contacted

law enforcement, apparently relying on her husband’s advice that “[y]ou can’t trust the FBI.”

Accepting what McKinnon proffered as true, we cannot fault the district court for limiting

McKinnon’s testimony. Gauged by the various elements for duress, McKinnon had ample

opportunity to avoid violating the law. See Singleton, 902 F.2d at 472–73. Start with the fact

McKinnon’s criminality began well before Chamblee’s pressure started in June 2017. Another

16 Case Nos. 23-5766/73, United States v. Vance / United States v. McKinnon

investor, Deware, discovered that McKinnon was falsifying bank records in the spring of 2017.

And McKinnon’s involvement in the conspiracy dates back several months before that. Those

undisputed facts alone show that McKinnon could have avoided her crimes before Chamblee made

a single demand on her and that Chamblee’s threats were not sufficiently immediate to those

criminal acts. See Johnson, 416 F.3d at 468; United States v. Campbell, 675 F.2d 815, 820 (6th

Cir. 1982) (recognizing that the “defense of duress is [un]available” to a person who joins a

criminal conspiracy and then later acts out of fear for acts taken in the conspiracy).

Consider that McKinnon’s crimes also postdate Chamblee’s threats. McKinnon, for

instance, was sending false sales numbers to Koch Industries weeks and months after the last

threats from Chamblee. But “once the duress ends, so must the criminal behavior, or else the

defendant loses the defense.” United States v. Guzman-Cordoba, 988 F.3d 391, 400 (7th Cir.

2021); see, e.g., United States v. Austin, 133 F. App’x 271, 274 (6th Cir. 2005) (denying duress

defense because defendant maintained his illegal conduct a full month after the alleged threat and

in response to “no new extraordinary threats”).

McKinnon’s behavior during the height of Chamblee’s alleged coercion likewise shows

the inappropriateness of a duress defense. During that roughly yearlong period, McKinnon,

despite sometimes being located in different states from Chamblee, never went to the police to

complain, alerted any coworker (besides Vance through her 2018 letter) of her predicament, nor

simply quit her job. See Sharron, 986 F.3d at 815. In view of this long time span, we are especially

“dubious of the defense” of duress. United States v. McGee, 408 F.3d 966, 983 (7th Cir. 2005).

Even the best view of McKinnon’s proffer shows her behavior before, after, and contemporaneous

to Chamblee’s alleged coercion was simply incompatible with several elements of duress,

justifying the limitation on her testimony.

17 Case Nos. 23-5766/73, United States v. Vance / United States v. McKinnon

c. McKinnon disagrees many times over. She starts by swinging for the fences, attacking

the core procedure the district court used as unconstitutional. Namely, McKinnon argues that a

district court can never act as a gatekeeper to screen out testimony in support of a hopeless duress

defense if the testimony is that of the criminal defendant. Why? McKinnon points to her right “to

take the witness stand and to testify in . . . her own defense.” Rock v. Arkansas, 483 U.S. 44, 49

(1987). But that right is not “unfettered.” Taylor v. Illinois, 484 U.S. 400, 410 (1988). Indeed,

the guarantee concerns her “right to present relevant testimony.” See Rock, 483 U.S. at 55

(emphasis added). So a district court may, consistent with the Constitution, exclude McKinnon’s

own testimony, so long as it is done through the proper application of nonarbitrary evidentiary

rules, such as those “familiar and unquestionably constitutional” evidentiary rules that permit a

trial judge to exclude irrelevant evidence. Holmes v. South Carolina, 547 U.S. 319, 326–27 (2006)

(quoting Montana v. Egelhoff, 518 U.S. 37, 42 (1996) (plurality opinion)); United States v.

Moreno, 102 F.3d 994, 999 (9th Cir. 1996) (“While the constitutional right to testify permits a

defendant to choose whether or not to take the witness stand, it does not authorize a defendant to

present irrelevant testimony.”). And that is just what happened here: McKinnon proffered

testimony that could not satisfy several elements of duress, making that particular testimony not

relevant as a matter of law and justifying the district court’s exclusion of that evidence from the

trial. See Moreno, 102 F.3d at 998–99 (upholding exclusion of defendant’s testimony that

insufficiently established a duress defense); United States v. Bifield, 702 F.2d 342, 350 (2d Cir.

1983) (same); United States v. Graham, 663 F. App’x 622, 627 (10th Cir. 2016) (order) (same).

Taking a different tack, McKinnon argues the customary elements for a duress claim that

we rely on here are limited to the context of firearm possession cases. True, the so-called Singleton

factors have their genesis in the context of a gun possession case. Singleton, 902 F.2d at 472–73.

18 Case Nos. 23-5766/73, United States v. Vance / United States v. McKinnon

But we have never limited their application to that setting. See United States v. Hopkins, 151 F.

App’x 448, 454 (6th Cir. 2005) (per curiam) (recognizing that, “[a]lthough Singleton involved a

case of a felon’s firearm possession,” we have applied the test in many other contexts). Nor would

we. The various factors we have traditionally used to evaluate a duress defense gauge whether the

defendant could have avoided violating the law. See Singleton, 902 F.2d at 473. Extending beyond

the firearm possession context, this notion reflects the common law origins of a duress defense,

which concerned excusing criminal conduct compelled by an imminent, serious, and unavoidable

threat. See LaFave, supra, § 9.7; Ohlin, supra, § 15:7. As Congress legislated against those

background principles when they enacted the various fraud statutes that undergird McKinnon’s

convictions, Dixon v. United States, 548 U.S. 1, 19 (2006) (Alito, J., concurring); Bailey, 444 U.S.

at 415 n.11, it is appropriate to consider those elements here, see, e.g., United States v. Milligan,

17 F.3d 177, 181 (6th Cir. 1994) (applying the Singleton factors with respect to mail and wire

fraud convictions).

Accepting Singleton, McKinnon next argues that her proffer satisfied that framework.

McKinnon first points to her testimony about her husband’s advice to not trust the FBI and her

resulting fear of contacting law enforcement. But a vague and subjective fear that going to law

enforcement would be futile or counterproductive is simply insufficient to establish a prima facie

case of duress. See United States v. Myles, 962 F.3d 384, 388 (8th Cir. 2020); United States v.

Harris, 7 F.4th 1276, 1293 (11th Cir. 2021) (collecting cases establishing that an “objective

standard” governs whether defendant had a “reasonable alternative to committing the crime”).

And even if McKinnon had more robustly supported her fear of the police, she explored no other

avenue to disengage from the criminal conspiracy during its two-year course. See McGee, 408

F.3d at 983. McKinnon’s letter to Vance, which she claims she “hope[d]” would be presented to

19 Case Nos. 23-5766/73, United States v. Vance / United States v. McKinnon

the FBI, does not move the needle either. The letter was written in November 2018, well over two

years into McKinnon’s criminal activity. That hardly shows an expeditious effort by McKinnon

to extricate herself from the situation. See Johnson, 416 F.3d at 468 (requiring that defendant not

maintain the illegal conduct any longer than absolutely necessary). McKinnon’s evidence in

support of several of the elements of duress, in other words, was not just weak or lacking in

credibility (which could go to the jury); it was non-existent.

McKinnon next argues that even if her testimony were irrelevant as to the duress defense,

it was still relevant to whether she had the underlying state of mind to commit wire fraud. That

state of mind requires her to have knowingly made a material misrepresentation or omission with

the “purpose of inducing the victim of the fraud to part with property or undertake some action

that [the victim] would not otherwise do absent the misrepresentation or omission.” United States

v. Robinson, 99 F.4th 344, 357 (6th Cir. 2024) (quotation omitted). McKinnon argues that her

“purpose” in committing wire fraud was for self-preservation, not to induce the victims to take any

action.

Two problems with McKinnon’s position deserve mention. First, the district court never

limited McKinnon’s testimony from touching on her state of mind; instead, the district court

simply prevented McKinnon from testifying about the specific defense of duress. That makes

sense, especially because McKinnon sought to introduce evidence of Chamblee’s coercion only to

support a duress defense. When McKinnon did testify, she seemed to call an audible from her

original position that she was pressured into committing fraud at the behest of Chamblee. While

she certainly was allowed to testify about her state of mind, her testimony adopted the position

that she was simply clueless as to what Chamblee was up to and that she merely passed along

fraudulent information that Chamblee sent her. The trial court never limited McKinnon’s

20 Case Nos. 23-5766/73, United States v. Vance / United States v. McKinnon

testimony on account of the earlier ruling on the duress limitation. So we fail to see how the

district court erred when it never issued a ruling on this issue. See United States v. Alvear, 181 F.

App’x 778, 781 (11th Cir. 2006) (per curiam) (refusing to consider argument that a duress defense

could also be used to negate an element of the crime when never raised below).

Second, and more fundamentally, McKinnon conflates a duress defense with the state of

mind element of a crime. Duress “does not negate a defendant’s criminal state of mind,” but

“allows the defendant to ‘avoid liability . . . because coercive conditions or necessity negates a

conclusion of guilt even though the necessary mens rea was present.’” Dixon, 548 U.S. at 7

(alteration in original) (quoting Bailey, 444 U.S. at 402). Thus, taking McKinnon’s allegations as

true, when she complied with Chamblee’s coercion by defrauding investors, she still acted with

the purpose of committing fraud. In other words, McKinnon acted purposefully in committing

wire fraud even if she committed those acts only to appease Chamblee. See United States v. Leal-

Cruz, 431 F.3d 667, 671–72 (9th Cir. 2005) (recognizing that a duress defense does not negate

specific intent crimes); United States v. Wall, 593 F. App’x 128, 131 (3d Cir. 2014) (holding that

duress defense does not negate purposeful state of mind for fraud). Any alternative view would

flip the burden of disproving duress, contrary to the presumed intent of Congress. See Dixon, 548

U.S. at 17.

Finally, McKinnon contends that the government “opened the door” for her to testify about

Chamblee’s threats. On direct examination during their case in chief, the government did indeed

ask Chamblee whether he had ever threatened McKinnon, which Chamblee denied. But the

government did not initiate the topic. McKinnon did so by raising the issue of duress in her

opening statement. McKinnon cites no authority to suggest that the government, by asking

questions that might be relevant to a potential defense in its case in chief, necessarily allows for

21 Case Nos. 23-5766/73, United States v. Vance / United States v. McKinnon

evidence to be later introduced on an otherwise futile defense. And even assuming the government

initiated the duress discussion, “[w]hen a party opens the door to a topic, the admission of rebuttal

evidence on that topic” merely “becomes permissible”; it does not become mandatory. Tanberg

v. Sholtis, 401 F.3d 1151, 1166 (10th Cir. 2005). We see no error in the district court, with the

door having been cracked open, refusing to allow the door to be kicked wide open with further

irrelevant testimony.

2. McKinnon also argues that insufficient evidence supported her conviction. But

overturning a jury verdict is no easy feat. Our review is limited to considering whether, after

construing all the evidence in a light most favorable to the government, the jury “behaved

irrationally in concluding beyond a reasonable doubt that” McKinnon committed the charged

crimes. United States v. Miller, 982 F.3d 412, 440 (6th Cir. 2020). McKinnon makes two general

sufficiency arguments.

a. She first challenges her wire fraud convictions as to the state of mind element—i.e.,

knowingly using an interstate wire communication to further a scheme to defraud Nex-Gen

investors and lenders of their money. See United States v. Faulkenberry, 614 F.3d 573, 581 (6th

Cir. 2010). That is a particularly daunting task, given our repeated guidance that determinations

about criminal intent “should not be lightly overturned.” Robinson, 99 F.4th at 357 (quoting

United States v. Daniel, 329 F.3d 480, 487 (6th Cir. 2003)). McKinnon falls short on this front.

Overwhelming evidence showed she had the requisite intent.

Start with April Francis’s testimony. She told the jury that upon disclosing to her boss

suspicious and sizeable outlays from Nex-Gen’s bank account, McKinnon, instead of responding

with equal concern, became irate. This reasonably suggested to Francis that McKinnon “did not

want anybody else seeing any of the financial details of what’s coming in and what’s going out,”

22 Case Nos. 23-5766/73, United States v. Vance / United States v. McKinnon

R. 174, PageID#755, suspicious behavior consistent with an intent to commit fraud, see Daniel,

329 F.3d at 488. And then consider the seemingly endless falsities that McKinnon pressed upon

Nex-Gen’s investors and lenders that resulted in them forking over money to the company.

McKinnon, who referred to herself as the chief financial officer for Nex-Gen, took part in the setup

of supposedly exclusive agreements with both Deware and the Shumard Foundation. She also sent

phony and incomplete financial records to Deware, the Shumard Foundation, and Koch Industries.

This pattern of extensive misrepresentations well supports an inference of an intent to defraud.

See Robinson, 99 F.4th at 357–58. Perhaps most damning, McKinnon, while being cross examined

by the government at trial, admitted that she knew she was falsifying the bank statements that she

sent to the Shumard Foundation’s accountant, which likewise suffices to support an inference of

willfulness. See Skouteris, 51 F.4th at 669 (recognizing that proof of knowledge can give rise to

a reasonable inference that defendant acted purposely).

In response, McKinnon offers several arguments, all of which essentially ask us to revisit

how the jury weighed the evidence. For instance, she claims Francis had an “axe to grind” with

Vance and McKinnon and should not have been believed. But it is the jury’s job, not ours, to make

credibility determinations. See United States v. Hinojosa, 67 F.4th 334, 341 (6th Cir. 2023).

McKinnon also criticizes the government for relying on circumstantial evidence to prove intent.

But direct proof of fraudulent intent is available only in rare cases, United States v. Washington,

715 F.3d 975, 980 (6th Cir. 2013), and we do not question the sufficiency of evidence in support

of a criminal conviction simply because it is circumstantial, Desert Palace, Inc. v. Costa, 539 U.S.

90, 100 (2003). McKinnon otherwise asks us to reevaluate the evidence presented to the jury and

accept her counter-explanations for the various misrepresentations that she provided to Nex-Gen

investors and lenders. That likewise is a nonstarter, as we cannot reweigh the evidence or

23 Case Nos. 23-5766/73, United States v. Vance / United States v. McKinnon

otherwise substitute our judgment for that of the jury on a sufficiency challenge. United States v.

Martinez, 430 F.3d 317, 330 (6th Cir. 2005).

b. McKinnon also challenges her convictions for conspiring to commit wire fraud and

money laundering. As to the former, the government needed to show a knowing agreement to

further the fraud. 18 U.S.C. § 1349; United States v. Rogers, 769 F.3d 372, 377 (6th Cir. 2014).

As to the latter, the government needed to show that McKinnon knowingly agreed to undertake a

“financial transaction” involving the proceeds of some unlawful activity to promote or conceal

that activity. See United States v. Matthews, 31 F.4th 436, 447 (6th Cir. 2022) (quotation omitted).

There was plenty of evidence of an agreement between McKinnon and Vance to commit

wire fraud and money laundering. Indeed, they worked together like hand in glove in running

Nex-Gen. One employee of Koch Industries, for instance, testified how it was the “combination”

of McKinnon and Vance that drove Koch’s investment in the clean coal company. And with their

hands on Nex-Gen’s helm, countless incidents of wire fraud occurred. As one example, the jury

saw emails from McKinnon to Vance, to which McKinnon attached phony sales sheets from a

company whose logo she “used” from their website. Hours later Vance would send those same

documents along to persuade a lender to continue supporting the supposedly healthy enterprise.

See Faulkenberry, 614 F.3d at 582 (describing wire fraud scheme using email to send falsified

financial records to lull investors into a sense of security). The scheme also included money

laundering. McKinnon and Vance would send bits and pieces of the proceeds of their fraud to

their investors and lenders, having them think they were receiving proceeds of Nex-Gen’s sales to

continue with their investments. See United States v. Warshak, 631 F.3d 266, 317 (6th Cir. 2010)

(discussing the “paradigmatic example” of money laundering being “a drug dealer using the

proceeds of a drug transaction to purchase additional drugs and consummate future sales”).

24 Case Nos. 23-5766/73, United States v. Vance / United States v. McKinnon

Against all of this, McKinnon simply argues that the jury should have believed her testimony that

she acted at the behest of Chamblee, leaving Vance in the dark. But it is for the jury, not us, to

sort out conflicting evidence. See Martinez, 430 F.3d at 330. With sufficient evidence to support

the various conspiracy charges, McKinnon’s convictions must stand.

B. All that remains are McKinnon’s challenges to her 156-month sentence, which was

based off an advisory range of 135 to 168 months. She challenges the sentence on procedural and

substantive reasonableness grounds.

1. Like Vance, McKinnon challenges the application of a 16-point loss-amount

enhancement under Guidelines § 2B1.1(b)(1). Recall that loss includes any “pecuniary harm” that

the defendant “knew, or under the circumstances, reasonably should have known . . . was a

potential result of the offense.” Maddux, 917 F.3d at 450 (quotation omitted). As with Vance, the

district court thought McKinnon reasonably should have known that roughly $2.7 million of actual

loss could result. McKinnon attacks several line items included in that figure. We only need to

confront the $605,000 loss amount attributed to Koch Industries. Because McKinnon did not

adequately challenge the $605,000 loss amount below, she must show plain error. See United

States v. Huntington Nat’l Bank, 574 F.3d 329, 332 (6th Cir. 2009) (holding that an issue is

preserved if a litigant “state[s] the issue with sufficient clarity to give the court and opposing parties

notice that it is asserting the issue” and “provide[s] some minimal level of argumentation in support

of it”).

The record amply supports the loss finding as to Koch Industries. The $605,000 amount

stems from a 2018 loan agreement between Nex-Gen and Koch. Koch lent the money to Nex-Gen

for use as working capital to help run the business. But to obtain the loan, McKinnon and Vance

failed to disclose the other players who had a financial stake in the company, falsely suggested

25 Case Nos. 23-5766/73, United States v. Vance / United States v. McKinnon

that Nex-Gen was financially healthy, and even sent fraudulent customer lists and sales records to

Koch. And per testimony from a Koch employee, Koch relied on McKinnon’s and Vance’s

omissions and misrepresentations to lend the $605,000. The money was never returned to Koch

and was spent on Vance’s personal debts. Against this backdrop, McKinnon argues that the

“weight of the evidence” shows Koch’s loans predated the fraud or would still have been issued.

But we do not reweigh evidence on clear error review, let alone on plain error review. United

States v. Reid, 357 F.3d 574, 582 (6th Cir. 2004). And including that $605,000 amount and

excluding other challenged amounts still puts the total north of the $1.5 million mark needed to

justify the 16-point enhancement. See Hills, 27 F.4th at 1198. On this record, McKinnon falls

well short of showing an obvious or egregious error demanding revision of that loss amount.

2. Next, McKinnon challenges her two-point enhancement under Guidelines § 3C1.1.

That provision governs a defendant who “willfully obstructed or impeded, or attempted to obstruct

or impede, the administration of justice with respect to the . . . prosecution . . . of” the charged

offense. U.S. Sent’g Guidelines Manual § 3C1.1 (U.S. Sent’g Comm’n 2011). The probation

department proposed this enhancement because McKinnon falsely testified at trial. Specifically,

she denied that she served as the chief financial officer of Nex-Gen, altered Nex-Gen’s financial

records for investors, and failed to disclose accurate information to investors. McKinnon never

challenged this recommendation, and the district court applied it without objection. Plain error

therefore governs McKinnon’s challenge on appeal. See Vonner, 516 F.3d at 385–86.

No plain error occurred. McKinnon does not challenge the probation department’s

assessment that she lied during her testimony. And perjury is quintessential conduct warranting

application of the obstruction enhancement. U.S. Sent’g Guidelines Manual § 3C1.1 cmt. n.4(B)

(U.S. Sent’g Comm’n 2023). Instead, McKinnon points to the district court’s passing comment

26 Case Nos. 23-5766/73, United States v. Vance / United States v. McKinnon

that the proposed duress testimony warranted application of § 3C1.1. As McKinnon sees it, the

enhancement does not cover testimony that she tried to give but ultimately did not render. But the

enhancement plainly applies to attempts to obstruct justice. See id. § 3C1.1. And in any event,

McKinnon’s failure to rebut the probation department’s finding that she otherwise lied about

material matters during her trial testimony renders any supposed error by the district court

harmless. See United States v. Chychula, 757 F.3d 615, 621 (7th Cir. 2014).

3. Like Vance, McKinnon also challenges the application of the two-level substantial

financial hardship enhancement with regard to Faybik’s losses. McKinnon preserved this

argument below, meaning we review any legal questions de novo and factual findings for clear

error. See Bailey, 931 F.3d at 562. Beyond Vance’s reasons for not applying the substantial

financial hardship enhancement that we have already rejected, McKinnon contends that she lacked

any awareness as to Faybik’s involvement in Nex-Gen, making her not responsible for Faybik’s

substantial financial hardship.

We see two problems for McKinnon. First, the enhancement covers Vance’s conduct as

well, so long as Vance’s acts were “reasonably foreseeable” to McKinnon “in connection with”

their jointly undertaken criminal activity. U.S. Sent’g Guidelines Manual § 1B1.3(a)(1). And

McKinnon takes no issue, nor do we see any concern, with the district court’s finding that it was

“reasonably foreseeable” that Vance’s conduct undertaken in support of the fraud could result in

a substantial financial hardship for the scheme’s victims. Second, record evidence suggests that

McKinnon engaged in fraudulent activity with the full knowledge of who Faybik was. For

example, McKinnon conceded on cross-examination that she knew that Vance was “self-funding”

Nex-Gen from people like Faybik, who McKinnon understood to be a “personal friend” of

Vance’s. And Deware testified that McKinnon doctored financial records to remove Faybik’s

27 Case Nos. 23-5766/73, United States v. Vance / United States v. McKinnon

involvement from other investors, suggesting that McKinnon was well aware of Faybik at the time

of the fraud. At best, then, McKinnon simply disagrees with how the district court credited these

facts in the face of her own denials. But that cannot be the basis for a clear error finding. See

Guerrero, 76 F.4th at 534.

Relatedly, McKinnon argues that she qualified for a reduction under Guidelines § 4C1.1(a),

as a zero-point offender who did not “personally cause substantial financial hardship.” But we

need not resolve the substance of McKinnon’s argument. Section 4C1.1(a) did not go into effect

until November 1, 2023, see U.S. Sent’g Guidelines Manual app. C, amend. 821, pt. B, subpart 1

(U.S. Sent’g Comm’n 2023), over two months after McKinnon’s sentencing, see id. § 1B1.11(a)

(U.S. Sent’g Comm’n 1992) (“The court shall use the Guidelines Manual in effect on the date that

the defendant is sentenced.”); Huff v. United States, 734 F.3d 600, 608 (6th Cir. 2013). The current

sentence is therefore not erroneous because it was “properly imposed based on the guidelines in

effect at the time of sentencing.” United States v. Ursery, 109 F.3d 1129, 1137 (6th Cir. 1997)

(suggesting an 18 U.S.C. § 3582(c)(2) motion is the appropriate vehicle to pursue retroactive

application of an amendment to the Guidelines).

4. That leaves McKinnon’s substantive reasonableness challenge. District courts generally

enjoy wide latitude when crafting a sentence, see Concepcion v. United States, 597 U.S. 481, 486

(2022), with the central guardrails on the process being the mandatory sentencing factors in 18

U.S.C. § 3553(a). By comparison, our substantive review of the sentence the district court issued

is much more constrained. We simply consider whether the sentencing court gave reasonable

weight to the various § 3553(a) factors to arrive at a sentence that is neither “too long” nor “too

short.” United States v. Parrish, 915 F.3d 1043, 1047 (6th Cir. 2019); United States v. Rayyan,

885 F.3d 436, 442 (6th Cir. 2018). In so doing, we do not moonlight as a district court. Respecting

28 Case Nos. 23-5766/73, United States v. Vance / United States v. McKinnon

the primacy of that court, “[w]ith its front row seat at sentencing proceedings,” we afford its

decision considerable deference. See United States v. Hymes, 19 F.4th 928, 936 (6th Cir. 2021)

(alteration in original). Especially so when the sentence, as was the case here, fell within the

Guidelines range, making the sentence presumptively reasonable. See United States v. Simmons,

587 F.3d 348, 365 (6th Cir. 2009). Reversal is warranted only where we are left with the “definite

and firm conviction that the district court committed a clear error of judgment” as to the length of

a sentence. Hymes, 19 F.4th at 933 (quotation omitted).

Here, the district court thoughtfully considered the various § 3553(a) factors, including the

nature of the offense, the history and characteristics of the defendant, the need for specific and

general deterrence, and McKinnon’s rehabilitative needs. The sentencing court emphasized the

“very serious” nature of McKinnon’s offenses, including that “significant losses” resulting from

the fraud. At the same time, the district court reflected on McKinnon’s personal history and

characteristics, including her childhood and current physical and mental state. The sentencing

court likewise reflected on rehabilitation concerns, as well as the risk of an unwarranted sentencing

disparity among similar defendants. Balancing those concerns against each other, the district court

arrived at a total sentence of 156 months’ imprisonment. We lack any “definite and firm

conviction” that the district court erred with its end sentence, id. at 933 (quotation omitted), to

overcome the presumptive reasonableness we afford a within-Guidelines sentence, Simmons, 587

F.3d at 365.

McKinnon pushes back. Pointing to data from the United States Sentencing Commission,

she contends her sentence is out of step with that of others similarly situated. Our precedent

forecloses such an argument. See Hymes, 19 F.4th at 935–38 (rejecting procedural and substantive

reasonableness challenges based on Commission data). And for good reason. The argument picks

29 Case Nos. 23-5766/73, United States v. Vance / United States v. McKinnon

out one of the § 3553(a) factors, unwarranted sentencing disparity, and tries to suggest, with the

aid of Commission statistics, that a sentence grounded in an appropriate Guidelines range promotes

such a disparity. But the Guidelines are carefully crafted to do just the opposite. Id. at 936. So

given the choice between raw data from the Commission or the Guidelines, the latter is our

“barometer for promoting nationwide sentencing uniformity.” Id. (quotation omitted). And there

is certainly no error in the district court, in exercising its broad discretion in determining which

sentencing disparities are unwarranted, to rely on the Guidelines to inform its decisionmaking. Id.

at 935. In any event, preventing sentencing disparities is not the only goal in sentencing. So a

district court exercising its discretion to emphasize other appropriate sentencing factors does not,

on its own accord, amount to an abuse of discretion. Id. at 937; United States v. Ely, 468 F.3d 399,

404 (6th Cir. 2006) (holding that an argument that the district court should have balanced the

§ 3553(a) factors differently is “beyond the scope of [this Court’s] appellate review”).

The sentencing data McKinnon proffers is not compelling on its own terms. The data

encompasses all offenders with a minimal criminal history who were sentenced primarily under

Guidelines § 2B1.1. But that, of course, lumps McKinnon in with a number of dissimilar

defendants. For instance, § 2B1.1 covers a range of offenders, from those whose crimes result in

a loss of only a few thousand dollars to defendants like McKinnon whose offenses resulted in

victims losing millions of dollars. For these reasons, we have often viewed Commission data like

this as unhelpful to district and circuit courts alike, as the data “does not necessarily illuminate the

differences among offenders.” United States v. Axline, 93 F.4th 1002, 1013 (6th Cir. 2024). Given

this, we cannot say the district court’s weighing of the § 3553(a) factors was off here.

IV.

For the aforementioned reasons, we affirm the judgments of the district court.