Appellate Case: 24-2107 Document: 64-1 Date Filed: 09/30/2025 Page: 1 FILED United States Court of Appeals PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS September 30, 2025 Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _____________________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 24-2107
JAMES ANTHONY SANDOVAL,
Defendant - Appellant.
___________________________________________
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO (D.C. No. 1:22-CR-01010-JB-1) ___________________________________________
Elizabeth Harrison (Paul J. Kennedy and Jeffrey D. Vescovi with her on the briefs), Kennedy, Hernandez & Harrison, P.C., Albuquerque, New Mexico, for Defendant-Appellant.
Kristopher N. Houghton, Assistant United States Attorney (Holland S. Kastrin, Acting United States Attorney, with him on the briefs), District of New Mexico, Albuquerque, New Mexico, for Plaintiff-Appellee. ___________________________________________
Before MATHESON, BACHARACH, and McHUGH, Circuit Judges. ____________________________________________
BACHARACH, Circuit Judge. ____________________________________________
In this appeal, we address the validity of the defendant’s convictions
and sentence. Appellate Case: 24-2107 Document: 64-1 Date Filed: 09/30/2025 Page: 2
The convictions involved the taking of government property and the
making of false statements. Underlying the convictions was the
government’s payment of disability benefits. But these benefits were
subject to caps on “countable income.” See 20 C.F.R. § 404.1575. These
caps trigger issues as to the sufficiency of the evidence and the jury
instructions.
In assessing the sufficiency of the evidence on guilt, we consider
whether a factfinder could reasonably find countable income exceeding the
caps based on evidence involving gross income, concealment of earnings,
and failure to disclose business expenses in response to an administrative
request. We answer yes.
We also consider whether the district court erred in failing to provide
the jury with a definition of the term income. For this issue, however, the
defendant waited too long to challenge the district court’s reasoning.
Finally, we address challenges to the sentence. When a defendant is
sentenced for a crime involving fraud, the district court must consider the
amount of the loss. Can the district court calculate the loss to include
reasonably foreseeable payments to (1) the defendant’s children and (2) the
defendant himself outside the charged period? We answer yes.
2 Appellate Case: 24-2107 Document: 64-1 Date Filed: 09/30/2025 Page: 3
1. A recipient of disability insurance benefits earns income through a jewelry business.
The defendant, Mr. James Sandoval, was diagnosed with chronic
obstructive pulmonary disease in 2007 and began receiving disability
insurance benefits the next year. The benefits included funds from
disability insurance and payment of Medicare premiums.
While receiving these funds, Mr. Sandoval sold jewelry. The Social
Security Administration investigated and asked Mr. Sandoval if he had
worked or obtained an income since his diagnosis. Mr. Sandoval answered
no to both questions.
If Mr. Sandoval had earned an income, the amount could affect his
eligibility for benefits. Between 2017 and 2020, for example, he would
qualify for the benefits only if his countable income fell below monthly
regulatory caps ranging from $1,170 (for 2017) to $1,260 (for 2020).
Appellant’s App’x vol. 5, at 72–73. Given the regulatory caps, the Social
Security Administration determined that Mr. Sandoval
• had knowingly provided false information and
• had been ineligible for benefits.
These determinations led
• the Social Security Administration to terminate Mr. Sandoval’s benefits and
• the district court to convict him of knowingly taking property belonging to the government and making false statements.
3 Appellate Case: 24-2107 Document: 64-1 Date Filed: 09/30/2025 Page: 4
18 U.S.C. § 641 (taking of property belonging to the government); 18
U.S.C. § 1001(a)(2) & 42 U.S.C. § 408(a)(3) (making of false statements).
At sentencing, the district court considered the guidelines, which fixed the
offense level based on the amount of the loss. U.S.S.G. § 2B1.1 (2021 ed.).
The district court calculated the loss as $182,735.10, which triggered an
offense level of 16 when the amount ranged between $150,000 and
$250,000. U.S.S.G. § 2B1.1(b)(1)(F) (2021 ed.). Given the offense level of
16, the court imposed a 15-month prison sentence.
2. The evidence was sufficient to convict, and the district court didn’t err in instructing the jury.
Mr. Sandoval challenges the convictions, arguing that (1) the
evidence of guilt was insufficient and (2) the district court should have
instructed the jury on the meaning of the term income. We reject these
arguments.
a. The evidence of guilt was sufficient.
Mr. Sandoval was convicted on 35 counts. All but 2 of these counts
involved the taking of government property from June 2017 to February
2020. The remaining 2 counts involved the making of false statements.
At trial, the government presented unrebutted evidence that
(1) Mr. Sandoval’s gross income had exceeded the regulatory caps and
(2) he had denied receiving any income since 2007. But little information
existed about Mr. Sandoval’s expenses. Mr. Sandoval thus argues that the
4 Appellate Case: 24-2107 Document: 64-1 Date Filed: 09/30/2025 Page: 5
government failed to prove that his countable income had exceeded the
regulatory caps.
Standard of review. To determine whether the evidence was
sufficient for the convictions, we conduct de novo review and consider the
evidence in the light most favorable to the government. United States v.
Joseph, 108 F.4th 1273, 1280 (10th Cir. 2024). With this view of the
evidence, we determine whether any reasonable jury could have found guilt
beyond a reasonable doubt. Id.
Taking of government property. For 33 of the counts, the
government relied on evidence involving Mr. Sandoval’s business. He sold
jewelry through 2 stores and showings around the country. Evidence about
the sales came from testimony by a former bookkeeper, agents conducting
the investigation, a repeat customer, and a supplier. The testimony showed
gross income exceeding the regulatory caps and efforts to conceal that
income.
First, a former bookkeeper testified that (1) Mr. Sandoval’s 2014
receipts had easily exceeded $150,000 to $200,000 per year, (2) he had
sometimes earned “27, 47, 60-some thousand dollars” from a single jewelry
show, Appellant’s App’x vol. 4, at 37–38, (3) he had given instructions not
to process cash sales, and (4) he had put $37,000 in sale proceeds into his
mother ’s bank account and filed quarterly taxes through a business that
didn’t include the mother.
5 Appellate Case: 24-2107 Document: 64-1 Date Filed: 09/30/2025 Page: 6
Second, three agents testified about their conversations with
Mr. Sandoval, stating that he had admitted
• making and selling custom jewelry since 2004,
• starting his business in 2009,
• traveling from 2009 to 2018 to sell jewelry, including attending roughly 52 trade shows in 2018,
• selling jewelry in 15–16 states,
• driving several vehicles, and
• shipping jewelry all over the country.
Third, a repeat customer testified that the jewelry was “high-end”
and that she had bought a 14-carat gold ring for over $1,000. Appellant’s
App’x vol. 5, at 148.
Fourth, a supplier testified that he had obtained thousands of dollars
per month for jewelry sales to Mr. Sandoval.
The government supplemented the testimony with evidence about
Mr. Sandoval’s business accounts, which showed
• over $385,000 in credits from June 2017 to May 2018 and
• over $286,000 in credits from August 2018 to March 2019.
An analyst examined the accounts and testified that Mr. Sandoval had
roughly $1.9 million in transactions from 2014 to 2019.
Mr. Sandoval doesn’t deny evidence of gross income exceeding the
regulatory caps. But he points out that the Social Security Administration
6 Appellate Case: 24-2107 Document: 64-1 Date Filed: 09/30/2025 Page: 7
based eligibility on countable income, which was tied to net income (not
gross income). See 20 C.F.R. § 404.1575(c)(1). So if Mr. Sandoval had
earned $10,000 in one month and incurred expenses of $9,000, his
countable income would have fallen below the regulatory caps. We thus
consider whether Mr. Sandoval’s expenses could have reduced his
countable income below the regulatory caps.
The question doesn’t require a blanket answer for every conceivable
scenario because gray areas exist. For example, suppose that an attorney
earns $1 million per year conducting mediations. If there’s no evidence
about the expenses, the jury could reasonably infer that they couldn’t
possibly skyrocket enough to trigger eligibility for disability benefits. But
suppose the attorney earns $20,000 per year rather than $1 million. A jury
might reasonably infer that the attorney’s countable income would have
fallen below the regulatory caps.
Which was the case here? To find out, an employee of the Social
Security Administration testified that
• she had asked Mr. Sandoval for information that would have reduced his countable income and
• Mr. Sandoval didn’t provide information supporting a reduction.
Appellant’s App’x vol. 5, at 110. The Social Security Administration was
thus left
7 Appellate Case: 24-2107 Document: 64-1 Date Filed: 09/30/2025 Page: 8
• with evidence of gross income towering above the regulatory caps and
• without any information about expenses from the person who knew what they were and who had an incentive to disclose them.
The jury could reasonably infer that Mr. Sandoval would have disclosed
those expenses if they would have dropped his net income below the
Courts have considered a similar issue when addressing criminal
convictions involving a failure to pay enough in income taxes. In these
cases, the taxable amount involves deductions from gross income. See 26
U.S.C. § 63(a) (defining taxable income as “gross income minus the
deductions allowed by [the Internal Revenue Code]”). But the deductible
amounts may be known to the taxpayer and unknown to the government. So
circuit courts have uniformly held that
• the government must present evidence of the amount coming in to the taxpayer and
• the taxpayer must present evidence of offsetting expenses.
Siravo v. United States, 377 F.2d 469, 473–74 (1st Cir. 1967); United
States v. Tarwater, 308 F.3d 494, 507–09 (6th Cir. 2002); United States v.
Bender, 218 F.2d 869, 871 (7th Cir. 1955); United States v. Orlowski, 808
F.2d 1283, 1288 (8th Cir. 1986).
These cases reflect the impracticality of requiring the government to
quantify business expenses when the amounts are known to the defendant 8 Appellate Case: 24-2107 Document: 64-1 Date Filed: 09/30/2025 Page: 9
and unknown to the government. See Ala. Dep’t of Env’t Conservation v.
E.P.A., 540 U.S. 461, 494 n.17 (2004) (stating that the burdens of
production and persuasion may be placed on the party with superior access
to information); see also United States v. N.Y., New Haven & Hartford R.R.
Co., 355 U.S. 253, 256 n.5 (1957) (“The ordinary rule, based on
considerations of fairness, does not place the burden upon a litigant of
establishing facts peculiarly within the knowledge of his adversary.”).
Because information about business expenses was available to
Mr. Sandoval, the Social Security Administration asked him about these
business expenses to determine whether they would have dropped his
income below the regulatory caps. According to a witness from the agency,
Mr. Sandoval provided no such information.
Without information about the expenses, we must determine whether
the jury could reasonably find that Mr. Sandoval’s countable income had
exceeded the regulatory caps. We answer yes based on a combination of
three categories of evidence.
First, the gross income greatly exceeded the regulatory caps on
countable income. A government witness testified that roughly $1.9 million
had passed through the business accounts over a five-year period. See p. 6,
above. To retain eligibility for benefits, Mr. Sandoval would have needed
gargantuan expenses.
9 Appellate Case: 24-2107 Document: 64-1 Date Filed: 09/30/2025 Page: 10
Second, the jury could reasonably find that Mr. Sandoval had
manipulated his business records to hide income. For example, a former
bookkeeper testified that
• she had been instructed to disregard cash purchases and to record income in an account owned by Mr. Sandoval’s mother and
• Mr. Sandoval had directed her to deposit proceeds from jewelry sales into his mother ’s bank account.
Appellant’s App’x vol. 4, at 52–58, 91; see p. 5, above. From this
testimony, the jury could reasonably infer that Mr. Sandoval had tried to
conceal his ineligibility for benefits.
Third, a law-enforcement officer testified that Mr. Sandoval had
boasted about the fruits of his hard work, gesturing toward his store and
his car. Appellant’s App’x vol. 6, at 73. The jury might infer from these
gestures that Mr. Sandoval was reinvesting in his business. But the jury
could also infer that Mr. Sandoval had been boasting about his wealth from
the jewelry business.
Based on the three categories of evidence, a jury could reasonably
find that Mr. Sandoval had countable income exceeding the regulatory caps
from June 2017 to February 2020.
Making of false statements. Mr. Sandoval was also convicted of
making false statements. In a 2020 interview, Mr. Sandoval said that he
was not working and had no income. He repeated these statements the next
10 Appellate Case: 24-2107 Document: 64-1 Date Filed: 09/30/2025 Page: 11
year in a written report. The government characterized these statements as
false because Mr. Sandoval had been able to work and had obtained income
from his jewelry business.
We can assume for the sake of argument that Mr. Sandoval hadn’t
misrepresented his work status. But even with this assumption, we would
need to uphold the convictions if the evidence showed false denials of any
income. See United States v. Iverson, 818 F.3d 1015, 1026 (10th Cir. 2016)
(stating that we’ll affirm if there was sufficient evidence on one means of
committing a crime even if the evidence of other means had been
insufficient).
In our view, a jury could reasonably find that Mr. Sandoval had
earned at least some income. As noted above, Mr. Sandoval represented in
2020 and 2021 that he had no income. But as noted above, the government
presented considerable evidence that Mr. Sandoval was earning hundreds of
thousands of dollars through his two stores and his showings.
In the face of this evidence, Mr. Sandoval points out that his income
tax returns showed no taxable income. But the jury didn’t have to credit
Mr. Sandoval’s representations in his tax returns. See United States v.
Peister, 631 F.2d 658, 663 (10th Cir. 1980) (stating that a jury could
disbelieve a defendant’s testimony in finding that he had willfully avoided
taxes); accord United States v. Freeman, 147 F.4th 1, 35 (1st Cir. 2025)
11 Appellate Case: 24-2107 Document: 64-1 Date Filed: 09/30/2025 Page: 12
(concluding that the jury had been “free to disbelieve” the taxpayer ’s
explanation for the failure to pay taxes).
Mr. Sandoval also argues that the misstatements were immaterial, but
we disagree for two reasons. First, the interview and form were designed to
help the Social Security Administration assess a person’s continued
eligibility for benefits. Second, Mr. Sandoval was presumably denying any
income in order to convince the Social Security Administration that he was
eligible for benefits.
Rather than challenge these reasons, Mr. Sandoval points out that the
Social Security Administration didn’t believe his statements. But
materiality is an objective test, focusing on whether the statement had a
“natural tendency to influence, or [was] capable of influencing” the Social
Security Administration. United States v. Williams, 934 F.3d 1122, 1128
(10th Cir. 2019) (quoting United States v. Williams, 865 F.3d 1302, 1310
(10th Cir. 2017)). Given the objectivity of the test, materiality doesn’t turn
on whether the Social Security Administration actually relied on the
statements. Williams, 865 F.3d at 1310. So “[a] false statement can be
material even if the agent to whom it is made knows that it is false.”
United States v. Whitaker, 848 F.2d 914, 916 (8th Cir. 1988); United States
v. LeMaster, 54 F.3d 1224, 1230–31 (6th Cir. 1995) (quoting Whitaker, 848
F.2d at 916); see United States v. Neder, 197 F.3d 1122, 1128 (11th Cir.
12 Appellate Case: 24-2107 Document: 64-1 Date Filed: 09/30/2025 Page: 13
1999) (“[A] false statement can be material even if the decision maker
actually knew or should have known that the statement was false.”).
The evidence was thus sufficient for the jury to find the making of
materially false statements in 2020 and 2021.
b. The court didn’t commit reversible error when instructing the jury.
At trial, Mr. Sandoval asked the district court to instruct the jury
about the regulatory definition of income for purposes of eligibility for
benefits. The district court declined, reasoning in part that
• the definition was better suited to closing argument, where Mr. Sandoval could use the regulations when addressing countable income and
• the proposed instruction would confuse the jury because the other instructions on the taking of government property didn’t refer to the term income.
Appellant’s App’x vol. 3, at 190–91. Mr. Sandoval argues that the district
court should have defined the term income because it was central to the
charges that he had taken government property.
We review this argument under the abuse-of-discretion standard.
United States v. Bedford, 536 F.3d 1148, 1152 (10th Cir. 2008). In applying
this standard, we consider the arguments that Mr. Sandoval makes in his
opening brief. There he focuses on the importance of the term income. But
in his opening brief, he doesn’t address the district court’s
13 Appellate Case: 24-2107 Document: 64-1 Date Filed: 09/30/2025 Page: 14
• reliance on the parties’ opportunity to address the definition in closing argument or
• concern with confusion because of the failure to link the definition of the term income to another instruction on the counts involving the taking of government property.
Though Mr. Sandoval doesn’t address these rationales in his opening
brief, he does discuss them in his reply brief. But the reply brief was too
late for Mr. Sandoval to challenge the district court’s rationales. See
United States v. Walker, 918 F.3d 1134, 1153 (10th Cir. 2019).
Mr. Sandoval’s argument not only comes too late but also fails to
show an abuse of discretion. In closing, Mr. Sandoval was able to present
the regulations defining countable income and to focus on the difference
between this definition and gross income.
Granted, an instruction might carry greater weight than an attorney’s
statement in closing. But that weight could have confused the jury when it
considered the two counts involving the making of false statements. In
those counts, the government alleged that Mr. Sandoval had falsely
answered questions about his income. But Mr. Sandoval doesn’t suggest
that these questions had used the term income to refer to countable income.
Given the difference in use of the same term (income) for multiple counts,
the district court could minimize confusion by declining to define the term
and letting Mr. Sandoval use the regulatory definition in his closing
argument.
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We thus conclude that Mr. Sandoval hasn’t shown an abuse of
discretion in the jury instructions.
3. At sentencing, the district court didn’t commit reversible error in calculating the loss.
At sentencing, the district court needed to consider the pertinent
guideline range. 18 U.S.C. § 3553(a)(4)(A). This range depended in part on
the amount of the loss. U.S.S.G. § 2B1.1 (2021 ed.). The court calculated
this amount as $182,735.10, which triggered an offense level of 16. See
U.S.S.G. § 2B1.1(b)(1)(F) (2021 ed.) (loss from $150,000 to $250,000).
Mr. Sandoval insists that the loss had been lower, arguing that the district
court mistakenly included losses incurred before and after the charged
period, losses resulting from benefits for two children, and losses relating
to the government’s payment of Medicare premiums.
a. Standard of Review
The amount of the loss is a factual matter that we review for clear
error. United States v. Ary, 518 F.3d 775, 787 (10th Cir. 2008). An error is
clear only if “we have a ‘definite and firm conviction that a mistake has
been committed.’” United States v. Hahn, 551 F.3d 977, 979 (10th Cir.
2008) (quoting O’Toole v. Northrop Grumman Corp., 499 F.3d 1218, 1221
(10th Cir. 2007)).
But when applying the clear-error standard to the amount of the loss,
we also consider the legal standard for relevant conduct. U.S.S.G. § 1B1.3
15 Appellate Case: 24-2107 Document: 64-1 Date Filed: 09/30/2025 Page: 16
(2021 ed.). Conduct is relevant if it was “part of the same course of
conduct or common scheme or plan as the offense of conviction.” U.S.S.G.
§ 1B1.3(a)(2) (2021 ed.).
b. Losses outside the charged period
To select an appropriate sentence, the district court had to consider
the sentencing guidelines. 18 U.S.C. § 3553(a)(4). Under the guidelines,
the starting point is the offense level. See U.S.S.G. § 1B1.1(a)(1)–(2)
(2021 ed.). In cases involving fraud, the court must adjust the offense level
based on the amount of the loss. See U.S.S.G. § 2B1.1(b)(1)(F) (2021 ed.).
“Loss is the greater of actual loss or intended loss.” U.S.S.G. § 2B1.1,
com. 3(A) (2021 ed.); see United States v. Wright, 848 F.3d 1274, 1284
(10th Cir. 2017) (“In determining loss, the district court must use the
greater of the actual loss or intended loss.”).
The government relied on actual loss. See Appellant’s App’x vol. 7,
at 41 (stating that “$182,735.10 is actual loss that resulted from
[Mr. Sandoval’s] fraudulent conduct”). According to the government, the
loss
• started before the charged period (March 2015 to May 2017) and
• ended after the charged period (March 2020 to June 2021).
The government bore the burden to prove these losses by a preponderance
of the evidence. United States v. Griffith, 584 F.3d 1004, 1011–12 (10th
16 Appellate Case: 24-2107 Document: 64-1 Date Filed: 09/30/2025 Page: 17
Cir. 2009). The district court found that the government had satisfied its
burden.
Losses before the charged period (March 2015 to May 2017). For
losses from March 2015 to May 2017, the government points to testimony
by an employee of the Social Security Administration. The employee
testified that the Administration had sent Mr. Sandoval a notice with a
proposed decision, stating that his countable income from March 2015 to
May 2017 had exceeded the monthly regulatory caps. Appellee’s App’x vol.
1, at 109–16. The employee explained that the Administration had based
the proposed decision on Mr. Sandoval’s accounts and tax returns.
Appellant’s App’x vol. 5, at 85–87. The district court thus found that
Mr. Sandoval had improperly accepted insurance benefits from March 2015
to May 2017. This finding wasn’t clearly erroneous in light of the
employee’s testimony.
Losses after the charged period (March 2020 to June 2021). The
charged period ended in February 2020, but the Social Security
Administration continued paying Mr. Sandoval until June 2021. Appellant’s
App’x vol. 7, at 65–66. He argues that the district court shouldn’t have
included these payments because the government lacked any evidence
about his income from March 2020 to June 2021. But this evidence wasn’t
required.
17 Appellate Case: 24-2107 Document: 64-1 Date Filed: 09/30/2025 Page: 18
At trial, an employee of the Social Security Administration testified
that the agency had told Mr. Sandoval that his eligibility for benefits had
terminated in December 2017. Appellant’s App’x vol. 5, at 86.
Mr. Sandoval didn’t respond with any information suggesting a mistake in
the termination. Id. at 88–89.
With the termination of his eligibility, Mr. Sandoval would have
needed to reapply for disability insurance benefits. See Marshall v. Chater,
75 F.3d 1421, 1426 (10th Cir. 1996) (stating that a claimant needed to
reapply when the Social Security Administration terminated benefits for
engaging in substantial gainful activity). Though Mr. Sandoval didn’t
reapply, he continued receiving benefits. So the district court didn’t err in
including the payments from March 2020 to June 2021. See United States v.
Agrawal, 97 F.4th 421, 437 (6th Cir. 2024) (stating that “if an ineligible
disability-benefits applicant falsely claims to be unemployed (an eligibility
requirement for some disability benefits), the loss will equal the full
amount of benefits because the applicant should have ‘obtained’ nothing”).
c. Benefits for Mr. Sandoval’s children
When parents obtain disability insurance benefits, minor dependents
can obtain benefits while they’re under 18 and unmarried. 20 C.F.R.
§ 404.350. After Mr. Sandoval started obtaining benefits, his ex-wife
obtained $57,378 in benefits for their two children.
18 Appellate Case: 24-2107 Document: 64-1 Date Filed: 09/30/2025 Page: 19
Mr. Sandoval argues that the district court shouldn’t have included
these payments because the ex-wife had acted alone when applying for the
children. This argument rests on a misunderstanding of the district court’s
reason for including these payments in the loss.
The government had two potential theories for including these
payments. First, the government could treat the payments as the result of
joint criminal activity on the part of Mr. Sandoval and his ex-wife.
U.S.S.G. § 1B1.3(a)(1)(B) (2021 ed.) (discussing “jointly undertaken
criminal activity”). Second, the government could rely solely on Mr.
Sandoval’s own wrongdoing. U.S.S.G. § 2B1.1, com. 3(A)(i) (2021 ed.).
For this approach, the government needed to show that Mr. Sandoval had
known or should have foreseen that the government would pay additional
benefits for the children. U.S.S.G. § 2B1.1, com. 3(A)(i), (iii)–(iv) (2021
ed.). But Mr. Sandoval didn’t properly challenge foreseeability either in
district court or on appeal.
In district court, Mr. Sandoval objected to the presentence report on
the ground that the ex-wife hadn’t committed a crime when applying for
the benefits. Appellant’s App’x vol. 7, at 28. This argument would apply
only if the government had attributed the payments to joint criminal
activity on the part of Mr. Sandoval and his ex-wife. Rather than take this
approach, however, the government treated the payments as the result of
Mr. Sandoval’s own conduct. This approach turned on foreseeability, which
19 Appellate Case: 24-2107 Document: 64-1 Date Filed: 09/30/2025 Page: 20
went unaddressed in Mr. Sandoval’s objections to the presentence report.
By failing to challenge foreseeability of the payments, Mr. Sandoval
forfeited his current appellate argument. United States v. Dwyer, 245 F.3d
1168, 1170 (10th Cir. 2001). 1
Even if Mr. Sandoval had preserved the argument, however, he would
have waived it on appeal. Mr. Sandoval needed to make this argument in
his opening brief. Mesa v. White, 197 F.3d 1041, 1044 n.3 (10th Cir. 1999).
But he didn’t. He waited until his reply brief to challenge the
foreseeability of the payments. The reply brief was too late for Mr.
Sandoval to challenge foreseeability of the payments. United States v.
Fernandez-Barron, 950 F.3d 655, 663 (10th Cir. 2019). 2
The district court included the payments in the loss as the
foreseeable consequence of Mr. Sandoval’s conduct, not as the result of
joint criminal activity with the ex-wife. The court’s approach rested on
foreseeability of the payments, and Mr. Sandoval failed to preserve this
challenge either in his objections to the presentence report or in his
1 The argument could be reviewable anyway if Mr. Sandoval had urged plain error. United States v. Kearn, 863 F.3d 1299, 1305 (10th Cir. 2017). But he didn’t. United States v. Roach, 896 F.3d 1185, 1192 (10th Cir. 2018). 2 In his reply brief, Mr. Sandoval denies foreseeability of the payments. Appellant’s Reply Br. at 16. But he hasn’t ever argued that the district court should have made a specific finding on foreseeability.
20 Appellate Case: 24-2107 Document: 64-1 Date Filed: 09/30/2025 Page: 21
opening appellate brief. We thus conclude that the court didn’t err in
including the payments on behalf of the children. 3
d. Medicare premiums
Finally, the district court included $10,694.70 in Medicare premiums
that had been paid for Mr. Sandoval. He argues that the amount of these
premiums shouldn’t have been included in the loss. For the sake of
argument, we may assume that Mr. Sandoval is right. Even with this
assumption, the error would have been harmless.
For harmlessness, the government must show by a preponderance of
the evidence that the error didn’t affect Mr. Sandoval’s substantial rights.
United States v. Harrison, 743 F.3d 760, 764 (10th Cir. 2014). When we
consider the possible effect on Mr. Sandoval’s substantial rights, we focus
on whether the error affected his sentence. United States v. Kaufman, 546
F.3d 1242, 1270 (10th Cir. 2008).
With this focus, we conclude that the error was harmless because the
guideline range would stay the same. That range turned on the amount of
the loss. See U.S.S.G. § 2B1.1(b)(1)(F) (2021 ed.). If the Medicare
premiums ($10,694.70) had been deducted, the loss would have totaled
3 Mr. Sandoval suggests that one child might not have received $12,963 of the intended benefit. In support, he points out that the agency sent benefits for one child to a post office box. But Mr. Sandoval presented no evidence of a failure to receive payments for the child. 21 Appellate Case: 24-2107 Document: 64-1 Date Filed: 09/30/2025 Page: 22
$172,404.40. That amount would have remained substantially above the
threshold for a 10-level increase in the offense level ($150,000). See id.
When a miscalculation of the loss doesn’t affect the offense level, the
error is generally harmless. United States v. Ary, 518 F.3d 775, 790 (10th
Cir. 2008); see also United States v. Swanson, 360 F.3d 1155, 1166–67
(10th Cir. 2004) (concluding that the use of the wrong version of the
guidelines was harmless as to the calculation of the loss because the error
wouldn’t affect the offense level). Mr. Sandoval nonetheless suggests that
the reduced loss probably affected the sentence because the district court
had been “[o]n the precipice” of departing downward. Appellant’s Reply
Br. at 18. But the reduced loss wouldn’t have put the loss amount near the
threshold for a lower offense level. As a result, the possibility of a lower
sentence would have been remote. See United States v. Westerfield, 714
F.3d 480, 488–89 (7th Cir. 2013) (concluding that an error exceeding
$200,000 in the amount of the loss would be harmless because the offense
level would remain the same and the possibility of an effect on the
sentence would involve baseless conjecture).
4. Conclusion
The evidence was sufficient to support the convictions, Mr. Sandoval
doesn’t show reversible error in the jury instructions, and any error in
calculating the loss would have been harmless. So we affirm the
convictions and the sentence. 22