Appellate Case: 23-2022 Document: 010111085512 Date Filed: 07/26/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT July 26, 2024 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 23-2022 (D.C. No. 1:22-CR-01390-KWR-1) ALEXANDER SUTTON, (D. N.M.)
Defendant - Appellant. _________________________________
ORDER AND JUDGMENT* _________________________________
Before McHUGH, EID, and ROSSMAN, Circuit Judges. _________________________________
For nearly seven years, information-technology employee Alexander Sutton
used payment processors to illegally divert about half a million dollars from his
employer, a small non-profit wellness center, into his personal accounts. After
Sutton pleaded guilty to wire fraud, the sentencing court imposed two enhancements
on his sentence over his objections, one for causing a “substantial financial hardship”
to a victim under U.S.S.G. § 2B1.1(b)(2)(A)(iii), and another for using “sophisticated
means” to carry out his crime under U.S.S.G. § 2B1.1(b)(10)(C). Sutton appeals,
arguing that the district court erred because no evidence supported either
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 23-2022 Document: 010111085512 Date Filed: 07/26/2024 Page: 2
enhancement. We find no error and affirm because the record supports the district
court’s findings underlying the two enhancements.
I.
Over the course of nine years, Alexander Sutton provided information-
technology support for a wellness center in Albuquerque, New Mexico—that is, until
the small business fired him because of his substance abuse and unrelated criminal
charges. Following Sutton’s exit, the small business noticed a dramatic decrease in
sales and reported its concerns to the Albuquerque Police Department. The
Department thereafter referred the matter to the FBI as a potential wire fraud case.
As it turns out, Sutton had been rerouting payments before and after the small
business fired him. For about seven years, he had managed to illegally divert
$485,598.42 from the center into several personal accounts.
Sutton pleaded guilty without a plea agreement to one count of wire fraud. In
his Presentence Report, the Probation Office determined that his offense had resulted
in substantial financial hardship to a victim, warranting a two-level Sentencing
Guidelines increase under U.S.S.G. § 2B1.1(b)(2)(A)(iii). The Probation Office
further determined that Sutton had used sophisticated means to carry out his crime,
warranting a second two-level Guidelines increase under U.S.S.G. § 2B1.1(b)(10)(C).
Sutton objected to each of the enhancements. At sentencing, the district court
overruled both of Sutton’s objections and explained why the two enhancements
apply.
2 Appellate Case: 23-2022 Document: 010111085512 Date Filed: 07/26/2024 Page: 3
First, relying on the Guidelines’ commentary, the district court found that a
preponderance of the evidence supported imposing the substantial financial hardship
enhancement. For this enhancement, the court took judicial notice of a victim impact
statement written by the owner of the small non-profit business, Dr. Sunil Pai. The
court relied on the statement to find that, because of Sutton’s fraud scheme, the “loss
of this money [] not only . . . delayed . . . [Dr. Pai’s] ability to retire but it[] affected
significantly and substantially his ability to refinance or get lines of credit despite his
good credit score.” R. Vol. II at 49–50.
The court found that Dr. Pai had been “forced to work longer, which is a
change of lifestyle.” Id. at 50. And not only that, the court found that as a result of
the scheme, banks considered Dr. Pai to be a high risk borrower, which “significantly
and substantially increas[ed] the level of interest rate . . . , costing him more money
long-term.” Id. The court also found that Dr. Pai had suffered other “financial hits,”
such as “having to totally restructure his payment platform which is continuing to
bother him, costing him money.” Id. For example, he no longer could use “payment
platforms” like “PayPal.” Id. And lastly, the court found that Dr. Pai could not
“afford to expand his building or product lines as he would like to do so.” Id.
Second, the district court concluded that applying the sophisticated means
enhancement was also “appropriate.” Id. at 56. The court overruled Sutton’s
objection against this enhancement because he was an “IT person” in “a position to
know information otherwise unavailable to others.” Id. at 55. And due to Sutton’s
expertise, the district court reasoned that “he was able to navigate payment processor
3 Appellate Case: 23-2022 Document: 010111085512 Date Filed: 07/26/2024 Page: 4
accounts, create accounts, [and] transfer money” to himself in a complex way that
would “avoid detection” for a “period of almost seven years.” Id.; see id. at 56 (“He
created his own accounts with various payment processors such as PayPal, Stripe,
Square and then reset the authorized Shopify account back to the business
accounts.”). As such, the court concluded that for several years, “his use of multiple
accounts” and “technical know-how” allowed Sutton to “evade detection” in a
“sophisticated” manner. Id. at 56.
In the end, the district court sentenced Sutton to 48 months’ imprisonment, a
sentence at the higher end of Sutton’s Guidelines range of 41 to 51 months, and to
three years of supervised release. Sutton timely appealed, challenging the imposition
of the two enhancements.
II.
Sutton objected to both enhancements at his sentencing. “When evaluating the
district court’s interpretation and application of the Sentencing Guidelines, we review
legal questions de novo and factual findings for clear error, giving due deference to
the district court’s application of the guidelines to the facts.” United States v.
Mollner, 643 F.3d 713, 714 (10th Cir. 2011) (citation omitted).
We will only find a factual finding clearly erroneous if the record does not
support the finding “or if, after reviewing all the evidence, we are left with a definite
and firm conviction that a mistake has been made.” United States v. Morales, 961
F.3d 1086, 1090 (10th Cir. 2020) (citation omitted). In other words, “we must be
convinced that the sentencing court’s finding is simply not plausible or permissible in
4 Appellate Case: 23-2022 Document: 010111085512 Date Filed: 07/26/2024 Page: 5
light of the entire record on appeal, remembering that we are not free to substitute
our judgment for that of the district judge.” United States v. McClatchey, 316 F.3d
1122, 1128 (10th Cir. 2003) (citation omitted). So much so that if “two permissible
views of the evidence” exist, “the factfinder’s choice between them cannot be clearly
erroneous.” Anderson v. City of Bessemer City, 470 U.S. 564, 574 (1985).
III.
We first address whether the district court clearly erred in finding that the
victim here, Dr. Pai, suffered a substantial hardship. In deferring to the district
court’s plausible view of the evidence, we conclude that no such error occurred.
The Guidelines provide that if an offense “resulted in substantial financial
hardship to one or more victims,” a two-level offense increase should apply.
U.S.S.G. § 2B1.1(b)(2)(A)(iii). And the Guidelines’ commentary also provides a
non-exhaustive list of circumstances that can support the enhancement. Of relevance,
two examples in the comments clarify that, “[i]n determining whether the offense
resulted in substantial financial hardship to a victim, [a district] court shall consider,
among other factors, whether the offense resulted in the victim . . . making
substantial changes to his or her employment, such as postponing his or her
retirement plans” and “suffering substantial harm to his or her ability to obtain
credit.” U.S.S.G. § 2B1.1(b)(2) cmt. n.4(F)(iv), (vi).
Moreover, a district court’s “consideration” of “sworn victim impact
statements” to determine whether a victim suffered a “substantial financial hardship”
falls within its discretion. United States v. McClaflin, 939 F.3d 1113, 1119–20
5 Appellate Case: 23-2022 Document: 010111085512 Date Filed: 07/26/2024 Page: 6
(10th Cir. 2019). And this Court has upheld a district court’s determination that a
victim suffered a “substantial financial hardship” when such sworn statements “m[et]
the standard for substantial financial hardship laid out in the Sentence Guidelines
Application Note.” Id. (citing U.S.S.G. § 2B1.1(b)(2) cmt. n.4(F)(iv), (v)).
This case turns on whether the district court erred in determining that the
financial hardship that Dr. Pai suffered was sufficiently substantial. The court
concluded that “a preponderance of the evidence” supported that Sutton’s conduct
caused the doctor to face a “substantial financial hardship” as specified in the
Guidelines. R. Vol. II at 50. On appeal, Sutton bears the burden of proving that the
record does not support that finding or that the district court “definite[ly]” made a
“mistake.” Morales, 961 F.3d at 1090. In the end, however, he cannot do either.
Given that the text of the Guidelines’ Application Note clearly includes the harms
that Dr. Pai’s victim impact statement listed in sufficient detail, the district court did
not clearly err in its factual finding, nor did it err in applying U.S.S.G.
§ 2B1.1(b)(2)(A)(iii).
Out of a non-exhaustive list of what constitutes a “substantial financial
hardship,” the Guidelines’ commentary gives us two relevant examples that apply
here. U.S.S.G. § 2B1.1(b)(2) cmt. n.4(F). Because the Guidelines support applying
the enhancement if the district court found either of the two grounds, we can also
affirm based on either. See id. Nevertheless, we address each in turn.
First, the Guidelines advise that a financial hardship is substantial if the
defendant’s conduct “mak[es] substantial changes to [a victim’s] employment, such
6 Appellate Case: 23-2022 Document: 010111085512 Date Filed: 07/26/2024 Page: 7
as postponing his or her retirement plans.” Id. § 2B1.1(b)(2) cmt. n.4(F)(iv). The
district court found that the record supported that exact harm, and a review of
Dr. Pai’s statement confirms that reasonable finding.
To begin, it is important to recognize that Dr. Pai is “a small business owner”
of a “not-for-profit business.” R. Vol. II at 36. Accordingly, he and his business
partner always “have placed [them]selves last” and their customers first. Id. That is
so because instead of earning profits for its owners, the small business uses the
money it earns to pursue its “holistic wellness center” objectives—namely, providing
its “customers with wellness products such as vitamins and mineral[s] and oils.” Id.
at 11, 36.
Keeping in mind that Dr. Pai is a small, non-profit business owner, the victim
impact statement provides an implicit benchmark from which to measure whether the
“financial hardship” here is “substantial.” U.S.S.G. § 2B1.1(b)(2) cmt. n.4(F). Put
differently, these facts and the reasonable inferences from them provide a basis to
contextualize Dr. Pai’s loss. See United States v. George, 949 F.3d 1181, 1185
(9th Cir. 2020) (“The most natural point of comparison is the financial condition of
the victim.”); United States v. Castaneda-Pozo, 877 F.3d 1249, 1252 (11th Cir. 2017)
(recognizing that the “same dollar harm to one victim may result in a substantial
financial hardship, while for another it may be only a minor hiccup” (citation
omitted)); United States v. Minhas, 850 F.3d 873, 877 (7th Cir. 2017) (“Much of this
will turn on a victim’s financial circumstances . . . .”).
7 Appellate Case: 23-2022 Document: 010111085512 Date Filed: 07/26/2024 Page: 8
Looking to the victim impact statement, Dr. Pai explained that losing nearly
half a million dollars meant that he “was not able to reach [his] financial goals for
retirement,” which was among the many things he listed as consequently having
“been delayed.” R. Vol. II at 37. He described his hardship as “a huge financial loss
without any way to recoup” it. Id. Indeed, he even quantified how much of a hit the
half-a-million loss was, stating that the “very extensive” harm amounted to “about
6 years of income for BOTH [him] and [his] partner.” Id. at 36.
Viewing the evidence as a whole, the district court made a plausible finding
that Dr. Pai, an owner of a small, non-profit business, faced a substantial financial
hardship that thereby “postpon[ed]” his “retirement plans.” U.S.S.G. § 2B1.1(b)(2)
cmt. n.4(F)(iv). Thus, we cannot be “left with a definite and firm conviction that a
mistake has been made.” Morales, 961 F.3d at 1090 (citation omitted). And we can
affirm based on these findings alone.
Against these findings, Sutton argues that the district court needed more
details about the loss of retirement to qualify it as substantial. Specifically, he argues
that “the language of Section 2B1.1(b)(2)(A) and the commentary to the guideline
make it clear that the enhancement is meant to apply only where the harm caused is
especially grave.” Aplt. Br. at 12. In doing so, he attempts to poke holes in the
district court’s findings, identifying what the record does not have instead of
admitting to what it does have. What Sutton’s argument actually comes down to is
him asking us to reweigh evidence in the record—affording more weight to what the
government did not produce. We cannot.
8 Appellate Case: 23-2022 Document: 010111085512 Date Filed: 07/26/2024 Page: 9
Our standard of review requires that we “remember[] that we are not free to
substitute our judgment for that of the district judge.” McClatchey, 316 F.3d at 1128
(citation omitted). And here, the record supports the district judge’s reasonable
inferences that the loss of half a million dollars would delay a small non-profit
business owner’s retirement—a loss considered as substantial under U.S.S.G.
§ 2B1.1(b)(2) cmt. n.4(F)(iv). Even though Sutton has an alternative “view[] of the
evidence,” or rather the lack thereof, our standard of review requires that we hold
that “the factfinder’s choice between [its view and Sutton’s view was not] clearly
erroneous.” Anderson, 470 U.S. at 574.
Even so, Sutton claims that Dr. Pai’s victim impact “statement did not supply
facts that could support the enhancement because Dr. Pai failed to give any measure
of the impact of his losses.” Aplt. Br. at 15. For support, Sutton cites sister circuit
opinions and an unpublished district court order. Not one helps him, however. Each
case he cites recognizes a general principle—namely, that the loss for some (say, a
struggling business owner) may be substantial, whereas that same loss for others
(say, a Fortune 500 company) may be inconsequential. Relying on the Ninth
Circuit’s decision in United States v. George, Sutton argues that “to satisfy section
2B1.1(b)(2), financial hardship must be substantial in comparison to something else,”
such as “the financial condition of the victim.” 949 F.3d at 1185. That is because
“[t]he same dollar harm to one victim may result in a substantial financial hardship,
while for another it may be only a minor hiccup.” Id. (quoting Minhas, 850 F.3d
at 877).
9 Appellate Case: 23-2022 Document: 010111085512 Date Filed: 07/26/2024 Page: 10
Sutton’s argument again boils down to him wanting the government to provide
more detail of Dr. Pai’s financial status, but nothing more. Sutton does not provide
any basis for why the loss here was insubstantial. He points to nowhere in the record
that indicates that Dr. Pai, despite his small non-profit business owner status, is so
financially strong that the half-a-million loss did not phase him. Rather, Sutton only
argues that the government did not provide additional evidence to further quantify
how the loss hurt Dr. Pai.
Yet, the government did not need to provide more. As even Sutton
acknowledges, “[a] court need not necessarily perform an accounting in order to
determine the impact of a financial loss, so long as facts or reasonable inferences
from those facts provide a basis to contextualize the loss.” Aplt. Br. at 14; see
Anderson, 470 U.S. at 574. “In making its factual findings, a district court may draw
conclusions from the testimony and evidence introduced at sentencing.” Minhas,
850 F.3d at 878. Indeed, only a preponderance of the evidence must support that the
loss suffered was substantial to a victim. See United States v. Kieffer, 681 F.3d 1143,
1168 (10th Cir. 2012). And for this case, “estimating losses does not require absolute
precision, and a district court may make a reasonable estimate based on the available
information.” George, 949 F.3d at 1186 (cleaned up).
In reviewing all the evidence, the district court had a benchmark of Dr. Pai’s
financial status and had evidence that Dr. Pai’s financial hardship was substantial.
The victim impact statement’s mention of Dr. Pai’s small, non-profit business owner
status added the context in which to measure his financial hardship, not to mention
10 Appellate Case: 23-2022 Document: 010111085512 Date Filed: 07/26/2024 Page: 11
the other express statements that quantified how much loss he suffered. To reiterate,
Dr. Pai described himself as “a small business owner” of a “non-profit business” that
does not “have back up providers” if he cannot work because of illness or otherwise.
R. Vol. II at 36–37. He said that the total that Sutton illegally redirected—about half
a million dollars—amounted to “about 6 years of income for BOTH [him] and [his]
partner” and diminished “the ability to fund [their] projects for new health products
. . . and services . . . and build out of the remaining part of [their] building with other
services that [they] planned to offer to the community.” Id. at 36. And in terms of
his loss of time, Dr. Pai noted that his company was “still working on” fixing the
account problems and damaged customer relationships that Sutton’s scheme
produced “over two years later.” Id.
All considered, the district court knew “the financial condition of the victim,”
and the record supports the court’s plausible conclusion that Dr. Pai suffered
substantial financial hardship. George, 949 F.3d at 1185. Sutton does not otherwise
point to evidence that leaves this Court “with a definite and firm conviction that a
mistake has been made.” Morales, 961 F.3d at 1090 (citation omitted). For instance,
he does not clearly indicate from the record that Dr. Pai’s loss was “only a minor
hiccup.” George, 949 F.3d at 1185 (quoting Minhas, 850 F.3d at 877). As a result,
we affirm the district court’s substantial financial hardship enhancement.
Even if we were to put aside Dr. Pai’s postponed retirement plans, we could
affirm on another ground listed in the Guidelines. A financial hardship can be
substantial if a defendant’s conduct makes a victim “suffer[] substantial harm to his
11 Appellate Case: 23-2022 Document: 010111085512 Date Filed: 07/26/2024 Page: 12
or her ability to obtain credit.” U.S.S.G. § 2B1.1(b)(2) cmt. n.4(F)(vi). Also relying
on Dr. Pai’s victim impact statement, the district court found that Sutton’s fraud
scheme “affected significantly and substantially his ability to refinance or get lines of
credit despite his good credit score.” R. Vol. II at 49–50. The court reasoned that
Sutton’s scheme made banks consider Dr. Pai to be a high risk borrower, which
“significantly and substantially increas[ed] the level of interest rate” he could obtain,
“costing him more money long-term.” Id. at 50.
The victim impact statement supports the district court’s finding. Dr. Pai
indicated that even though he had an excellent credit score and had never missed a
loan payment for his business, Sutton’s scheme “made [his] relationship to the banks
more difficult.” Id. at 38. And contrary to what Sutton argues, the impact statement
did not just speculate—it provided measurable examples of how Dr. Pai faced
“difficult[y].” Id. Specifically, Dr. Pai explained that he was not given a favorable
refinance opportunity when his loan became due. Id. Then, “[w]hen applying for
refinancing with other banks,” the statement continued to say that the banks “took the
issue of the loss as a high risk” and did not want to move forward. Id. In addition,
Dr. Pai’s refinancing cost him “1.5% more” on his loan rate, making the mortgage on
his business going forward more expensive over a period of ten years.1 Id.
1 Sutton asserts that this 1.5% figure undercuts the argument that Dr. Pai’s ability to obtain credit was substantially harmed. Aplt. Br. at 18. Not so. We find that the 1.5% increase on a loan, in connection with the other harm to Dr. Pai’s ability to obtain credit, contributes to the district court’s finding that Dr. Pai faced substantial financial hardship. Even if we were to feel differently (and we do not), 12 Appellate Case: 23-2022 Document: 010111085512 Date Filed: 07/26/2024 Page: 13
In detail, the record supports that Dr. Pai faced difficulty to “obtain credit.”
U.S.S.G. § 2B1.1(b)(2) cmt. n.4(F)(vi). And Sutton does not otherwise prove that the
record indicates that “a mistake has been made” as to Dr. Pai’s hardship in obtaining
credit. Morales, 961 F.3d at 1090 (citation omitted). Therefore, we also affirm the
substantial financial hardship enhancement based on the district court’s credit
findings.
Moreover, aside from the explicit overlap between what the record provides
and what the Guidelines’ commentary explicitly qualifies as a “substantial financial
hardship,” the record supports that Dr. Pai suffered substantial financial hardships in
other like ways. To reemphasize, the examples in the Guidelines’ commentary are
non-exhaustive. See U.S.S.G. § 2B1.1(b)(2) cmt. n.4(F). As such, Sutton’s
arguments in no way challenge the district court’s findings that Dr. Pai had to
restructure his payment platform, experienced delayed payments from his customers,
and could not “afford to expand his building or product lines.” R. Vol. II at 50. In
any case, whether it be from Dr. Pai’s postponed retirement, his difficulty to obtain
credit, or the other financial hardships he faced, we affirm the district court’s
application of the substantial financial hardship enhancement because we are not
“left with a definite and firm conviction that a mistake has been made.” Morales,
961 F.3d at 1090 (citation omitted).
“we are not free to substitute our judgment for that of the district judge.” McClatchey, 316 F.3d at 1128 (citation omitted). 13 Appellate Case: 23-2022 Document: 010111085512 Date Filed: 07/26/2024 Page: 14
IV.
Sutton next challenges the district court’s decision to impose the
“sophisticated means” enhancement under U.S.S.G. § 2B1.1(b)(10)(C). Because the
record supports that Sutton’s scheme involved especially complex conduct in the
scheme’s execution as well as its concealment, we affirm the imposition of the
enhancement.
The “sophisticated means” enhancement applies when “the offense otherwise
involved sophisticated means and the defendant intentionally engaged in or caused
the conduct constituting sophisticated means.” U.S.S.G. § 2B1.1(b)(10)(C). And the
Guidelines’ commentary defines “sophisticated means” as “especially complex or
especially intricate offense conduct pertaining to the execution or concealment of an
offense.” Id. § 2B1.1(b)(10) cmt. n.9(B). The commentary also provides a list of
non-exhaustive examples, stating that “sophisticated means” can include “[c]onduct
such as hiding assets or transactions, or both, through the use of fictitious entities,
corporate shells, or offshore financial accounts.” Id. At the same time, this Court
has clarified that the methods underlying a fraud scheme do not have to “requir[e]
considerable technical acumen.” United States v. Jones, 530 F.3d 1292, 1306
(10th Cir. 2008) (finding that the use of fraud “with a home computer . . . added to
the scheme’s sophistication in that the tactic was designed to avoid detection of
fraud”).
Moreover, “[t]he Guidelines do not require every step of the defendant’s
scheme to be particularly sophisticated; rather . . . the enhancement applies when the
14 Appellate Case: 23-2022 Document: 010111085512 Date Filed: 07/26/2024 Page: 15
execution or concealment of a scheme, viewed as a whole, is ‘especially complex or
especially intricate.’” United States v. Weiss, 630 F.3d 1263, 1279 (10th Cir. 2010)
(quoting U.S.S.G. § 2B1.1(b)(10) cmt. n.9(B)); see United States v. Snow, 663 F.3d
1156, 1164 (10th Cir. 2011). That being so, even a “series of uncomplicated single
steps” can warrant a sophisticated-means enhancement if “viewed as a whole,” the
scheme involves “repetitive and coordinated conduct.” Weiss, 630 F.3d at 1279
(citation omitted). For example, taking “unelaborate steps in a coordinated way to
exploit the vulnerabilities of [a] banking system” may suffice. Id. (citation omitted).
Looking at the record below, Sutton’s execution and concealment of his
scheme involved “especially complex or especially intricate offense conduct.”
U.S.S.G. § 2B1.1(b)(10) cmt. n.9(B). The district court found that Sutton exploited
his information-technology expertise, as well as his inside knowledge of how the
victim conducted his business and payments, “to navigate payment processor
accounts, create accounts, transfer money from an unauthorized account to multiple
non-authorized accounts in small increments over a long period of time and then
return the payment processor to the authorized payment processor to avoid
detection.” R. Vol. II at 55; see, e.g., id. (“He was in a position to know information
otherwise unavailable to others . . . .”).
And even after Sutton was fired, he continued to “access[] the victim’s
computers without authorization and had funds rerouted from the victim’s payment
processor to another payment processor and eventually into [his] bank account.” Id.
at 12, 57; see id. at 36 (“All the computer accounts, programs, apps, newsletter, point
15 Appellate Case: 23-2022 Document: 010111085512 Date Filed: 07/26/2024 Page: 16
of sale system, online store, etc. ha[d] all been unfortunately accessed by [Sutton]
and when he left, it created a disruption since we did not have access to his
passwords etc. . . . .”).
Even if some of Sutton’s methods that perpetuated the scheme could be
considered “uncomplicated” or “unelaborate,” Sutton took a “series” of “steps” that
were especially complex when “viewed as a whole.” Weiss, 630 F.3d at 1279.
Indeed, for nearly seven years, Sutton’s scheme involved hundreds of illegal
transfers—the very “repetitive and coordinated conduct” that this Court has
recognized could form sophisticated means. Id. Given the deference that we accord
to the district court in making its findings and applying the Guidelines to those
findings, the record supports the district court’s decision to impose the “sophisticated
means” enhancement. U.S.S.G. § 2B1.1(b)(10)(C).
In response, Sutton argues that his conduct was not sophisticated enough. And
he asserts that he did not conceal his conduct in a sophisticated manner because each
account that illegally diverted funds either had his name or other identifiable
information. Regardless of what could have made his scheme more sophisticated, as
explained, the record shows that the district court’s decision was reasonable given
that his online conduct spanned for nearly seven years undetected. Even though
Sutton has an alternative “view[] of the evidence,” our standard of review requires
that we hold that “the factfinder’s choice between [its view and Sutton’s view was
not] clearly erroneous.” Anderson, 470 U.S. at 574. Therefore, we defer to the
district court’s application of the Guidelines to the facts and affirm.
16 Appellate Case: 23-2022 Document: 010111085512 Date Filed: 07/26/2024 Page: 17
Sutton also asks us to measure his conduct against defendants from other cases
who received the sophisticated means enhancement. He compares the defendant
from this Court’s decision in United States v. Snow, 663 F.3d 1156 (10th Cir. 2011),
reasoning that the Snow defendant did far more than he did. Sutton then points to an
Eleventh Circuit opinion that applied the sophisticated means enhancement to a
defendant who hacked computers to obtain passwords. United States v. Barrington,
648 F.3d 1178, 1199 (11th Cir. 2011). But Sutton can only use Snow and the
Eleventh Circuit case as red herrings. Neither case purports to heighten the bar of
what can be considered “sophisticated means.” See generally Weiss, 630 F.3d
at 1279 (concluding that even “a series of uncomplicated single steps” can “suffice
for a sophisticated-means enhancement”). The cases may provide sufficient
examples, but they do not provide necessary conditions that trigger the enhancement.
And as explained, the record supports the district court’s finding that Sutton’s
conduct was sophisticated. Finding no error, we affirm the district court’s imposition
of the “sophisticated means” enhancement under U.S.S.G. § 2B1.1(b)(10)(C).
V.
For these reasons, we AFFIRM.
Entered for the Court
Allison H. Eid Circuit Judge