from the United States District Court for the District of
Colorado (D.C. No. 1:17-CR-00168-CMA-1)
Marie Taliaferro, Brown, Bradshaw & Moffat, L.L.P., Salt
Lake City, Utah, for Defendant-Appellant.
C. Murphy, Assistant United States Attorney (Jason R. Dunn,
United States Attorney, with him on the brief), Denver
Colorado, for Plaintiff-Appellee.
MATHESON, SEYMOUR, and BACHARACH, Circuit Judges.
SEYMOUR, CIRCUIT JUDGE.
Karen McClaflin pled guilty to two counts stemming from the
operation of a residential Ponzi scheme which defrauded
investors of more than $14.5 million dollars. At sentencing,
the district court calculated the advisory sentencing
guidelines at 135 to 168 months' imprisonment, applied a
6-level enhancement for substantial financial hardship to
more than twenty-five victims, and then determined that a
downward variant sentence of 96 months was appropriate. On
appeal, Ms. McClaflin argues the district court: (1) abused
its discretion by denying her motion for an additional
continuance of the sentencing hearing, (2) procedurally erred
by imposing the 6-level enhancement based upon victim impact
statements, and (3) failed to consider all of the requisite
18 U.S.C. § 3553(a) factors. We affirm.
March 2011 and early 2017, Ms. McClaflin operated a "fix
and flip" real estate Ponzi scheme in which she made
false promises to investors. On June 21, 2017, Ms. McClaflin
entered into a plea agreement with the government for wire
fraud and money laundering. The plea deal included a 2-level
enhancement for a crime involving more than ten victims. The
government indicated that it did not have the evidence at
that time to support a 6-level enhancement for substantial
financial hardship to more than twenty-five victims.
parties jointly filed a motion to continue on September 1,
2017, and the district court moved the sentencing hearing set
for January 17, 2018 to March 14 to give the parties more
time to analyze documents regarding loss and restitution. On
March 5, counsel for Ms. McClaflin requested another
continuance due to Ms. McClaflin's poor health and hip
problems. The district court moved the sentencing hearing to
May 10, nearly an entire year after Ms. McClaflin pled guilty
to the charges. The week of the hearing Ms. McClaflin again
requested her sentencing be continued on the grounds of her
ill health. The district court denied the motion and it
repeated this denial when Ms. McClaflin's counsel urged a
continuance at the sentencing hearing.
sentencing, the court questioned the government's
decision not to pursue the 6-level enhancement.
Notwithstanding the government's reticence and in order
to implement the enhancement, the district court conducted an
extensive review of the sworn victim impact statements
attached to the presentence Report ("PSR"). The
court made independent findings of fact regarding Ms.
McClaflin's scheme and specifically found that Ms.
McClaflin's offense resulted in substantial financial
hardship to twenty-five or more victims. See
U.S.S.G. § 2B1.1(b)(2)(C).
to passing sentence, the district court heard testimony from
victims of Ms. McClaflin's scheme from the Receiver who
had been appointed by the court to recover assets related to
the scheme, and from Ms. McClaflin herself. Finding that Ms.
McClaflin committed a level 33 offense with a criminal
history category of I, resulting in an advisory imprisonment
range between 135 and 168 months, the court determined a
downward variant sentence of 96 months was warranted. Ms.
review the denial of a motion for continuance for abuse of
discretion and will only find error if the district
court's decision was "arbitrary or unreasonable and
materially prejudiced" the defendant. Rogers v.
Andrus Transp. Services, 502 F.3d 1147, 1151 (10th Cir.
2007). In determining whether the denial of a continuance
constitutes an abuse of discretion, we look to the individual
circumstances of the case. Id.
framework for reviewing the denial of a motion for a
continuance "involves an examination of four factors:
(1) the diligence of the party seeking the continuance; (2)
the likelihood the continuance, if granted, would have
accomplished the stated purpose; (3) the inconvenience to the
opposing party, witnesses, and the court; and (4) the need
for the continuance and any harm resulting from its
denial." United States v. Glaub,910 F.3d 1334,
1345 (10th Cir. ...