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United States v. Binkholder

United States Court of Appeals, Eighth Circuit

August 12, 2016

United States of America Plaintiff-Appellee
Bryan Binkholder Defendant-Appellant

          Submitted: April 15, 2016

         Appeal from United States District Court for the Eastern District of Missouri - St. Louis

          Before GRUENDER, BRIGHT, and KELLY, Circuit Judges.

          KELLY, Circuit Judge.

         Bryan Binkholder pleaded guilty to four counts of wire fraud in violation of 18 U.S.C. § 1343. He now appeals his sentence. After careful consideration of the issues he presents, we reverse and remand for further consideration of whether a particular individual, M.U., should be considered a victim of Binkholder's scheme for purposes of sentencing, and otherwise affirm the judgment of the district court.

         I. Background

         Binkholder operated as an investment advisor in the St. Louis area. He ran a business called The Financial Coach, advising clients about investment strategies and financial planning. He also provided general financial advice to the public via his websites, YouTube channel, radio show, and various books and articles. Between 2008 and 2012, Binkholder engaged in a real estate investment scheme he called the "hard money lending program."[1] Binkholder solicited roughly 20 investors for his program, many of whom were individuals of retirement age seeking an investment for their retirement funds. Binkholder told prospective investors that he was working with various real estate developers who either could not or did not want to seek financing for their development projects from traditional banking institutions. Binkholder explained that he would act as a bank, taking money from investors and lending it to the developers. He said that the developers would pay a high rate of interest, which would then be shared between Binkholder and the investors. Binkholder also represented that the investor's principal investment would be secured by a deed of trust on a specific piece of real property.

         However, after receiving the investments, Binkholder commingled the funds and used them to pay his own personal and business expenses. He also used investors' principal funds to make purported "interest" payments to the same or other investors. Binkholder also failed to disclose to investors that the hard money lending program had insufficient borrowers to produce the returns he had promised. Instead, Binkholder misrepresented the success of the program in an effort to induce additional investment and reinvestment. When the United States Postal Inspection Service eventually contacted Binkholder's investors and told them they might be victims of an unlawful scheme, Binkholder responded by sending the investors a letter falsely assuring them that the lending program was doing well and generating income.

         Binkholder was ultimately charged with four counts of wire fraud in violation of 18 U.S.C. § 1343 and one count of bank fraud in violation of 18 U.S.C. § 1344 in connection with his hard money lending program. On January 8, 2015, Binkholder pleaded guilty to the four wire fraud counts pursuant to a written plea agreement. In the plea agreement, the parties agreed on certain Guidelines calculations, the government agreed to dismiss the bank fraud charge at the time of sentencing, and Binkholder agreed to waive certain of his appeal rights. The parties also identified a disagreement as to whether a person known as M.U. was a victim. If the court determined M.U. was a victim, the parties agreed that the total offense level was 28; if the court determined he was not, they agreed that the total offense level was 26. These calculations also assumed that Binkholder would receive a 3-level reduction for acceptance of responsibility, although the government reserved the right to challenge that reduction at sentencing based on any new information received after the taking of Binkholder's guilty plea.[2]

         At sentencing on May 15, 2015, the district court determined that M.U. was a victim for purposes of sentencing, denied a reduction for acceptance of responsibility, and calculated a total offense level of 31. With a criminal history category of I, Binkholder's advisory Sentencing Guidelines range was 108-135 months' imprisonment. The district court ultimately sentenced Binkholder to 108 months' imprisonment followed by 3 years of supervised release, and ordered him to pay $3, 655, 968.89 in restitution. Binkholder appeals, challenging four aspects of his sentencing.

         II. Appeal Waiver

         As an initial matter, we must consider whether Binkholder's appeal waiver precludes this appeal. See United States v. Scott, 627 F.3d 702, 704 (8th Cir. 2010) (we review the "validity and applicability" of an appeal waiver de novo). In his written plea agreement, Binkholder waived "all rights to appeal all sentencing issues other than criminal history" so long as the district court "accepts the plea, accepts the U.S. Sentencing Guidelines Total Offense Level agreed to herein, and, after determining a Sentencing Guidelines range, sentences the Defendant within or below that range." Binkholder argues that the total offense level contemplated by the plea agreement was either 26 or 28, and because the district court ultimately determined that the total offense level was 31, his waiver cannot be enforced to bar this appeal.

         We agree. The government has the burden to establish that a given appeal is "clearly and unambiguously" within the scope of an appeal waiver. United States v. McIntosh, 492 F.3d 956, 959 (8th Cir. 2007). Here, the parties agreed that Binkholder should receive a 3-level reduction for acceptance of responsibility, with the government reserving the right to argue against it if it "receives new evidence of statements or conduct by the Defendant which it believes are inconsistent with Defendant's eligibility for this [re]duction." The parties also agreed that the "Estimated Total Offense Level" was either 26 or 28, and did not include a contingency for the possibility that the reduction for acceptance of responsibility might not apply. Finally Binkholder waived his right to appeal "in the event the Court . . . accepts the U.S. Sentencing Guidelines Total Offense Level agreed to herein." Reading the agreement as a whole, there are two possible constructions of the term "agreed to herein" in the appeal waiver: Either the total offense level "agreed to herein" includes levels 26 and 28, as well as any adjustments to those levels otherwise permissible under the plea agreement; or it encompasses only the two possible total offense levels that are identified in the agreement and are thus specifically "agreed to herein." We construe this ambiguity in Binkholder's favor, United States v. Andis, 333 F.3d 886, 890 (8th Cir. 2003) (en banc), and conclude that because the district court did not apply one of the two total offense levels specifically contemplated by the plea agreement, Binkholder's appeal waiver does not preclude this appeal.

         III. Acceptance of Responsibility

         Binkholder argues that the district court erroneously denied his request for a reduction in his offense level for acceptance of responsibility. Here, the district court denied the reduction because Binkholder continued to engage in fraudulent or dishonest activity after pleading guilty on January 8, 2015. Later that same month, Binkholder attempted to resell several properties he had previously sold in July 2014. He tried to complete this sale without disclosing to the prospective buyers the fact of his federal criminal charges, the active lis pendens on the properties, or the prior sale of the properties. In March 2015, the government filed a petition for revocation of Binkholder's bond based on this conduct. The magistrate judge found that Binkholder had "committ[ed] substantial criminal acts similar in nature to those to which he pled guilty, " and revoked his bond. Binkholder's Presentence Investigation Report (PSR) noted the magistrate judge's finding, and recommended that Binkholder not receive a reduction for acceptance of responsibility. At sentencing, the district court pointed out that the conduct considered at the bond revocation hearing ...

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