Submitted: April 18, 2019
from United States District Court for the Western District of
Arkansas - Fayetteville
LOKEN, WOLLMAN, and STRAS, Circuit Judges.
Jason Smith pleaded guilty to passing counterfeit securities,
see 18 U.S.C. § 513(a), the district
court sentenced him to 120 months in prison and
ordered him to pay almost $55, 000 in restitution. Smith
claims that the court's intended-loss calculation under
the Sentencing Guidelines was too high, see U.S.S.G.
§ 2B1.1(b), and that the restitution amount should have
been lower, see 18 U.S.C. §§ 3663A, 3664.
Because neither determination was clearly erroneous, we
years ago, Smith decided to get ahead of the pack and
announce his candidacy for President of the United States.
Operating under the alias "Joshua Gaters," his plan
was to run in the 2020 election. But rather than finance his
campaign through political contributions, personal funds, or
other traditional sources, Smith chose less honest means. He
used bad checks for campaign-related expenses, including
office space, vehicles, and compensation for his staffers.
Checks to vendors bounced too. When he turned to his personal
credit cards, the campaign's financial condition did not
improve. At one point, he directed a staffer to acquire a
private jet, but when she attempted to place a $2.3 million
deposit with NetJets, Smith's credit card was declined.
Eventually, local and federal authorities caught on to
Smith's scheme and used his disgruntled staffers and
other victims to make the case against him.
Smith pleaded guilty and the district court heard testimony
at sentencing from a federal investigator and two victims,
the court concluded that Smith intended to cause a total loss
of approximately $2.7 million, the largest portion of which
was the failed NetJets transaction. This figure resulted in
an advisory Sentencing Guidelines range well above the
statutory maximum of 120 months, see U.S.S.G. §
2B1.1(b)(1)(I); 18 U.S.C. § 513(a), which is what the
court gave him. It also ordered him to pay restitution to
most of the individuals and companies that he defrauded.
challenges both decisions. He insists that he did not intend
to inflict financial harm on anyone when he attempted to rent
a jet and that he should not have to pay restitution to
several of his victims. We review both arguments for clear
error and will reverse only if the court's findings were
not supported by substantial evidence, were based on an
erroneous view of the law, or leave us with a firm and
definite conviction that a mistake has been made. See
United States v. Martinez, 690 F.3d 1083, 1086 (8th Cir.
2012); United States v. DeRosier, 501 F.3d 888, 896
(8th Cir. 2007).
begin with the district court's intended-loss
calculation. According to the Sentencing Guidelines, the
offense level for fraud and other similar property crimes
depends on the greater of the "actual" or
"intended loss[es]," the latter of which includes
any "pecuniary harm that [Smith] purposely sought to
inflict" even if it "would have been impossible or
unlikely to occur." U.S.S.G. § 2B1.1 cmt. n.3(A);
see also United States v. Hartstein, 500 F.3d 790,
798 (8th Cir. 2007) (explaining that the
"defendant's actual, subjective intent . . . should
drive [the] analysis").
to rent a jet without paying for it satisfies this
definition. The record shows that Smith gave a staffer his
credit card, "repeatedly urge[d] her to get the . . .
jet under contract," and told her to do "whatever
it t[ook] to secure [it]." And were there any doubt
about Smith's intentions, he fraudulently acquired other
expensive items-including a house, office space, and several
vehicles-through similar means. On this ...