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United States v. Burg

United States Court of Appeals, Tenth Circuit

April 1, 2015

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
JAMES P. BURG, Defendant-Appellant.

(D.C. No. 1:12-CR-00450-JLK-1) (D. Colo.)

Before BRISCOE, Chief Judge, SEYMOUR and KELLY, Circuit Judges.

ORDER AND JUDGMENT [*]

Mary Beck Briscoe, Chief Judge.

Defendant James Burg pleaded guilty and was convicted of one count of mail fraud, in violation of 18 U.S.C. § 1341, and one count of willful failure to file a tax return, in violation of 26 U.S.C. § 7203. The district court sentenced Burg to 90 months' imprisonment and ordered Burg to pay $2, 464, 099 in restitution.

Burg appeals his sentence, arguing that it is substantively unreasonable. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm.

I

1. Crimes

Between 2007 and 2012, Burg carried out a fraud scheme. He claimed that he was in the business of selling gold coins and held himself out as a "Christian coin dealer." ROA Vol. II, at 7. He advertised his services on the radio and internet, using several websites that he controlled. He also communicated directly with some customers face-to-face, by phone, or by email. On one of his websites, he stated, "My motto is 'honesty and fairness' and you can't ask for more." Id. Burg successfully convinced 41 victims to send him money for the purchase of coins.

Burg took money from his victims, but in most cases failed to deliver the coins as promised. Instead, he offered a litany of excuses to customers when they asked why their coins had not been delivered. Only a few customers who threatened to sue or to go to the police ever received the coins they ordered. A few also received refunds that Burg paid by using other customers' payments for coins. For the most part, however, customers who sent Burg money for the purchase of coins received nothing in return. In total, Burg defrauded customers of nearly $2.5 million.

Burg also failed to file required federal tax returns for the years 2003 through 2009. For the years 2006 and 2007, Burg filed returns but entered zeroes on all of the lines where dollar figures are usually entered, causing the IRS to treat his returns as though they had not been filed. For the remaining tax years, Burg filed no returns at all.

Burg was charged with six counts of wire fraud, in violation of 18 U.S.C. § 1343; nine counts of mail fraud, in violation of 18 U.S.C. § 1341; four counts of engaging in a monetary transaction in property derived from stolen activity, in violation of 18 U.S.C. § 1957; and four counts of willful failure to file a tax return, in violation of 26 U.S.C. § 7203. He pleaded guilty to one count of mail fraud and one count of willful failure to file a tax return. The remaining twenty-one counts were dismissed pursuant to his plea agreement.

2. Sentence

In accordance with the plea agreement and Presentence Investigation Report, the parties agree that the resulting sentencing range as calculated under the United States Sentencing Guidelines was 63 to 78 months' imprisonment.[1] The district court, however, made it very clear that it would not rely on the Guidelines in determining the appropriate sentence, but would instead impose a sentence in accordance with 18 U.S.C. ยง 3553(a). The court sentenced Burg to 78 months' imprisonment on the fraud count and 12 months' imprisonment on ...


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