United States v. Bryan Binkholder
2016 U.S. App. LEXIS 14829
| 8th Cir. | 2016Background
- Binkholder, an investment advisor, ran a "hard money lending program" (2008–2012) in which roughly 20 mostly-retiree investors were told their principal would be secured by deeds of trust and would earn high interest; he instead commingled funds, paid investor "interest" from other investors’ principal, and used funds for personal/business expenses.
- Charged with four counts of wire fraud and one count of bank fraud, Binkholder pleaded guilty to four wire fraud counts in a written plea agreement that fixed Guidelines calculations at either total offense level 26 or 28 depending on whether a person identified as M.U. was a victim; parties anticipated a 3‑level acceptance reduction subject to the government’s later challenge.
- Post‑plea, Binkholder engaged in disputed conduct (attempted property resales without disclosure of charges), the magistrate revoked bond, and the district court denied an acceptance‑of‑responsibility reduction and assessed a higher offense level (31), sentencing him to 108 months and ordering $3,655,968.89 restitution.
- The district court originally found M.U. was not a sentencing victim after an evidentiary hearing; M.U. sought relief under the Crime Victims’ Rights Act (CVRA) and obtained a writ of mandamus from this court directing the district court to recognize M.U. as a CVRA victim; the district court then recognized M.U. and included his loss in the Guidelines calculation.
- On appeal Binkholder challenged: (1) enforceability of his appellate waiver; (2) denial of acceptance‑of‑responsibility; (3) restitution calculations for several victims; and (4) whether the district court improperly treated the CVRA victim determination as dispositive for Guidelines victim status.
Issues
| Issue | Plaintiff's Argument (Binkholder) | Defendant's Argument (Government) | Held |
|---|---|---|---|
| Appeal waiver enforceability | Waiver covered only if court accepted the plea and the "agreed" total offense level (26 or 28); district court applied level 31 so waiver should not bar appeal | Waiver should bar appeal if overall plea conditions met | Court construed ambiguity for defendant; waiver did not bar this appeal |
| Acceptance of responsibility | Post‑plea conduct did not prove continuing fraudulent intent; he should get 3‑level reduction | Conduct after plea (attempted resales without disclosure) was inconsistent with acceptance | Denial of reduction affirmed; district court’s finding not clearly erroneous |
| Victim status — M.U. (Guidelines vs CVRA) | CVRA mandamus finding should not bind Guidelines victim inquiry; district court must independently decide whether M.U. is a Guidelines victim | Mandate recognizing M.U. as CVRA victim sufficed; district court properly applied it to sentencing | Reversed and remanded: district court must determine in first instance whether M.U. is a victim under the Sentencing Guidelines (CVRA and Guidelines inquiries are distinct) |
| Restitution calculations | PSR overstated restitution for A.B., R.W., and M.U.; amounts (fair‑market valuation, M.U. total) were incorrect | PSR set out investment details; district court relied on PSR and victim statements | No plain error found as to restitution; amounts upheld |
Key Cases Cited
- United States v. Scott, 627 F.3d 702 (Eighth Circuit 2010) (validity and applicability of appeal waivers reviewed de novo)
- United States v. McIntosh, 492 F.3d 956 (Eighth Circuit 2007) (government bears burden to show appeal falls clearly within waiver scope)
- United States v. Andis, 333 F.3d 886 (Eighth Circuit 2003) (ambiguities in plea agreements construed against government/for defendant)
- United States v. Drapeau, 943 F.2d 27 (Eighth Circuit 1991) (post‑plea conduct need not be criminal to defeat acceptance‑of‑responsibility reduction)
- United States v. Schlosser, 558 F.3d 736 (Eighth Circuit 2009) (district court may rely on PSR facts without improperly deferring to magistrate bond ruling)
- United States v. Pirani, 406 F.3d 543 (Eighth Circuit 2005) (plain‑error standard for unobjected‑to restitution challenges)
- United States v. Sanchez‑Gonzalez, 643 F.3d 626 (Eighth Circuit 2011) (ineffective‑assistance claims on direct appeal reviewed only in exceptional cases)
- United States v. Alexander, 679 F.3d 721 (Eighth Circuit 2012) (distinguishing Guidelines loss calculation from MVRA restitution limits)
- United States v. Castellanos, 608 F.3d 1010 (Eighth Circuit 2010) (mandate rule: inferior tribunals bound by appellate mandate)