United States v. Merriman, 647 F.3d 1002

Merriman disclosed a long-running Ponzi scheme defrauding investors of over $20 million in early 2009 and offered several million dollars of assets to the government for liquidation to victims.
He cooperated with authorities and pled guilty to one count of mail fraud and one count of forfeiture.
He later argued for two sentencing-credit and enhancement issues in district court related to his assets and trust position.
The district court sentenced under Guidelines with debates over loss credits and a § 3B1.3 enhancement.
The government liquidated forfeited assets that Merriman had turned over, which affected potential credits against losses.
The court affirmed the district court’s rulings on loss-credit calculation and the § 3B1.3 enhancement.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether asset recovery credit reduces the loss calculation	Merriman argues assets turned over should credit against victims’ loss	Merriman contends the credit should lower aggregate loss	No credit because funds weren’t returned before discovery of the offense
Whether Merriman held a position of trust that warrants a § 3B1.3 enhancement	N/A	N/A	Affirmed: Merriman’s discretionary control over investors’ funds signified a position of trust contributing to concealment

United States v. Munoz-Nava, 524 F.3d 1137 (10th Cir. 2008) (review of Guideline calculations and factual findings on appeal)
United States v. Swanson, 360 F.3d 1155 (10th Cir. 2004) (loss calculation timing and morality of post-discovery recoveries)
United States v. Edwards, 325 F.3d 1184 (10th Cir. 2003) (limits on applying § 3B1.3 to fraud cases)
United States v. Spear, 491 F.3d 1150 (10th Cir. 2007) (defines position of trust for § 3B1.3 in fraud contexts)
United States v. Williams, 966 F.2d 555 (10th Cir. 1992) (multi-factor test for public/private trust (amendment context))
United States v. Chimal, 976 F.2d 608 (10th Cir. 1992) (supervisory position enabling long-term concealment)