15-year Fraud Sentence Affirmed Despite Failure to Establish Guideline Range

U.S. v. Zaler, 2010 WL 5097758 (12/15/10) (Colo.) (unpub'd) - The 10th affirms an upward variance of unclear length to 15 years for fraud. The district court never clarified what the disputed guideline range was. When the defendant complained the court had not addressed his guideline arguments, the court responded: "I think I addressed that the guidelines are not being applied and hence the objections regarding the guidelines have no bearing at all upon my sentence." If the failure to calculate a range was error, the error was harmless, the 10th held, because the judge was obviously going to give a 15-year-sentence, no matter what the range was. The judge adequately explained the variance. The court did not have to distinguish the defendant's characteristics from the ordinary offender contemplated by the guidelines. And the court did explain that the variance was warranted due to the defendant's "hard-core" recidivism, its belief the defendant would never cease committing crimes until he was too old to offend [he was 60 at the time of sentencing], the harm caused to his girlfriend and victims, his refusal to seek treatment for his bipolar disorder and his returning to the U.S. to face the charges only because he was facing fraud charges in Israel.