United States v. John Blount
Opinion
*383 John Steven Blount, who pled guilty to securities fraud crimes, on appeal challenges only his two-level sentencing enhancement based on his violation of a prior administrative order. He argues first that the order, handed down by the Financial Industry Regulatory Authority (FINRA), is not an administrative order within the meaning of § 2B1.1(b)(9)(C) of the Sentencing Guidelines. Second, he argues that even assuming § 2B1.1(b)(9)(C) is applicable to the FINRA order, he did not violate its terms. We hold that, under the plain error standard of review, the district court did not err in applying the § 2B1.1(b)(9)(C) sentencing enhancement to the FINRA order and that Blount clearly violated the order's terms.
I.
Blount practiced as a FINRA-licensed securities broker and dealer from June 1992 through August 2003. During this period, he was the subject of over one hundred customer complaints, provoking FINRA to open a regulatory investigation. The investigation concluded that Blount misrepresented material information to investors, causing them to purchase unsuitable financial products. Based on this finding, FINRA issued an order banning Blount from associating with any FINRA member "in any capacity." Because of FINRA's jurisdiction over the brokerage industry, this order effectively barred Blount from dealing in the securities business.
Blount disregarded FINRA's order (and numerous other state and federal securities laws and regulations along the way) and resumed work as an investment advisor and securities broker by at least the summer of 2007. Holding himself out as a licensed securities broker, Blount orchestrated a Ponzi scheme primarily targeting retirees. He promised his victims high rates of return for investments in what turned out to be fictitious securities. Instead of investing his victims' capital, he placed it in various shell companies for his own benefit.
In February 2014, FINRA forwarded a complaint to the Louisiana Office of Financial Institutions alleging that Blount was selling securities to the public in violation of its 2003 order. This complaint provoked a law enforcement investigation which exposed Blount's Ponzi scheme. Ultimately, Blount defrauded at least 72 investors out of approximately $5.8 million.
II.
The federal government charged Blount with violating
District Court: In spite of your prohibition by FINRA ... you resumed operations as an investment advisor and securities broker.... [I]s that what happened in this case?
Blount: Yes, ma'am.
*384 The Presentence Report (PSR) recommended several offense-level adjustments, including a two-level increase under U.S.S.G. § 2B1.1(b)(9)(C) for violating a prior judicial or administrative order. 1 The district court overruled Blount's objections to the PSR and sentenced him to 235 months of imprisonment followed by three years of supervised release and ordered him to pay $4,313,173.22 in restitution. He did not directly appeal this sentence.
Soon thereafter, however, Blount filed a motion in the district court under
III.
We review "a district court's interpretation or application of the Guidelines de novo and its factual findings for clear error."
United States v. Nash
,
On appeal, Blount argues that the two-level prior administrative order enhancement should be reversed because 1) the FINRA order was not a prior administrative order as referenced in the Sentencing Guidelines and 2) even so, he did not violate its terms. We address each argument in turn.
A.
We first consider Blount's argument that the FINRA order is not a "prior, specific judicial or administrative order, injunction, decree, or process" under § 2B1.1(b)(9)(C) of the Sentencing Guidelines. Because Blount raises this issue for the first time in this appeal, we review for plain error.
See
Chavez-Hernandez
,
Blount argues that FINRA's order is not an "administrative order" because FINRA is a "private self-regulatory organization" and "administrative" order, in the context of the guidelines, strongly suggests, if not requires, that the order emanate from a governmental entity. The Government concedes that FINRA is "technically a private entity." The Government nevertheless argues that FINRA's order qualifies because FINRA "mirrors the typical governmental oversight body with respect to its responsibilities, authority, and procedure" and the SEC has formally tasked it with regulating the securities industry, "including conducting enforcement actions against individuals." Further, the Government emphasizes the plain error standard of review and urges that Blount's inability to cite Fifth Circuit precedent supporting his argument demonstrates that even if applying the administrative order enhancement to the FINRA order were error, it was certainly not a plain error. 2
We agree. This case is largely indistinguishable from the plain error analysis in
United States v. Evans
in which we also encountered a novel argument that was not raised in the district court and had no support in Fifth Circuit precedent.
See
B.
Blount continues his challenge to the sentencing enhancement by arguing that, even assuming § 2B1.1(b)(9)(C) 's applicability, his conduct did not violate the terms of the FINRA order. Because he raised this argument in objections below, we review this issue de novo.
3
See
Nash
,
*386 order. Blount attempts to avoid this conclusion by arguing that he was operating under an insurance license and selling insurance products. These actions, he argues, would fall outside the FINRA order because the order was only directed at the sale of "securities" and makes no mention of "insurance."
Courts will look to the substance of the product to determine whether it is a security.
See
Reves v. Ernst & Young
,
Finally, to further rebut a conclusion that he violated the FINRA order by selling securities, Blount argues that his activity did not violate the order because that order was "imposed in his capacity as a licensed securities dealer working for a brokerage firm," but at the time of the offense, he operated "under an insurance license ... and worked for himself." This practically redundant argument is likewise unpersuasive. FINRA's order does not bar Blount merely from working as a licensed broker affiliated with a brokerage firm, it further bars him from "associating with any [FINRA] member in any capacity ." The fact that Blount was not affiliated with a brokerage firm at the time of the offenses is of no consequence. Blount violated FINRA's order when he advertised and sold financial products that meet the federal definition of "security."
Still further, Blount's plea agreement and sworn statements amount to an unambiguous admission that he sold securities in violation of the FINRA order. "Solemn declarations in open court carry a strong presumption of verity."
U.S. v. Cervantes
,
IV.
In sum, we hold that the district court committed no plain error in concluding *387 that FINRA's order was a prior administrative order for purposes of § 2B1.1(b)(9)(C), nor did the district court commit any error in applying the two-level sentencing enhancement to Blount because he was engaged in securities activity that violated FINRA's order. The district court's judgment is therefore
AFFIRMED.
U.S.S.G. § 2B1.1(b)(9)(C) provides that: "If the offense involved ... a violation of any prior, specific judicial or administrative order, injunction, decree, or process not addressed elsewhere in the guidelines ... increase by 2 levels."
Blount cites a single Ninth Circuit case as support for the proposition that a FINRA order is not a prior order under the Sentencing Guidelines. In
United States v. Linville
, the Ninth Circuit held that a U.S. Department of Agriculture warning did not qualify as a prior order because the warning "neither resulted from an adversary proceeding nor constituted formal orders."
The Government argues that Blount waived these arguments by failing to challenge the prior order enhancement in his § 2255 motion. He did raise these issues, however, in objections prior to his resentencing hearing. Because the Government clearly prevails on the merits, we will assume that Blount's arguments are not waived for purposes of this appeal.
Reference
- Full Case Name
- UNITED STATES of America, Plaintiff-Appellee v. John Steven BLOUNT, Defendant-Appellant
- Status
- Published