United States v. Weiss, No. 13-4039 (4th Cir. 2014)

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Justia Opinion Summary

Defendant appealed his sentence after pleading guilty to wire fraud; money laundering; making a false statement on a loan application to a financial institution, the accounts of which are insured by the FDIC; and corrupt interference with the internal revenue laws of the United States. The court concluded that the district court did not err by increasing defendant's offense level under the Guidelines by 2 levels under U.S.S.G. 3B1.3 for abuse of a position of trust; by increasing his offense level under the Guidelines by 20 levels under U.S.S.G. 2B1.1(b)(1)(K); and by failing sua sponte to appoint various experts to assist in his defense at sentencing. Accordingly, the court affirmed defendant's sentence.

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PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4039 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ARTHUR SANFORD WEISS, Defendant - Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. Thomas D. Schroeder, District Judge. (1:12-cr-00249-TDS-1) Argued: March 20, 2014 Decided: June 6, 2014 Before NIEMEYER and DIAZ, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by published opinion. Senior Judge Hamilton wrote the opinion, in which Judge Niemeyer and Judge Diaz joined. ARGUED: Charles LeRoy White, II, Greensboro, North Carolina, for Appellant. Todd Alan Ellinwood, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON BRIEF: Ripley Rand, United States Attorney, Clifton T. Barrett, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee. HAMILTON, Senior Circuit Judge: On appeal, Arthur Weiss (Weiss) challenges his 185-month sentence, following his plea of guilty to one count of wire fraud, 18 U.S.C. § 1343, one count of money laundering, id. § 1957, one count of making a false statement on a loan application to a financial institution, the accounts of which are insured by the Federal Deposit Insurance Corporation (FDIC), id. § 1014, internal § and one revenue 7212(a). count laws of of corrupt the interference United States, with 26 the U.S.C. We affirm. I. The following facts either underlie the counts to which Weiss pled guilty or constitute relevant conduct for sentencing purposes. From sometime in 2003 until mid-2012, Arthur Weiss (Weiss) owned and operated several professional employer organizations in North Carolina. A professional employer organization (PEO) provides human resource functions, including payroll processing, for companies through employee leasing agreements. Under North Carolina law, PEOs are required to be licensed and regulated by the North Carolina Professional Department Employer of Insurance. Organization §§ 58-89A-1 to 180. - 2 - Act, North N.C. Carolina Gen. Stat. During this time frame, Weiss falsely held himself out as a Certified Public Accountant by using the initials CPA on his letterhead, on his business (artweisscpa@aol.com). cards, and in his email address The record also contains evidence that Weiss provided a brochure to a potential client, whom he later acquired as an actual client, outlining the services offered by his PEO named Employee Alternatives, LLC (EA), including payroll processing, tax insurance. payroll The taxes, responsibility processes. Other EA Revenue services, EA brochure file for Service securing that tax returns payroll accuracy 244) (internal included (IRS) workers stated the (J.A. services and and compensation [w]e deposit your and assume full timeliness quotation of marks omitted). preparation and filing of Form 941 (Employer s those Internal Quarterly Federal Income Tax Return) and making deposits for federal unemployment insurance. which can In the EA brochure, Weiss listed himself as a CTA, stand for either Certified Tax Accountant or Chartered Tax Advisor, and listed himself as an ATA, which stands for Accredited Tax Advisor. Through companies his hired various Weiss. PEO Id. entities, Weiss at collected least funds twenty-two from client companies to pay the wages of the companies respective leased employees along with a fee for the payroll services. Weiss then deposited such funds into bank accounts he controlled. - 3 - Weiss then instructed calculate third-party the withholdings. applicable payroll state companies and to federal actually income tax The third-party payroll companies either paid the employees their net income directly or advised Weiss of the net amounts due; thereafter Weiss would disburse the net paycheck funds to the employees. On many occasions, Weiss failed to pay the withholdings state entities and to federal the IRS and relevant deposited state with revenue his PEO agencies, converting such funds to his own use. Weiss also collected funds from his client companies to secure workers compensation insurance for their leased employees, but failed to secure the level of coverage for which he collected premiums. He converted the excess premium payments to his own use. Weiss stipulated for sentencing purposes that the losses attributable to him totaled $4,132,044.16 in unpaid federal employment taxes, $260,839.00 in unpaid state employment taxes, and $559,663.02 in unpaid workers compensation insurance premiums. Another Weiss scam involved a bank insured by the FDIC. Over time, Weiss established a close banking relationship with Branch Bank and Trust (BB&T). From 2002 until 2008, Weiss submitted false federal income tax returns to BB&T reflecting higher income figures for himself than he had actually reported - 4 - to the IRS. 2004 and In reliance upon these misrepresentations, between 2008, BB&T approved four loans to Weiss, totaling $2,266,500.00, for the purchase of a lot and construction of a home in Marion, North Carolina. The home securing such loans subsequently sold in bankruptcy proceedings for $1,350,000.00. Weiss failed to report any of his illegally obtained income to the IRS. He stipulated that the illegal income he should have declared on his federal income tax returns resulted in him underpaying personal income taxes in the amount of $1,093,813.00. Weiss used a portion of the proceeds from his employment tax scheme to purchase expensive jewelry. and May 11, 2008, Weiss and his wife Between May 3, 2008 traveled to Romania. During the trip, Weiss falsely reported to his insurance carrier that four pieces of jewelry with $129,900.00 were lost or stolen. a total purchase price of He subsequently received a check, via the United States Postal Service, from his insurance carrier, for $177,480.00. the appraised value of such jewelry--i.e., Law enforcement authorities subsequently located the same four items of jewelry in Weiss home. II. The presentence report (PSR) calculated Weiss total offense level under the United States Sentencing Guidelines (the - 5 - Guidelines or USSG) at 33 and his criminal history category at III, resulting in an advisory sentencing range of 168 to 210 months imprisonment. level of position 33 of objected. Of relevance on appeal, the total offense included trust, a 2-level pursuant to enhancement USSG § 3B1.3, for abuse of a to which Weiss The district court overruled his objection. Also of relevance on appeal, the total offense level of 33 set forth in the PSR included 20 levels for a loss of more than $7,000,000.00, but § 2B1.1(b)(1)(K). less than $20,000,000.00. See USSG Weiss objected to application of this loss range, contending that he is only accountable for $6,050,000.00 in losses, thus placing him in the loss range of more than $2,500,000.00, but less than $7,000,000.00. This loss range results in an 18 level increase in his offense level as opposed to 20. See USSG § 2B1.1(b)(1)(J). The district court overruled this objection also. The district court found the total amount of to loss attributable Weiss offense conduct and relevant conduct to be $7,140,339.18. Ultimately, the district court determined Weiss advisory sentencing range under the Guidelines to be 168 to 210 months imprisonment, and sentenced him to 185 months imprisonment. On appeal, Weiss challenges the procedural reasonableness of his sentence on the basis that the district court erred: (1) by increasing his offense level under the Guidelines by 2 levels - 6 - pursuant USSG § 3B1.3 for abuse of a position of trust; (2) by increasing his offense level under the Guidelines by 20 levels pursuant to USSG § 2B1.1(b)(1)(K), instead of by only 18 levels pursuant to USSG § 2B1.1(b)(1)(J); and (3) by failing sua sponte to appoint sentencing. various experts to assist in his defense at We address each of these assignments of error in turn. III. USSG § 3B1.3 provides for a 2-level enhancement in the defendant s offense level if the defendant abused a position of public or private trust . . . in a manner that significantly facilitated . . . . the commission USSG § 3B1.3. or concealment of the offense The applicable commentary identifies a position of trust as a role characterized by professional or managerial discretion (i.e., substantial discretionary judgment that is 3B1.3, applies ordinarily comment. to given (n.1). imposters, considerable The so deference). abuse-of-trust long as the USSG enhancement § also imposter-defendant provides sufficient indicia to the victim that the defendant legitimately holds a position of private or public trust. United States v. Brack, 651 F.3d 388, 392-93 (4th Cir. 2011) (internal quotation marks omitted). This is so because [i]n making the misrepresentation, the defendant assumes a position - 7 - of trust, relative to the victim, that provides the defendant with the same opportunity to commit a difficult-to-detect crime that the defendant legitimately would held. Id. have at had 393 if the (internal position were quotation marks omitted). Three factors guide the sentencing court in determining whether a person held a position of public or private trust for purposes of applying the USSG § 3B1.3 enhancement: (1) whether the defendant had special duties or access to information not available to other employees; (2) the extent of the defendant s discretion; and (3) whether the defendant s acts indicate that he is more culpable than similarly situated actors. Id. The commentary to USSG § 3B1.3 also provides specific examples of when the defendant s abuse of a application of the enhancement: position of trust justifies an embezzlement of a client s funds by an attorney serving as a guardian, a bank executive s fraudulent loan scheme, or the criminal sexual abuse patient by a physician under the guise of an examination. § 3B1.3, comment. (n.1). In contrast, the same of a USSG commentary provides that the adjustment does not apply in the case of an embezzlement or theft by an ordinary bank teller or hotel clerk because such positions described factors. are not Id. - 8 - characterized by the above- Here, in concluding Weiss should receive a USSG § 3B1.3 enhancement for abuse of a position of trust, the district court found the following facts: (1) Weiss held himself out to be a CPA; (2) CPAs have substantial discretionary judgment in making determinations as to how to properly engage in the various computations and decisions necessary to properly account for and pay the various payroll taxes at issue in the present case and most persons would regard CPAs to be regulated by the state; (3) Weiss holding himself out as a CPA significantly facilitated his fraud scheme by g[iving] him certain credential with people in business business who and would have be him willing provide to the give him services such that type one of would imagine that a [CPA] would faithfully and properly provide ; and (4) Weiss holding himself out as a CPA significantly facilitated the commission and concealment of his fraud scheme by allowing payment of him to state manage and payroll federal tax functions, withholdings government agencies, without any oversight. We review the factual findings to the the proper (J.A. 154). underlying court s USSG § 3B1.3 enhancement for clear error. v. Dawkins, 202 F.3d 711, 714 (4th Cir. 2000). including the district United States To the extent the district court undertook a legal interpretation of USSG § 3B1.3, our review is de novo. United States v. Gormley, 201 F.3d 290, 296 (4th Cir. 2000). - 9 - On appeal, Weiss concedes the government presented evidence at sentencing that he used the CPA designation in many of his business documents and on his business cards, and thus, it may be reasonable to infer that he held himself out as a CPA to at least some However, of Weiss the victims. contends that (Weiss a USSG Opening § 3B1.3 Br. at enhancement 9). is inapplicable in his case because there was no evidence adduced in any form that his false representation of himself as a CPA induced any of these victims to do business with him or caused them to repose a higher level of trust or confidence in him whatsoever. Id. In Weiss view, he merely provided payroll and insurance agent services to his victim corporations and did not act as their CPAs. In support of his position, Weiss primarily relies upon our decision in United States v. Caplinger, 339 F.3d 226 (4th Cir. 2003). The defendant in Caplinger misrepresented himself as an accomplished physician in his efforts to attract investors in his fraudulent schemes involving production of a fake wonder drug used to treat HIV/AIDS. defendant s offense level Id. at 229-30. under the In determining the Guidelines, the district court assessed a 2-level enhancement pursuant to USSG § 3B1.3 for abuse of a position of trust. challenged the enhancement on appeal. - 10 - Id. at 235. The defendant On appeal, we framed the issue as whether Caplinger, by posing as an accomplished physician in order to influence potential investors, abused a position of trust with respect to the victims of his fraud scheme within the meaning of USSG § 3B1.3. Id. at 236. In answering this question in the negative, we reasoned that while the false information about the defendant s investors credentials and in and making experience them more assisted in confident convincing about their investment, any trust the investors placed in the defendant was not based physician, on a special but misrepresentations on relationship their about his he had credentials drug s potential for success. them belief misplaced with in and Id. at 237. the fake as a the wonder As a result, we vacated the defendant s sentence and remanded for resentencing without the USSG § 3B1.3 enhancement. Weiss contends that the Id. at 238. argument for applying the enhancement in Caplinger is stronger than in his case because the sentencing court in Caplinger found that the defendant s misrepresentations induced the victims to invest in his fraudulent scheme, while in Weiss case, the record contains no evidence that falsely holding himself out as a CPA induced any victim to participate in any of his schemes in any way. The government distinguishes Caplinger on the basis that, in Caplinger, the defendant participated - 11 - in an arms-length transaction with each of his victims as opposed to entering into a fiduciary or personal trust relationship with his victims as Weiss did. The support primary of Tiffanie its case upon position Brack (Brack) which is Brack. posed as a the government In Brack, bail relies the bondsman in defendant at a North Carolina jail in order to secure identifying information, cash, and the title to two properties from an elderly attempting to post bond for his granddaughter. gentleman 651 F.3d at 389. Brack pled guilty to one count of wire fraud and one count of aggravated identity theft. In sentencing Brack, the district court applied a USSG § 3B1.3 enhancement for abuse of a position of trust bondsman. based upon Brack s purported position as a bail Id. at 390. Brack unsuccessfully challenged the enhancement on appeal. On appeal, we first concluded that a bail bondsman in North Carolina holds a position of public trust leading assumption of certain fiduciary duties to their clients. 394. bail to the Id. at Second, we concluded that Brack s purported position as a bondsman significantly contributed to the commission or concealment of her offenses because the position provide[d] a seemingly valid basis for her to make initial contact with [the victim grandfather] at the jail, [and] it also allowed Brack to - 12 - secure [the victim grandfather s] identifying without revealing her criminal intent. The government argues that information Id. at 395. the relevant facts in the present case are on all fours with Brack in that (1) Weiss represented himself throughout the course of his unlawful activity as being a CPA, thus providing his victims sufficient indicia that he was trustworthy and qualified to handle their payroll processing, and (2) Weiss misrepresentations about being a CPA created trust relationships with his clients which allowed him to manage the gross payroll of several large companies virtually unchecked. We uphold the district court s 2-level enhancement in Weiss offense level pursuant to USSG § 3B1.3 for abuse of a position of trust. [T]he central purpose of § 3B1.3 is to penalize who defendants take advantage of a position that provides them with the freedom to commit a difficult-to-detect wrong. Id. at 393 (internal quotation marks and alteration marks omitted). Here, there is more than sufficient evidence in the record from which a reasonable person could infer that Weiss had a trust relationship with at least one of his victim-companies which provided him with the freedom to commit a difficult-to-detect wrong. While all payroll processing companies are not headed up by a CPA, when a CPA does head up a payroll processing company, with - 13 - the attendant required calculations for tax withholding and payments over to the IRS and applicable believes that accounting/tax state it agency, has field to hired the a ensure client licensed the company professional proper payroll liabilities and responsibilities. reasonably processing in the of its Weiss only had to take advantage of his trust relationship with one client on one occasion in order for the enhancement to apply. This fact is easily inferred from the record evidence. Caplinger is materially distinguishable on the basis that the defendant in Caplinger did not have a trust relationship with any of his investor victims. The present case is analogous to Brack in the sense that we can infer from the evidence in the present case that Weiss was able to perpetrate his fraud, at least in part, because of a trust relationship with at least one of his victim companies. In sum, the district court did not err in increasing Weiss offense level by 2 levels pursuant to USSG § 3B1.3 for abuse of a position of trust. IV. We now turn to Weiss challenge to the district court s loss calculation under the Guidelines. In calculating Weiss offense level under the Guidelines, the district court found the amount of pecuniary harm foreseeable to Weiss with respect to - 14 - his offense conduct $7,140,339.18. This and all added amount relevant 20 conduct levels to to Weiss be base offense level of 7 for a loss greater than $7,000,000.00, but less than $20,000,000.00. USSG § 2B1.1(b)(1)(K). The district court reached this figure by finding as follows: (1) Weiss failed to pay the IRS $4,132,044.16 in employment taxes that he collected from his client companies payrolls; (2) Weiss failed to pay $260,839.00 in state taxes for his client companies; (3) Weiss failed premiums for to pay his $559,663.02 client in companies; workers (4) Weiss compensation fraudulently obtained an insurance check of $177,480.00; (5) Weiss defrauded BB&T of personal knowingly $916,500.00; federal and and income (6) tax intentionally Weiss on his failed owes $1,093,813.00 illegal to report gains on his in that he federal income tax returns. Below, Weiss did not take issue with the district court s total loss figure up to $6,046,526.18, which amount would have added 18, as opposed to 20 levels to his base offense level of 7 for a loss $7,000,000.00. greater USSG than § $2,500,000.00, 2B1.1(b)(1)(J); see but less than also (J.A. 121) (Weiss s attorney at sentencing: [H]e is admitting or conceding to 18 additional levels. ). the district court s Weiss also did not take issue with finding that he owes $1,093,813.00 personal federal income taxes on his illegal income. - 15 - in Weiss did, however, take issue with the district court s inclusion of the $1,093,813.00 amount as part of the total loss calculation with respect to USSG § 2B1.1(b)(1). Weiss argued below that the income tax due on illegal gain cannot be included in the total loss determination in addition to the illegal gain under [USSG] § 2B1.1(b)(1) without authority. commentary (J.A. to case authority 285). USSG § Weiss 2T1.1 or specific reasoned (the that guideline because Guideline the specifically pertaining to offenses involving taxation), expressly provides for the obtained counting income corporate income of personal derived from with respect a income tax due defendant s to a on illegally underreporting Subchapter C of corporation which he solely owns, the absence of such express commentary in USSG § 2B1.1 means that the United States Sentencing Commission did not intend to include personal income taxes on illegally obtained income as part of the loss calculation under USSG § 2B1.1(b)(1). At sentencing below, the district court overruled Weiss objection to including the $1,093,813.00 in personal federal income tax due on his illegal gains as part of the total loss figure under USSG § 2B1.1(b)(1) because the plain language of USSG § 2B1.1 and its accompanying commentary allows for such inclusion. In this regard, the district court relied upon Application Note 3(A)(iv) to USSG § 2B1.1, which provides that, - 16 - for purposes of determining the loss under USSG § 2B1.1(b)(1), reasonably foreseeable pecuniary harm means pecuniary harm that the defendant knew or, under the circumstances, reasonably should have known was a potential result of the offense. § 2B1.1, comment. (n.3(A)(iv)). Consistent with the USSG plain language of this commentary, the district court counted both (1) the pecuniary harm to Weiss client companies resulting from Weiss failure to pay the payroll taxes due on his clients payroll and (2) the individual federal income taxes due from Weiss on such illegally obtained gains because Count 35, charging Weiss with corrupt interference with internal revenue laws in violation of 26 U.S.C. § 7212(a), alleged separate overt acts of Weiss keeping the payroll taxes for himself and then filing such individual illegally federal obtained income funds as tax forms personal without income. declaring In regard, the district court specifically stated: The defendant committed frauds on other individuals and companies, and he also defrauded the government in the process by not paying tax on the money that he defrauded others out of. Those are two separate losses, and it seems appropriate to calculate both as a part of the loss amount, particularly where he is charged with both. If I were not to do that, then he would be getting the benefit of a lower guideline range that does not fully incorporate the loss that was both intended and which occurred in this case. (J.A. 115-16). - 17 - this As for Weiss argument with regard to the commentary in USSG § 2T1.1, the district court rejected it on the ground that the United States Sentencing Commission added such commentary as a clarifying amendment in response to a circuit split on the issue of whether illegally a obtained defendant s income personal should income count in taxes the due total on loss calculation under USSG § 2T1.1, which means the United States Sentencing Commission intended all along for (1) the pecuniary harm resulting from a defendant s underreporting of corporate income with respect to a Subchapter C corporation which the defendant solely owns and (2) the pecuniary harm resulting from the defendant s failure to claim as individual income the funds he obtained counted as from part underreporting of the the pecuniary corporate harm foreseeable defendant from his offense and relevant conduct. court concluded that, if anything, the income to to be the The district clarifying amendment strengthened the case for counting the foreseeable loss to the government in the form of unpaid federal income taxes resulting from Weiss failure to claim his ill-gotten gains as personal income on his federal income tax returns. On appeal, Weiss continues argument he pressed below. to press this same line of Notably, Weiss did not cite a single case in support of his position below and does not do so in his - 18 - Opening Brief on appeal. He also does not address this issue at all in his Reply Brief on appeal. The the government s reasoning government argument in response essentially Additionally, of the district court. points out that Guidelines the tracks grouping the rules support the district court s inclusion of Weiss personal income liability on his unreported illegally obtained income: In the case of offense counts level corresponding grouped together applicable to the to a pursuant Group aggregated to is § the quantity, 3D1.2(d), offense the level determined in accordance with Chapter Two and Parts A, B and C of Chapter Three. USSG § (government s Br. at 47) (quoting USSG § 3D1.3(b)). 3D1.2(d) applies when the offense level, as in the present case, is determined largely on the basis of the total amount of harm or loss. We find Weiss position wholly unpersuasive. First, Weiss position ignores the plain language of the relevant Guideline sections and their relevant definition corresponding commentary, for harm pecuniary in including Application the Note 3(A)(iv) to USSG § 2B1.1 and USSG § 3D1.3(b) s direction to aggregate the loss in the case of counts grouped together when the offense level is determined largely on the basis of the total amount of harm or loss. Second, the district court s reasoning in rejecting Weiss argument regarding USSG § 2T1.1 is - 19 - on the money. The United States Sentencing Commission s addition of clarifying commentary to USSG § 2T1.1 in order to address a similar counting issue with respect to underreporting corporate income issue. court s If in no anything, inclusion of way the supports Weiss commentary Weiss position supports individual the federal on this district income tax liability for his ill-gotten gains on the basis that the United States Sentencing Commission views the tax loss to the federal government resulting from a defendant s failure to report illegally obtained income from an underlying tax related fraud as a separate and distinct harm from such underlying fraud. The crucial point is that the underlying offense is complete when a defendant fraudulently diverts income to himself, so that when the same defendant fails to report such fraudulently obtained income as income on his federal income tax return, a second and distinct offense is committed. That is the way the government charged Weiss in this case in Count 35 to which he pled guilty. Therefore, there is no merit to Weiss position that he should not be held accountable for all of his offense conduct, including filing individual federal income tax returns in which he knowingly and intentionally failed to claim his illegally gotten gains as income. In sum, the district court s loss figure with respect to determining Weiss offense level under the Guidelines stands. - 20 - V. In his last issue on appeal, Weiss claims the district court abused its discretion by failing sua sponte to appoint him various experts to assist in his defense at sentencing. According to Weiss, with respect to his sentencing, such failure denied him his rights to fundamental fairness, due process of law, and effective assistance of counsel because he did not have expert assistance to help him in at least four ways. First, Weiss claims that he needed the assistance of a tax expert to accurately assess and challenge the $1,093,813.00 figure in the PSR listed as the amount of personal income tax that he should have paid on his illegally obtained income. * According to Weiss appellate attorney (different from his attorney below), Weiss apparently felt compelled to stipulate to that amount, because he was unable to challenge it. Second, Weiss contends that he (Weiss Opening Br. at 18). needed expert assistance to challenge the amount of the loss attributable to the loan fraud allegations pertaining to BB&T. Third, Weiss contends that he needed an expert witness to help him prove that his companies * According to the PSR, [t]his amount was calculated by an IRS agent using the defendant s bank records, tax returns, and paper and electronic documents seized during the May 26, 2010, search of his residence. (J.A. 253). The PSR went on to characterize the $1,093,813.00 figure as a conservative figure allowing Defendant Weiss all allowable credits. Id. - 21 - were not, in fact, PEOs as defined under North Carolina law, such that he could have avoided a sentencing enhancement under USSG § 2B1.1(b)(10)(C) implementation of his for using scheme. sophisticated Fourth and means in finally, the Weiss contends that common sense dictates that the sheer volume of records and the complex analyses upon which the government relied over the course of its four year investigation can only be effectively cataloged, analyzed and challenged with expert assistance. (Weiss Opening Br. at 22). As the government correctly contends, because Weiss never requested critical any to of his the expert ability to assistance mount a he now claims defense successful was at sentencing, our review is limited to reviewing for plain error. See Fed. R. Crim. P. 52(b); United States v. Olano, 507 U.S. 725, 731-32 (1993). Under plain error review, an appellate court has the discretion to correct a forfeited error if: (1) there or, is error; equivalently, (2) the error obvious, ), is Olano, plain 507 (i.e., U.S. at clear 734; (3) the error affects the defendant s substantial rights; and (4) the appellate court determines, after examining the particulars of the case, that the error seriously affects the fairness, integrity, or public reputation of judicial proceedings. 732-34. - 22 - Id. at Weiss assignment of error regarding his need for experts to aid in his defense at sentencing does not survive plain error review. has Assuming arguendo that Weiss can establish error as he alleged (a big stretch in and of itself), there is absolutely no basis for us to conclude that such error is plain. See id. at 734 (noting that an error is plain if it is clear or, equivalently, obvious ). Accordingly, Weiss is entitled to no relief with respect to his argument on appeal regarding his need for expert assistance in preparing for his defense at sentencing, which need he never made known to the district court. VI. For the foregoing reasons, we affirm Weiss sentence in toto. AFFIRMED - 23 -