United States v. Hess

PUBLISH

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

_________________________________

UNITED STATES OF AMERICA,

Plaintiff - Appellee, v.

MEGAN HESS,

Defendant - Appellant. Nos. 25-1191, 25-1354

UNITED STATES OF AMERICA,

Plaintiff - Appellee, v.

SHIRLEY KOCH,

Defendant - Appellant. Nos. 25-1179, 25-1333 _________________________________

Appeals from the United States District Court for the District of Colorado^*

(D.C. No. 1:20-CR-00098-CMA-1) (D.C. No. 1:20-CR-00098-CMA-2)

_________________________________ * The above cases are consolidated for purposes of disposition.

FILED

United States Court of Appeals Tenth Circuit

October 27, 2026

Christopher M. Wolpert Clerk of Court

Appellate Case: 25-1191 Document: 51 Date Filed: 10/27/2026 Page: 1

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Submitted on the briefs:^†

Virginia L. Grady, Federal Public Defender, and Jacob Rasch-Chabot, Assistant Federal Public Defender, Office of the Federal Public Defender, Denver, Colorado, for Defendant-Appellant Megan Hess.

Martha H. Eskesen, Martha H. Eskesen, P.C., Denver, Colorado, for Defendant- Appellant Shirley Koch.

Peter McNeilly, United States Attorney, and Elizabeth S. Ford Milani, Assistant United States Attorney, Office of the United States Attorney, Denver, Colorado, for Plaintiff- Appellee United States of America.

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Before McHUGH, EBEL, and KELLY, Circuit Judges.

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McHUGH, Circuit Judge. _________________________________ In these consolidated appeals, Defendants-Appellants Megan Hess and Shirley Koch (collectively, "Defendants"), argue that the district court erred in resentencing them on remand from our decision in United States v. Hess, 106 F.4th 1011 (10th Cir.

2024).

As relevant here, we held in Hess that the district court erred in its original sentencing decision by failing to make particularized findings of vulnerability to support the application of a two-level enhancement under § 3A1.1(b)(2) of the U.S. Sentencing Commission Guidelines ("U.S.S.G." or "Guidelines"), which applies when an offense involves a large number of vulnerable victims. † After examining the briefs and appellate records, this panel has determined unanimously that oral argument would not materially assist in the determination of these appeals. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). These cases are therefore ordered submitted without oral argument.

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On remand, the district court held a new sentencing hearing and received new evidence of vulnerability. The court then identified twenty-one specific victims whom it identified as particularly vulnerable, and the court therefore overruled Defendants' objections to the U.S.S.G. § 3A1.1(b)(2) enhancement. Subsequently, after discussing the egregious nature of Defendants' conduct and the substantial harm caused to their victims, the district court sentenced Ms. Hess to the statutory maximum of 240 months of imprisonment and Ms. Koch to 180 months—the same sentences imposed at the original sentencing proceeding.

In this appeal, Defendants each argue that the district court erred in applying the two-level § 3A1.1(b)(2) enhancement to them. Ms. Hess additionally argues that the district court plainly erred in rejecting evidence of her post-sentencing rehabilitative efforts, while Ms. Koch argues that her 180-month sentence was substantively unreasonable.

We conclude that the district court correctly applied the § 3A1.1(b)(2) enhancement to calculate each Defendant's advisory Guidelines range. We are also unpersuaded by Ms. Hess's arguments regarding post-sentencing rehabilitative efforts and Ms. Koch's substantive reasonableness challenge. Accordingly, exercising jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, we affirm the district court's resentencing decisions as to both Ms. Hess and Ms. Koch. Appellate Case: 25-1191 Document: 51 Date Filed: 10/27/2026 Page: 3

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I. BACKGROUND

A. Factual History

As this court previously explained in Hess, Ms. Hess was a funeral-home owner and operator who, over the course of several years, fraudulently obtained, sold, and shipped hundreds of dead bodies and body parts to medical research, plastination, and body-broker companies around the world. 106 F.4th at 1018-20. Ms. Hess's mother, Ms. Koch, worked for Ms. Hess at the funeral home and assisted her in dismembering bodies and in preparing bodies and body parts for sale. Id. at 1019.

In 2009, Ms. Hess established a nonprofit organization, Sunset Mesa Funeral Foundation, Inc. (doing business as "Donor Services"), ostensibly to assist community members who lacked resources for funeral and cremation services. Id. at 1018-19. In fact, however, "the primary purpose of Donor Services was to harvest human remains—such as heads, torsos, arms, legs, and entire human bodies—and market them for sale to customers who used the remains for scientific, medical, or educational purposes." Id. at 1019 (internal quotation marks omitted). Ms. Hess also operated a funeral-home business, Sunset Mesa Funeral Directors ("Sunset Mesa"), which she purchased on behalf of Donor Services in 2011. Id. "As part of her funeral-home business, [Ms.] Hess would frequently meet with victims seeking cremation services for themselves or their loved ones who had died," often misleading them to think that Sunset Mesa would cremate decedents and provide their cremated remains back to the families, when in fact Sunset Mesa would Appellate Case: 25-1191 Document: 51 Date Filed: 10/27/2026 Page: 4

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sell the decedents' bodies or body parts for profit. Id. (internal quotation marks omitted). Ms. Koch participated in similar meetings with decedents' families. Id. Some customers "agree[d] to donate partial or full remains for a reduced price on mortuary services, but this agreement was often obtained by materially false representations," and Defendants frequently exceeded the scope of the authorization obtained. Id. (internal quotation marks omitted). In other instances, Defendants

"neither discussed nor obtained authorization for donation of decedents' bodies or body parts for body broker services." Id. (quotation marks omitted). And "[o]ther times, [Defendants] raised the subject, but the next-of-kin customers declined to donate even for the offered discount. Even so, [Defendants] would still dismember and sell those bodies." Id.

"In many instances, families were given cremation remains (cremains) that were represented as that of their loved ones when that was not true." Id. at 1020 (internal quotation marks omitted). "Despite this, next of kin were still typically charged $1,000 or more for cremations that never occurred and funeral services that they would not have agreed to had they been informed of the truth." Id. (internal quotation marks omitted).

"Over an eight-year span, [Defendants] took the body parts or whole bodies of hundreds of decedents." Id. at 1019 (internal quotation marks omitted). Donor Services' files documented the sales of "the bodies or body parts of 811 individuals."

Id. "Only 447 of these files contained donor authorization forms, of which at least 187 were determined to be forgeries." Id. (internal quotation marks omitted). Appellate Case: 25-1191 Document: 51 Date Filed: 10/27/2026 Page: 5

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"[T]hrough interviews with next-of-kin victims," the FBI confirmed that at least 222 decedents' bodies had been stolen, and an additional 338 "were almost certainly stolen." Id. at 1019-20 (internal quotation marks omitted). Thus, "the bodies and body parts of 560 decedents were almost certainly obtained and sold by fraudulent means." Id. at 1020. Indeed, the FBI was able to identify only 42 of the 811 bodies that had been procured through informed consent. Id. "For the remaining 209 victims, FBI agents were unable to determine whether informed consent was obtained." Id. Ms. Hess also made misrepresentations to purchasers, falsely advertising the available human remains as "legitimately and freely donated." Id. at 1020. Moreover, although "[m]any of the body-parts purchasers required that the remains be disease- free," there were "dozens of instances" in which Defendants forged negative test results so they could "s[ell] and ship[] diseased parts despite having received positive test results for HIV and Hepatitis." Id.

Because of the income that Donor Services made from its illegitimate sales of fraudulently obtained human remains, "Sunset Mesa could offer cremations that were the least expensive option in the area, which ensured a constant supply of bodies." Id. (internal quotation marks omitted).

B. Procedural History

1. Guilty Pleas

In March 2020, a grand jury indicted Defendants on six counts of mail fraud and aiding and abetting in violation of 18 U.S.C. §§ 1341 and 2, as well as three counts of transporting hazardous material in violation of 49 U.S.C. § 46312. Id. Appellate Case: 25-1191 Document: 51 Date Filed: 10/27/2026 Page: 6

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Ms. Hess pleaded guilty to one count of mail fraud and aiding and abetting

"for shipping the fraudulently obtained remains of twelve bodies, one of which was infected with Hepatitis C." Id. "In exchange, the [G]overnment dismissed the remaining counts." Id. Ms. Koch pleaded guilty to a different count of mail fraud and aiding and abetting "for shipping the fraudulently obtained remains of nine victims, one infected with Hepatitis C." Id. at 1021. In exchange, the Government agreed to dismiss the remaining counts against her and to "recommend a sentence within the advisory [G]uideline[s] range of 63 to 78 months." Id.

2. Original Sentencing Proceedings

In Ms. Hess's original Presentence Investigation Report ("PSR"), the probation officer recommended a total offense level of 34 based in part on the application of a four-level enhancement under U.S.S.G. § 3A1.1(b), consisting of an initial two-level enhancement because Ms. Hess "knew or should have known that a victim of the offense was a vulnerable victim," § 3A1.1(b)(1), plus an additional two- level enhancement because "the offense involved a large number of vulnerable victims," § 3A1.1(b)(2). See Hess, 106 F.4th at 1021. Combined with her criminal history category of I, this resulted in an advisory Guidelines range of 151 to 188 months. Id. However, the PSR recommended an upward variance to the statutory maximum sentence of 240 months. Id.

Although Ms. Koch's plea agreement had anticipated that her Guidelines calculation would include only the initial two-level vulnerable-victim enhancement under § 3A1.1(b)(1), her PSR recommended also applying the additional Appellate Case: 25-1191 Document: 51 Date Filed: 10/27/2026 Page: 7

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§ 3A1.1(b)(2) enhancement for offenses involving a large number of vulnerable victims, as well as several other adjustments that had not been anticipated in the plea agreement. Id. at 1021-22. "All told, the PSR recommended a total offense level of 32 and a criminal history category of I, setting an advisory [G]uideline[s] range of 121 to 151 months." Id. at 1022. As with Ms. Hess, the PSR recommended an upward variance for Ms. Koch, but only to 180 months. Id. In justification for the upward variance, the PSR reasoned that "[Ms.] Koch was aware of what [Ms.] Hess was doing and was a willing participant in the crimes for many years." Id. (quotation marks omitted). She personally made false representations to victims "for the sole purpose of securing their business and without any regard for the emotional turmoil related to their grieving." Id. (quotation marks omitted). And she had "bragged to a former employee and friend about a trip to Disneyland that was funded from selling gold teeth extracted from a decedent." Id. (quotation marks omitted). During the original sentencing proceeding in January 2023, the district court overruled Defendants' objections to their respective PSRs. Id. With respect to the § 3A1.1(b)(2) enhancement, the court reasoned that this enhancement applied because there were two large groups of unusually vulnerable victims: (1) the 560 deceased individuals whose bodies and body parts had been shown to be stolen, as they "were clearly vulnerable due to their physical condition"; and (2) the "grieving family members" of all 560 stolen decedents, as "anyone who has experienced the death of a loved one knows that that loss is devastating and impacts one's mental and emotional state of mind." Id. at 1032-33 (quotation marks omitted). The district court Appellate Case: 25-1191 Document: 51 Date Filed: 10/27/2026 Page: 8

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thus calculated an advisory Guidelines range of 151 to 188 months for Ms. Hess and 121 to 151 months for Ms. Koch. Id. at 1021-22. As the probation officer had recommended in the respective PSRs, however, the district court varied upward, sentencing Ms. Hess to the statutory maximum of 240 months and Ms. Koch to 180 months. Id. at 1022.

3. First Appeal

Defendants both appealed, challenging the district court's calculation of their respective advisory Guidelines ranges. Id. at 1018. Among other arguments, they challenged the district court's loss calculations and its application of the two-level § 3A1.1(b)(2) enhancement. Id. We agreed that the district court erred in calculating loss, id. at 1023-28, and we concluded that this error was not harmless and that remand for resentencing was therefore necessary, id. at 1037-38. We also reversed and remanded the district court's application of a sophisticated-means enhancement as to Ms. Koch. Id. at 1036.

As for the § 3A1.1(b)(2) enhancement, we held that the district court erred in

(1) concluding that individuals "who were deceased when the fraud was committed"

could be vulnerable victims for purposes of § 3A1.1(b)(2); and (2) making a "class determination" that the decedents' grieving family members were particularly vulnerable without "explain[ing] how the next-of-kin victims' grief made it any easier for . . . Defendants to commit their fraud." Id. at 1032-33. On the second point, we explained that "a victim does not become a 'vulnerable victim' under § 3A1.1(b) just because he or she was vulnerable in a general sense and the victim of Appellate Case: 25-1191 Document: 51 Date Filed: 10/27/2026 Page: 9

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a crime." Id. at 1033. Rather, there must be a "nexus between [the] victims' vulnerability and this particular fraud to support the enhancement's application." Id. We reasoned that "[e]veryone who went to Sunset Mesa to purchase funeral or cremation services was duped by . . . Defendants' scheme," and we could not "tell that those in grief were more susceptible to believing . . . Defendants' lies than those who were not, nor that those in grief were more prone to agreeing to a discount than others."¹Id. at 1033. Moreover, "[e]ven many who rejected . . . Defendants' offer of a discount in exchange for the donation of body parts were still defrauded," as

"Defendants did not exploit those who were grieving but honor the wishes of those who were not." Id. Instead, "Defendants were able to commit their fraud by virtue of their positions of trust and their unsupervised custody over the decedents' bodies,"

and we saw "nothing in the record that explains how either of these enabling conditions would depend on any individual's vulnerability." Id. We "therefore reverse[d] the district court's application of the large-number- of-victims enhancement and remand[ed] for further proceedings in which the district court [might] make particularized findings of vulnerability showing the requisite nexus between vulnerability and . . . Defendants' fraud." Id. We directed the district court to explain on remand "how any individualized vulnerability—from grief or any

1 The district court assumed that the family members of all 560 stolen decedents were in grief and were vulnerable as a result. See United States v. Hess,

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other 'physical or mental condition'—enabled or facilitated commission of the fraud." Id. (quoting U.S.S.G. § 3A1.1 cmt. n.2).

4. Resentencing

a. Vulnerable victim enhancement On remand, the Government conceded that the advisory Guidelines range should be calculated based on a twelve-level loss enhancement instead of the fourteen-level enhancement that the district court applied in the original sentencing. Thus, the only Guidelines calculation that remained in dispute was the § 3A1.1(b)(2) enhancement.

With respect to that enhancement, the Government presented new victim statements relevant to vulnerability as well an expert witness, Dr. Doug Shadel.² Dr. Shadel testified at the resentencing proceeding that individuals who have experienced a greater number of "stressful life events" are more likely to be defrauded by a fraud attempt. No. 25-1191, ROA Vol. X at 28. Dr. Shadel then discussed eleven specific victims whom he identified as especially vulnerable to

2 Based on the terms of its plea agreement with Ms. Koch, the Government took the legal position that the § 3A1.1(b)(2) enhancement did not apply to her. although it "provide[d] additional facts relevant to the [district c]ourt's determination as to whether [this enhancement] is applicable to [Ms.] Hess and [Ms.] Koch." No.

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Defendants' fraud because they were "dealing with multiple life stressors" such as the death of a spouse, illness, managing debt, caregiving, job loss, decreased income, and loneliness. Id. at 56.

Based on the victims' statements from both the original sentencing proceeding and resentencing, as well as Dr. Shadel's testimony, the district court overruled Defendants' objections to the § 3A1.1(b)(2) enhancement. The court concluded that four of the eleven victims discussed by Dr. Shadel met this court's mandate "to tie [their] vulnerability to facilitating or enabling the fraud." Id. at 120; see also id. at

121. The court further found that there were several other victims whose victim statements established this required nexus.

Specifically, the district court identified two types of vulnerable victims whom it concluded Defendants had targeted based on their individual vulnerabilities:

(1) "poor and/or elderly families on low or limited income as they grappled with their relative's final days"; and (2) "those whose loved one was dying of a terminal illness and/or who was under Hospice care," as these victims were referred to Defendants by hospice providers. Id. at 122-24.

With respect to the first group of victims, the court found that Donor Services' income from selling fraudulently obtained body parts "allowed [D]efendant[s] to advertise rates for cremations that typically made [Sunset Mesa] the least expensive option in the area," thus "ensur[ing] a constant supply of bodies for [their] scheme."

Id. at 123. Defendants "would also at times offer free or reduced rate cremations to get the victims to bring their loved one's bodies to [Defendants'] funeral home and/or Appellate Case: 25-1191 Document: 51 Date Filed: 10/27/2026 Page: 12

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to incentivize them to agree to donate part or all of their loved one's remains." Id. at 124.

As for the second group, those whose loved ones were in hospice care or dying of a terminal illness, Defendants "solicited Hospice providers to refer these grieving families to them." Id. And once the victims were referred to them, Defendants "got the victims to agree to a donation by offering them free or reduced cremation services in return for the donation of small samples, such as tumors or portions of skin that . . . could aid testing and research in finding a cure." Id. at 125. Defendants would then "exceed[] the authorization they obtained," selling both body parts and entire bodies "for purposes not even contemplated or agreed to by the victims." Hess,

106 F.4th at 1019 (quotation marks omitted).

"By targeting these vulnerable victims," the district court explained, Defendants "were able to dramatically increase the numbers of bodies coming in the door of their funeral home[,] which in turn dramatically increased their ability to sell more bodies or body parts, whether with or without the authorization of the vulnerable victims." No. 25-1191, ROA Vol. X at 122.

The district court found that there were twenty-one specific victims for whom the evidence established the required nexus between the victims' vulnerability and Defendants' fraudulent procurement, shipping, and sale of human remains. First, M.B. was victimized by Defendants' unauthorized removal and sale of body parts from her deceased husband. M.B. "was elderly, had health issues herself, and was the caregiver for her spouse in the last months of his life." Id. at 126. Her Appellate Case: 25-1191 Document: 51 Date Filed: 10/27/2026 Page: 13

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husband's passing had "reduced her income by the loss of his Social Security," and

"[s]he had no family to help her deal with her husband's illness or his funeral." Id. M.B. accordingly "chose Sunset Mesa because [she] was quoted $400 less than a competitor." Id. at 126. She "completely trusted" Ms. Hess, who "said to leave everything up to her." Id. at 127. M.B. felt that she had "paid for that decision with a horror story that will be with [her] forever." Id. at 126-27. Second, C.A.H. was an elderly woman whose son "died after years of being ill and undergoing seven brain surgeries." Id. at 127-28. Ms. Hess showed up at C.A.H.'s house with a gurney and body bag while the emergency medical technicians were still working on C.A.H.'s dying son. When C.A.H. asked who Ms. Hess was, she replied that she was the coroner. Although C.A.H. ultimately paid Ms. Hess almost $1000 for cremation services and declined Ms. Hess's request to donate any part of her son's body, Defendants nevertheless dismembered the body and sold various parts to different companies for display and other purposes. If "someone on the grift" had not called Ms. Hess to the house before C.A.H.'s son had even died, C.A.H. would have used a different funeral home. Id. at 128.

Third, D.S. lost her best friend to stage 4 bladder cancer. D.S. was exhausted and emotionally overwhelmed when her friend passed away. Hospice providers asked if she had selected a funeral home and referred her to Sunset Mesa when she said she had not. When D.S. met Ms. Hess at the funeral home, Ms. Hess asked her several questions about her friend's cause of death, then gave her a "long spiel about cancer research and saving lives." Id. at 128. Ms. Hess's convincing pretense of compassion Appellate Case: 25-1191 Document: 51 Date Filed: 10/27/2026 Page: 14

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and concern "tipped [D.S.] in favor of donating the bladder that [Ms.] Hess wanted so badly." Id. at 130. D.S. later learned, however, that Ms. Hess had sold her friend's entire body before this conversation even occurred.

Fourth, L.A.P.'s "former common-law husband and best friend," F.M., died of metastatic lung cancer shortly after L.A.P. was herself diagnosed with cancer. Id. at 130-31. L.A.P. was "tired, scared, confused, and grieving the loss of someone [she] had spent [forty] years with." Id. at 131. F.M. had "passed away with no life insurance, burial policy[,] or savings" to cover the costs of his cremation or burial. Id. at 132. The day after F.M. died, L.A.P. met with both Ms. Hess and Ms. Koch, who "talked to [her] about price and stated that if she would donate [F.M.'s] knees, they could give [her] a free cremation." Id. at 131-32. Instead, Defendants sold F.M.'s entire body.

Fifth, when D.Mc.'s stepfather died, her "mother had his body taken to Sunset Mesa Funeral Home because she had previously seen a promotion" for their inexpensive cremations. Id. at 132. D.Mc.'s "mother and stepdad lived on what their Social Security paid, so [her] mom needed a cost-effective solution for cremation."

Id. Although Defendants accepted hundreds of dollars from D.Mc. and her mother in exchange for promised cremation services, they did not cremate her stepfather's body, but instead sold it to Saudi Arabia.

Sixth, K.R.'s father passed away while her mother was already dying of a terminal illness. Thus, "[e]motions and sorrow were already running high in [her] family." Id. K.R. and her siblings had not intended on donating any part of their Appellate Case: 25-1191 Document: 51 Date Filed: 10/27/2026 Page: 15

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father's body, but Ms. Hess "played on [their] emotions and went on about how just a little skin graft could save a child burn victim." Id. at 133. Ms. Hess eventually manipulated them into agreeing to a small skin donation. But instead of just taking a small amount of skin, Defendants dismembered K.R.'s father, "and his body parts [were] sold around the world for [Ms. Hess's] profit." Id.

Seventh, the court discussed J.D. When his grandfather passed away, J.D. learned that he was the executor of his grandfather's estate and that he needed to pay for cremation immediately, which he could not afford to do. Ms. Koch told him

"about an option that would cover the cost of cremation," saying that his grandfather's body would be cremated for free if he simply agreed to donate his grandfather's brain for Alzheimer's research. Id. at 133. Ms. Koch falsely promised that they would cremate his grandfather's body and save the ashes, that his grandfather's brain would be returned once the Alzheimer's research was completed, and that the ashes from both his body and his brain would be placed where J.D.'s grandmother was buried.³Instead, J.D.'s grandfather's entire body was sold to a plastination company.

Eighth, D.W. was an elderly man whose brother passed away after they had shared a home for more than thirty-five years. D.W. "was retired and on a limited,

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fixed low income," and his anxiety disorder was exacerbated by his brother's death. Id. at 134. "He chose Sunset Mesa for the lower cost option." Id. Ninth, the court discussed K.B. K.B. was in a financially and emotionally difficult situation when her husband passed away because she had been "caring for her husband while working full-time to pay for it, [which] took a toll on her." Id. K.B. "knew and trusted Megan Hess[,] who offered her a special price because her husband was a veteran." Id. at 134-35.

Tenth, the district court discussed T.F., who "was struggling with a number of the stress factors: managing debt, caregiving, [and] the death of a spouse." Id. at 135. She "was in a bad financial situation because [her] husband had a long fight with cancer and [they] incurred many charges." Id. She "went with Sunset Mesa because they were less expensive than [her] local funeral home." Id.

Eleventh, V.H. was an elderly woman whose husband's body was fraudulently sold by Defendants. She and her husband had been "living on Social Security income only," and she was very emotionally and mentally exhausted after caring for him during his "hard battle with dementia" at home. Id.

Twelfth, the district court discussed A.S.J. Her mother had been on Social Security, and A.S.J. "was unemployed because she had to quit her job to take care of her mother." Id. at 136. A.S.J. therefore "chose Sunset Mesa because it was the least expensive plan." Id.

Thirteenth, H.M.'s father passed away, and his mother chose Sunset Mesa for the cremation. H.M. believed this choice was due to financial difficulties. Appellate Case: 25-1191 Document: 51 Date Filed: 10/27/2026 Page: 17

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Fourteenth, the court discussed M.C.-P. When her grandmother passed away, M.C.-P. "was dealing with major health issues" and "had not been approved for disability," so she "had very little income." Id. Defendants "said they would do their best to help her since she was dealing with it all on her own and had no money." Id.

"They offered cremation service for a lot cheaper instead of embalming like . . . she had originally planned." Id.

Fifteenth, the court discussed D.Mo., who chose Sunset Mesa for her father's cremation because it was "the best offer" and Defendants "guaranteed" that they would provide "the proper service for [her] father." Id. at 137. Sixteenth, R.B. chose Sunset Mesa for her mother's cremation because her mother had been living "on a very limited income," their family "could not afford to pay out of pocket," and Ms. Hess made false representations about offering a "free service." Id.

Seventeenth, N.H. "was elderly and disabled at the time of her husband's death." Id. Additionally, "[s]he was managing debt; was the caregiver; and[] . . . was lonely." Id. Thus, she had "five of the risk factors [identified by Dr. Shadel] which made her high risk for vulnerability." Id. Due to N.H.'s difficult financial situation, she "had to borrow the money for the funeral expenses from a family member." Id. She chose Sunset Mesa because they "offered the most reasonable prices and promised to take the utmost care of [her] beloved husband." Id. at 137-38. Eighteenth, L.C. was not working and had no access to any funds when her husband died by suicide.

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Nineteenth, T.S.'s mother died of cancer without having life insurance. Defendants "offered [T.S.] a payment plan and discount." Id. at 138. Twentieth, J.C.'s father "wanted something inexpensive" when he died, "and that was what Sunset Mesa offered." Id. He was "assured" that Sunset Mesa "was the cheapest place[,] and he was vulnerable to that as he did not want [J.C.'s] mom left with little money." Id.

Finally, C.B.'s mother died from suicide when C.B. was nineteen years old. C.B.'s mother was in debt, and C.B. had no resources to cover the cost of cremation or burial. Hospice providers referred C.B. to Defendants, telling C.B. that Defendants

"would perform the cremation for free to help families in need." Id. at 139. After discussing these twenty-one victims, the district court reiterated that

"[D]efendants' targeting of these vulnerable victims facilitated or enabled [D]efendants to not only perpetrate their fraudulent scheme, but to enhance it by increasing the number of bodies brought into their facility." Id. at 141. The court then cited our opinion in United States v. Kaufman, 546 F.3d 1242 (10th Cir. 2008), for the proposition that the § 3A1.1(b)(2)'s large-number requirement can be satisfied through proof of ten vulnerable victims. Accordingly, because the district court had identified more than twenty vulnerable victims, it held that the § 3A1.1(b)(2) enhancement applied here.

The district court then addressed Ms. Koch's argument that this enhancement should not apply to her because "she was not in the same position as her daughter to know that there were a large number of vulnerable victims." No. 25-1191, ROA Vol. Appellate Case: 25-1191 Document: 51 Date Filed: 10/27/2026 Page: 19

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X at 142. The court disagreed, reasoning that § 3A1.1(b)(2) is offense-specific rather than defendant-specific, meaning that the pertinent question is "whether the offense involved a large number of vulnerable victims whose vulnerability facilitated the perpetration of this fraud," not whether the defendant knew of each victim's vulnerability. Id. at 142-43. And here, the offense involved a large number of particularly vulnerable victims, regardless of whether Ms. Koch personally interacted with each vulnerable victim whose fraud she aided and abetted. The district court therefore rejected Ms. Koch's objection to the § 3A1.1(b)(2) enhancement. b. Advisory Guidelines range

After concluding that the two-level § 3A1.1(b)(2) enhancement applied to both Defendants, the district court calculated a new advisory Guidelines range of 121 to 151 months for Ms. Hess and of 78 to 97 months for Ms. Koch. c. Ms. Hess's resentencing

Prior to the resentencing hearing, Ms. Hess submitted a mitigation report from a forensic social worker addressing Ms. Hess's rehabilitative efforts during her first two years of imprisonment. The report stated that Ms. Hess had started an education program to teach business skills to other inmates and had "obtained [sixty-three] personal letters from staff and fellow inmates regarding [her] helpfulness, concern, and professionalism." No. 25-1191, ROA Vol. VI at 649. The mitigation report also asserted that Ms. Hess had participated in several Bible study and education classes and had engaged in other rehabilitative efforts such as reading self-help books, pursuing prison reform, and becoming a certified suicide watch companion. The Appellate Case: 25-1191 Document: 51 Date Filed: 10/27/2026 Page: 20

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report further asserted that Ms. Hess's recidivism risk was assessed to be "extremely low to zero." Id. at 647.

Although the mitigation report asserted that Ms. Hess "has reflected on her past and taken accountability for her actions," the only evidence presented in support was Ms. Hess's statement that she now understood her "thinking errors" and was "no longer willing to sacrifice [her] future." Id. at 648. The mitigation report included no indication that Ms. Hess has ever acknowledged the harm she caused to her victims or expressed remorse for her conduct, except insofar as it has affected herself. At the resentencing hearing, the district court acknowledged Ms. Hess's arguments that she "stopped all criminal activity in 2018 after she was caught" and

"has been a model inmate since her incarceration." ROA Vol. X at 176-77. The court stated that Ms. Hess's compliance with prison rules and her productive use of her time in prison was both "commendable" and "unremarkable in that all prisoners are expected to follow prison rules and requirements." Id. at 177. The court additionally noted that Ms. Hess would receive good-time credit from the Federal Bureau of Prisons for her good behavior.

The district court then held that "the nature of this offense highly outweigh[ed]" any mitigating "history and characteristics of the defendant." Id. at 180. "Beside the obvious economic damage and gross betrayal of trust which her crime caused, Ms. Hess orchestrated this unimaginable offense causing untold and painful suffering for many victims for years to come." Id. at 183. Defendants'

"victims paid hundreds or thousands of dollars for cremation services which Appellate Case: 25-1191 Document: 51 Date Filed: 10/27/2026 Page: 21

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[D]efendants consistently failed to provide because, instead of cremating the loved one, they instead sold their bodies either wholly intact or after butchering the bodies to sell individual body parts." Id. at 179. Thus, Defendants' "scheme defrauded numerous victims of not only monetary funds but of the peace of knowing that their loved one is resting peacefully." Id. Moreover, the court expressed its concern that Ms. Hess "continues to view her conduct as offering quality services at low prices,"

when her own correspondence "belie[s]" her purported rationale and demonstrates

"the callousness with which she viewed the deceased[] loved ones entrusted to her by her victims." Id. at 178, 183. Indeed, the court found that Ms. Hess "continues to shame-blame the next of kin victims, minimizing their trauma," and "has shown no remorse" for the harm she caused. Id. at 181, 183.

The court additionally reasoned that Ms. Hess's "pattern of lies and falsehoods spanned the period of 2010 through 2018." Id. at 182. Her "repeated trickery and callous indifference toward her victims exposed a devious character trait which is not adequately captured under the [G]uidelines calculations." Id. And the court concluded that "[t]his [wa]s especially true when considering the fact that hundreds of victims were harmed during the scheme[,] and many were left with untold emotional damage and haunting memories due to [Ms.] Hess's greed." Id. at 182-83. Finally, the court explained that the Guidelines did not adequately address the

"moral and ethical violations" that occurred, nor did the Guidelines adequately cover the "emotional damage for multiple victims," which "was far greater than any dollar amount could ever measure." Id. at 184. Thus, "[b]ased on [its] review of this case Appellate Case: 25-1191 Document: 51 Date Filed: 10/27/2026 Page: 22

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and after consideration of the [18 U.S.C. §] 3553(a) factors, and having considered the negative financial and emotional and health consequences the victims have experienced, and continue to experience as a result of [Ms. Hess's] conduct," the court concluded that "an upward variance to the statutory maximum sentence of 240 months [wa]s appropriate." Id. at 184-85. Specifically, the court stated that this significant upward variance was necessary "because the [G]uidelines do not give sufficient effect to actual loss experienced by the victims[,] nor do[ they] take into account the depth and breadth, the persistence and the depravity and the harmfulness of the criminal conduct of this defendant." Id. at 185.

d. Ms. Koch's resentencing

With respect to Ms. Koch, the Government stated that it "fe[lt] bound by its earlier plea agreement" to recommend a Guidelines calculation of 63 to 78 months. Id. at 201. Therefore, "to be consistent with the plea agreement," the Government asked the court not to apply the § 3A1.1(b)(2) enhancement to Ms. Koch. Id. at 148. The Government then requested a sentence of 78 months, which it explained was "the most we can [request] under the plea we struck." Id. at 201. As discussed above, the district court applied the § 3A1.1(b)(2) enhancement to Ms. Koch and therefore calculated an advisory Guidelines range of 78 to 97 months of imprisonment. The court then stated that this advisory range was "not sufficient to achieve the goals of sentencing for this incredibly heinous crime." Id. at

206. The court therefore found it appropriate to vary upward, "albeit not to the statutory maximum sentence it imposed on [Ms.] Hess." Id. at 206-07. The court Appellate Case: 25-1191 Document: 51 Date Filed: 10/27/2026 Page: 23

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accordingly imposed a sentence of 180 months of imprisonment, the same sentence it had imposed in the original sentencing proceeding.

In explaining its reasoning for the 180-month sentence, the court described Ms. Koch's personal characteristics and history, including her age and health conditions. The court noted that Ms. Koch had one prior felony conviction for which she had received no criminal history points. And this "prior felony [wa]s fraud related, which present[ed] some concern in regard to its relationship to this offense as it demonstrates that perhaps her behavior in this case was not an aberration of behavior." Id. at 212. Additionally, the court found that Ms. Koch's purportedly altruistic reasons for the offense were belied by the record and that she, like her daughter, had "shown virtually no remorse" for "her heinous conduct." Id. at 215. As for her good behavior in prison, the court concluded, as it had with respect to Ms. Hess, that this good behavior was both "commendable" and "unremarkable," as

"all prisoners are expected to follow prison rules and requirements," and they will receive good-time credit if they do so. Id. at 213.

The court then emphasized that this was a "horrendous crime" that "has emotionally devastated so many families." Id. at 214. The court therefore concluded that the nature of the offense outweighed any mitigating factors in Ms. Koch's history and characteristics. "As with Ms. Hess, [Ms.] Koch's crime was by no means just an average white-collar offense in which she and her daughter stole money from the victims by virtue of their fraud." Id. Instead, they "stole the bodies of these loved ones whom the victims had entrusted to them because they represented that the Appellate Case: 25-1191 Document: 51 Date Filed: 10/27/2026 Page: 24

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bodies would be taken care of and cremated as they had requested." Id. Contrary to their representations, however, the bodies of the victims' "loved ones had been callously shipped off" for plastination or had been "brutally desecrated by [Ms.] Koch, [who] cut[] off their heads, arms, hands, legs, spines, with power tools so that they could be sold." Id. at 214-15.

Accordingly, after further discussing the victims' emotional harm and suffering, the court stated that the upward variance to 180 months of imprisonment was "appropriate because the [G]uidelines do not give sufficient effect to actual loss experienced by the victims, nor do[ they] take into account the depth and breadth, the persistence, and the depravity and the harmfulness of the conduct of this defendant."

Id. at 216. The court concluded that a sentence of 180 months "reflect[ed] the seriousness of this offense and [wa]s sufficient but not greater than necessary" to achieve the § 3553(a) sentencing factors. Id. at 217.

e. Appeals

On April 24, 2025, the district court entered a second amended judgment consistent with its oral sentencing pronouncements, but it deferred the determination of restitution. Defendants each filed a timely notice of appeal from the second amended judgment. The district court thereafter entered a third amended judgment that included an order of restitution, and Defendants each filed a timely notice of appeal from the third amended judgment as well.

Ms. Hess's two appeals were consolidated with each other for purposes of briefing and decision, and Ms. Koch's two appeals were likewise consolidated with Appellate Case: 25-1191 Document: 51 Date Filed: 10/27/2026 Page: 25

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each other. We now further consolidate Ms. Hess's two appeals with Ms. Koch's two appeals for purposes of disposition.

II. DISCUSSION

"We review sentences for reasonableness under a deferential abuse-of- discretion standard, under which we review de novo the district court's legal conclusions regarding the [G]uidelines and review its factual findings for clear error." United States v. Rocha, 145 F.4th 1247, 1260 (10th Cir. 2025) (internal quotation marks and citation omitted). "A district court abuses its discretion when it renders a judgment that is arbitrary, capricious, whimsical, or manifestly unreasonable." Id. (quotation marks omitted). "Moreover, a district court abuses its discretion when it relies on an incorrect conclusion of law or a clearly erroneous finding of fact." Id. (internal quotation marks omitted).

When we are called upon to interpret the Sentencing Guidelines, "our task . . . is to determine the intent of the Sentencing Commission." United States v. Tony, 121 F.4th 56, 62 (10th Cir. 2024) (quotation marks omitted). We make this determination by analyzing both the language of the Guidelines provision at issue and the Guidelines' "interpretative and explanatory commentary." Id. (quotation marks omitted). "Guidelines commentary governs unless it runs afoul of the Constitution or a federal statute or is plainly erroneous or inconsistent with the [G]uideline[s] provision it interprets." Id. (internal quotation marks omitted). We first address Defendants' arguments regarding the § 3A1.1(b)(2) enhancement. We then turn to Ms. Hess's arguments regarding her post-sentencing Appellate Case: 25-1191 Document: 51 Date Filed: 10/27/2026 Page: 26

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rehabilitation efforts. Finally, we consider Ms. Koch's challenge to the substantive reasonableness of her sentence.

A. U.S.S.G. § 3A1.1(b)(2) Enhancement

Section 3A1.1(b) establishes two levels of enhancements for offenses involving vulnerable victims. First, § 3A1.1(b)(1) provides: "If the defendant knew or should have known that a victim of the offense was a vulnerable victim, increase by [two] levels." U.S.S.G. § 3A1.1(b)(1). Second, § 3A1.1(b)(2) provides that if § 3A1.1(b)(1) applies and "the offense involved a large number of vulnerable victims," the offense level should be increased by two additional levels. Id. § 3A1.1(b)(2).

Here, neither Ms. Koch nor Ms. Hess contests the application of the initial two-level enhancement under § 3A1.1(b)(1), but they each argue—albeit on different grounds—that the district court erred in applying the additional two-level enhancement under § 3A1.1(b)(2). Ms. Hess argues that the district court erroneously relied on class-based determinations of vulnerability rather than making particularized findings as to how each victim's unusual vulnerability made this victim especially susceptible to the offense. For her part, Ms. Koch argues that the district court erred in assessing the number of victims required to trigger this enhancement and in concluding that the enhancement applied to her even though she did not personally interact with several of the vulnerable victims whose fraud she aided and abetted.

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"We review the district court's identification of unusually vulnerable victims for clear error." United States v. Sumka, 81 F.4th 1153, 1158 (10th Cir. 2023) (quotation marks omitted). "However, to the extent the defendant asks us to interpret the Guidelines or hold that the facts found by the district court are insufficient as a matter of law to warrant an enhancement, we must conduct a de novo review." Id. (internal quotation marks omitted).

Here, as in Sumka, "[t]he parties dispute whether our review should be for clear error or de novo." Id. "We decline to resolve this issue because we would affirm the enhancement under either standard." Id.

1. Particularized Findings of Vulnerability

a. Substantive Legal Standard The commentary to the Guidelines defines a "vulnerable victim" as someone who (1) was victimized by the offense of conviction or other relevant conduct, and

(2) "is unusually vulnerable due to age, physical or mental condition, or who is otherwise particularly susceptible to the criminal conduct." U.S.S.G. § 3A1.1 cmt. n.2. The commentary then explains that "[t]he adjustment would apply, for example, in a fraud case in which the defendant marketed an ineffective cancer cure or in a robbery in which the defendant selected a handicapped victim." Id. On the other hand, "it would not apply in a case in which the defendant sold fraudulent securities by mail to the general public and one of the victims happened to be senile." Id. As we explained in Defendants' prior appeal, "[a] 'vulnerable victim' must be unusually susceptible to the particular crime committed, not just a vulnerable person Appellate Case: 25-1191 Document: 51 Date Filed: 10/27/2026 Page: 28

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in general." Hess, 106 F.4th at 1031. There must be "a nexus between the fraud and the victim's vulnerability; that is, the victim's vulnerability must somehow facilitate or enable the fraud." Id. As the Guidelines commentary illustrates, a cancer patient who is defrauded by an ineffective cancer cure is an unusually vulnerable victim in this context because the victim's cancer diagnosis is a vulnerability that the defendant has exploited by marketing the ineffective cure. U.S.S.G. § 3A1.1 cmt. n.2. On the other hand, a cancer patient who is defrauded by a general offer of fraudulent securities is not an unusually vulnerable victim in that context because there is no nexus between the cancer diagnosis and that fraud. See id.

Our decision in United States v. Proffit, 304 F.3d 1001 (10th Cir. 2002), demonstrates this point. There, a wealthy and successful rancher named Allen Cook decided to sell his ranch after receiving a cancer diagnosis. Id. at 1004. He advertised the intended sale in a publication. Id. The defendant, Stephen Proffit, responded to Mr. Cook's advertisement and learned of his medical diagnosis. Id. Mr. Proffit then

"visited Mr. Cook under the auspices of purchasing the ranch." Id. During the visit, he "made several false representations regarding his trading abilities in cattle futures." Id. Mr. Cook eventually sent Mr. Proffit $50,000 to invest in cattle futures on his behalf, which Mr. Proffit used for his own purposes rather than investing. Id. The district court concluded that Mr. Cook was a vulnerable victim under § 3A1.1(b)(1) based on his cancer diagnosis, but we disagreed. Id. at 1007-08. We acknowledged that "Mr. Cook's illness may have opened the door for [Mr. Proffit's] criminal conduct because it allowed [Mr. Proffit] the opportunity to approach him Appellate Case: 25-1191 Document: 51 Date Filed: 10/27/2026 Page: 29

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under the guise of an interested buyer." Id. at 1008. We thought it "important to note, however, that [Mr. Proffit] did not fraudulently deprive Mr. Cook of ranch ownership, nor did he ever attempt to do so." Id. The "fraud actually committed" was the purported investment in cattle futures, and the link between this fraud and Mr. Cook's illness was too indirect to conclude that Mr. Proffit had exploited a vulnerability that made Mr. Cook particularly susceptible to the investment fraud. Id. As we explained, "Mr. Cook's decision to invest appears to be based on the very same reasons that the majority of those who fall victim to investment scams have— the lure of a substantial return on an investment in a relatively short period of time."

Id. Thus, because there was insufficient evidence to support the conclusion that Mr. Cook was particularly susceptible to the specific investment fraud that Mr. Proffit committed, we reversed the district court's application of the § 3A1.1(b)(1) enhancement. Id.

However, we explained that "[w]e might have reached a different conclusion if [Mr. Proffit] had defrauded Mr. Cook of his ranch after discovering Mr. Cook was ill and wished to sell it," as that would have established a direct "correlation between Mr. Cook's health, his decision to sell the ranch, and [Mr. Proffit's] ability to defraud him of ranch ownership." Id.

Because there must be a nexus between the victim's vulnerability and the defendant's fraud, district courts will generally need to "make particularized findings of vulnerability that support the enhancement, focusing on the victim's personal or individual vulnerability." Hess, 106 F.4th at 1031 (internal quotation marks omitted). Appellate Case: 25-1191 Document: 51 Date Filed: 10/27/2026 Page: 30

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"Mere membership in a class of individuals considered more vulnerable than the average individual is insufficient standing alone." Id. at 1031-32 (internal quotation marks omitted). "But we have held that in some cases the inference to be drawn from the class characteristics may be so powerful that there can be little doubt about unusual vulnerability of class members within the meaning of [§] 3A1.1." Id. at 1032 (internal quotation marks omitted). For example, in United States v. Tissnolthtos, 115 F.3d 759 (10th Cir. 1997), we cited favorably to the Eighth Circuit's holding that "a one-year-old victim of assault resulting in serious bodily injury 'was vulnerable because of his age,'" as it is "obvious that a one-year-old child would not have the physical ability to protect himself or the verbal or mental skills to report the incident." Id. at 762 (quoting United States v. Drapeau, 110 F.3d 618, 620 (8th Cir. 1997)). On the other hand, we held that the same reasoning did not apply to a seventy-one-year-old assault victim because "the inference of vulnerability to be drawn from [that age] is not so powerful that there can be little doubt as to the victim's unusual vulnerability." Id. (internal quotation marks omitted and citation omitted). Thus, we held that the district court was required to make particularized findings regarding this assault victim's actual vulnerability rather than relying solely on his membership in the class of individuals who are seventy-one years old. Id. We relied on this reasoning in Hess to conclude that the district court could not treat all victims of Defendants' fraud as unusually vulnerable based solely on the fact that they were experiencing grief, as we were not persuaded based on the record before us "that the inference of vulnerability to be drawn from those who have lost a Appellate Case: 25-1191 Document: 51 Date Filed: 10/27/2026 Page: 31

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family member is so powerful that there can be little doubt about their unusual vulnerability to the fraud that occurred here." 106 F.4th at 1033 (internal quotation marks omitted).

b. Arguments

On appeal, Ms. Hess does not contest the district court's finding that five victims—C.A.H., D.S., L.A.P., K.R. and C.B.—were particularly vulnerable based on their loved ones' terminal illness or placement in hospice care. However, she argues that the district court erred in finding that sixteen other victims—M.B., D.Mc., J.D., D.W., K.B., T.F., V.H., A.S.J., H.M., M.C.-P., D.Mo., R.B., N.H., L.C., T.S., and J.C.'s father—were particularly vulnerable because they were poor and/or elderly and living on a limited income. She argues that the district court in effect made an impermissible class determination that poverty categorically caused these victims to be particularly vulnerable, rather than making the required particularized findings of actual vulnerability.

Ms. Hess relies on this court's statement in Proffit that the enhancement applies only to victims who are "unable to protect themselves" and "therefore require greater societal protection." 304 F.3d at 1007. She also quotes a First Circuit case for the proposition that "[t]he 'question is whether a particular victim was less likely to thwart'" or "detect" the crime. No. 25-1191, Appellant's Br. at 26 (quoting United States v. Fosher, 124 F.3d 52, 56 (1st Cir. 1997)). According to Ms. Hess, these authorities stand for the proposition that the district court could not permissibly enhance her sentence under § 3A1.1(b)(2) without finding that, "whereas a non- Appellate Case: 25-1191 Document: 51 Date Filed: 10/27/2026 Page: 32

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vulnerable person could have detected the fraud and thwarted the offense, these victims were unable to do so on account of their unusual vulnerability." Id. at 28. Ms. Hess quotes our statement in Hess that "Defendants were able to commit their fraud by virtue of their positions of trust and their unsupervised custody over the decedents' bodies," Hess, 106 F.4th at 1033, and she argues that this explanation applies with equal force here. That is, she argues that "the fraud simply did not depend on any individual's vulnerability—it was solely a function of the defendants' unsupervised custody of the decedents' bodies." No. 25-1191, Appellant's Br. at 31. Thus, she contends that because "no one had reason to suspect" that her funeral-home business was illegitimate, no victim was any more vulnerable than any other victim, preventing application of the § 3A1.1(b)(2) enhancement. Id. Ms. Hess contends that "it is not enough that the 'victim's vulnerability made the crime possible.'" Id. at 32 (quoting United States v. Brunson, 54 F.3d 673, 677 (10th Cir. 1995)). Citing Proffit for support, she argues that the sixteen disputed victims' poverty simply "opened the door" for the crime, which she argues is insufficient to show that they were any less likely to detect or thwart the fraud than any other victim. Id. at 32-33 (quoting Proffit, 304 F.3d at 1007). She further argues, relying on Brunson and United States v. Creech, 913 F.2d 780 (10th Cir. 1990), that the district court impermissibly "'presumed that all' poor/elderly victims were vulnerable" and thus that any victims identified to be poor or elderly were unusually vulnerable by virtue of their membership in this class. Id. at 36 (quoting Creech, 913 F.2d at 781). According to Ms. Hess, the district court was required to instead make Appellate Case: 25-1191 Document: 51 Date Filed: 10/27/2026 Page: 33

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particularized findings regarding each victim's ability to detect and thwart the fraud before applying the § 3A1.1(b)(2) enhancement.

c. Analysis

Ms. Hess primarily frames the relevant test in terms of a victim's ability to detect and thwart the fraud. However, she derives this language from a First Circuit decision that is not binding in this circuit, and she cites no Tenth Circuit case that similarly focuses its inquiry on the victim's ability to detect and thwart fraud. As we explain in further detail below, this test is not supported by the Guidelines or by our precedents, and we therefore do not adopt it here.

The Guidelines commentary explains that the § 3A1.1 enhancement applies if a victim was "unusually vulnerable due to age, physical or mental condition, or [was] otherwise particularly susceptible to the criminal conduct." U.S.S.G. § 3A1.1 cmt. n.2. Nothing in this explanation suggests that susceptibility to fraud specifically requires the victim to be unusually unable to detect or thwart the fraud. See id. Moreover, the commentary's explanation of vulnerability is immediately followed by an illustration of an offense to which the § 3A1.1 enhancement would apply: "a fraud case in which the defendant marketed an ineffective cancer cure." Id. There is no reason to believe that cancer patients are uniquely unable to detect or thwart false marketing frauds, but they are nevertheless considered particularly vulnerable to such fraud based on the nexus between their vulnerability and the defendant's offense. See id.

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The Tenth Circuit cases cited by Ms. Hess likewise illustrate that the key question is whether the defendant has directly exploited or attempted to exploit a victim's vulnerability in furtherance of the fraud, not whether the victim is unusually unable to detect or thwart the fraud in the first place. As discussed above, for instance, we emphasized in Proffit that Mr. Cook's cancer diagnosis "opened the door" for Mr. Proffit to meet him, but his cancer diagnosis was not the reason why he fell victim to Mr. Proffit's fraud. 304 F.3d at 1008. Mr. Cook invested in Mr. Proffit's fraudulent scheme based on his desire for a quick return on his investment, and he was therefore in no different position with respect to this offense—and thus no more in need of "greater societal protection"—than any other victim of a similar investment fraud. Id. at 1007-08. But we specifically stated that

"[w]e might have reached a different conclusion if [Mr. Proffit] had defrauded Mr. Cook of his ranch after discovering Mr. Cook was ill and wished to sell it." Id. at 1008. Accordingly, although Mr. Cook's ability to detect and thwart an investment fraud would seem to be no different than his ability to detect and thwart a ranch- purchase fraud, we indicated that these two types of fraud would be treated differently because the latter situation would establish the required nexus between Mr. Cook's medical vulnerability and the fraud. Id. at 1007-08. Proffit therefore does not support Ms. Hess's framing of the test as focused on the victim's ability to detect and thwart the fraud. Instead, Proffit supports the district court's conclusion that the application of the § 3A1.1 enhancement depends on the connection between the victim's vulnerability and the defendant's offense.

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Brunson also does not support Ms. Hess's argument. There, we held that the district court erred applying the vulnerable-victim enhancement to a defendant who defrauded a foreign company based solely on the facts that (1) the fraud attempt was successful, and (2) the defendant targeted this company because he believed foreign companies "could be more easily duped." 54 F.3d at 676-77. We explained that the mere fact of victimization was "insufficient, by itself, to show that [the victim was] especially vulnerable." Id. at 677. And we "t[ook] judicial notice that foreign companies[] . . . conclude contracts with American companies all the time." Id. Thus, the defendant's subjective belief that foreign companies would be easier to defraud was insufficient to establish that his victim was objectively unusually susceptible to the offense. Id. Additionally, we noted that the primary reason for the vulnerable- victim enhancement is "to enhance a defendant's punishment for an act of depravity,"

and we concluded that "focusing on foreign companies as potential victims" was not so depraved as to warrant the application of the enhancement. Id. (quotation marks omitted).

Likewise, in Creech, which involved extortionate letters sent to newlyweds, the district court "seemingly presumed that all newlywed persons would be vulnerable to threats against their spouses." 913 F.2d at 781. But we saw "nothing in the record to suggest the concern a bridegroom has for his bride is more than that a husband longer in the tooth has for the light of his life." Id. at 782. We concluded that "most married persons would become agitated over a threat of harm directed to Appellate Case: 25-1191 Document: 51 Date Filed: 10/27/2026 Page: 36

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their spouses," and we therefore held that the mere fact that the victim was a newlywed did not make him unusually vulnerable to the offense. Id. And in Defendants' earlier appeal, we held that the district court erred in applying the § 3A1.1(b)(2) enhancement to Defendants based on the presumption that all individuals experiencing grief were unusually susceptible to Defendants' body- snatching fraud. Hess, 106 F.4th at 1032-33. We explained that "Defendants were able to commit their fraud by virtue of their positions of trust and their unsupervised custody over the decedents' bodies," and there was no evidence that grief played any role in the victims' decision to entrust the bodies of their loved ones to Defendants' care. Id. at 1033. We therefore remanded for further proceedings in which the district court had the opportunity to "make particularized findings of vulnerability showing the requisite nexus between vulnerability and . . . Defendants' fraud to support the application of § 3A1.1(b)(2)." Id.

The district court did just that on remand. The district court identified twenty- one individual victims whose individual characteristics made them unusually susceptible to Defendants' offense, in that they had one or more vulnerabilities that made them unusually likely to entrust their loved ones' bodies to Defendants' care and thus to fall victim to their fraud. Ms. Hess does not dispute that the five victims who were referred to Defendants by hospice workers were unusually vulnerable, and we agree that these five victims were all vulnerable because their loved ones' terminal illness or placement on hospice "enabled or facilitated commission of the fraud." Id. Additionally, we conclude that the record supports the district court's Appellate Case: 25-1191 Document: 51 Date Filed: 10/27/2026 Page: 37

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findings that several other victims were particularly susceptible to Defendants' offense because Defendants exploited their financial vulnerabilities to further the fraud.

For instance, the district court found that K.B. was an especially vulnerable victim because she was experiencing financial challenges and Ms. Hess "offered her a special price because her husband was a veteran." No. 25-1191, ROA Vol. X at 134-35. Ms. Hess thus exploited K.B.'s financial vulnerability as a way of convincing K.B. to entrust her husband's body to her care, furthering Ms. Hess's fraudulent scheme by giving her another body she could illegitimately sell. Similarly, the district court found that M.C.-P. was an especially vulnerable victim based on her individual circumstances. She "had very little income" and "was dealing with major health issues" when her grandmother passed away. Id. at 136. Defendants promised "to help her since she was dealing with it all on her own and had no money." Id. Although M.C.-P. had originally planned on having her grandmother's body embalmed, Defendants "offered cremation service for a lot cheaper," and they convinced her to take this cheaper option instead. Id. By causing her to change her plans to cremation instead of embalming, they were able to defraud M.C.-P. by selling her grandmother's body instead of conducting the funerary services that M.C.-P. paid for. Defendants thus directly exploited M.C.-P.'s financial vulnerability to gain unsupervised access to her grandmother's body in furtherance of their fraudulent scheme.

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Defendants likewise obtained unsupervised access to J.D.'s grandfather's body by telling J.D. "about an option that would cover the cost of cremation" if he would donate his grandfather's brain for Alzheimer's research. Id. at 133. Defendants then sold his grandfather's body to a plastination company for profit, contrary to the promises they had made to J.D. when he was seeking an affordable option to help cover the costs of his grandfather's funerary arrangements. We therefore agree with the district court that J.D.'s financial vulnerability made him particularly susceptible to Defendants' fraud.

Several other victims were similarly exploited by Defendants' tactic of using low-cost services to lure financially vulnerable victims into entrusting their loved ones' bodies to Defendants' care. For instance, N.H. was managing debt and needed to borrow money to cover her husband's funeral expenses. Id. at 137. Defendants exploited this financial vulnerability by "offer[ing] the most reasonable prices" while

"promis[ing] to take the utmost care of [N.H.'s] beloved husband." Id. at 137-38. Likewise, T.F. "was in a bad financial situation because [her] husband had a long fight with cancer and [they] incurred many charges." Id. at 135. She would have used her local funeral home were it not that she needed the less expensive services advertised by Sunset Mesa. Id. And M.B., D.Mc., D.W., A.S.J., and R.B.⁴similarly

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entrusted their loved ones' bodies to Defendants' care based on their own precarious financial situations and their resulting need for the lower-cost services promised by Defendants.

Accordingly, this is not a case, as in Proffit, where the victims' vulnerability was only tangentially related to the fraud. Unlike in Proffit, Defendants did not target these victims in a fraud unrelated to their vulnerability. Rather, as the district court found, there was a direct nexus between these victims' vulnerability and Defendants' fraud. Defendants were able to gain unsupervised custody over the bodies of these victims' loved ones by offering cheap, free, or discounted services to individuals who were unusually susceptible to this conduct as a result of their financial vulnerability. If Defendants had not used their promises of discounted or free cremation services to lure these especially vulnerable victims into their scheme, then they would not have had access to the bodies that they dismembered and fraudulently sold for their own gain.

Moreover, our cases have emphasized that "[t]he theory behind the vulnerable victim enhancement is that conduct against the particular victim or group of victims is more blameworthy than the conduct of other offenders and thus deserves greater punishment." United States v. Scott, 529 F.3d 1290, 1300 (10th Cir. 2008) (quoting United States v. Castaneda, 239 F.3d 978, 980 (9th Cir. 2001)). We readily conclude that Defendants' conduct here—defrauding impoverished individuals who are struggling to pay for the cremation costs of their loved ones by offering lower-price cremation services and then selling their loved ones' bodies to plastination Appellate Case: 25-1191 Document: 51 Date Filed: 10/27/2026 Page: 40

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companies and other body-brokers rather than conducting the promised cremation services—is indeed "more blameworthy than the conduct of other offenders and thus deserv[ing of] greater punishment." Id. Like cancer patients who are particularly vulnerable to fraudulent promises of a purported cancer cure, see U.S.S.G. § 3A1.1(b)(2) cmt. n.2, these impoverished and often elderly bereaved victims were particularly vulnerable to fraudulent promises of low-cost cremations services. We conclude that Defendants' offense is therefore equally deserving of an enhanced punishment. See id.; see also Scott, 529 F.3d at 1303 (affirming application of the § 3A1.1(b)(1) enhancement to a defendant who exploited his minor victim's small stature and unusual naivety to enable a trafficking offense); United States v. Caballero, 277 F.3d 1235, 1251 (10th Cir. 2002) (upholding application of the § 3A1.1(b)(2) enhancement to defendants who exploited undocumented immigrants' language barriers, unfamiliarity with U.S. laws, cultural backgrounds, and immigration status to enable their immigration fraud); cf. Brunson, 54 F.3d at 677 (holding that "focusing on foreign companies as potential victims" is not the type of

"depraved" behavior warranting application of the § 3A1.1(b)(1) enhancement). Finally, we reject Ms. Hess's argument that the district court made an impermissible class determination of vulnerability. When we have held that a district court may not make a class determination of vulnerability, we have meant, for instance, that a district court may not simply presume without evidentiary support that all seventy-one-year-olds are especially vulnerable to assault, that all newlyweds are especially vulnerable to extortion, or that all foreign businesses are especially Appellate Case: 25-1191 Document: 51 Date Filed: 10/27/2026 Page: 41

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vulnerable to fraud. See Tissnolthtos, 115 F.3d at 762; Creech, 913 F.2d at 781; Brunson, 54 F.3d at 676-77. Likewise, the district court here erred in Defendants' original sentencing proceeding by presuming without record support that all individuals experiencing grief are especially vulnerable to a body-snatching fraud. But on remand, the district court did not repeat its mistake. The district court did not presume without evidentiary support that all individuals in a generally vulnerable class would necessarily be vulnerable victims under § 3A1.1(b)(2). Instead, district court made particularized findings regarding the nexus between this specific fraud and twenty-one victims' individual vulnerabilities. The court explained based on the record evidence how Defendants exploited these victims' poverty and other vulnerabilities to further their fraudulent procurement, sale, and shipping of illegitimately obtained human remains. The district court therefore relied on record evidence rather than an impermissible presumption to establish the required nexus between the victims' vulnerabilities and Defendants' offense. And, as in Caballero, the fact that several victims shared the same vulnerability does not transform the district court's particularized findings of vulnerability into an impermissible class presumption. See 277 F.3d at 1251. Rather, the district court appropriately explained how this specific shared vulnerability directly enabled or facilitated this specific fraud, rather than impermissibly presuming without evidentiary support that victims in a vulnerable class must be vulnerable based simply on that class membership. See id.

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We therefore affirm the district court's findings of unusual vulnerability with respect to fifteen of Defendants' victims: M.B., C.A.H., D.S., L.A.P., D.Mc., K.R., J.D., D.W., K.B., T.F., A.S.J., M.C.-P., R.B., N.H., and C.B. We do not address the district court's findings regarding the remaining six victims; instead, for the reasons discussed below, we affirm the district court's application of the § 3A1.1(b)(2) enhancement because we conclude that these fifteen victims are sufficient to satisfy § 3A1.1(b)(2)'s "large number" requirement.

2. Number of Victims

In Kaufman, we considered whether the district court erred in declining to apply the § 3A1.1(b)(2) enhancement to a defendant who was convicted of several crimes, including forced labor and involuntary servitude, based on her aiding and abetting of her husband's exploitation and abuse of mentally ill individuals in their unlicensed group home. See 546 F.3d at 1246-47. The district court concluded that the jury verdict supported the conclusion that the victims of the offense were vulnerable, but it decided not to apply the § 3A1.1(b)(2) enhancement based on the Guidelines' lack of clear guidance as to how many victims would satisfy the enhancement's "large number" requirement. Id. at 1268. The government appealed that decision, and we reversed and remanded for the district court to make particularized findings as to each victim's vulnerability. Id. at 1268-69. In addressing the district court's concern regarding the "large number"

requirement, we acknowledged that this phrase was "largely uninterpreted." Id. at 1268 (quoting United States v. Anderson, 349 F.3d 568, 573 (8th Cir. 2003)). Appellate Case: 25-1191 Document: 51 Date Filed: 10/27/2026 Page: 43

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However, we concluded that a "large number" in the context of an involuntary servitude offense could be defined based on the specific offense Guidelines for involuntary servitude. Id. at 1268-69. Thus, because the Guidelines provision for involuntary servitude provided for an upward departure when "the offense involved the holding of more than ten victims in a condition of peonage or involuntary servitude," id. at 1269 (quoting U.S.S.G. § 2H4.1 cmt. n.3 (U.S. Sent'g Comm'n 2008)), we held that, "in the context of involuntary servitude and forced labor, ten victims is a large number" for the purposes of § 3A1.1(b)(2), id. Here, Defendants pleaded guilty to mail fraud. The Guidelines provisions for fraud offenses, including mail fraud, establish various levels of enhancements for offenses involving five or more victims, ten or more victims, and twenty-five or more victims. U.S.S.G. § 2B1.1(b)(2). And we indicated in Caballero that a fraud offense does not need to involve twenty-five victims in order to satisfy § 3A1.1(b)(2)'s "large number" requirement, as there we upheld the application of this enhancement in a fraud case involving sixteen particularly vulnerable victims. See 277 F.3d at 1251. We need not here decide whether § 2B1.1(b)(2)'s five-victim enhancement or ten-victim enhancement should guide our determination of the definition of § 3A1.1(b)(1)'s "large number" requirement in the context of a fraud offense. It is enough for our purposes today to hold that the fifteen victims we have identified in this case, like the sixteen at issue in Caballero, will suffice.

3. Applicability of U.S.S.G. § 3A1.1(b)(2) to Ms. Koch

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Ms. Koch also argues that the § 3A1.1(b)(2) enhancement should not have been applied to her because (1) the evidence presented at resentencing failed to establish that she had any meaningful contact with most of the victims whom the district court identified as especially vulnerable; and (2) the Government itself acknowledged at resentencing that the enhancement should not apply to her. With respect to her second argument, Ms. Koch contends both that the district court should have given more weight to the Government's legal position regarding the applicability of the enhancement and that the Government waived its appellate arguments in support of the enhancement by taking the contrary position before the district court.

Ms. Koch's second argument is meritless. As she herself acknowledges, the Government's legal position regarding the applicability of the enhancement was not binding on the district court, and she cites no authority for the proposition that the district court nevertheless should have deferred to the Government's legal position. In United States v. Ronquillo, 94 F.4th 1169 (10th Cir. 2024), we reviewed de novo whether a search warrant authorized the search of a detached garage, despite the government's concession before the district court that the garage did not fall within the scope of the warrant, based on the "well-settled" principle "that a court is not bound by stipulations of the parties as to questions of law" Id. at 1173 & n.2 (quotation marks omitted). Ms. Koch provides no reason why the same principle would not apply here, and we therefore reject her unsupported argument that the Appellate Case: 25-1191 Document: 51 Date Filed: 10/27/2026 Page: 45

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district court should have deferred to the Government's legal position regarding the applicability of the enhancement.

We likewise reject Ms. Koch's waiver argument, which is premised on her failure to recognize the difference between arguments in favor of affirmance and arguments in favor of reversal. See Richison v. Ernest Grp., 634 F.3d 1123, 1130 (10th Cir. 2011). As we explained to Ms. Koch in her earlier appeal, "just as we may affirm the district court on any ground supported by the record, the government as appellee is generally permitted to defend the judgment won below on any ground supported by the record." Hess, 106 F.4th at 1030 (internal quotation marks omitted). Ms. Koch provides no persuasive reason why we should reach a different result in this appeal, and we therefore reject her argument that the Government may not ask us to affirm the district court's sentencing decision here.

We turn then to the merits of Ms. Koch's argument that the § 3A1.1(b)(2) enhancement did not apply to her because she did not personally interact with most of the vulnerable victims "and therefore was in no position to prey upon their particular vulnerabilities in order to perpetrate a fraud." No. 25-1179, Appellant's Br. at 22-23.

We reject this argument based on the plain language of the Guidelines. The Guidelines commentary specifically explains that § 3A1.1(b) applies to the victims of

"any conduct for which the defendant is accountable under § 1B1.3 (Relevant Conduct)." U.S.S.G. § 3A1.1 cmt. n.2 (emphasis added). And § 1B1.3 provides in turn that a defendant is accountable for "all acts and omissions committed, aided, Appellate Case: 25-1191 Document: 51 Date Filed: 10/27/2026 Page: 46

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abetted, counseled, commanded, induced, procured, or willfully caused by the defendant . . . that occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense." U.S.S.G. § 1B1.3(a)(1)(A). Moreover, although the initial enhancement under § 3A1.1(b)(1) applies only if the defendant "knew or should have known" of at least one victim's vulnerability, § 3A1.1(b)(1), the additional two-level enhancement under § 3A1.1(b)(2) contains no such scienter requirement, see § 3A1.1(b)(2). Thus, as the district court correctly explained, this enhancement is offense-specific rather than defendant-specific. Accordingly, nothing in the Guidelines supports Ms. Koch's argument that the § 3A1.1(b)(2) enhancement applies only to a limited subset of relevant conduct involving direct involvement by the defendant. To the contrary, the Guidelines indicate that § 3A1.1(b)(2) applies expansively to all vulnerable victims of the defendant's relevant conduct, including conduct that she aided and abetted. Moreover, the cases cited by Ms. Koch do not help her argument. For instance, she primarily relies on United States v. Boll, 3 F.4th 1099 (8th Cir. 2021), which she cites for the proposition that the "context" of the offense—by which she means her personal involvement in it—determines whether the § 3A1.1(b)(2) enhancement applies. However, the Eighth Circuit in Boll held that § 3A1.1(b)(2) "applies when, taking into account the defendant's 'offense of conviction and all relevant conduct,' the number of vulnerable victims exceeds the typical number involved in offenses of like kind." Id. at 1102 (quoting U.S.S.G. § 1B1.1 cmt. n.1(l)). Thus, Boll does not Appellate Case: 25-1191 Document: 51 Date Filed: 10/27/2026 Page: 47

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support Ms. Koch's argument that, contrary to the language of the Guidelines, the application of the § 3A1.1(b)(2) enhancement depends solely on the defendant's personal actions rather than all "relevant conduct" as defined in the Guidelines. See id. Nor does Boll support Ms. Koch's argument that her personal participation in the fraud defines the "context" of her offense. Instead, Boll explains that the "context" of the offense means the type of offense at issue; that is, the enhancement applies if "the number of vulnerable victims exceeds the typical number involved in offenses of like kind." Id.

Here, because Ms. Koch pleaded guilty to aiding and abetting mail fraud, her relevant conduct included both her own conduct and Ms. Hess's conduct in furtherance of their fraudulent scheme. It is therefore irrelevant that she did not personally interact with all of the vulnerable victims of their fraud: her relevant conduct encompassed all of the conduct that she aided and abetted, regardless of the role she played in causing each specific victim's harm.

We therefore affirm the district court's application of the § 3A1.1(b)(2) enhancement to Ms. Koch as well as Ms. Hess.⁵

B. Ms. Hess's Post-sentencing Rehabilitative Efforts

We next address Ms. Hess's argument that the district court erred in rejecting her evidence of post-sentencing rehabilitative efforts. Ms. Hess acknowledges that plain error review applies because she did not object to the district court's ruling

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during the resentencing proceeding. We therefore will not reverse unless Ms. Hess meets her burden of showing that "(1) an error occurred; (2) the error was plain;

(3) the error affected substantial rights; and (4) the error seriously affected the fairness, integrity, or public reputation of a judicial proceeding." United States v. Kee, 129 F.4th 1249, 1252 (10th Cir. 2025) (quotation marks omitted). Ms. Hess premises her plain error argument on the Supreme Court's decision in Pepper v. United States, 562 U.S. 476 (2011). There, the Court held that "when a defendant's sentence has been set aside on appeal, a district court at resentencing may consider evidence of the defendant's postsentencing rehabilitation[,] and . . . such evidence may, in appropriate cases, support a downward variance." Id. at 481. The Court reasoned that "evidence of postsentencing rehabilitation may be highly relevant to several of the § 3553(a) factors that Congress has expressly instructed district courts to consider at sentencing," such as the history and characteristics of the defendant and the need for the sentence imposed to deter criminal conduct, protect the public and provide the defendant with correctional treatment. Id. at 491. The Court therefore reversed an Eighth Circuit rule that prohibited district courts from considering such evidence. Id. at 493. Additionally, the Court invalidated a Guidelines provision that prohibited downward departures based on post-sentencing rehabilitative efforts. Id. at 499-502. In so doing, the Court rejected the Commission's rationale that a sentencing reduction based on post- sentencing rehabilitation would be inconsistent with the Bureau of Prison's system of good-time credits. Id. at 501. The Court explained that "a sentencing reduction based Appellate Case: 25-1191 Document: 51 Date Filed: 10/27/2026 Page: 49

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on post-sentencing rehabilitation can hardly be said to be 'inconsistent with the policies' underlying an award of good time credit under [18 U.S.C.] § 3624(b) because the two serve distinctly different penological interests." Id. at 501 (quoting U.S.S.G. § 5K2.19 cmt. background (U.S. Sent'g Comm'n 2011)). Ms. Hess contends that the district court plainly erred under Pepper by

"summarily reject[ing] her "extraordinary evidence of post-sentencing rehabilitative conduct." No. 25-1191, Appellant's Br. at 22. She asserts that she submitted extensive and impressive evidence of post-sentencing rehabilitation, including

"excerpts from several of the 63 letters of support [she] received from inmates and staff at FCI Waseca; over 200 certificates of completed courses; as well as detailed descriptions of the multitude of ways [she] has worked tirelessly to better herself and the lives of all around her while incarcerated." Id. at 42. She contends that the district court's reasoning for discounting this evidence—that all prisoners are expected to comply with prison rules and that Ms. Hess would receive good-time credit from the Bureau of Prisons for her good conduct—squarely contradicts the Supreme Court's holding in Pepper and therefore requires reversal.

Assuming without deciding that the district court erred, we conclude that Ms. Hess's argument fails at the second prong of the plain error analysis because any such error was not "obvious under current well-settled law." United States v. Booker,

63 F.4th 1254, 1258 (10th Cir. 2023) (quotation marks omitted). In Pepper, the Supreme Court held that a district court at resentencing "may consider" post- resentencing rehabilitation evidence, which "may" support a downward variance "in Appellate Case: 25-1191 Document: 51 Date Filed: 10/27/2026 Page: 50

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appropriate cases." 562 U.S. at 490. As the Supreme Court itself explained, however, this does not mean "that a district court must reduce a defendant's sentence upon any showing of postsentencing rehabilitation." Id. at 505 n.17. Likewise, although Pepper held that the existence of good-time credit does not preclude a resentencing court from considering evidence of post-sentencing rehabilitation, see id. at 501-02 & n.14, the Court did not hold that the possibility of good-time credit is irrelevant to a resentencing decision. Nothing in Pepper precludes a district court from considering the availability of good-time credit in deciding how much weight, if any, to give to the defendant's evidence of post-sentencing rehabilitative conduct.

The district court's reasons for rejecting Ms. Hess's evidence of post- sentencing rehabilitative efforts were therefore not plainly or obviously wrong under Pepper. And Ms. Hess cites no other authorities to satisfy her burden of showing that the district court's alleged error was "obvious under current well-settled law."

Booker, 63 F.4th at 1258. We therefore conclude that her argument fails at the second prong of plain error review.

Moreover, even if Ms. Hess had satisfied the second prong of plain error review, we are not persuaded that any such error violated her substantial rights. "An error seriously affects the defendant's substantial rights when the defendant demonstrates that there is a reasonable probability that, but for the error claimed, the result of the proceeding would have been different." Id. at 1262 (quotation marks omitted). Here, the district court specifically explained that it found the nature and Appellate Case: 25-1191 Document: 51 Date Filed: 10/27/2026 Page: 51

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circumstances of the offense to be so depraved and heinous as to outweigh any possible mitigating factors. Thus, Ms. Hess has not shown a reasonable probability that the outcome would have been different were it not for the claimed error. That is, she has not shown that the district court would have imposed a lower sentence if it had more clearly recognized that post-sentencing rehabilitation may be a relevant sentencing factor and that good-time credits serve a different penological purpose than a reduced sentence on resentencing. Accordingly, this argument fails at the third prong of plain error review as well.

C. Substantive Reasonableness of Ms. Koch's Sentence

Finally, we consider Ms. Koch's argument that her 180-month sentence was not substantively reasonable.

"Substantive reasonableness involves whether the length of the sentence is reasonable given all the circumstances of the case in light of the factors set forth in § 3553(a)." Rocha, 145 F.4th at 1260 (quotation marks omitted). When we review a sentence for substantive reasonableness, "[o]ur review is guided by the recognition that the district court is in a superior position to find facts and judge their import under § 3553(a) in the individual case." Id. (internal quotation marks omitted). Thus,

"we give substantial deference to the district court and will only overturn a sentence that is arbitrary, capricious, whimsical, or manifestly unreasonable." United States v. Peña, 963 F.3d 1016, 1024 (10th Cir. 2020) (internal quotation marks omitted). Stated differently, we "will uphold the sentence imposed unless the sentencing decision exceeds the bounds of permissible choice, given the facts and the applicable Appellate Case: 25-1191 Document: 51 Date Filed: 10/27/2026 Page: 52

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law." United States v. Holt, 161 F.4th 1253, 1267 (10th Cir. 2025) (quotation marks omitted).

"Because our abuse-of-discretion standard applies without regard to whether the district court imposes a sentence within or outside the advisory [G]uidelines range, we do not apply a presumption of unreasonableness to sentences outside the [G]uidelines range." Rocha, 145 F.4th at 1260-61 (internal quotation marks omitted).

"Instead, we give due deference to the district court's decision that the § 3553(a) factors, on the whole, justify the extent of the variance." Id. at 1261 (quotation marks omitted).

Ms. Koch contends that her sentence was substantively unreasonable because the district court "imposed a 180-month prison sentence on a 71 year-old defendant with serious health issues and no significant criminal history, whom the court appeared to recognize played a lesser and more indirect role in the fraudulent enterprise." No. 25-1179, Appellant's Br. at 33. She argues that a 180-month sentence for someone with her "age and physical condition" is "a virtual death sentence," which is "simply not reasonable in what is—at its core—a white-collar fraud case" where she "played a largely passive and ancillary role in soliciting victims." Id. at 34. She asserts that her 180-month sentence constituted an upward variance of "130% from the low-end, and 85% from the high-end, of what [the district court] deemed to be the correct advisory range." Id. at 33. And she contends that this significant upward variance was not warranted under the § 3553(a) factors, Appellate Case: 25-1191 Document: 51 Date Filed: 10/27/2026 Page: 53

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particularly because she "did not devise the scheme [or] . . . run the show." Id. at 33-

34.

Ms. Koch's arguments fail to satisfy our deferential abuse of discretion standard. The district court considered Ms. Koch's arguments regarding her age, health issues, and criminal history, but it ultimately concluded that these potentially mitigating factors were outweighed by the other § 3553(a) factors. Although the court agreed with Ms. Koch that she was "less culpable" than Ms. Hess, the court concluded that an upward variance to 180 months was nevertheless warranted based on the "horrendous," "unimaginable," and "incredibly heinous" nature of Ms. Koch's offense, which the court found to be much more reprehensible than the "average white-collar offense." No. 25-1191, ROA Vol. X at 206, 214-15, 217. The court reasoned that the Guidelines did not adequately "take into account the depth and breadth, the persistence, and the depravity and the harmfulness of [Ms. Koch's] conduct." Id. at 216. Moreover, the district court found that Ms. Koch had demonstrated "virtually no remorse" for "her heinous conduct," which has caused and will cause "untold and painful suffering for her many victims for years to come."

Id. at 215. And the court accounted for her relatively lower culpability in Defendants' fraudulent scheme by sentencing her to 180 months of imprisonment, 60 months less than the 240-month statutory maximum that it imposed on Ms. Hess. A district court does not abuse its discretion by concluding that an upward variance is justified because the Guidelines do not adequately account for the unusually harmful or serious nature of the defendant's offense. See, e.g., United Appellate Case: 25-1191 Document: 51 Date Filed: 10/27/2026 Page: 54

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States v. Doty, 150 F.4th 1351, 1355-56, 1358 (10th Cir. 2025) (upholding an upward variance from 33-41 months to 96 months based on the "atypical" and

"extraordinarily harmful" nature of the offense); Rocha, 145 F.4th at 1276 (upholding an upward variance from 27-33 months to 60 months because the district court

"viewed the recklessness of [the defendant's] conduct as extraordinary and, thus, not fully accounted for by his Guidelines range"); United States v. Lawless, 979 F.3d 849, 852, 855 (10th Cir. 2020) (affirming an upward variance from 60 months to 144 months where "[t]he district court found th[e] case to be far from a typical arson" and found the defendant's conduct to be "truly disturbing and very serious"); United States v. Walker, 74 F.4th 1163, 1203-04 (10th Cir. 2023) (upholding an upward variance from 84-105 months to 300 months based in part on the severity of the mental and physical harm suffered by the victim). Nor does a district court abuse its discretion by varying upward based in part on the defendant's lack of remorse. See United States v. Vazquez-Garcia, 130 F.4th 891, 901-02 (10th Cir. 2025) (affirming an upward variance from 24-30 months to 48 months based in part on the fact that

"nothing indicated [the defendant] was remorseful for [sexually abusing a child] in 2018").

"In our review on appeal, we must defer not only to a district court's factual findings in support of a variance, but also to its determinations of the weight to be afforded to such findings." Rocha, 145 F.4th at 1276 (internal quotation marks omitted). In essence, Ms. Koch "invites us to reweigh the district court's balancing of the § 3553(a) factors." Lawless, 979 F.3d at 856. But we must "decline that invitation Appellate Case: 25-1191 Document: 51 Date Filed: 10/27/2026 Page: 55

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because reweighing the factors is beyond the ambit of our review." Id. "[T]he district court thoroughly weighed each of the[] § 3553(a) factors, reached a logical conclusion, and detailed its reasoning," id., and Ms. Koch has not shown that it thereby abused its discretion. We accordingly reject her challenge to the substantive reasonableness of her sentence.

III. CONCLUSION

For the reasons discussed above, we AFFIRM Defendants' sentences. Appellate Case: 25-1191 Document: 51 Date Filed: 10/27/2026 Page: 56