Sentencing; Procedural reasonableness; Upward variance from the Guidelines; Substantive reasonableness; Restitution; The Mandatory Victims Restitution Act (MVRA); 18 USC §§ 3663A(a)(1) & (c)(1)(B); The “course of the conspiracy”; § 3663A(a)(2); Exclusion of a proposed expert witness; FRE 702

[This appeal was from the WD-MI.] Considering defendant-Gray’s challenge to the district court’s restitution order, the court joined other circuits by holding that “[i]f an indictment alleges that a conspiracy began on a certain date . . . a defendant may not be held responsible for losses that occurred before that date.” But it otherwise upheld his sentence and rejected his claim that the district court erred in excluding one of his proposed expert witnesses. Thus, it affirmed his convictions for conspiring to defraud the U.S., making false statements to a federal agency, submitting a fraudulent claim to a federal agency, and stealing government funds, and his above-Guidelines sentence of five years but vacated the $264,631 restitution order. The case arose from Gray’s misrepresentation of his health to the Department of Defense to collect unearned benefits. On appeal, he first challenged the district court’s ruling excluding his proposed expert witness under Rule 702. But the court agreed with the district court that the witness, a neuropsychologist, “had little expertise to offer about Gray’s physical injuries.” As to his sentencing challenges, while Gray claimed the district court miscalculated his criminal history score, he stated in court that he had no objection to the calculations or the underlying facts. Thus, he admitted that he had committed a prior offense and that he “was on supervised release when he committed at least some of the conduct charged in” this case. Thus, the court found his sentence was “procedurally sound.” He also argued that it was substantively unreasonable because it exceeded the top of the Guidelines range by nine months. But the court concluded the district court did not abuse its discretion in imposing the upward variance. “Not only did he steal from the government, but he did so over several years, with truly ‘blatant fraud’ captured on videotape.” He also enlisted his wife in his schemes. Further, Gray “showed ‘zero insight into his own wrongdoing,’ blaming others—the court, Veterans Affairs, ‘the jury, the witnesses, whoever it may be’—instead of taking responsibility for his actions.” As to mitigating factors, the record indicated the district court properly considered his exemplary years of military service. But as to the restitution order, the court noted that under the MVRA, the amount should have been calculated based on Gray’s criminal conduct during “‘the course of the conspiracy.’” No count in the indictment involved “any conduct before 2015. By the indictment’s terms, the conspiracy began in 2015 and concluded in 2019. Accepting a linear theory of time, a conspiracy that began in 2015 does not cause losses in 2004.” As a result, the “restitution order should not have covered losses before” 1/15. Affirmed in part, vacated in part, and remanded for recalculation of the amount due in restitution.