United States v. Rainford

United States of America, Appellee v. Ryan Rainford, Bryan Duncan, Robert Locust, Defendants-Appellants Peter Kalkanis, Kerry Gordon, aka Curry, Defendants^* On Appeal from the United States District Court for the Southern District of New York The defendants-appellants, who were convicted of orchestrating a fraudulent slip-and-fall scheme, challenge their convictions, their guidelines calculations, and their sentences. Because none of the challenges to the convictions are persuasive, we affirm the judgments of conviction. We also affirm with respect to the guidelines calculations, but we remand for factfinding as to the number of fraudulent accidents the conspiracy orchestrated while Rainford and Locust were members of the conspiracy for the purpose of computing the loss enhancement under U.S.S.G. §2B1.1. With respect to the sentences, we (1) vacate and remand Duncan’s forfeiture order, concluding that it was based only on government allegations, not on factual material, (2) affirm the district court’s restitution order for Rainford and Locust but modify the order by $120,000, and (3) affirm Rainford’s sentence but remand to the district court to reconsider the sentence “as may be just under the circumstances.” 28 U.S.C. §2106. Judge Jacobs concurs in a separate opinion. Judge Merriam concurs in part and dissents in part in a separate opinion. STEVEN MENASHI, C.J. Defendants-Appellants Ryan Rainford, Robert Locust, and Bryan Duncan appeal their convictions and sentences for conspiracy to commit mail and wire fraud in violation of 18 U.S.C. §1349.1 Duncan proceeds pro se on appeal. The convictions arose from a fraudulent slip-and-fall scheme that the defendants and others orchestrated. The scheme involved recruiting poor and homeless people to fake accidents at properties around the New York area. The recruit would stage an accident and then seek unnecessary medical treatment — sometimes including surgery — from doctors who were part of the scheme. The organizers of the scheme would then refer the recruit to a lawyer, who would sue the property owner or the owner’s insurance company for damages. The proceeds from the lawsuits, which often settled, were then divided among the co-conspirators, with the recruits receiving relatively little. The defendants raise several arguments on appeal. We affirm with respect to each issue relating to the trial and convictions. See infra Part I. We affirm the judgment with respect to the sentencing guidelines calculations, but we remand for factfinding as to the number of fraudulent accidents orchestrated by the conspiracy while Rainford and Locust were members for the purpose of performing a loss calculation under U.S.S.G. §2B1.1. See infra Part II. Finally, we vacate and remand Duncan’s forfeiture order, affirm but modify the restitution order for Rainford and Locust, and affirm Rainford’s sentence but remand for reconsideration in the interest of justice. See infra Part III. BACKGROUND The conduct underlying this appeal involves two fraudulent slip-and-fall schemes. The first scheme began around 2013 and included Rainford, Duncan, and Locust. Peter Kalkanis was the principal organizer of the first scheme, and Rainford, Duncan, and Locust were lower-level co-conspirators known as “runners.” The runners would seek out people who were often poor or homeless. They would then find suitable locations for slip-and-fall accidents and instruct a recruit to stage a fall at the location and to seek medical attention for nonexistent injuries. Sometimes, the unnecessary medical attention included surgery. The recruit was then referred to a lawyer who would pursue a personal injury lawsuit on his or her behalf. Kalkanis would typically sit in on a recruit’s meeting with the attorney. At the meeting, Kalkanis would record pertinent information on an “intake sheet,” which included the name of the recruit as well as others involved in the “accident,” including the runner who referred the recruit to the scheme. Notably, some of the intake sheets processed in this way were not fraudulent but documented genuine slip-and-fall accidents and legitimate legal claims. When asked at trial how many of the intake sheets involved fraudulent slip-and-falls, Kalkanis initially testified that “[a]t least 80 percent” were fraudulent. Rainford App’x 884. Kalkanis then backtracked, saying that “practically all of them” were fraudulent. Id. When asked to clarify, Kalkanis said “the majority of them” were fraudulent. Id. The district court noted that Kalkanis had given different answers to the same question; Kalkanis then reiterated that “[t]he majority of them” were fraudulent. Id. When asked how many cases he managed during the first conspiracy, Kalkanis estimated that there were “[a]pproximately 300, if not more.” Id. at 883. The runners also ensured that the recruits attended medical and legal appointments by transporting them to those appointments. The organizers of the scheme would arrange for litigation funding companies to underwrite the medical expenses and litigation. While litigation proceeded, the organizers would often arrange “loans” to the recruits from the litigation funding companies to pay expenses. One witness testified that he used his loan to pay for “anything, whether it be rent, bills” as well as “to pay the medical facilities for the surgeries that [he] would need.” Id. at 751. The lawsuits frequently resulted in settlements, often for six figures. The proceeds were distributed among the organizers, doctors, lawyers, litigation funders, and others involved in the scheme. The recruit would receive what was left. One recruit who testified at trial was Yvette Battle. After staging a fraudulent slip-and-fall, Battle underwent knee surgery for which she received anesthesia. She was compensated with $1,000 along with cookies and juice. See id. at 685. A “couple of months later,” she underwent a shoulder surgery and in exchange for the surgery she was paid $1,000. Id. at 685-88. She filed an action against the owner of the property where she staged the accident. That action was “[d]ismissed” and she received nothing of value from that lawsuit. Id. at 689. During the government’s examination of Battle, the prosecutor referred to these $1,000 payments as “loans,” id., and Battle did not correct that characterization. Some recruits whose cases settled received larger payouts. One recruit who underwent shoulder surgery received $19,000 out of a $100,000 settlement, and another who underwent back and knee surgery received $35,000 out of a $225,000 settlement. In 2015, Duncan and Kerry Gordon — another co-conspirator in the Kalkanis scheme — began a spin-off scheme. That scheme was substantially similar to the Kalkanis scheme, often using the same attorneys, doctors, and low-level co-conspirators. Duncan and Gordon created a business entity — D&G Premier Solutions LLC (“D&G”) — to operate the scheme. D&G would connect recruits with litigation funding companies. D&G would receive a referral fee from a funding company after the company contracted with a recruit to provide payments in exchange for the recruit’s future settlement amount. In 2019, a six-count superseding indictment was returned against the co-conspirators in the two schemes. Rainford, Duncan, and Locust were each charged with three counts in connection with the Kalkanis scheme: conspiracy to commit mail and wire fraud (Count One), mail fraud (Count Two), and wire fraud (Count Three). Id. at 60-64. Duncan was indicted on three additional counts relating to the spin-off scheme: conspiracy to commit mail and wire fraud (Count Four), mail fraud (Count Five), and wire fraud (Count Six). Id. at 64-67. The government presented extensive evidence of guilt at trial. Almost a dozen recruits testified that they had participated in the schemes by staging accidents and receiving unnecessary medical treatment. Kalkanis also testified. He stated that he “directed the traffic” in the first scheme and “was a manager in th[e] whole thing.” Id. at 819. Kalkanis elaborated that the scheme was fraudulent because “these weren’t real accidents.” Id. And he identified Locust, Rainford, and Duncan as members of the conspiracy. Id. at 819-20. The government also introduced the intake sheets, medical records, and communications between the co-conspirators. The jury found Rainford, Locust, and Duncan guilty of conspiracy to commit mail and wire fraud in connection with the Kalkanis scheme (Count One). See id. at 1226.² The jury also found Duncan guilty of conspiracy to commit mail and wire fraud (Count Four), mail fraud (Count Five), and wire fraud (Count Six) in connection with the spin-off scheme. This appeal followed. DISCUSSION Rainford, Duncan, and Locust raise several arguments on appeal. We begin with the arguments relating to the trial and convictions, and we affirm the judgment of the district court with respect to those issues. See infra Part I. We next consider the defendants’ challenges to their sentencing guidelines calculations. We affirm the judgment with respect to the calculations, but we remand for additional factfinding relating to the loss enhancements for Rainford and Locust. See infra Part II. Finally, we address the defendants’ arguments about their sentences. We vacate and remand Duncan’s forfeiture order because the district court relied only on representations by the government, not on evidence, in calculating the forfeiture amount. We affirm the district court’s restitution order for Rainford and Locust, but we modify the order as the parties agree. And we affirm Rainford’s sentence of imprisonment but remand with instructions to reconsider it in the interest of justice. See infra Part III. I First, we consider the defendants’ challenges to their convictions. A Duncan argues that his due process rights were violated because the government introduced false testimony by Alvin Martin, Reginald Dewitt, and Tina Nichols. The government may not knowingly introduce false evidence or testimony to obtain a conviction. See United States v. Alston, 899 F.3d 135, 146 (2d Cir. 2018). A witness does not perjure himself merely by giving incorrect, confusing, or mistaken testimony: “Simple inaccuracies or inconsistencies in testimony do not rise to the level of perjury.” United States v. Monteleone, 257 F.3d 210, 219 (2d Cir. 2001). Rather, a witness commits perjury “if he gives false testimony concerning a material matter with the willful intent to provide false testimony.” United States v. Aquart, 912 F.3d 1, 20 (2d Cir. 2018) (quoting Monteleone, 257 F.3d at 219). Duncan has identified no false testimony by Martin, Dewitt, or Nichols that was material to his conviction and that the government knew was false. Duncan points to (1) Martin’s testimony that Kalkanis was his attorney; (2) Martin’s confusion as to whether his attorney’s office was in Astoria, Queens; (3) Martin’s testimony as to who entered a meeting with the lawyer at a certain time; (4) Martin’s recollection of a person’s name; and (5) Martin’s testimony as to whether his mother lied to the government. But Duncan has not established that any of this testimony — assuming it was false — was material to his conviction or that the government knew the testimony was false. The same is true of Duncan’s claim that Dewitt perjured himself by stating that he was not involved in any cases in 2014, despite an intake form from 2014 listing him as a runner for the conspiracy. Finally, Duncan notes that Nichols testified that she had been recruited by Duncan, but other pieces of evidence indicated that Dewitt made the referral. This may not be a contradiction — recruitment and referral may be different concepts — but in any event Duncan has not established how the testimony was material. He has identified, at most, a “[s]imple…inconsistenc[y].” Monteleone, 257 F.3d at 219. Because Duncan has not identified a material falsity known to the government, we affirm with respect to this issue. B Duncan also argues that the district court erred by admitting intake sheets — documents Kalkanis created that recorded pertinent information about each slip-and-fall accident — into evidence. Duncan’s brief does not make clear the basis of his argument. But because “[a] document filed pro se is to be liberally construed,” Boykin v. KeyCorp, 521 F.3d 202, 214 (2d Cir. 2008) (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007)), we interpret Duncan’s brief as (1) arguing that the intake sheets were not relevant because Kalkanis testified he had no personal knowledge of which cases were fraudulent and which were legitimate and (2) raising a Confrontation Clause claim. We review a district court’s evidentiary decisions for abuse of discretion. See United States v. Persico, 645 F.3d 85, 99 (2d Cir. 2011). Duncan’s argument that the intake sheets were irrelevant is mistaken. Kalkanis testified that he personally filled out the intake sheets and that he did so while meeting with the recruit. See Rainford App’x 857 (“These are combination intake sheets that I did with each individual patient.”). Even if Kalkanis himself could not say which intake sheets involved fraudulent slip-and-falls and which involved legitimate accidents, we cannot conclude that the intake sheets documenting the accidents in the scheme had no “tendency to make a fact more or less probable than it would be without the evidence.” Fed. R. Evid. 401(a). Separately, Duncan contends that intake sheets were admitted for recruits who did not testify, which violated his Sixth Amendment right “to be confronted with the witnesses against him.” U.S. Const. amend. VI. The Confrontation Clause prohibits the admission of “testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.” Crawford v. Washington, 541 U.S. 36, 53-54 (2004). In this case, Duncan had the opportunity to crossexamine Kalkanis, who drafted the intake sheets, so there was no violation of the Confrontation Clause. We affirm the district court’s judgment with respect to the admission of the intake sheets into evidence. C Locust argues that the district court’s summary denial of his motion for appointment of new counsel deprived him of his right to effective assistance of counsel. We disagree. We review the denial of a motion to substitute counsel for abuse of discretion. United States v. Simeonov, 252 F.3d 238, 241 (2d Cir. 2001). We consider four factors: (1) whether the motion for new counsel was timely; (2) whether the district court adequately inquired into the matter; (3) whether the conflict between the defendant and his attorney was so great that it caused a lack of communication and prevented an adequate defense; and (4) whether the defendant substantially and unjustifiably contributed to the breakdown in communication. United States v. Hsu, 669 F.3d 112, 122-23 (2d Cir. 2012). Locust’s argument fails because he waived the argument before the district court. One trial day after Locust’s motion was denied, the district court directly asked Locust: “[Y]ou’ve indicated that you don’t want to go pro se here and you want to continue with Dinnerstein and Cecutti [Locust's trial counsel], correct?” Supp. App’x 25-26. Locust replied: “Yes, sir.” Id. at 26. That statement was an “intentional relinquishment or abandonment of a known right, and…permanently extinguishe[d] the right to raise the claim” on appeal. United States v. Polouizzi, 564 F.3d 142, 153 (2d Cir. 2009) (internal quotation marks omitted). Locust responds that he did not waive the argument because the district court was clear that any motion for new counsel would have been futile. But the cases on which Locust relies for that proposition — despite using the term “waiver” — each address the failure to object, not the intentional relinquishment of a right. See Anderson v. Branen, 17 F.3d 552, 556-57 (2d Cir. 1994); Ostrowski v. Atl. Mut. Ins. Cos., 968 F.2d 171, 177-79 (2d Cir. 1992). Locust misses this critical distinction. “Waiver is different from forfeiture. Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the intentional relinquishment or abandonment of a known right.” United States v. Olano, 507 U.S. 725, 733 (1993) (emphasis added) (internal quotation marks omitted). We have “discretion to correct errors that were forfeited because not timely raised in the district court, but no such discretion applies when there has been true waiver.” United States v. Spruill, 808 F.3d 585, 596 (2d Cir. 2015). Locust’s response when the district court asked if he wished to proceed was intentional and affirmative — and it qualified as a waiver. Accordingly, Anderson and Ostrowski provide no basis for applying a discretionary exception. Locust has waived this argument. Even if he had not waived it, the argument would fail. Locust’s motion for new counsel was made during the trial. “[O]nce trial has begun, a defendant has no unbridled right to reject assigned counsel and demand another” because defendants may “manipulat[e]…the right so as to obstruct the orderly procedure in the courts or to interfere with the fair administration of justice.” United States v. John Doe No. 1, 272 F.3d 116, 122 (2d Cir. 2001) (internal quotation marks omitted). Locust contends that the motion was timely because it responded to his counsel’s performance at trial. Indeed, Locust identifies several comments by the trial judge indicating dissatisfaction with Locust’s counsel. That may affect our analysis of the timeliness prong. See Hsu, 669 F.3d at 122. But it cuts against Locust overall. If Locust’s belief that his counsel was deficient was based on his counsel’s performance at trial, then the district court did not need to make a special inquiry into his counsel’s performance; the district court had witnessed the counsel’s performance during the trial. And the district court evaluated that performance. In denying Locust’s motion, the district court stated that it “f[ou]nd the representation of [Locust's trial counsel] to be quite good.” Locust App’x 37. Moreover, Locust confirmed to the district court that the purported deficiency was “due to the conduct of the trial,” id. at 38, and was not based on a lack of communication, see Hsu, 669 F.3d at 123. Locust suggests that the district court should have asked more targeted questions. But, on these facts, we see no abuse of discretion in failing to inquire further about the counsel’s conduct at trial. Locust’s challenge on appeal therefore would fail on the merits even if it had not been waived. We affirm the district court’s judgment with respect to the denial of Locust’s motion for new counsel. D Locust further argues that the prosecutor committed “several serious improprieties” at closing argument, prejudicing his right to a fair trial. Locust Br. 32. Prosecutorial remarks “do not amount to a denial of due process unless they constitute ‘egregious misconduct.’” United States v. Shareef, 190 F.3d 71, 78 (2d Cir. 1999) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 647 (1974)). So long as a prosecutor does not “misstate the evidence,” he or she is entitled to “wide latitude during closing arguments.” United States v. Tocco, 135 F.3d 116, 130 (2d Cir. 1998). Even if a prosecutor’s remarks were improper, a defendant will succeed on a misconduct claim only when “the remarks, taken in the context of the entire trial, resulted in substantial prejudice.” United States v. Thomas, 377 F.3d 232, 244 (2d Cir. 2004) (quoting United States v. Perez, 144 F.3d 204, 210 (2d Cir. 1998)). When evaluating prejudice, we consider three factors: (1) “the severity of the misconduct,” (2) “the measures adopted to cure the misconduct,” and (3) “the certainty of conviction absent the misconduct.” United States v. Elias, 285 F.3d 183, 190 (2d Cir. 2002). A new trial is ordered only in a “rare case.” United States v. Rodriguez, 968 F.2d 130, 142 (2d Cir. 1992) (quoting Floyd v. Meachum, 907 F.2d 347, 348 (2d Cir. 1990)). When the defendant failed to object to the challenged remarks, we review for plain error and will not reverse unless the remarks “amount to flagrant abuse which seriously affects the fairness, integrity, or public reputation of judicial proceedings, and causes substantial prejudice to the defendant.” United States v. Williams, 690 F.3d 70, 75 (2d Cir. 2012) (internal quotation marks omitted).³ Locust identifies four purported improprieties. None require reversal. First, Locust contends that the government vouched for four witnesses: Tucker, Dewitt, Kalkanis, and Martin. Locust did not object to the comments that allegedly vouched for those witnesses, so we review for plain error. Locust explains that the prosecutor vouched when she made statements such as “Dewitt’s telling the truth.” Locust Br. 35. But the government surrounded these statements with references to items submitted into evidence, so the statements “turn out on closer examination to be permissible reference to the evidence in the case” rather than vouching. Perez, 144 F.3d at 210. In context, the government’s statements that the witnesses were telling the truth “did not imply the existence of extraneous proof and cannot be characterized as improper vouching.” Williams, 690 F.3d at 76 (internal quotation marks omitted). Even if the statements did amount to vouching, such statements do not constitute “flagrant abuse.” Id. at 75. The district court did not plainly err by failing to intervene. Second, Locust argues that the prosecutor “denigrated” the defense by saying, for example, that its case was a “total sideshow.” Locust Br. 33; see Locust App’x 113. Locust did not object to these statements, so we again review for plain error. One component of Locust’s defense was that the government should have focused on the corrupt lawyers rather than low-level co-conspirators such as Locust. See Supp. App’x 1, 61. In describing that strategy as a “sideshow,” the prosecutor responded to the defense’s arguments, which is permissible in a closing argument. See United States v. Salameh, 152 F.3d 88, 139 (2d Cir. 1998) (“[T]he Government is ordinarily permitted to respond to arguments impugning the integrity of its case and to reply with rebutting language suitable to the occasion.”) (quoting United States v. Bagaric, 706 F.2d 42, 60 (2d Cir. 1983)). We again see no plain error. Third, Locust claims that the prosecutor misstated the evidence when she said that Locust orchestrated three slip-and-fall accidents. Locust did not object when the government stated in closing that Locust brought three recruits into the scheme — Gilford, Roberts, and Wright — so we review for plain error. Locust notes that those recruits were not called to testify. Locust argues that, even assuming that he introduced the three recruits to the other members of the scheme, there was no evidence that their claims were fraudulent because Kalkanis testified that he could not specify which claims were fraudulent and which were genuine. For that reason, Locust says, the government misstated the evidence. But there was evidence that Locust brought in these recruits to make fraudulent claims. The intake sheets for these recruits listed the name “Robert” or “Rob” as the runner. Supp. App’x 110-11, 113. Locust’s first name is Robert. Dewitt testified that Locust had reported staging fake slip-and-fall accidents at a Wendy’s restaurant, at a bike shop, and at a Domino’s restaurant — the locations at which Gilford, Roberts, and Wright had accidents. Rainford App’x 199-200. While the government’s description of Dewitt’s testimony and the intake sheets may have been somewhat conclusory, we again see no “flagrant abuse,” Williams, 690 F.3d at 75, and the district court did not plainly err in failing to intervene. Fourth, Locust argues that the prosecutor lowered the burden of proof by asserting that it did not matter whether Locust knew for certain that the slip-and-fall accidents were staged. The prosecutor stated at closing that “[e]ven if Locust did not know for certain, he is still guilty. He was aware there was a high probability that these patients had staged accidents.” Locust App’x 117. Locust’s counsel promptly objected, saying “[t]hat’s not the standard.” Id. The district court sustained the objection and reminded the jury immediately that “the government’s burden is proof beyond a reasonable doubt. Remember that.” Id. Accordingly, even if the government’s statement constituted misconduct, Locust has not established prejudice. The jury was immediately reminded that the standard is beyond a reasonable doubt, and we presume that juries follow the instructions. See United States v. Becker, 502 F.3d 122, 130 (2d Cir. 2007). We are not persuaded that any misconduct affected the verdict. See Elias, 285 F.3d at 190. For these reasons, Locust has not shown that the government committed misconduct or that, if it did, the misconduct prejudiced the outcome of his trial. We affirm the district court’s judgment with respect to this issue. II Second, we consider the defendants’ challenges to their sentencing guidelines calculations. We affirm the district court’s judgment with respect to the calculation for each defendant. However, we remand for factfinding as to the number of fraudulent accidents the conspiracy orchestrated while Rainford and Locust were members for the purpose of performing a loss calculation under U.S.S.G. §2B1.1(b)(1).⁴ We review a district court’s application of the guidelines de novo, but factual determinations are reviewed for clear error. See United States v. Cramer, 777 F.3d 597, 601 (2d Cir. 2015). However, when a defendant fails to object to a procedural error in the district court’s guidelines calculation, we review for plain error. See United States v. Verkhoglyad, 516 F.3d 122, 128 (2d Cir. 2008). A All three defendants argue that the district court erred when it included a guidelines enhancement due to the “loss” associated with the schemes. We agree, but only insofar as the argument applies to Rainford and Locust. U.S.S.G. §2B1.1(b)(1) imposes an enhancement when the “loss” exceeds certain levels. As relevant here, if the loss is between $9.5 million and $25 million, the defendant receives a twenty-level increase; if the loss is between $25 million and $65 million, the defendant receives a twenty-two-level increase. U.S.S.G. §2B1.1(b)(1)(K)-(L). The application note clarifies that the “loss is the greater of actual loss or intended loss.” Id. §2B1.1, comment. (n.3(A)). And the “intended loss” means “the pecuniary harm that the defendant purposely sought to inflict,” even including “pecuniary harm that would have been impossible or unlikely to occur.” Id. §2B1.1, comment. (n.3(A)(ii)). In Stinson v. United States, the Supreme Court explained that “commentary in the Guidelines Manual that interprets or explains a guideline is authoritative unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that guideline.” 508 U.S. 36, 38 (1993). Here, the application note defining loss is neither inconsistent with nor a plainly erroneous reading of the guideline. “[T]he term ‘loss’ in §2B1.1 has no one definition and can mean different things in different contexts,” so the guideline does not contradict the understanding expressed in the commentary that “loss” encompasses intended loss. United States v. You, 74 F.4th 378, 397 (6th Cir. 2023) (internal quotation marks omitted).⁵ To apply §2B1.1(b)(1), the sentencing court “is only required to make a ‘reasonable estimate of the loss.’” United States v. Lacey, 699 F.3d 710, 719 (2d Cir. 2012) (quoting U.S.S.G. §2B1.1, comment. (n.3(C))). Even so, the sentencing court must “make findings that are sufficiently specific to permit meaningful appellate review.” United States v. Flores, 945 F.3d 687, 721 (2d Cir. 2019). “A district court satisfies its obligation to make findings sufficient to permit appellate review if the court indicates, either at the sentencing hearing or in the written judgment, that it is adopting the recommendations in the PSR” — that is, the Presentence Report. United States v. Wagner-Dano, 679 F.3d 83, 90 (2d Cir. 2012) (internal quotation marks and alterations omitted) (quoting United States v. Prince, 110 F.3d 921, 924 (2d Cir. 1997)). But “adoption of the PSR does not suffice if the PSR itself does not state enough facts to permit meaningful appellate review.” United States v. Ware, 577 F.3d 442, 452 (2d Cir. 2009). When the sentencing court makes findings adequate to permit appellate review, “its findings of fact will be overturned only if they are clearly erroneous.” Flores, 945 F.3d at 721. We have held that a sentencing court’s methodology was not “too crude” when it calculated a loss amount based on two factors: the total profits of the scheme and testimony as to the underlying percentage that was fraudulent. United States v. Moseley, 980 F.3d 9, 29 (2d Cir. 2020); see also United States v. Uddin, 551 F.3d 176, 180 (2d Cir. 2009) (“A district court may make a reasonable estimate by extrapolating the average amount of loss from known data and applying that average to transactions where the exact amount of loss is unknown.”) (internal quotation marks omitted). That is the method the district court used in this case to calculate the loss, and the defendants do not challenge the district court’s methodology. We therefore proceed to evaluate for clear error the district court’s factual determinations regarding (1) the intended loss of the schemes and (2) the number of fraudulent accidents in which each defendant was involved.⁶ 1 The defendants’ PSRs indicated that the intended loss for each fraudulent accident was $100,000 and that this estimate is a “conservative” one because it represents a “low settlement amount for a…Fraudulent Case.” Rainford PSR 43; Locust PSR 38; Duncan PSR 32. In support of that conclusion, the PSRs referenced (1) Clarence Tucker’s testimony that his case settled for $100,000, (2) Kasheem Jones’s testimony that his case settled for $225,000 and that his girlfriend’s case settled for $250,000, (3) Carol White’s testimony that that her case settled for $80,000, and (4) Alvin Martin’s testimony that his case settled for $120,000. See, e.g., Rainford PSR 24. The district court adopted these findings for each defendant. See Rainford App’x 1281 (Locust); id. at 1299 (Rainford); id. at 1234 (Duncan). It thereby satisfied its obligation to adopt findings of fact “sufficient to permit appellate review.” Wagner-Dano, 679 F.3d at 90; see also Ware, 577 F.3d at 452. Even if it had not adopted the facts in the PSRs, the district court made several statements at the sentencing hearings indicating that it had independently found the intended loss for each fraudulent accident was, conservatively, about $100,000. The district court observed that “sometimes it was held out to people that they could make up to a hundred thousand dollars.” Rainford App’x 1278. And the district court showed that it was focused on intended loss — as opposed to actual loss — when it asked the government, “where does the foreseeable loss per recruit of each victim of a hundred thousand come from?” Id. at 1279. The government responded with specific evidence: “Clarence Tucker testified at trial…that he was told by Mr. Locust he could make a hundred thousand dollars or better in staging an accident.” Id. These figures were conservative; if the recruit were told to expect compensation of about $100,000, then the intended loss to the insurance company would need to be substantially higher in order to pay runners, organizers, doctors, lawyers, and others who were involved in the conspiracy. Moreover, to conduct a clear error review, we must review the “entire evidence.” United States v. Mattis, 963 F.3d 285, 291 (2d Cir. 2020) (quoting United States v. Sabhnani, 493 F.3d 63, 75 (2d Cir. 2007)). Here, there was evidence introduced at trial indicating that many cases settled for six figures. See Rainford App’x 528, 562, 1087. And the district judge emphasized several times at the sentencing hearings that he presided over the trial and had a command of the evidence. See, e.g., id. at 1255 (“I am quite comfortable, as the judge who presided over your trial, that there was extensive evidence, extensive credible evidence.”). We have never required a sentencing court to have stated all the facts in the record on which it based its findings, only enough to “permit meaningful appellate review.” Flores, 945 F.3d at 721. And on clear error review, even if there are “two permissible views” of the facts, “the factfinder’s choice between them cannot be clearly erroneous.” United States v. Norman, 776 F.3d 67, 76 (2d Cir. 2015) (quoting United States v. Abiodun, 536 F.3d 162, 170 (2d Cir. 2008)). In this case, the settlement numbers fell along a range. It may have been possible for a reasonable factfinder to conclude that the intended loss was less than $100,000. But there was also enough evidence to conclude that the intended loss was $100,000 or more. For that reason, the district court’s choice of the latter view “cannot be clearly erroneous,” Norman, 776 F.3d at 76, and we will not disturb the district court’s finding that the intended loss for each fraudulent accident was $100,000. 2 The number of fraudulent cases is a more complicated question. The sentencing court relied on the PSRs for the finding that the fraud involved more than 400 recruits. See Rainford PSR 24; Duncan PSR 24; Locust PSR 24 (“During the Fraud Scheme, more than 400 Patients were referred by LOCUST, DUNCAN, RAINFORD and their co-conspirators to the lawyers in order to initiate fraudulent cases.”) (emphasis omitted). But that reliance was misplaced because the PSRs merely asserted — without reference to any admitted evidence — the claim of 400 fraudulent cases. Accordingly, the sentencing court’s “adoption of the PSR does not suffice” because “the PSR itself does not state enough facts to permit meaningful appellate review.” Ware, 577 F.3d at 452. The question then is whether there are facts “sufficiently specific to permit meaningful appellate review” elsewhere in the PSR or that the district court recognized at the sentencing hearings. Flores, 945 F.3d at 721. We must consider whether the sentencing court erred when it concluded that those facts were established by a preponderance of the evidence. See United States v. Thorn, 317 F.3d 107, 117 (2d Cir. 2003). We proceed defendant by defendant. a Duncan “objected to the entirety” of his PSR on the ground that the Probation Office “solely adopted [facts] from whatever the government said the facts were.” Rainford App’x 1233. Although the government acknowledges that Duncan lodged a timely general objection to the PSR and concedes that we should review for clear error, Appellee’s Br. 46, “[t]o preserve an objection for appellate review, a defendant must articulate it to the trial court ‘with sufficient distinctness to alert the court to the nature of the claimed defect,’” United States v. Dorvee, 616 F.3d 174, 179 (2d Cir. 2010) (quoting United States v. Gallerani, 68 F.3d 611, 617 (2d Cir. 1995)). Duncan did not articulate an objection with distinctness; he did not alert the district court to the “nature” of his objection to the extent that he challenged the loss calculation for any particular reason. We therefore review for plain error. See Verkhoglyad, 516 F.3d at 128. Duncan received a twenty-two-level loss enhancement on the ground that the intended loss from the schemes was about $30 million. See Duncan PSR 52. We resolve Duncan’s challenge to the loss calculation based on the third prong of plain error review, prejudice. Assuming arguendo that the PSR’s estimation that the Kalkanis scheme involved 400 cases was plainly erroneous, it would not have been erroneous had it estimated the number to be 300. That is because Kalkanis estimated that his scheme involved “[a]pproximately 300″ cases. Rainford App’x 883, 1018. To be sure, Kalkanis testified inconsistently about the percentage of those cases that were fraudulent, starting with “[a]t least 80 percent,” then “practically all,” and finally “[t]he majority of them.” Id. at 884. But even if we assume conservatively that only 50 percent of the cases were fraudulent, that would yield a total of 150 fraudulent cases. And in light of the district court’s factual determination that each fraudulent accident had an intended loss of $100,000, Duncan’s loss from the Kalkanis scheme would be $15,000,000. That is just the Kalkanis scheme. Duncan also participated in a spin-off scheme that he conducted with Gordon. Duncan’s PSR estimated that the spin-off scheme involved “at least 300 Patients,” Duncan PSR 28, a fact on which the district court expressly relied, Rainford App’x 1340. The district court acknowledged that, although there was evidence that not all of these accidents were fraudulent, “it’s still what I think amount to hundreds of accidents.” Id. Even if the district court reduced the 300-accident figure by two-thirds, down to 100 accidents, and if each of those accidents had an intended loss of $100,000, that would generate an additional intended loss of $10 million. That means — reading the evidence as to the number of fraudulent accidents in Duncan’s favor as much as possible — there was a $15 million intended loss from the Kalkanis scheme and a $10 million intended loss from the spin-off scheme. That is $25 million, which is the threshold under §2B1.1(b)(1)(L) for a twenty-two-level enhancement. Given these conservative estimates, we conclude that any error did not prejudice Duncan’s substantial rights. We affirm the judgment with respect to the twenty-two-level loss enhancement. b Locust specifically objected to his loss calculation, id. at 1280-81, which estimated a loss between $9.5 million and $25 million. We therefore review for clear error, but we conclude that the district court did not “make findings that are sufficiently specific to permit meaningful appellate review.” Flores, 945 F.3d at 721. So we remand with instructions for the district court to make a factual finding as to the number of fraudulent accidents that the Kalkanis conspiracy orchestrated during Locust’s involvement with the conspiracy. Locust received a twenty-level loss enhancement. Locust objected to the loss calculation on the ground that it was not “based in evidence.” Rainford App’x 1281. The district court simply “den[ied] the objection to loss amount” and “adopt[ed] the loss amount of between [$]9.5 and $25 million.” Id. But the district court never made a factual finding; it said only that the range described in the PSR was “appropriate.” Id. In other words, the district court never determined how many fraudulent accidents implicated Locust. The district court’s reliance on the PSR does not save the loss enhancement. The PSR said only that Locust “joined the scheme in 2015, and there were at least 200 Patients recruited into the scheme after LOCUST joined.” Locust PSR 38 (emphasis omitted). The PSR cites no testimony or other admitted evidence supporting that figure. In sum, the PSR did not state, the district court did not find, and we have located no statement in the record indicating that Locust participated in the conspiracy for a total of 200 cases. We cannot say whether that is a permissible or a clearly erroneous reading of the evidence. Accordingly, we remand for factfinding. c Rainford did not object to his loss calculation, so we review for plain error, as Rainford concedes we should on appeal. Rainford Br. 36. But we conclude that the district court again did not “make findings that are sufficiently specific to permit meaningful appellate review.” Flores, 945 F.3d at 721. We therefore remand with instructions for the district court to make a factual finding as to the number of fraudulent accidents the Kalkanis conspiracy orchestrated during Rainford’s involvement with the conspiracy. Rainford received a twenty-two-level loss enhancement. Rainford PSR 51. Rainford’s PSR explained the loss enhancement by stating that “[t]he value of the intended loss was estimated in the amount of at least $30,000,000.” Id. While the PSR acknowledged the $100,000 intended loss per fraudulent accident, see id. 43, the Rainford PSR never provided evidence for the number of fraudulent accidents touching the conspiracy during his tenure. The PSR offered three statements regarding the number of fraudulent accidents in which Rainford was involved. But each of those statements is insufficient to sustain the loss enhancement. First, the Rainford PSR asserted that the Kalkanis conspiracy involved “more than 400 Patients,” id. 24, but it did so without reference to evidence. We have located no evidence in the Rainford PSR, in the transcripts of the sentencing hearings, or in the record indicating that there were 400 cases orchestrated by the conspiracy while Rainford was a member. Second, the PSR stated that “RAINFORD participated in the scheme from approximately 2012 through 2018, and there were at least 300 Patients recruited into the scheme during that time.” Id. 43 (emphasis omitted). That appears to refer to the Kalkanis testimony. But the district court never determined the percentage of those 300 cases that were fraudulent. Moreover, Kalkanis testified inconsistently. As explained above, see supra Part II.A.2.a., Kalkanis indicated at one point that at least 50 percent of those cases were fraudulent. If so, then Rainford’s intended loss would be $15 million.⁷ That factual finding would support only a twenty-level loss enhancement, not a twenty-two-level loss enhancement. Accordingly, the statement in the PSR that Rainford participated in the scheme for 300 cases is not sufficient to sustain the twenty-two-level loss enhancement. Third, the PSR noted that Rainford “recruited patients” for the spin-off conspiracy, but it puts the number only at “at least two.” Rainford PSR 41. That would not be enough to salvage the loss calculation. Because (1) the PSR did not cite evidence for the statement that Rainford was involved in 400 cases and (2) neither the PSR nor the district court explained what percentage of cases was fraudulent, we remand with instructions to make sufficient findings of fact. d In sum, we conclude that the district court’s finding that the intended loss for each fraudulent accident was $100,000 was not clearly erroneous. We affirm the judgment with respect to Duncan’s twenty-two-level loss enhancement. But we remand for factfinding regarding the number of fraudulent cases in which Locust and Rainford were involved. See supra note 4. B The district court added a four-level enhancement to Duncan’s guidelines calculation for his leadership role in the conspiracy. The guidelines state that a leadership enhancement is appropriate for an “organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive.” U.S.S.G. §3B1.1(a). On appeal, Duncan argues correctly that the PSR and the district court did not make specific findings as to the five individuals involved in the spin-off scheme. See Duncan PSR