United States v. Koch

Appellate Case: 25-1191 Document: 51 Date Filed: 10/27/2026 Page: 1 FILED United States Court of Appeals PUBLISH Tenth Circuit UNITED STATES COURT OF APPEALS October 27, 2026 Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________ UNITED STATES OF AMERICA, Plaintiff - Appellee, v. Nos. 25-1191, 25-1354 MEGAN HESS, Defendant - Appellant. UNITED STATES OF AMERICA, Plaintiff - Appellee, v. Nos. 25-1179, 25-1333 SHIRLEY KOCH, Defendant - Appellant. _________________________________ 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.  Appellate Case: 25-1191 Document: 51 Date Filed: 10/27/2026 Page: 2 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. _________________________________ Before McHUGH, EBEL, and KELLY, Circuit Judges. _________________________________ 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. 2  Appellate Case: 25-1191 Document: 51 Date Filed: 10/27/2026 Page: 3 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. 3  Appellate Case: 25-1191 Document: 51 Date Filed: 10/27/2026 Page: 4 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 4  Appellate Case: 25-1191 Document: 51 Date Filed: 10/27/2026 Page: 5 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). 5  Appellate Case: 25-1191 Document: 51 Date Filed: 10/27/2026 Page: 6 “[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. 6  Appellate Case: 25-1191 Document: 51 Date Filed: 10/27/2026 Page: 7 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 7  Appellate Case: 25-1191 Document: 51 Date Filed: 10/27/2026 Page: 8 § 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 8  Appellate Case: 25-1191 Document: 51 Date Filed: 10/27/2026 Page: 9 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 9  Appellate Case: 25-1191 Document: 51 Date Filed: 10/27/2026 Page: 10 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.” 1 Id. 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, 106 F.4th 1011, 1032–33 (10th Cir. 2024). Accordingly, the court did not identify any victims who were not in grief. 10  Appellate Case: 25-1191 Document: 51 Date Filed: 10/27/2026 Page: 11 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. 25-1179, ROA Vol. II at 530. On appeal, Ms. Koch asserts that the Government “may have tacked too close to the wind in pushing the enhancement and potentially breaching the terms of its plea agreement with Ms. Koch,” but she does not develop any argument regarding a potential breach of the plea agreement. No. 25-1179, Appellant’s Br. at 12. Accordingly, any such argument has been waived. See LaFevers v. Gibson, 182 F.3d 705, 725 (10th Cir. 1999) (“We have repeatedly warned litigants that issues adverted to in a perfunctory manner and without developed argumentation are deemed waived on appeal.”). 11  Appellate Case: 25-1191 Document: 51 Date Filed: 10/27/2026 Page: 12 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 12  Appellate Case: 25-1191 Document: 51 Date Filed: 10/27/2026 Page: 13 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 13  Appellate Case: 25-1191 Document: 51 Date Filed: 10/27/2026 Page: 14 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 14  Appellate Case: 25-1191 Document: 51 Date Filed: 10/27/2026 Page: 15 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 15  Appellate Case: 25-1191 Document: 51 Date Filed: 10/27/2026 Page: 16 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. 3 Instead, 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, 3 The record indicates that J.D. paid Sunset Mesa $410.55 several months later—after his grandfather’s brain had supposedly been returned—to cover the purported cost of transporting his grandfather’s ashes to the cemetery and burying them in his grandmother’s plot. In fact, however, because his grandfather’s entire body had already been sold and shipped to a plastination company, his ashes were never transported or buried despite J.D.’s payment for this service. 16  Appellate Case: 25-1191 Document: 51 Date Filed: 10/27/2026 Page: 17 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. 17  Appellate Case: 25-1191 Document: 51 Date Filed: 10/27/2026 Page: 18 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. 18  Appellate Case: 25-1191 Document: 51 Date Filed: 10/27/2026 Page: 19 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. 19  Appellate Case: 25-1191 Document: 51 Date Filed: 10/27/2026 Page: 20 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 20  Appellate Case: 25-1191 Document: 51 Date Filed: 10/27/2026 Page: 21 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 21  Appellate Case: 25-1191 Document: 51 Date Filed: 10/27/2026 Page: 22 [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 cou