United States v. Rodriguez, No. 10-12065, from SDFla
District Judge Coogler (NDAl), joined by Circuit Judge Marcus and Senior District Judge Bowen (SDGa)
Summary: The defendant was convicted of conspiracy to commit mail and wire fraud, as well as mail fraud and wire fraud. The convictions arose from a mortgage fraud scheme in which the defendant submitted fraudulent loan applications on behalf of straw buyers for homes that were for sale. The defendant and her associates would pose as title insurance companies who would pocket the proceeds from the fraudulently-obtained loans.
The defendant pled guilty without a plea agreement. After several delays, the district court eventually entered an amended judgment finding the defendant responsible for slightly less than $8 million in restitution.
The defendant first raised several challenges to her guilty plea, which were reviewed under the plain error standard because they were not raised in the sentencing proceeding. First, the panel addressed whether the defendant was competent to plead guilty: whether the defendant had sufficient present ability to consult with her lawyer with a reasonable degree of rational understanding and had a rational as well as factual understanding of the proceedings against her. See Dusky v. United States, 362 U.S. 402 (1960). The panel reviewed all of the evidence and found that the defendant was competent.
The panel then reviewed whether the plea was knowing and voluntary under Rule 11, i.e. whether: (1) the plea was entered free from coercion; (2) the defendant understood the nature of the charges; and (3) the defendant understood the consequences of the guilty plea. The panel found that the plea satisfied Rule 11. The panel also found there was a sufficient factual basis for her plea, i.e. that there was evidence from which the district court could reasonably find that she was guilty.
Next, the panel reviewed challenges to the defendant's sentence. The panel found that the loss amount set by the district court was not clear error. It found that the ten-plus victim enhancement was justified even though the government did not put on specific evidence regarding the number of victims at sentencing, because the defendant never objected to the PSI’s conclusion that there were at least 23 victims. The panel found that the application of the sophisticated means enhancement was not plainly erroneous because the PSI showed that the defendant hid assets or transactions through the use of fictitious entities. Lastly, the panel found that a minor-role reduction was not appropriate because the defendant had failed to prove she was entitled to such a reduction.
The defendant’s final objection involved the amount of restitution ordered by the judge and the delay of nearly two years between the date of sentencing and the date when her restitution amount was determined. The district court in this case was required to order restitution under the Mandatory Victims Restitution Act of 1996, 18 U.S.C. § 3663A. The delay here did not violate the 90-day after sentencing requirement for restitution orders provided by that statute because (as explained further in the note below) the district court indicated prior to the expiration of that deadline that it would order restitution and left open only the amount. The delay in ordering restitution also did not violate the defendant’s due process rights because the defendant had not been prejudiced and actually benefited from the delay. Lastly, the district court did not clearly err in the amount of restitution ordered; the district court was permitted to consider hearsay evidence that bears minimal indicia of reliability in determining the appropriate amount of restitution, as long as the defendant had the opportunity to refute the evidence, which she did.
The panel affirmed the defendant’s conviction and sentence.
Note: This case involved application of Dolan v. United States, 560 U.S. 605 (2010), which held that a sentencing court that missed the ninety-day after sentencing deadline in which to order restitution as set out in 18 U.S.C. § 3664(d)(5) nonetheless retains the power to order restitution so long as the sentencing court made clear prior to the deadline’s expiration that it would order restitution, leaving open only the amount of restitution.
Note: The issue of whether there is a final judgment that is appealable comes up often in appellate litigation. Here, the defendant was sentenced in April 2010, and filed an immediate appeal of that judgment, even though the district court also indicated that it would determine the amount of restitution she owed later. The Eleventh Circuit ultimately stayed the appeal until the defendant filed an appeal of the amended judgment containing the restitution amount. Since a sentence that imposes an order of restitution is a final judgment, the panel found that it had jurisdiction over the appeal. See 18 U.S.C. § 3664(o).
No comments:
Post a Comment