United States v. Carlos Benhamu , 161 F. App'x 805 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
December 23, 2005
No. 05-12541 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-20337-CR-JEM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CARLOS BENHAMU,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(December 23, 2005)
Before CARNES, PRYOR and KRAVITCH, Circuit Judges.
PER CURIAM:
Carlos Benhamu appeals his sentence of 24 months’ imprisonment, imposed
following his guilty pleas for two counts of bank fraud, in violation of 18 U.S.C. §
1344. For the reasons that follow, we AFFIRM.
I. Background
Benhamu owned B&B Group, Inc. (“B&B”), a cellular telephone
distribution company.1 Benhamu operated B&B and controlled its financial and
business activities.
In October 1998, B&B entered into a Loan and Security Agreement (the
“Agreement”) with HSBC Business Loans, Inc. (“HSBC”), an affiliate of HSBC
Bank, a federally insured bank, whereby HSBC offered B&B a revolving line of
credit. Pursuant to the agreement, HSBC would release funds to B&B contingent
on the company’s posting of sufficient collateral. B&B’s accounts receivable
constituted one form of collateral. In signing the Agreement on B&B’s behalf,
Benhamu represented that the accounts receivable would be “genuine and
enforceable.”
Between February and May 2000, B&B submitted documents for eight
1
The parties dispute whether Benhamu was the sole owner of B&B. Although the
Criminal Information states that Benhamu was a co-owner of B&B, the government stated that
he was the owner, implying that Benhamu was the sole owner, when it set forth the facts it
would offer as proof beyond a reasonable doubt of Benhamu’s guilt during the plea colloquy.
This fact also appears in the PSI. As Benhamu failed to object to this fact at either the plea
colloquy or in his objections to the PSI, he is deemed to have admitted it. United States v.
Shelton, 400 F.3d 1325, 1330 (11th Cir. 2005).
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fictitious accounts receivable purportedly owed by customers in Brazil, with a total
face value of $2.76 million. Based upon these invoices, HSBC advanced funds to
B&B and increased its loan balance.
HSBC eventually noticed irregularities involving B&B’s accounts receivable
and ultimately concluded that the company had supplied false accounts receivable.
Benhamu admitted, first to the bank and later to agents from the Federal Bureau of
Investigation (the “FBI”), that he knowingly submitted the fictitious documents.2
Benhamu and HSBC entered into a settlement agreement, wherein Benhamu
agreed to make cash payments to HSBC and authorized the bank to seize all
available collateral on the loan account. Despite the payments, however, HSBC
contends it was forced to write off approximately $1.8 million; the bank explained
that $1.164 million of that amount was “unpaid principal.” Eventually, Benhamu
was indicted on two counts of bank fraud, in violation of 18 U.S.C. § 1344. He
pleaded guilty to both.
The probation officer prepared a presentence investigation report (“PSI”)
using the Guidelines Manual for 1998, ultimately arriving at an offense level of 21.
2
Benhamu explained why he submitted the false invoices by asserting that though the
invoices were false, they represented legitimate sales to customers in Venezuela. He explained
that the invoices named customers in Brazil so that he could evade receivable insurance credit
limitations applying to sales to Venezuela. In an August 23, 2000 letter to Benhamu’s counsel,
however, HSBC stated that Benhamu had still failed to provide authentic shipping documents or
invoices to support his explanation.
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She first grouped both counts together and determined that the base offense level
was 6 pursuant to U.S.S.G. § 2F1.1(a). She then added 12 levels because the
amount of loss exceeded $1.5 million but was less than $2.5 million, see U.S.S.G.
§ 2F1.1(b)(7)(B), and then further increased the offense level to 24 because the
offense affected a financial institution and Benhamu derived more than $1 million
in gross receipts from the scheme. See U.S.S.G. § 2F1.1(b)(7)(B) (“If the offense .
. . affected a financial institution and the defendant derived more than $1,000,000
in gross receipts from the offense, increase by 4 levels. If the resulting offense
level is less than level 24, increase to level 24.”). Finally, the probation officer
subtracted three levels because Benhamu accepted responsibility, see U.S.S.G. §
3E1.1(a), and timely provided complete information to the government concerning
his involvement in the offense or timely notified the government of his intention to
enter a guilty plea. See U.S.S.G. § 3E1.1(b).
Given Benhamu’s criminal history category of 1, the advisory guidelines
range was 37 to 46 months’ imprisonment. However, the probation officer noted
several factors counseling a lesser sentence than the guidelines advised, including:
(1) unlike many perpetrators of bank fraud, Benhamu did not intend to steal money
from HSBC; (2) he derived no direct personal gain from the offense; (3) he
ultimately cooperated with the victim in identifying the scheme; and (4) he
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attempted to repay the victim prior to the government’s involvement.
Although Benhamu pleaded guilty, at his plea colloquy, he disputed the
amount of loss, asserting that his offense did not result in an actual loss. In
addition, he argued that the district court should not include in the amount of loss
calculation the interest that accrued once the loan was put on a non-accrual basis.
A witness for HSBC testified that the bank disbursed $2.2 million to
Benhamu under the terms of the loan, which was the amount of loss the bank
faced. Benhamu presented as a witness Marcie Bour, a certified fraud examiner,
who calculated the amount owed both with and without interest and determined
that, after the settlement, there was $477,931 in unpaid principal remaining. Bour
testified that the maximum amount the bank advanced based on the fraudulent
invoices was $2.2 million.
II. Standard of Review
This Court reviews a district court’s application of the guidelines de novo,
reviewing findings of fact for clear error. United States v. Bracciale, 374 F.3d 998,
1004 (11th Cir. 2004).
III. Discussion
A. Amount of Loss
On appeal, Benhamu first argues that the district court incorrectly
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determined the amount of loss because the court failed to resolve conflicting
evidence about the amount and because he did not individually obtain more than
one million in gross receipts, as required under U.S.S.G. § 2F1.1(b)(7)(B). He
contends that he did not, as an individual, obtain any of the loan money, as it all
went to B&B and he obtained only a small salary. Benhamu also asserts that he
was not the sole owner of B&B and that, therefore, only a portion of the loaned
money can be attributed to him. Furthermore, Benhamu argues that he did not
waive this objection after the court pronounced sentence because, although defense
counsel failed to renew his objections, the court’s inquiry was insufficient under
United States v. Jones, 899 F.2d 1997 (11th Cir. 1990). Benhamu also contends
that even if this Court applies a plain error standard, he is nevertheless entitled to
resentencing.
After reviewing the record, we first conclude that Benhamu is the sole owner
of B&B. Second, we further conclude that Benhamu waived the argument that he
must have personally received gross receipts in excess of one million dollars,
rather than a corporation owned solely by him obtaining those funds, in order to
qualify for a § 2F1.1(b)(7)(B) enhancement. Although Benhamu objected to the
relevant paragraph of the PSI on the basis that he “only received $96,000/year in
salary from B&B’s business,” he failed to renew that objection after the court
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pronounced his sentence. Accordingly, we review for plain error. United States v.
Hall, 314 F.3d 565, 566 (11th Cir. 2002). “Plain error occurs where (1) there is an
error; (2) that is plain or obvious; (3) affecting the defendant's substantial rights in
that it was prejudicial and not harmless; and (4) that seriously affects the fairness,
integrity or public reputation of the judicial proceedings.” Id. at 566. As this Court
has never addressed the question of whether, to qualify under § 2F1.1(b)(7)(B), a
defendant must have derived more than $1,000,000 is gross receipts individually,
rather than through a corporation, any error made by the district could would not
be plain or obvious. See United States v. Humphrey, 164 F.3d 585, 587-88 (11th
Cir. 1999).
Benhamu’s argument that the district court failed to adequately inquire as to
whether the defendant had any objections at the close of sentencing, as required by
United States v. Jones, 899 F.2d 1097 (11th Cir. 1990), overruled on other
grounds, United States v. Morrill, 984 F.2d 1136 (11th Cir. 1993), also fails.
“Where the district court has offered the opportunity to object and a party is silent
or fails to state the grounds for objection, objections to the sentence will be waived
for purposes of appeal, and this court will not entertain an appeal based upon such
objections unless refusal to do so would result in manifest injustice.” Id. at 1103.
Here, after the sentence was pronounced, the district court asked whether the
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defendant or his counsel had any objection “to the Court’s finding of fact or the
manner in which sentence was pronounced,” satisfying Jones.
As the minimum offense level applicable to a defendant under U.S.S.G. §
2F1.1(b)(7)(B) is 24, Benhamu’s final offense level will be 21 regardless of
whether the district court erred in determining the amount of loss. Accordingly,
any error in the district court’s calculation of the amount of loss would be
harmless.
B. Request For Downward Departure
Benhamu next argues that the district court erred by failing to determine the
specific loss amount because the figure was relevant to determining the
appropriateness of a downward departure based on Benhamu’s proffered ground
that because of a miscalculation of the amount of loss, the guidelines overstated the
severity of his offense. He contends that the fact that the district court failed to
determine the amount of loss and did not base its variance from the guidelines
range on Benhamu’s proffered ground is evidence that the court erroneously
believed it lacked the authority to depart on that ground. This argument must fail.
First, the record contains statements indicating that the district court
understood that it had the authority to depart from the guidelines range. Second,
the district court imposed a sentence that fell well below the applicable range.
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The district court explicitly recognized that under U.S.S.G. § 2F1.1(b)(7)(B)
the applicable base level would be 24 “no matter what,” making a precise
determination of the amount of loss unnecessary.
Benhamu’s argument that the district court mistakenly believed that the
guidelines range properly reflected the seriousness of the offense must also fail.
The court heard Benhamu’s explanation for his actions and considered the
probation officer’s comments concerning the differences between Benhamu’s
offense and the typical bank fraud. Nevertheless, the court concluded that a term
of 24 months’ imprisonment, half of which he recommended Benhamu spend in a
half-way house, properly reflected the seriousness of the offense. The record lacks
any evidence suggesting that the court’s conclusion regarding the seriousness of
Benhamu’s offense relates in any way to the amount of loss, rather than to the
fraudulent conduct itself.
Accordingly, we AFFIRM the district court.
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