United States v. Maria Haydee Luzula , 646 F. App'x 903 ( 2016 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 15-10032
Non-Argument Calendar
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D.C. Docket No. 1:14-cr-20221-PAS-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARIA HAYDEE LUZULA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(April 1, 2016)
Before HULL, MARCUS and WILLIAM PRYOR, Circuit Judges.
PER CURIAM:
Maria Haydee Luzula appeals her sentence of 165 months of imprisonment
following her pleas of guilty to one count of conspiring to commit mail and wire
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fraud, 18 U.S.C. § 1349, nine counts of mail fraud, id. § 1341, fifteen counts of
wire fraud, id. § 1343, and two counts of attempted extortion, id. § 1951(a). On
appeal, Luzula challenges the enhancement of her sentence for an amount of loss
between $1 and $2 million and for her role as a leader of the conspiracy. We
affirm.
Luzula and her son used their businesses in Miami, Florida, and Lima, Peru,
to defraud residents of the United States who spoke Spanish. Luzula and her son
obtained customer lists from companies who had sold products to the victims and
directed employees in telephone call centers owned by Luzula’s son in Peru to
contact the victims and to falsely represent that they were agents in a legal
department of a private or government organization who were collecting overdue
payments for products the victims had purportedly purchased. Luzula and her son
interacted telephonically with the employees as they demanded payment for the
fabricated orders. After victims agreed to pay bogus “fees” to settle the matter,
their calls were routed to Miami where Luzula and her employees processed the
payments and mailed packages containing the products the victims allegedly had
ordered. Investigators examined Luzula’s computer database system and
discovered that, between October 2012 and January 2014, she swindled
$2,153,506.16 from 8,477 victims that, after accounting for refunds, resulted in net
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proceeds of $1,739,964.44. Luzula sent $828,531 to her son in Peru, and she used
the remainder to purchase a house in Miami.
The district court did not clearly err in calculating the amount of loss
attributable to Luzula. A defendant is subject to a 16-level increase of her base
offense level when her offense results in an actual or intended loss between $1 and
$2 million, United States Sentencing Guidelines Manual § 2B1.1(b)(1)(H) & cmt.
n.3(A) (Nov. 2014), and the government provided reliable and specific evidence
that Luzula’s fraud caused a loss within that range, United States v. Bradley, 644
F.3d 1213, 1290 (11th Cir. 2011). Luke Shoemaker, a paralegal with the
Department of Justice, provided a declaration that 88 to 94 percent of the victims
“paid money in response to threatening calls.” Shoemaker screened recordings of
the calls, and he identified 162,000 telephone calls from the Peru office involving
conversations lasting at least one minute and a smaller subset of calls in which the
victims were threatened. Shoemaker used a random number formula to select 63 of
the 8,477 victims who paid the Miami office, excluded six victims who did not pay
between October 2012 and January 2014 or whose conversation he could not
locate, and listened to the corresponding calls to verify that 53 of the remaining 56
victims paid under threat of incurring penalties or a lawsuit. Luzula argues that
Shoemaker should have taken a larger sample from all the recordings, but any calls
not resulting in payments were irrelevant to calculating the percentage of
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payments. Luzula also argues that the computation was “sloppy and erroneous,”
but she fails to establish that Shoemaker’s estimate was “so wildly inaccurate as to
be unreasonable,” id. at 1292. Luzula contends that a significant percentage of the
calls involved legitimate sales, but the district court was entitled to rely on trial
testimony from Luzula’s former assistant, Pia Silva, that, in December 2012, the
Peru office operated exclusively as a fraudulent collections agency and, in 2013,
the Miami office processed payments only for fraudulent transactions. The district
court made a reasonable, conservative estimate that Luzula obtained 88 percent of
her net proceeds, or about $1.5 million, through fraud and intimidation. See United
States v. Barrington, 648 F.3d 1178, 1197 (11th Cir. 2011).
The district court also did not clearly err when it enhanced Luzula’s sentence
for her role as a leader in planning and executing the scheme to defraud. See
U.S.S.G. § 3B1.1(a). Luzula argues that childhood abuse rendered her unable to
make rational decisions and caused her to be subservient to her son, but the
evidence proved that she was autonomous, having practiced law in Peru, studied
marketing, and started her own business in the United States. Luzula admitted in
her factual proffer that she owned and operated the payment and package
processing center in Miami and that she “directly and indirectly exercised control
over the phone rooms in Peru,” where employees “acting directly and indirectly
under [her] and [her son’s] direction, contacted the victims and falsely claimed that
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they were calling from a ‘legal department’ . . . of a private entity [or] a state or
city.” Other evidence proved that Luzula acquired and paid for telephone and video
communication and recording systems in Peru and Miami; purchased customer
lists used to identify victims; prepared scripts and coached employees how to
contact and coerce victims; hired, fired, and trained employees in Miami;
determined what amount to demand from victims; oversaw the issuance of refunds;
controlled bank accounts; and divided the proceeds of the fraud. See id. § 3B1.1
cmt. n.4. Although Luzula’s son participated in some of the tasks and operated the
Peru office, Luzula did not “have to be the sole leader or kingpin of the conspiracy
in order to be considered an organizer or leader within the meaning of the
Guidelines.” United States v. Rendon, 354 F.3d 1320, 1332 (11th Cir. 2003)
(quoting United States v. Vallejo, 297 F.3d 1154, 1169 (11th Cir. 2002)). The
district court reasonably determined that Luzula was subject to a four-level
increase of her base offense level under section 3B1.1(a).
We AFFIRM Luzula’s sentence.
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