United States v. Luis Manuel Mesa , 589 F. App'x 429 ( 2014 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 13-14507
Non-Argument Calendar
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D.C. Docket No. 1:12-cr-20388-KMW-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LUIS MANUEL MESA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(October 23, 2014)
Before TJOFLAT, JORDAN and ANDERSON, Circuit Judges.
PER CURIAM:
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A jury found Luis Mesa guilty on four counts of a five-count superseding
indictment: Count One, conspiracy to commit bank and wire fraud, in violation of
18 U.S.C. § 1349; Count Two, bank fraud, in violation of 18 U.S.C. § 1344; Count
Three, wire fraud, in violation of 18 U.S.C. § 1343; and Count Four, conspiracy to
commit arson, in violation of 18 U.S.C. § 844(n). At sentencing, the District Court
found the applicable Guidelines sentence range to be 78–97 months’
imprisonment, 1 and sentenced Mesa to concurrent prison terms of eighty-six
months.
Mesa now appeals his sentences, presenting these arguments: the District
Court committed clear error (1) in calculating the Guidelines sentence range by
imposing a leadership role enhancement because he was not a manager or
organizer of the arson and fraud conspiracies, the fraud conspiracy did not involve
five or more participants, and the conspiracy was not otherwise extensive; (2) by
imposing a sophisticated means enhancement because the scheme constituted “run-
of-the-mill” mortgage fraud; and (3) in calculating the victim’s loss for sentencing
purposes. We are not persuaded and affirm.
I.
1
Because Mesa’s Counts 1–3 fraud charges and the Count 4 charge involved separate
harms, they were grouped separately. See U.S. Sentencing Guidelines Manual [hereinafter
U.S.S.G.] § 3D1.1(a)(3). The total offense level for the fraud charges was 26 and for the arson
charge 25. Pursuant to U.S.S.G § 3D1.4, two levels were added to the highest total offense level,
26, for a combined total offense level of 28. Mesa’s criminal history category was I.
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A defendant’s role as an organizer or leader is a factual finding that we
review for clear error to determine if the enhancement under U.S.S.G § 3B1.1 was
applied appropriately. United States v. Ramirez, 426 F.3d 1344, 1355 (11th Cir.
2005). Under the clear error standard, we will not disturb a factual finding absent a
definite and firm conviction that a mistake has been made. United States v. Clarke,
562 F.3d 1158, 1165 (11th Cir. 2009). The government must prove the existence
of a leadership role by a preponderance of the evidence. United States v. Yates,
990 F.2d 1179, 1182 (11th Cir. 1993). The findings of fact of the sentencing court
may be based on undisputed statements in the presentence report. United States v.
Wilson, 884 F.2d 1355, 1356 (11th Cir. 1989).
In a case where a defendant is an “organizer, leader, manager, or supervisor”
over one or more co-participants in a criminal activity, a two-level sentencing
enhancement applies. U.S.S.G. § 3B1.1(c). There can be more than one person
who qualifies as a leader or organizer of a conspiracy. Id. § 3B1.1, comment.
(n.4).
In evaluating whether this enhancements applies, district courts should
consider: (1) the exercise of decision-making authority; (2) the nature of
participation in the commission of the offense; (3) the recruitment of accomplices;
(4) the claimed right to a larger share of the fruits of the crime; (5) the degree of
participation in planning or organizing the offense; (6) the nature and scope of the
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illegal activity; and (7) the degree of control and authority exercised over others.
Ramirez, 426 F.3d at 1355; U.S.S.G. § 3B1.1, comment. (n.4). All of these
considerations, however, need not be present. Ramirez, 426 F.3d at 1356.
We uphold a § 3B1.1 enhancement where the defendant “had decision-
making authority and exercised control.” United States v. Suarez, 313 F.3d 1287,
1294 (11th Cir. 2002). Giving orders to others involved in the conspiracy qualifies
as an exertion of influence or control. United States v. Vallejo, 297 F.3d 1154,
1169 (11th Cir. 2002).
Where the defendant is a “manager or supervisor (but not an organizer or
leader) and the criminal activity involved five or more participants or was
otherwise extensive,” a three-level sentencing enhancement applies. U.S.S.G.
§ 3B1.1(b). A “participant” is a person who is criminally responsible for the
offense, but need not have been convicted. United States v. Williams, 527 F.3d
1235, 1248 (11th Cir. 2008). When determining the number of participants, the
defendant is considered to be one of the five. United States v. Holland, 22 F.3d
1040, 1045 (11th Cir. 1994). In deciding whether individuals were participants in
the criminal activity, the court must consider all acts or omissions that were part of
the same course of conduct or common scheme or plan as the offense of
conviction. Id. at 1045–46.
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We conclude that the District Court did not clearly err by finding that Mesa
was an “organizer, leader, manager, or supervisor” over one or more co-
participants in the arson conspiracy. Mesa and his nephew planned and organized
the arson, recruited Daniel Villar, provided instructions to Villar, ordered Villar to
execute the arson, and instructed Villar on how to receive payment for his services,
all of which demonstrate that Mesa exercised control over Villar and qualified for a
two-level enhancement under U.S.S.G. § 3B1.1(c). See Ramirez, 426 F.3d at
1355; see also Vallejo, 297 F.3d 1154, 1169. Looking at all relevant conduct,
including the arson, which was an attempt to cover up the fraud in furtherance of
the conspiracy, the entirety of the scheme involved at least seven participants—
Mesa, the defendant; Nersy Bermudez, the straw purchaser; Angel Diaz, Mesa’s
straw purchase recruiter; Mario Olivia, a joint holder of Bermudez’s fraudulent
Wachovia account; Yansel Mesa, Mesa’s nephew; Villar, the hired arsonist; and a
woman who was supposed to pay Villar, presumably Lucy Hernandez. See
Williams, 527 F.3d at 1248. Accordingly a two-level enhancement was
appropriate for the arson conspiracy, and a three-level enhancement was
appropriate for the mortgage fraud conspiracy.
II.
We also review the district court’s finding that the defendant used
sophisticated means for clear error. United States v. Ghertler, 605 F.3d 1256, 1267
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(11th Cir. 2010). The Guidelines provide for a two-level enhancement if the fraud
in question “involved sophisticated means.” U.S.S.G. § 2B1.1(b)(10)(C).
Sophisticated means refers to especially complex or especially intricate offense
conduct pertaining to the execution or concealment of an offense. Id. § 2B1.1,
comment. (n.8(B)). There is no requirement that each of a defendant's individual
actions be sophisticated in order to impose the enhancement. Ghertler, 605 F.3d at
1267. Rather, it is sufficient if the totality of the scheme was sophisticated. Id.
Coordinated conduct and attempted concealment of the offense, including
the destruction of incriminating evidence, may constitute sophisticated means. See
United States v. Bane, 720 F.3d 818, 826–27 (11th Cir.), cert. denied, 134 S. Ct.
835 (2013). Additionally, creation of false documents and the use of third parties
for money transfers may constitute sophisticated means. See Ghertler, 605 F.3d at
1268.
The District Court did not clearly err by determining that Mesa’s mortgage
fraud conspiracy involved sophisticated means. The fraud involved coordinated
conduct between organizers, such as Mesa, straw buyers, recruiters of straw
buyers, and loan agents, all of which Mesa attempted to conceal from the victim,
JP Morgan Chase Bank (“Chase”), by submitting false loan applications, forging
HUD statements, and creating third-party bank accounts used solely to perpetuate
the fraud. See Bane, 720 F.3d at 826–27; see also Ghertler, 605 F.3d at 1268.
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Additionally, once alerted that an audit might uncover the fraud, Mesa attempted to
further conceal it by ordering Villar to burn down Closing Table of South Florida,
Inc. and Pylon Mortgage Corporation, with specific instructions to pour gasoline
on the computers in order to destroy evidence. See Bane, 720 F.3d at 826–27.
Even if certain elements of the conspiracy resembled “run-of-the-mill” fraud, the
totality of the scheme was sophisticated, the court did not clearly err in finding as
such. See Ghertler, 605 F.3d at 1267.
III.
The district court’s determination of loss is likewise reviewed for clear error.
United States v. Barrington, 648 F.3d 1178, 1197 (11th Cir. 2011). In fraud cases,
the Guidelines provide for a fourteen-level enhancement if the victim’s loss is
more than $400,000, but less than $1,000,000. U.S.S.G. § 2B1.1(b)(1)(H–I).
Loss is the greater of the actual loss—the reasonably foreseeable pecuniary
harm that resulted from the offense—or intended loss—the pecuniary harm that
was intended to result from the offense, even if the harm was impossible or
unlikely to occur. Id. § 2B1.1, comment. (n.3(A)(i–ii)). Where collateral is
pledged or provided by the defendant, the loss amount is to be reduced by the
amount the victim has recovered at the time of sentencing from disposition of the
collateral. Id. § 2B1.1, comment. (n.3(E)(ii)). A reasonably foreseeable pecuniary
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harm is one that the defendant knew or reasonably should have known was a
potential result of the offense. Id. § 2B1.1, comment. (n. 3(A)(iv)).
We find no clear error in the court’s calculation of Chase’s loss for the
purposes of Mesa’s sentencing enhancement. Mesa’s fraudulent conduct caused
Chase to loan $583,200 to Bermudez, a straw buyer who had no intention of ever
repaying the loan. Pursuant to U.S.S.G. § 2B1.1, comment. (n.3(E)(ii)), Chase was
able to recover some of its loss by sale of the collateral for $144,350, yielding a
total loss of $438,850. Accordingly, since Chase’s actual loss exceeded $400,000,
the court correctly applied a fourteen-level loss enhancement. Id. §
2B1.1(b)(1)(H).
AFFIRMED.
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