United States v. Maria Sanchez , 475 F. App'x 139 ( 2012 )


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  •                                                                            FILED
    NOT FOR PUBLICATION                              APR 09 2012
    MOLLY C. DWYER, CLERK
    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS
    FOR THE NINTH CIRCUIT
    UNITED STATES OF AMERICA,                        No. 10-50527
    Plaintiff - Appellee,              D.C. No. 2:08-cr-00113-GW-1
    v.
    MEMORANDUM *
    MARIA SANCHEZ,
    Defendant - Appellant.
    Appeal from the United States District Court
    for the Central District of California
    George H. Wu, District Judge, Presiding
    Argued and Submitted February 15, 2012
    Pasadena, California
    Before:       FARRIS and W. FLETCHER, Circuit Judges, and KORMAN,
    Senior District Judge.**
    Maria Sanchez was convicted of fourteen counts of an indictment of which two
    counts, charging her with aggravated identity theft, provide the primary basis of this
    appeal. Briefly, the evidence at trial established that, between 2003 and 2007,
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by 9th Cir. R. 36-3.
    **
    The Honorable Edward R. Korman, Senior United States District
    Judge for the Eastern District of New York, sitting by designation.
    Sanchez participated in a scheme to defraud four mortgage lenders. During the course
    of the scheme, Sanchez, in her capacity as a mortgage loan officer, prepared and
    submitted false loan applications on behalf of her sister and her sister-in-law. As part
    of this scheme, Sanchez prepared and submitted false loan applications to WMC
    Mortgage Corporation for first and second mortgages on behalf of her sister. On those
    applications, Sanchez misrepresented material facts.
    Sanchez knew that the mortgage applications stood a better chance of success
    if her name did not appear as her sister’s interviewer.        Consequently, without
    authorization, she forged the signature of a mortgage broker at her firm. A year later,
    Sanchez prepared and submitted other, comparably false loan applications to refinance
    the property. This time, she forged the signature of another person as the interviewer.
    The two counts charging Sanchez with aggravated identity theft under 18 U.S.C. §
    1028A are based on the initial applications for a first and second mortgage loan
    (Count 13) and the applications that Sanchez prepared a year later (Count 14). They
    carried a mandatory minimum sentence of two years, which the judge imposed to run
    concurrently with each other and consecutively with the one-day sentence he imposed
    on each of the remaining counts.
    Sanchez argues, for the first time on appeal, that the conduct in which she
    engaged did not satisfy the elements of aggravated identity theft. While we agree that
    2
    this claim may be raised for the first time on appeal, see United States v. Durcan, 
    539 F.2d 29
    , 31 (9th Cir. 1976), we conclude that it is without merit. Specifically, Counts
    13 and 14, which largely track the language of 18 U.S.C. § 1028A, allege that Sanchez
    knowingly used “a means of identification of another person, that is, the signature and
    name of individual[s] [specified], during and in relation to wire fraud, a felony
    violation of Title 18, United States Code, Section 1343.” Sanchez concedes that the
    signatures that are the subject of these two counts “were used in relation to the wire
    fraud charged in the indictment.”
    In United States v. Blixt, 
    548 F.3d 882
    , 887-88 (9th Cir. 2008), we rejected the
    argument that a signature does not constitute a “means of identification of another
    person.” In Blixt, as here, the individual whose name was forged was not the victim
    of the underlying fraudulent scheme. More recently, in United States v. Maciel-
    Alcala, 
    612 F.3d 1092
    , 1101-02 (9th Cir. 2010), we held that Section 1028A was
    violated where the defendant used the name of a dead person to obtain a U.S. passport
    and then claim citizenship.
    More troubling is Sanchez’s argument that the district judge failed to make the
    necessary findings to support the $172,529.16 in restitution he ordered. Sanchez
    objected to any imposition of restitution because she claimed that the victim suffered
    a loss in that amount only because “the government placed a lien on this property
    3
    related to a drug case involving [Sanchez’s] brother.” When the lien was placed, she
    argues, the property had a positive equity of $125,000. This argument was supported
    by the Addendum to the Presentence Report, which focused on the loss to the victim
    for the purpose of calculating the base offense level prescribed by the Sentencing
    Guidelines. The Addendum concluded there was no loss to the victim. Sanchez’s
    argument also finds support in United States v. Tyler, 
    767 F.2d 1350
    , 1351-52 (9th
    Cir. 1985), which held that loss resulting from conduct of the government after the
    seizure of property may not be used in determining restitution. The U.S. Attorney
    does not address this case in his brief, even though Sanchez relies upon it in hers.
    Our reading of the minutes of the sentencing proceeding indicates that the trial
    judge failed to specifically address Sanchez’s argument. Because we are unable to
    discern from the record the reason for the rejection of Sanchez’s argument, we vacate
    that part of the judgment imposing restitution and remand for resentencing. We ask
    the able district judge to make specific findings as to the loss resulting from the
    commission of the crimes of conviction.
    AFFIRMED in part, VACATED in part and REMANDED.
    4
    

Document Info

Docket Number: 10-50527

Citation Numbers: 475 F. App'x 139

Judges: Farris, Fletcher, Korman

Filed Date: 4/9/2012

Precedential Status: Non-Precedential

Modified Date: 8/5/2023