United States v. Brett Depue
912 F.3d 1227
9th Cir.2019Background
- Brett Depue orchestrated a multi-year mortgage-fraud conspiracy using straw buyers to obtain 100% financing on residential properties; government tied the scheme to purchases of 106 properties totaling about $55 million.
- Depue was tried three times; at the third trial (pro se) he was convicted on eight counts and later sentenced based on a Guidelines calculation that used property sale prices to compute loss, producing a 22-level enhancement for losses > $25 million.
- At sentencing Depue did not object to the Pre-Sentence Report (PSR) loss calculation and stated the PSR “appeared to be correct” except for incarceration dates; he did not raise the specific loss-method arguments now presented on appeal.
- On appeal a three-judge panel affirmed, concluding Depue waived his Guidelines challenge; the Ninth Circuit granted en banc review to consider whether his failure to object was waiver or forfeiture.
- The en banc court held Depue forfeited (not waived) the challenge because the record lacked evidence he knowingly and intentionally relinquished the right to object, so plain error review applies; applying plain error, the court found no reversible error affecting substantial rights and affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Depue waived vs. forfeited his right to challenge Guidelines loss calc. | Depue argues the district court used the wrong loss method (sales price vs. loan principal) and challenges were preserved or at least reviewable. | Government argues Depue affirmed the PSR and thus waived objections to the Guidelines calculation. | Forfeiture (not waiver): no evidence Depue knowingly relinquished the right; plain error review applies. |
| Whether the sales-price method for computing loss was legal error. | Depue: sales-price method overstated loss; loan-principal method is correct and would reduce the enhancement. | Government: sales-price method reasonably estimated loss; many purchases used 100% financing so sale price approximates loan principal. | Not plain error: even if error, Depue failed to show reasonable probability of a lower sentence. |
| Whether factual problems (double-counting, wrong prices, non-conspiracy properties) rendered loss calculation plainly erroneous. | Depue: certain properties were double-counted or inaccurately listed and should be excluded. | Government: alleged factual defects are speculative and not obviously erroneous. | Not plain error: factual disputes are not sufficiently obvious to meet plain-error standard. |
| Whether plain error review should be applied or a "pure question of law" standard permits different review. | Depue suggests some legal questions might warrant different review. | Government relies on plain error because objections were not made below. | Court: issue is mixed law-and-fact; plain error is the appropriate standard. |
Key Cases Cited
- United States v. Perez, 116 F.3d 840 (9th Cir. 1997) (distinguishing waiver from forfeiture; waiver requires evidence defendant knew and relinquished a right)
- United States v. Olano, 507 U.S. 725 (1993) (plain-error review framework for unpreserved trial errors)
- Molina-Martinez v. United States, 136 S. Ct. 1338 (2016) (when incorrect Guidelines range ordinarily shows reasonable probability of different outcome)
- United States v. Jimenez, 258 F.3d 1120 (9th Cir. 2001) (confirming that affirming accuracy of PSR is forfeiture, not waiver, absent evidence of knowing relinquishment)
- Rosales-Mireles v. United States, 138 S. Ct. 1897 (2018) (district court bears ultimate responsibility to ensure correct Guidelines range and uncorrected errors risk unjust deprivation of liberty)