United States v. Lazaro Velazquez
676 F. App'x 869
| 11th Cir. | 2017Background
- Velazquez pleaded guilty to conspiracy to commit bank fraud and substantive bank fraud for depositing stolen money orders, keeping a fee, and returning most proceeds to two leaders.
- He personally deposited 72 money orders totaling $39,475; coworker Yensy Guevara deposited 143 money orders totaling $76,593. The leaders stole ~$430,860 in money orders.
- The PSR attributed only Velazquez’s $39,475 to him (Guidelines §2B1.1(b)(1)(C)), yielding a 12–18 month range.
- The government argued Velazquez should be held accountable for Guevara’s deposits as part of jointly undertaken criminal activity; the district court added her $76,593, producing a $116,068 loss and a higher guideline range (21–27 months).
- District court found Velazquez implicitly agreed with a leader to recruit Guevara, that her activity was within the scope and furthered the conspiracy, and that her deposits were reasonably foreseeable; it sentenced Velazquez to 21 months and ordered restitution.
Issues
| Issue | Velazquez's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether the district court properly attributed Guevara’s deposited losses to Velazquez under USSG §1B1.3 for jointly undertaken criminal activity | Guevara’s deposits were outside the scope of any agreement he entered into; he only aided briefly and did not agree to enlarge the conspiracy | Velazquez recruited and introduced Guevara, accompanied her initial deposit, encouraged more accounts, and thus implicitly agreed to expand the jointly undertaken activity making her losses attributable | Affirmed: district court did not clearly err in finding an implicit agreement to recruit/expand the conspiracy; Guevara’s deposits were within scope, in furtherance, and reasonably foreseeable, so losses were attributable |
| Whether the district court misapplied precedent (Hunter) by failing to make particularized scope findings | Hunter requires particularized findings and the court here failed to do so | District court did make explicit factual findings that Velazquez implicitly agreed to recruit and expand the conspiracy | Rejected: Hunter distinguished — here the court made specific factual findings, so clear-error review applies and findings stand |
| Procedural reasonableness claim based on sentencing disparity with codefendants | Sentence is procedurally unreasonable because similarly situated coconspirators were not held accountable for others’ losses | Disparity among codefendants is generally not a basis for relief on appeal | Rejected: disparity argument does not warrant reversal |
Key Cases Cited
- United States v. McCrimmon, 362 F.3d 725 (11th Cir. 2004) (standard of review: de novo for guideline misapplication; clear error for loss findings)
- United States v. Hunter, 323 F.3d 1314 (11th Cir. 2003) (requires particularized findings on scope of each defendant’s jointly undertaken activity)
- United States v. Barrington, 648 F.3d 1178 (11th Cir. 2011) (clarifies clear-error standard for factual findings)
- United States v. Reese, 67 F.3d 902 (11th Cir. 1995) (commentary to §1B1.3 is binding; limits accountability to scope of agreement)
- United States v. Cavallo, 790 F.3d 1202 (11th Cir. 2015) (sentence disparity among codefendants not ordinarily a basis for appellate relief)