United States v. Robin Dimiceli
693 F. App'x 689
| 9th Cir. | 2017Background
- Defendant Robin Dimiceli was convicted of mail fraud (18 U.S.C. § 1341) and making false statements on loan/credit applications (18 U.S.C. § 1014) based on a scheme to fraudulently purchase real estate.
- County recorder employees testified that, as a routine practice, recorded deeds/deeds of trust were mailed to banks after recording; jurors inferred mailing from that routine practice.
- The district court calculated loss under U.S.S.G. § 2B1.1 using the presentence report; Dimiceli declined the court’s offer of an evidentiary hearing on loss.
- At sentencing the court made remarks comparing Dimiceli’s sentence to a co-defendant’s, but it also identified material reasons for any disparity.
- Dimiceli raised an ineffective-assistance-of-counsel claim on direct appeal; the Ninth Circuit declined to reach that claim on direct review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for mail fraud and use of mails | Prosecutor: routine recording office practice supports inference that deeds were mailed, satisfying use of mails in furtherance of scheme | Dimiceli: no direct proof of mailing; inference insufficient | Affirmed — routine custom evidence supported jurors’ inference that mails were used and that mailing furthered the scheme |
| Loss calculation under U.S.S.G. § 2B1.1 | Govt: presentence report and defendant’s waiver of evidentiary hearing support loss amount | Dimiceli: challenges enhancement, invoking Berger (no actual loss) | Affirmed — court followed approved procedure; presentence report admissible when defendant declined hearing; no plain error |
| Equal protection challenge to sentence disparity | N/A (court as plaintiff for lawfulness) | Dimiceli: sentencing disparity violated equal protection due to comments about co-defendant’s ability to pay | Affirmed — remarks viewed in context as addressing counsel’s arguments; court identified material reasons for different sentences |
| Ineffective assistance of counsel claim on direct appeal | Dimiceli: counsel was ineffective | Govt: claim not appropriately resolved on direct appeal | Not reviewed on direct appeal — Ninth Circuit declined to consider ineffective-assistance claim now |
Key Cases Cited
- United States v. Green, 745 F.2d 1205 (9th Cir. 1984) (routine mailing practice can support an inference that items were mailed)
- United States v. Lo, 231 F.3d 471 (9th Cir. 2000) (use of mails may be inferred from ordinary processing practices and can further a fraud scheme)
- United States v. Hymas, 780 F.3d 1285 (9th Cir. 2015) (approved procedure for calculating loss at sentencing)
- United States v. Morris, 744 F.3d 1373 (9th Cir. 2014) (procedural guidance on loss determination under the Guidelines)
- United States v. Romero-Rendon, 220 F.3d 1159 (9th Cir. 2000) (presentence report may constitute evidence when defendant declines a hearing)
- United States v. Rahman, 642 F.3d 1257 (9th Cir. 2011) (standard for not resolving ineffective-assistance claims on direct appeal)
- United States v. Berger, 587 F.3d 1038 (9th Cir. 2009) (discusses actual-loss requirement in certain fraud contexts)