UNITED STATES of America, Plaintiff-Appellee, v. Nelida RODRIGUEZ, Defendant-Appellant.
No. 10-12065.
United States Court of Appeals, Eleventh Circuit.
May 15, 2014.
III
As to Mr. Harrell, we conclude that the district court committed reversible plain error when it improperly participated in the parties’ plea negotiations, and accordingly vacate Mr. Harrell‘s convictions and sentence. The case is remanded with instructions that it be reassigned to a different district judge as to Mr. Harrell, who should be permitted to withdraw his guilty plea.
As to Mr. Dantzle, we affirm his convictions and sentence.
VACATED in part, REMANDED in part, and AFFIRMED in part.
Richard Carroll Klugh, Jr., Attorney at Law, Miami, FL, for Defendant-Appellant.
Before MARCUS, Circuit Judge, and COOGLER* and BOWEN,** District Judges.
COOGLER, District Judge:
I. Introduction
This appeal presents several issues arising from the seventy-month prison sentence of Defendant Nelida Rodriguez (“Rodriguez“) following her guilty plea to conspiracy to commit mail and wire fraud,
After careful review of the record and the briefs of the parties, and having the benefit of oral argument, we affirm Rodri-
II. Background
a. Facts1
A mortgage fraud scheme was operated from June 2005 through March 2007 involving Rodriguez and other defendants. As part of the scheme, numerous fraudulent loan applications were submitted to lenders across the United States in order to obtain loans on properties in Miami-Dade County and Broward County, Florida. As a result of the scheme, several lenders were caused to lose significant sums of money.
Magile Cruz (“Cruz“), the leader and organizer of the scheme, owned and operated Star Lending Mortgage, State Mortgage Lending, Sherley Title Services, Doral Title Services, and Professional Title Express. Cruz would identify residential properties for sale through her mortgage brokerage and mortgage lending businesses. She and others would then prepare on behalf of “straw buyers” fraudulent mortgage loan applications. The applications included false employment verifications, pay stubs, income and funds on deposit verifications, and Internal Revenue Service forms. In addition, some of the co-conspirators would recruit and pay individuals to pose as buyers and to ostensibly participate in the purchase of the selected properties. These straw buyers had no intention of residing in the purchased properties but made contrary representations to the lenders. Cruz and her co-conspirators paid the straw buyers $5,000 for every property on which their credit was used. In addition, as part of the fraudulent loan documentation submitted to the lenders, Cruz and the co-conspirators would represent themselves to be agents for title insurance companies and falsely claim the subject property to be covered by title insurance.
Lenders, after clearing the loans for closing, would forward the funds via wire, from outside the state of Florida, to companies owned and controlled by Cruz and her co-conspirators located in Florida. The lenders would then send various mortgage documents which included the Good Faith Estimate, Servicing Agreement, and RESPA Compliance documentation to the straw buyers via the United States Postal Service.
Finally, as part of the scheme to defraud, Cruz and her co-conspirators filed change of address forms with the United States Postal Service on behalf of the straw buyers. The forms changed the straw buyers’ addresses from the loan properties to a P.O. Box under the control of Cruz and her co-conspirators. By submitting the change of address forms on behalf of the straw buyers, Cruz and her co-conspirators concealed from the individuals actually living at the addresses that their properties had been fraudulently sold.
Cruz and her co-conspirators then made payments on the fraudulently obtained mortgages via checks and money orders in order to keep the mortgage loans afloat until the properties could be “resold,” often to another straw buyer. Ultimately Cruz ceased making payments on the properties, causing them to go into default and some into foreclosure.
Rodriguez, a friend of Cruz, worked for her at one of her companies and was listed as President of Professional Title Express, another of Cruz‘s companies. At Cruz‘s
Rodriguez, herself, acted as a straw buyer for the “purchase” of a property located at 10224 Northwest 130 Street, Hialeah Gardens, Florida, receiving $12,000 for the use of her credit. Rodriguez was also the purported seller of property in a fraudulent transaction involving her husband, co-defendant Pedro Huezo.
b. Procedural History
On July 23, 2009, a Southern District of Florida grand jury returned a twenty-count indictment, charging Rodriguez and eighteen co-defendants with participating in the above-described mortgage fraud scheme. On January 9, 2010, Rodriguez pled guilty to Count One, conspiracy to commit mail and wire fraud,
According to her PSI, Rodriguez‘s base offense level was seven.2 The PSI asserted that the fraudulent transactions resulted in over $19 million being lost by at least twenty-three lenders. As such, the PSI increased the base offense level by twenty levels, pursuant to
Rodriguez objected to the PSI on several grounds. She argued that she was not paid $60,000 for a transaction involving her husband, that the loss amount attributed to her was overstated, and that she was not a supervisor but instead played a minor role in the scheme.
The district court conducted Rodriguez‘s sentencing hearing over the course of two days, at which time Rodriguez made only two objections: one based upon the enhancement for her role in the offense and the other based upon the enhancement for the loss amount attributable to her. Along with her objection to the supervisory role enhancement, Rodriguez also moved for a two-level minor role reduction pursuant to
At the conclusion of the sentencing hearing, the court stated that “mandatory restitution is appropriate,” but noted that the victims’ losses were not yet ascertainable and informed the parties that it would set a date for the final determination of restitution “not to exceed ninety days after sentencing.” (District Court Docket Entry (“D.E.“) 734 at 87:13-22.) When the court entered its judgment on April 30, 2010, it noted that “the determination of restitution is deferred until July 28, 2010” at which time an amended judgment would be entered. (D.E. 714 at 5.) Rodriguez filed a notice of appeal when the April 30, 2010 judgment was entered.
On July 27, 2010, the government moved to continue the restitution hearing, citing Dolan v. United States, 560 U.S. 605, 130 S.Ct. 2533, 177 L.Ed.2d 108 (2010).3 The district court granted the motion but did not immediately reset the hearing.
Meanwhile, this Court questioned its jurisdiction over Rodriguez‘s appeal due to the incomplete judgment and ordered the parties to provide supplemental briefing on the issue of whether Rodriguez‘s sentence was final even though the restitution amount remained outstanding, citing
On June 30, 2011, Rodriguez filed a pleading in the district court captioned, “Motion for Re-sentencing in Order to Set Restitution,” in which she argued that the district court should vacate its prior judgment and conduct an entirely new sentencing hearing so that her restitution proceeding could be conducted within the ninety-day period provided for in
On January 30, 2012, the government submitted a request in the district court to schedule a restitution hearing “as soon as is reasonably possible.” In response, a
Rodriguez appealed the amended judgment, and this Court removed the stay and ordered briefing of the appeal to resume.
III. Discussion4
a. Guilty Plea
Rodriguez argues for the first time on appeal that the guilty plea proceedings violated her constitutional rights and failed to comport with the core components of
We review for plain error when a defendant, as with Rodriguez, fails to object in the district court to a claimed
“The due process clause prohibits the trial or guilty plea conviction of a person who is mentally incompetent.” Sheley v. Singletary, 955 F.2d 1434, 1437 (11th Cir. 1992).6 Further, the standard of “competence” required to plead guilty is the same standard used by courts to determine whether an individual is competent to stand trial, that is, “whether the defendant has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding’ and has ‘a rational as well as factual understanding of the proceedings against him.” Godinez v. Moran, 509 U.S. 389, 396-98, 113 S.Ct. 2680, 2685-86, 125 L.Ed.2d 321 (1993) (quoting Dusky v. United States, 362 U.S. 402, 402, 80 S.Ct. 788, 788-89, 4 L.Ed.2d 824 (1960) (per curiam)).7 As such, an allegation of mental illness or other mental disability does not invalidate a guilty plea if the defendant was still competent to enter that plea. See Bolius v. Wainwright, 597 F.2d 986, 990 (5th Cir. 1979) (“The mental illness or disability must have been so debilitating that [the defendant] was unable to consult with [her] lawyer and did not have a rational and factual understanding of the proceedings.“) (citing Dusky, 362 U.S. at 402, 80 S.Ct. at 788-89); see also Pardo v. Sec‘y, Fla. Dept. of Corr., 587 F.3d 1093, 1101 (11th Cir. 2009) (absent evidence of an inability to assist counsel, the defendant‘s “low intelligence, mental deficiency, bizarre, volatile, or irrational behavior, or the use of anti-psychotic drugs is not sufficient to show incompetence“).
The district judge conducted a thorough and comprehensive discussion with Rodriguez at her change of plea hearing, inquiring in numerous ways about her mental health. In response to his questions, Rodriguez indicated that she had been undergoing treatment for mental illness for the past year, beginning with her arrest in this case; that she was under the care of a psychologist and a doctor; and that she was taking three types of medication prescribed for depression and to help her sleep, although she could only remember the name of one medication—Clonazepam. She further indicated that she had taken “her pill” the day of the hearing. The district judge then took great care to ascertain whether Rodriguez was capable of understanding the proceeding and was able to communicate with counsel. Rodriguez testified that, notwithstanding her medication, she could understand the conversations she had had with her attorney. Although she initially testified that she was not able to understand
During the course of the change of plea hearing, Rodriguez periodically paused to consult with her attorney before responding to a question by the court. After each of these brief discussions with her attorney, Rodriguez confirmed that she understood the question posed by the court. Her attorney also confirmed that Rodriguez understood the questions posed. At one point Rodriguez‘s daughter interrupted the hearing to state that she was not sure that Rodriguez understood what was going on and asked to speak with her mother privately. The district judge allowed Rodriguez to confer with her attorney and her daughter, after which he again confirmed that Rodriguez understood the questions as well as the plea she was about to enter:
COURT: All right. You obviously had some discussions with your daughter and your lawyer. As a result of those discussions or any other reason, do you have any questions about any matter that has been raised during the plea colloquy?
DEFENDANT: No.
(D.E. 532 at 23:12-17). Simply put, there is no evidence or indication that Rodriguez was unable to consult with her attorney or understand the advice offered to her. As such, no error, plain or otherwise, was committed by the district judge in determining that Rodriguez was competent to enter a plea of guilty.
ii. Knowing and Voluntary Plea
Of course, a finding that a defendant is competent to plead guilty is not all that is required. Because “a guilty plea involves the waiver of a number of a defendant‘s constitutional rights,” the district
The district judge ensured that Rodriguez was not threatened or forced into pleading guilty, satisfying the first core concern. See
Rodriguez quarrels with the manner in which the court addressed the third core principle, specifically the matters set forth in
Regardless, Rodriguez insists that the manner in which the district judge informed her of her right to counsel constituted an error because the judge‘s language did not precisely track the language of
Similarly, there is no merit to Rodriguez‘s argument that the court failed to inform her of the court‘s authority to order restitution. When the court asked the government to inform Rodriguez of the punishment authorized, and the government stated that “the Court shall order restitution for all losses caused by the offenses,” the district court clearly satisfied
Finally, Rodriguez‘s contention that plain error occurred because the court did not explain to her the meaning of “interstate commerce” is misplaced. Nothing in the text of
iii. Factual Basis for Plea
Rodriguez‘s assertion that there was an insufficient factual basis to accept her guilty plea is also belied by the record. “Before entering judgment on a guilty plea, the court must determine that there is a factual basis for the plea.”
Accordingly, the district court did not plainly err in accepting Rodriguez‘s guilty plea.
b. Sentencing Issues
i. Twenty-Level Enhancement for Losses over $7 Million
Rodriguez contends that the district court erred in finding her responsible for over $12 million in losses and thus imposing a twenty-level guideline enhancement to her offense level. As Rodriguez objected to the loss amount in the PSI and during the sentencing hearing, we review this issue for clear error. United States v. Manoocher Nosrati-Shamloo, 255 F.3d 1290, 1291 (11th Cir. 2001) (“A district court‘s determination regarding the amount of loss for sentencing purposes is reviewed for clear error.“). There is “no clear error in cases in which the record supports the district court‘s findings.” United States v. Petrie, 302 F.3d 1280, 1290 (11th Cir. 2002).
In addition, proper calculation of the guidelines requires consideration of “all relevant conduct,” not merely charged conduct. United States v. Hamaker, 455 F.3d 1316, 1336 (11th Cir. 2006). Relevant conduct includes “all acts and omissions ... that were part of the same course of conduct or common scheme or plan as the offense of conviction.”
The district court did not clearly err in finding as fact that the loss attributable to Rodriguez was over $12 million. Although the PSI cited a loss of over $19 million, at sentencing the government introduced as an exhibit a spreadsheet demonstrating that the total loss amount attributable to Rodriguez was actually $12,024,168.03. The government explained that it derived this number by adding together the amount of the loss on the property for which Rodriguez acted as a straw buyer, the amount of the loss on the property for which her husband acted as a straw buyer, and the amount of the losses on the properties for which she redirected fraudulent loan documents through the use of her P.O. Boxes. The court then asked the government to explain the evidence with regard to Rodriguez and the change of address forms, to which the government responded that Rodriguez opened and controlled P.O. Boxes Nos. 227005 and 226834, and change of address forms filed by her co-conspirators directed fraudulent loan documents to those P.O. Boxes. By rerouting the mail, the conspirators concealed from the individuals who actually lived at the addresses that their properties had been fraudulently sold, and in many cases, to more than one straw buyer. The government carried its burden and proved the attributable losses with sufficient indicia of reliability.9
At sentencing, Rodriguez argued that she should not be held responsible for the losses on the properties associated with her P.O. Boxes because her connection to those losses was too tenuous and because she did not work for Cruz for the entire length of the conspiracy. These arguments are without merit, as explained above. Rodriguez participated in the conspiracy and did not withdraw from it, thus she is responsible for the losses resulting from the reasonably foreseeable acts of coconspirators in furtherance of the conspiracy. See
ii. Two-Level Enhancements for Use of Sophisticated Means and Multiple Victims
Rodriguez also argues for the first time on appeal that the district court erred in imposing two-level enhancements each for multiple victims and use of sophisticated means. As previously stated, we review objections to sentencing issues that were not raised in the district court for plain error and can only make corrections if there is plain error that affects substantial rights. United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005). If these conditions are met, we may exercise our discretion to notice a forfeited error, but only if the error “seriously affects the fairness, integrity, or public reputation of judicial proceedings.”
The sentencing guidelines call for a two-level increase in the defendant‘s offense level if the offense involved ten or more victims.
Similarly, the sophisticated means enhancement was not plainly erroneous. “Sophisticated means” connotes “especially complex or especially intricate offense conduct pertaining to the execution or concealment of an offense” and can include such conduct as “hiding assets or transactions, or both, through the use of fictitious entities [and] corporate shells.”
iii. Minor Role Reduction
Rodriguez argues that she deserves a minor-role reduction based upon her self-described status as a mere personal assistant to Cruz. We review for clear error the district court‘s determination of Rodriguez‘s role in the offense as a finding of fact. United States v. Rodriguez De Varon, 175 F.3d 930, 937 (11th Cir. 1999) (en banc).
A two-level reduction in the offense level is appropriate when a defendant functions as a minor participant in the criminal activity.
On the record before us, we find no error in the district court‘s determination that Rodriguez did not deserve a minor role reduction. The court, the government, and Rodriguez‘s attorney questioned Rodriguez extensively concerning her role as it related to the aggravating role enhancement in the PSI and Rodriguez‘s request for a minor role reduction. The court also heard evidence of Rodriguez‘s role as compared to other co-conspirators such as Cruz and Nelson Bermudez. The evidence demonstrated that Rodriguez performed an essential role in the mortgage fraud scheme. The fact that the court found that Rodriguez was not a manager or supervisor in the scheme, so as not to warrant an aggravating role enhancement, does not automatically mean that Rodriguez is entitled to a minor role adjustment. See id. at 944 (“[A] defendant is not automatically entitled to a minor role adjustment merely because she was somewhat less culpable than the other discernible participants.“).
Rodriguez also argues for the first time on appeal that the district judge improper-
Counsel, let me explain to you why I don‘t think a minor role is appropriate. This is a case that involved the theft of millions of dollars. It was a sophisticated scheme. It involved many, many victims. And persons who participate in this type of criminal activity, in the Court‘s opinion, are not entitled to a minor role reduction. Their acts resulted in substantial harm to the public and the treasury, if you will, and so a minor reduction would be inappropriate in this Court‘s mind. So your request for minor role is denied.
(D.E. 734 at 80:1-10.) Rodriguez contends that this statement is inconsistent with this Court‘s decision in Rodriguez De Varon, in which this Court held that it was improper for a district court to base a minor role reduction solely on a defendant‘s status without assessing her factual role in the scheme. See 175 F.3d at 942-43 (“[A] defendant‘s status as a drug courier does not alter the principle that the district court must assess the defendant‘s role in light of the relevant conduct attributable to her.“).
Contrary to Rodriguez‘s argument, when viewed in context, the judge‘s statement that a minor role reduction was inappropriate “for this type of criminal activity” is not an application of a categorical preclusion, but is rather a determination that a minor role reduction was inappropriate in this case due to Rodriguez‘s active role in the conspiracy. As described above, the district judge had just finished hearing over an hour‘s worth of testimony and argument and viewing multiple exhibits solely concerning Rodriguez‘s role in the scheme, including a comparison of her role to other co-conspirators. In a case where a defendant made a similar argument, also for the first time on appeal, concerning a statement the district judge made at sentencing arguably implying that he was applying a “per se rule” excluding drug “brokers” from being eligible for mitigating role adjustments, this Court emphasized:
We cannot accept that a district judge‘s extemporaneous spoken words of explanation are to be read by appellate judges as if we were reading a statute.... We look at the context and at the judge‘s acts. And we do not assume that the district judges do not know the law: their ambiguous oral statements, if possible, are interpreted to be consistent (and not inconsistent with) the law. The last principle applies with particular force when the district judge never had presented to him an objection aimed specially at his choice of words: the kind of objection that would have allowed him the chance to clarify his statements.
United States v. Cataldo, 171 F.3d 1316, 1319 n. 6 (11th Cir. 1999). The district judge properly analyzed Rodriguez‘s role in the manner contemplated by
Rodriguez‘s final argument is that the district court erred by amending the existing judgment to include the restitution amount, as more than two years elapsed from the date of her sentencing and original judgment to the date of her restitution hearing and amended judgment. She contends that this delay prejudiced her constitutional rights to a speedy sentencing and speedy appeal. She also argues that the district court‘s restitution calculation lacked evidentiary support.
We review the legality of a restitution order de novo and the factual findings underlying a restitution order for clear error. United States v. Valladares, 544 F.3d 1257, 1269 (11th Cir. 2008). Whether an action taken by a district court amounts to a constitutional violation is a question of law subject to de novo review. See United States v. Van De Walker, 141 F.3d 1451, 1452 (11th Cir. 1998).
The district court was required to order restitution in this case under the Mandatory Victims Restitution Act of 1996,
The district court made its intent to order restitution clear, stating during the sentencing hearing that “mandatory restitution is appropriate” and that the sole reason for not imposing the amount of restitution at that time was because the victims’ losses were not yet ascertainable. (D.E. 734 at 87:13-22.) Further, the written judgment entered on April 30, 2010, specifically stated that the “determination of restitution is deferred until July 28, 2010.” (D.E. 714 at 5.) Dolan thus forecloses any argument that the district court lacked jurisdiction or authority to impose an order of restitution more than ninety days after Rodriguez‘s sentence was imposed.
We are also not persuaded that Rodriguez‘s due process rights were violated as a result of her delayed restitution hearing and appeal. In Dolan, the Supreme Court found no due process violation resulting from the eight-month delay in ordering restitution because the defendant never requested a timely restitution hearing—nor sought mandamus to compel the sentencing court to hold the hearing—and could not demonstrate prejudice. 560 U.S. at 616-17, 130 S.Ct. at 2542. The Court went on to note that “[e]ven in the unlikely instances where that delay does cause the defendant prejudice,” the defendant “remains free to ask the court to take that fact into account upon review,” and the court may consider the prejudice from the delay, the reason for the delay, and the party responsible for its cause. Id. at 617, 130 S.Ct. at 2542; see also Rheuark v. Shaw, 628 F.2d 297, 303 (5th Cir. 1980) (cautioning that “not every delay in the appeal of a case, even an inordinate one, violates due process” and instructing courts to consider on a case by case basis the “[l]ength of delay, the reason for the delay, the defendant‘s assertion of his right, and prejudice to the defendant“) (quoting Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2191, 33 L.Ed.2d 101 (1972)).
As an initial matter, although she originally asked the court to schedule the restitution hearing, Rodriguez herself sought and received continuances of the hearing on two occasions. Thus, it cannot be said that the government is wholly to blame for the delay. Moreover, Rodriguez has not demonstrated prejudice from the albeit lengthy delay. Importantly, Rodriguez actually benefitted from the delay in that the amount of restitution calculated at the later date was less than it would have been at the time of sentencing, because in the meantime, some of the lenders recouped much of their losses.
Finally, as with the district court‘s calculation of loss at the time of sentencing, we conclude the district court did not clearly err in determining the amount of restitution. To the extent there is “any dispute as to the proper amount or type of restitution,” it shall be “resolved by the court by the preponderance of the evidence,” with the government bearing the burden of proof.
At the restitution hearing before the magistrate judge, a case agent employed by the United States Postal Inspection Service testified as to the lenders’ and servicers’ loss amounts. She stated that she obtained letters and declarations from the original lenders, as well as lenders who, as of that hearing, held or serviced loans which were fraudulently obtained. She explained her loss calculations, including that she considered in the net loss figures the recoveries, which were obtained when some of the loans were sold at a discount. It was entirely proper for the district court to consider her testimony. See United States v. Bourne, 130 F.3d 1444, 1447 (11th Cir. 1997) (deeming as acceptable for purposes of determining the restitution amount the special agent‘s testimony, which was based on his recollection of the bank auditor‘s report prepared on the day of the robbery). Following the hearing, the magistrate judge also examined supplemental memoranda submitted by the parties detailing an amended and reduced calculation of the lenders’ loss amounts. The district court ultimately limited the restitution order to losses to which Rodriguez was specifically connected and removed from the requested restitution any amounts that were not sufficiently verified. Based on the record before the district court and the non-specific nature of Rodriguez‘s objections, we cannot say that the district court‘s restitution order was based upon insufficiently specific and clear factual findings.
For the foregoing reasons, we affirm Rodriguez‘s guilty plea, sentence, and restitution order.
AFFIRMED.
L. SCOTT COOGLER
UNITED STATES DISTRICT JUDGE
Notes
(D.E. 532 at 5:13-25; 6:1-17.)COURT: Have you been able to understand the conversations you‘ve had with other individuals?
DEFENDANT: No.
COURT: And could you discuss that in a little more detail?
DEFENDANT: What I meant to say is that I recently had an interview with the U.S. Attorney—the Assistant U.S. Attorney and also with Mr. Salinas and they showed me some papers and the papers say things that I never said.
COURT: Are you referring to transcripts or other documents?
DEFENDANT: Could you explain your question, please?
COURT: You said the papers show things that you are not familiar with. Are you referring to transcripts of conversations or other types of documents?
DEFENDANT: The documents from the interviews that he had with me.
COURT: Well is your understanding of what‘s on the documents affected by the medication you are taking or some other reason?
DEFENDANT: How was that question?
COURT: You indicated that you, based upon certain medication, have had trouble understanding certain issues. Is that correct? Is it because of the medication or is it because of some other reason that you‘re not understanding certain items?
DEFENDANT: No, it‘s not because of the medication. There are just other matters that I have not understood.