United States v. Romero MinorUnited States v. Romero Minor
PER CURIAM.
Romero Minor appeals his sixty-nine-month sentence for wire fraud, specifically challenging the district court’s determination of the amount of loss resulting from his offenses. For the reasons set forth below, we аffirm.
Minor pleaded guilty to one count of conspiracy to commit wire fraud in violation of
According to the plea agreement, the parties were unable to agree on a guidelines calculation bеcause of their differing views as to the amount of loss attributable to Minor under U.S.S.G. § 2B1.1(b)(1). In the plea agreement, the government took the position that thе loss in the case exceeded $1,000,000, resulting in a 16-level increase to the base offense level; Minor reserved the right to argue against that calculation.
The presentence report prepared by the probation office included a chart showing the forty-eight properties involved in the conspiracy and the corresponding loss amounts. The chart presented three different methods for calculating the loss sustainеd by the victim lenders. Using the lowest loss total, $1,311,672.51, the presentence report increased Minor’s base offense level by 16 levels because the аmount of loss exceeded $1,000,000 but was less than $2,500,000. See
At sentencing, thе district court heard the arguments of counsel and the testimony of FBI Special Agent Tom Donnelly
This timely appeal followed. Minor raises two issues regarding the loss calculation: (1) the government’s reliance on a chart to establish the loss calculation violated his constitutional right of confrontation where the plea agreement reserved his right to argue loss at sentencing and (2) the district court improperly aрplied U.S.S.G. § 2B1.1 in determining “reasonably foreseeable pecuniary harm” where the government failed to present any evidence that he cоuld have reasonably foreseen the crash of the real estate market or the practice by lenders of reselling mortgages.
We review de novo Minor’s clаim that his rights under the Confrontation Clause were violated. United States v. Katzopoulos, 437 F.3d 569, 573 (6th Cir. 2006). Relying on the Supreme Court’s recent line of cases addressing the right of confrontation, Bullcoming v. New Mexico, — U.S. —, 131 S.Ct. 2705, 180 L.Ed.2d 610 (2011), Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009), and Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), Minor аrgues that the district court should have required the production of live witnesses and admissible documents to establish loss. We have repeatedly held, рost-Crawford, that the Confrontation Clause does not apply in sentencing proceedings. See United States v. Paull, 551 F.3d 516, 527-28 (6th Cir. 2009); Katzopoulos, 437 F.3d at 575-76; United States v. Stone, 432 F.3d 651, 654 (6th Cir. 2005). Minor contends that the plea agreement’s resеrvation of his right to argue loss at sentencing excepts his case from the general rule that confrontation rights do not apply at sentencing. But if that were the case, Minor’s “exception” would swallow the rule. It implies that a defendant sentenced without a plea agreement, who therefore retains the ability to raise any relevant sentencing issue, would also have confrontation rights. In any case, regardless of any confrontаtion rights, one of the agents who prepared the loss calculation chart testified at Minor’s sentencing hearing and was subject to cross-examination.
We review de novo the district court’s method of calculating loss for purposes of U.S.S.G. § 2B1.1(b)(1). United States v. Triana, 468 F.3d 308, 321 (6th Cir. 2006). “[T]he district court is to determine the amount of loss by a preponderance of the evidence, and the district court’s findings are not to be overturned unless they are clearly erroneous.” United States v. Rothwell, 387 F.3d 579, 582 (6th Cir. 2004). The application notes under U.S.S.G. § 2B1.1 provide that the district court “need only make a reasonable estimate of the loss.”
Under U.S.S.G. § 2B1.1’s application notes, loss generally is “the greater of
Here, the district court calculated the loss resulting from Minor’s offenses by taking the mortgage loan amount and subtracting the fair market value of the collatеral at the time of sentencing, which was determined by using the higher of either average neighborhood sales or average neighborhood county tax appraisals. Using the fair market value rather than the amount that the lenders recovered through foreclosure sales benefitted Minor; crеditing Minor with the recovery from foreclosure sales would have resulted in a loss calculation in excess of $2,500,000 and an additional 2-level increase to his base offense level.
Minor contends that he could not have reasonably foreseen the real estate market crash and thе resulting significant reduction in the fair market value of the properties at issue. Unlike the application note regarding the determination of loss, the application note regarding credits against loss does not speak in terms of foreseeability.
Minor also argues that he could not have reasonably foreseen that lenders would resell the mortgages at a profit. But we agree with the district court that although whether the lender’s resold the mortgages at a profit may be relevant to restitution, it is not relevant to determining loss. The “reasonably foreseeable pecuniary harm” in this case is the amount of the mortgage loans.
For the foregoing reasons, we AFFIRM Minor’s sentence.