United States v. Castrillon-Sanchez , 861 F.3d 26 ( 2017 )

United States Court of Appeals
For the First Circuit
No. 16-1463
UNITED STATES OF AMERICA,
Appellee,
v.
ROSA E. CASTRILLÓN-SÁNCHEZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen Consuelo Cerezo, U.S. District Judge]
Before
Thompson, Kayatta, and Barron,
Circuit Judges.
Jose R. Gaztambide-Aneses, on brief for appellant.
James I. Pearce, Attorney, Appellate Section, Criminal
Division, U.S. Department of Justice, Leslie R. Caldwell,
Assistant Attorney General, Criminal Division, Sung-Hee Suh,
Deputy Assistant Attorney General, Criminal Division, Wifredo A.
Ferrer, United States Attorney, Southern District of Florida, H.
Ron Davidson, Assistant United States Attorney, Charles R.
Walsh, Trial Attorney, Criminal Division, and Luke Cass, Trial
Attorney, Criminal Division, on brief for appellee.
June 28, 2017
BARRON, Circuit Judge. Rosa E. Castrillón-Sánchez
("Castrillón") led a large-scale fraudulent financial scheme for
five years. After the scheme came to an end, she pleaded guilty
to criminal charges, based on her conduct during the course of
the scheme. On appeal, she contends that her sentence was
substantively unreasonable. We affirm.
I.
In July 2010, a federal grand jury in the District of
Puerto Rico charged Castrillón and eight others with a variety
of criminal conduct. The first count charged all defendants
with conspiracy to commit wire fraud and bank fraud, in
violation of 18 U.S.C. § 1349. Castrillón and various co-
defendants were also charged with eleven counts of wire fraud,
in violation of 18 U.S.C. § 1343; fourteen counts of bank fraud,
in violation of 18 U.S.C. § 1344; and four counts of money
laundering, in violation of 18 U.S.C. § 1957(a). Finally,
Castrillón alone was charged with four counts of aggravated
identity theft, in violation of 18 U.S.C. § 1028A.
The charges pertained to a fraudulent scheme that ran
from April 2005 to March 2010. During that time, Castrillón and
her co-defendants falsely and fraudulently induced over ninety
people to provide Castrillón with funds totaling more than five
million dollars. Those funds allegedly came from victims'
savings and brokerage accounts, loans provided by their family
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and friends, and unsecured personal loans made by financial
institutions.
According to the pre-sentence investigation report
(PSR) prepared by the probation office prior to sentencing, the
fraud operated as follows. Castrillón would befriend an
individual and confide that she was the beneficiary of a
Certificate of Deposit or trust for a large amount of money that
was either pledged as collateral or frozen at a local bank.
Castrillón would tell the targeted individual that she needed
money to enable her to obtain the funds that she was due as the
beneficiary of the Certificate of Deposit or trust, and that she
would pay the targeted individual back once she obtained her
funds. Castrillón would often induce her victims to take out
bank loans and provide her with the proceeds of those loans.
Sometimes, Castrillón also prepared fraudulent documents for the
targeted individuals to submit to banks, so that those
individuals could obtain loans and then give the resulting funds
to Castrillón. Castrillón also used targeted individuals'
personal information to obtain loans or cash advances in their
names and without their knowledge. And, to help perpetuate the
fraud, Castrillón prevented targets from contacting law
enforcement by giving them lulling payments or by threatening
them with violence, criminal liability, or the loss of their
money. Overall, the fraud continued for five years.
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The grand jury indicted Castrillón in July 2010, and
she was arrested the next day. In December 2013, Castrillón
pleaded guilty, pursuant to a plea agreement, to two of the
indictment's counts: one count of conspiracy to commit wire
fraud and bank fraud, in violation of 18 U.S.C. § 1349, and one
count of aggravated identity theft, in violation of 18 U.S.C. §
1028A. The District Court dismissed the remaining counts
against Castrillón on the government's motion.
The plea agreement set forth sentencing
recommendations based on calculations made under the United
States Sentencing Guidelines.1 With respect to the conspiracy
count, the plea agreement calculated Castrillón's base offense
level as seven, U.S.S.G. § 2B1.1(a)(1), and then applied an
eighteen-level enhancement based on the amount of money lost,
id. at § 2B1.1(b)(1)(J); a four-level enhancement based on the
number of victims who suffered substantial financial hardship,
id. at § 2B1.1(b)(2)(B); a four-level enhancement based on
Castrillón's role as a leader of the conspiracy, id. at
§ 3B1.1(a); and a two-level reduction based on Castrillón's
acceptance of responsibility for her actions, id. at § 3E1.1(a).
The plea agreement thus determined Castrillón's total offense
1 All citations to provisions of the United States
Sentencing Guidelines are to the versions of those provisions in
effect at the time of Castrillón's plea agreement and
sentencing, respectively.
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level to be 31. The plea agreement did not stipulate a criminal
history category for Castrillón. But, the plea agreement did
note that, assuming a criminal history category of I (the lowest
level), a total offense level of 31 corresponds to a guidelines
sentencing range of 108-135 months' imprisonment. U.S.S.G. Ch.
5, Pt. A (Sentencing Table).
For the aggravated identity theft count, the plea
agreement relied on a sentence prescribed by statute. Congress
has mandated a sentence of 24 months' imprisonment for
aggravated identity theft, 18 U.S.C. § 1028A(a)(1), to run
consecutively with any other term of imprisonment, id. at
§ 1028A(b). The plea agreement thus recommended a total
sentence of 132 months' imprisonment: 108 months for conspiracy
to commit wire fraud and bank fraud -- the low end of the
guidelines range -- and 24 months for aggravated identity theft.
At sentencing, the District Court considered the PSR,
which recounted Castrillón's conduct in detail and made
recommendations concerning Castrillón's sentence. With respect
to the conspiracy count, the PSR's calculation of the total
offense level was identical to the plea agreement's calculation,
except in one respect: the PSR found applicable a two-level
enhancement based on the vulnerability of Castrillón's victims,
many of whom were elderly and unsophisticated. U.S.S.G. §
3A1.1(b)(1). As a result, the PSR calculated a total offense
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level of 33, rather than the plea agreement's total offense
level of 31. The PSR also determined that Castrillón's criminal
history category was II. Based on these determinations, the PSR
calculated a guidelines sentencing range of 151-188 months'
imprisonment. U.S.S.G. Ch. 5, Pt. A (Sentencing Table). With
respect to the aggravated identity theft count, the PSR, like
the plea agreement, noted the mandatory 24 months' imprisonment
required by 18 U.S.C. § 1028A(a)(1).
The District Court also considered Castrillón's
sentencing memorandum, which contended that the two-level
enhancement for vulnerable victims added by the PSR wrongfully
"double counts" the enhancements already agreed upon in the plea
agreement. Castrillón also contended that her criminal activity
was attributable to her gambling addition, that she had begun
the process of rehabilitation, that the probability of
recidivism was low, and that in several past fraud cases the
various enhancements applicable to her were not applied and the
resulting sentences were considerably lower.
At sentencing, Castrillón's attorney told the District
Court that Castrillón did not dispute the facts set forth in the
PSR. Castrillón's attorney also stated that Castrillón had no
objections beyond those set forth in her sentencing memorandum.
In sentencing Castrillón for the conspiracy count, the
District Court followed the PSR in finding Castrillón's total
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offense level to be 33. However, the District Court determined
Castrillón's criminal history category to be I rather than II.
The District Court thus concluded that the guidelines sentencing
range for Castrillón for the conspiracy count was 135-168
months' imprisonment. U.S.S.G. Ch. 5, Pt. A (Sentencing Table).
The District Court stated that it found that the
guidelines calculations "satisfactorily reflect the components
of the offense" and that it "ha[d] considered all factors" in 18
U.S.C. § 3553(a). The District Court further noted "the grave
nature of the offense of conviction, the number of defendant's
victims and their deep suffering, [Castrillón's] leadership role
in the conspiracy, [and] the duration of the scheme and the
amount of the victims' losses."
For these reasons, the District Court sentenced
Castrillón to 135 months' imprisonment for the conspiracy
count -- a sentence that is at the low end of the guidelines
range that the District Court found applicable.
The District Court also sentenced Castrillón to 24
months' imprisonment for the aggravated identity theft count, as
required by law. The District Court sentenced Castrillón to
serve these terms consecutively, for a total term of
imprisonment of 159 months.
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II.
Castrillón filed this timely appeal in which she
challenges only the substantive reasonableness of her sentence,
as she disclaims any grounds for claiming procedural error. The
government argues that Castrillón waived the right to appeal.
But, even if we look past the asserted waiver and assume that
Castrillón is permitted to bring this appeal, her challenge
fails.
For a preserved challenge to the substantive
reasonableness of a sentence, "we proceed under the abuse of
discretion rubric, taking account of the totality of the
circumstances." United States v. Ruiz-Huertas, 792 F.3d 223,
226 (1st Cir. 2015). Where, as here, a defendant does not
preserve an objection to the substantive reasonableness of their
sentence, "[t]he applicable standard of review is somewhat
blurred" as to whether the ordinary abuse of discretion standard
or the plain error standard applies. Id. at 228. But
Castrillón's challenge fails even under the abuse of discretion
standard.
"A sentence is substantively reasonable so long as it
rests on a 'plausible sentencing rationale' and embodies a
'defensible result.'" Id. at 228 (quoting United States v.
Martin, 520 F.3d 87, 96 (1st Cir. 2008)). "[T]here is not a
single reasonable sentence but, rather, a range of reasonable
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sentences," and, "[c]onsequently, reversal will result if -- and
only if -- the sentencing court's ultimate determination falls
outside the expansive boundaries of that universe." Martin, 520
F.3d at 92.
In this case, the District Court explained that the
sentence was based on the gravity of the offense, given the
duration of the fraud, the losses suffered, and the nature of
the victims. Moreover, the sentence fell within the range of
imprisonment set forth in the guidelines. And, "a defendant who
attempts to brand a within-the-range sentence as unreasonable
must carry a heavy burden." United States v. Pelletier, 469
F.3d 194, 204 (1st Cir. 2006); see also United States v. Vega-
Salgado, 769 F.3d 100, 105 (1st Cir. 2014); United States v.
King, 741 F.3d 305, 310 (1st Cir. 2014).
Castrillón fails to carry that burden, especially
given the contemptible nature of the conduct in which she
engaged. Castrillón does identify various mitigating factors
that she contends reveal that the District Court abused its
discretion by not imposing a lighter sentence.2 But, the fact
that "the sentencing court chose not to attach to certain of the
2
In particular, Castrillón identifies the following
mitigating facts: the many negative effects of her compulsive
gambling disorder, including the disorder's role as a cause of
her criminal activity; the pain caused by her separation from
her family, especially her son; her efforts at rehabilitation;
her low chance of recidivism; her remorse; and disparities
between her sentence and those in other cases.
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mitigating factors the significance that the appellant thinks
they deserved does not make the sentence unreasonable." United
States v. Clogston, 662 F.3d 588, 593 (1st Cir. 2011); see also
United States v. Colón-Rodríguez, 696 F.3d 102, 108 (1st Cir.
2012) (same). To the contrary, we have upheld sentences as
substantively reasonable where -- as here -- "the district court
sufficiently weighed the history and characteristics of both the
offense and the offender" and sentenced "within the universe of
acceptable outcomes." United States v. Anonymous Defendant, 629
F.3d 68, 78 (1st Cir. 2010). And, from all that the record
reveals, that is what the District Court did here.
III.
For these reasons, appellant's sentence is affirmed.
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