United States v. Bruce Hollander , 249 F. App'x 767 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
OCTOBER 1, 2007
No. 05-11825 THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 00-06168-CR-DTKH
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BRUCE HOLLANDER,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(October 1, 2007)
Before ANDERSON and PRYOR, Circuit Judges, and VINING,* District Judge.
PER CURIAM:
*
Honorable Robert L. Vining, United States District Judge for the Northern District of
Georgia, sitting by designation.
Bruce Hollander appeals his 51-month prison sentence, which followed his
conviction of 13 charges related to fraud in connection with loans insured by the
U. S. Department of Housing and Urban Development. We described the facts
underlying his conviction in United States v. Hollander, No. 02-12668 (11 th Cir.
Nov. 13, 2003), in which we affirmed Hollander’s conviction and vacated the
sentence that he originally received. Hollander presents three arguments in this
appeal: (1) his second sentence was the product of unconstitutional vindictiveness;
(2) the district court erred in determining the amount of loss attributable to him;
and (3) the district court erred by adjusting his offense level upward under the
United States Sentencing Guidelines, before imposing the same 51-month sentence
that he received the first time the district court sentenced him. We affirm.
At Hollander’s second sentencing, the government made several arguments
concerning Guideline offense-level adjustments that it did not make at Hollander’s
first sentencing, and Hollander argues that the district court’s consideration of
these arguments violated the law of the case doctrine and the Due Process
guarantee against vindictive sentencing. We disagree.
United States v. Stinson, 97 F.3d 466 (11th Cir. 1996), is conclusive of both
arguments. We vacated Hollander’s sentence in Hollander I, slip op. at 20; which
rendered it “void in its entirety.” Stinson, 97 F.3d at 469. In the light of our
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vacatur, the law of the case doctrine did not restrict the district court in the range of
issues that it could consider on remand, id., so the district court did not err.
Hollander’s Due Process argument is equally meritless, because “Due Process is
implicated only if[,] ‘after the vacatur of a defendant’s sentences, the district court
imposes a harsher punishment.’” Stinson, 97 F.3d at 470 (emphasis added).
“Since the resentencing court imposed on [Hollander] a term of incarceration
identical to his original term, Due Process is not implicated here.” Id.Hollander next argues that the district court improperly determined the
amount of loss attributable to him. The district court held Hollander responsible
for approximately 40 fraudulent loan transactions involving the Department of
Housing and Urban Development. The Department lost money on six of these
transactions after foreclosure proceedings. Hollander argues that the district court
should have deducted all of the insurance premiums that the Department received
on all 40 of the transactions from the amount of loss it calculated based on the six
transactions for which the department lost money. We resolved this issue in
Hollander I when we instructed that “losses are measured by the unpaid balance of
the mortgages less the amounts recoverable from the borrowers or by sale of the
collateral.” Id. at 20. The district court followed our mandate; it did not err.
Hollander also argues that the district court should have excluded $47,786 from its
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loss calculation as “interest of any kind.” U.S.S.G. § 2B1.1 cmt. n.3(D)(i). We
need not address this argument because, even if true, it would not affect
Hollander’s offense level under the Guidelines or his sentence. United States v.
Tampas, 493 F.3d 1291, 1305 (11th Cir. 2007).
Hollander next argues that the district court erred by adjusting his offense
level based on his role in the offense, abuse of trust, and obstruction of justice.
The district court imposed a three-offense-level adjustment based on Hollander’s
role, based on a finding that Hollander “manage[d]” or “supervis[ed]” “one or
more other participants.” U.S.S.G. § 3B1.1(b) cmt. n.2. Hollander argues that no
evidence established that his employees were criminally responsible, as the
Guidelines require, but two of his employees testified that Hollander told them to
omit information from real-estate documents. The employees testified that
Hollander explained that, if real-estate lenders knew the truth, they would not lend
money. The district court did not commit clear error by crediting their testimony
and applying the adjustment.
We need not consider Hollander’s remaining arguments concerning
adjustments. Because the district court explained that it would impose a 51 month
sentence notwithstanding a higher guideline range, and the low end of Hollander’s
guideline range would be 51 months even without adjustments for obstruction and
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abuse of trust, any error in applying these adjustments would be harmless.
Tampas, 493 F.3d at 1305.
Finally, Hollander raised an argument based on United States v. Booker, 543
U.S. 220, 125 S. Ct. 738 (2005), that we have twice rejected. See United States v.
Thomas, 446 F.3d 1348, 1354 (11th Cir. 2006); United States v. Duncan, 400 F.3d
1297, 1308 (11th Cir. 2005). Because Hollander abandoned this issue at oral
argument, we do not address it a third time.
AFFIRMED.
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