United States v. Cruz ( 1999 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 98-4746
MARCELO ANG-ANGCO CRUZ, a/k/a
Mark Cruz,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
James C. Cacheris, Senior District Judge.
(CR-98-9-A)
Submitted: March 9, 1999
Decided: March 24, 1999
Before ERVIN, HAMILTON, and MOTZ, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Alan H. Yamamoto, Alexandria, Virginia, for Appellant. Helen F.
Fahey, United States Attorney, Robert W. Wiechering, Assistant
United States Attorney, Alexandria, Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Marcelo Ang-Angco Cruz appeals from the district court order sen-
tencing him to ninety-seven months' imprisonment for conspiracy to
commit mail fraud and wire fraud in violation of 18 U.S.C. § 371(1994), aiding and abetting mail and wire fraud in violation of 18
U.S.C. §§ 2, 1341, 1343 (1994), and conspiracy to commit money
laundering and money laundering in violation of 18 U.S.C. §§ 1956,
1956(h) (1994). Finding no error, we affirm.
Cruz's first contention is that the district court erred in assessing
a two-level enhancement to his sentence pursuant to United States
Sentencing Guidelines Manual ("U.S.S.G.")§ 3B1.1(c) (1997), on the
basis that he supervised and exercised control over other participants
in the criminal enterprise. Factual disputes concerning adjustments
under the guidelines should be resolved by a preponderance of the
evidence. See United States v. Urrego-Linares , 879 F.2d 1234, 1239
(4th Cir. 1989). The district court's findings of fact concerning role
adjustments must be affirmed unless clearly erroneous. See United
States v. Smith, 914 F.2d 565, 569 (4th Cir. 1990).
In 1995 Cruz became the office manager of a law office established
for the sole purpose of settling fraudulent accident claims. Cruz was
responsible for organizing fraudulent medical reports and accident
reports which he then sent to insurance companies. The evidence at
trial disclosed that in his capacity as office manager he encouraged at
least one co-conspirator to stage a fraudulent accident and personally
paid another person for his participation in a manufactured accident.
Given these facts, we do not find that the district court clearly erred
in finding that Cruz supervised other persons in connection with the
conspiracy and fraud offenses for which he was convicted.
Cruz next claims that the district court erroneously attributed to
him the entire monetary loss suffered by the insurance company vic-
tims during the course of the conspiracy. Cruz claims that from the
fall of 1994 until the summer of 1995 he lived in Philadelphia and did
not participate in the conspiracy. He therefore asserts that the district
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court should not have held him responsible for the loss inflicted by
the conspiracy during this period.
We find no error in the district court's decision to hold Cruz
accountable for the fraudulent activities of his co-conspirators during
his temporary absence. In sentencing a defendant, the district court
may consider all relevant conduct under U.S.S.G.§ 1B1.3(a)(1). Rel-
evant conduct in the case of jointly undertaken criminal activity
includes all reasonably foreseeable acts and omissions of others in
furtherance of the jointly undertaken criminal activity. Id. When Cruz
moved to Philadelphia he was aware that his co-conspirators intended
to continue their fraudulent insurance scheme and he failed to take
affirmative steps to demonstrate his withdrawal from the conspiracy
at that time. See United States v. Urbanik, 801 F.2d 692, 697 (4th Cir.
1986). In fact, nine months after he moved to Philadelphia Cruz
resumed his position in the conspiracy and helped process cases that
had been initiated in his absence. Therefore, Cruz's relevant conduct
for sentencing purposes included the acts of his co-conspirators dur-
ing his nine-month absence, and the district court did not err in hold-
ing him accountable for the monetary losses inflicted by the
conspiracy during this period.
We find no merit to Cruz's assertion that the district court erred in
adopting the presentence report's recommendation to deny an adjust-
ment for acceptance of responsibility because Cruz proceeded to trial.
Because this issue was not raised before the district court, this court's
review is for plain error only. See United States v. Olano, 507 U.S.
725 (1993). Plain error requires an error that is clear or obvious, that
affects substantial rights, i.e., is prejudicial to the defendant, and that
seriously affects the fairness, integrity, or public reputation of judicial
proceedings. Id. at 732. Although Cruz is correct in maintaining that
a defendant who exercises his right to trial is not automatically fore-
closed from receiving an acceptance of responsibility adjustment, see
United States v. Castner, 50 F.3d 1267, 1279 (4th Cir. 1995), the "ad-
justment is not intended to apply to a defendant who puts the govern-
ment to its burden of proof at trial by denying the essential factual
elements of guilt, is convicted, and only then admits guilt and
expresses remorse." U.S.S.G. § 3E1.1 comment. n.2. The record con-
tains nothing to suggest that the district court should have recognized
this as the rare case in which the defendant was entitled to the adjust-
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ment in spite of his decision to proceed to trial. See id. Therefore, the
district court did not err in declining to award Cruz an acceptance of
responsibility adjustment.
Cruz's final contention is that the district court erred in ordering
restitution in the amount of $1,382,477.90 without considering vari-
ous factors relevant to his ability to pay the restitution. Cruz's argu-
ment ignores the plain language of 18 U.S.C.A. § 3663A (West 1985
& Supp. 1998). That statute makes restitution mandatory for offenses
committed by fraud and requires the district court to order full restitu-
tion "without consideration of the economic circumstances of the
defendant." 18 U.S.C.A. § 3663A (West 1985 & Supp. 1998); see
United States v. Williams, 128 F.3d 1239, 1241 (8th Cir. 1997).
Accordingly, the district court properly ordered Cruz to pay full resti-
tution to the insurance company victims of his fraudulent activities.
We therefore affirm Cruz's sentence. We dispense with oral argu-
ment because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the deci-
sional process.
AFFIRMED
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