United States v. Lugo , 122 F. App'x 613 ( 2005 )

Rehearing granted, May 13, 2005
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 02-4708
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JUDITH LUGO,
Defendant - Appellant.
No. 02-4734
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JOEL KATZ,
Defendant - Appellant.
No. 04-4124
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JOEL KATZ,
Defendant - Appellant.
No. 04-4241
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JUDITH LUGO,
Defendant - Appellant.
Appeals from the United States District Court for the District of
Maryland, at Baltimore. Frederic N. Smalkin, District Judge;
Andre M. Davis, District Judge. (CR-01-373-AMD; CR-01-374-AMD)
Argued: September 29, 2004 Decided: January 19, 2005
Before WILLIAMS, KING, and DUNCAN, Circuit Judges.
Affirmed in part; vacated and remanded in part by unpublished per
curiam opinion.
ARGUED: Thomas Walsh Farquhar, Washington, D.C., for Judith Lugo;
Francis Joseph Gorman, GORMAN & WILLIAMS, Baltimore, Maryland, for
Joel Katz. Joyce Kallam McDonald, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore,
Maryland, for the United States. ON BRIEF: Christopher C. Bosley,
GORMAN & WILLIAMS, Baltimore, Maryland, for Joel Katz. Thomas M.
DiBiagio, United States Attorney, Robert R. Harding, Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Baltimore, Maryland, for the United States.
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Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
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PER CURIAM:
In July 2001, a grand jury in Maryland returned two
indictments charging Joel Katz and Judith Lugo with various crimes
in connection with a fraudulent telemarketing scheme, and Katz with
bankruptcy fraud and illegal possession of a firearm. In three
separate trials on these charges, juries convicted Katz and Lugo on
all counts. The district court imposed custodial sentences of 97
months for Katz and 51 months for Lugo. For the following reasons,
we affirm the Appellants’ convictions and Katz’s sentence, but
vacate Lugo’s sentence and remand for resentencing.
I.
The criminal conduct underlying this appeal centered around a
telemarketing scheme devised by Katz. Katz purchased an automatic
dialing machine that would sequentially dial telephone numbers.
When a call was answered, a recorded message would state that a
“VISA-card processing center” was attempting to reach the
individual and that the individual could be connected automatically
with an “operator” for further information. If the individual
agreed to be connected automatically, the machine would transfer
the call to one of Katz’s telemarketers, who would then attempt to
sell the individual a membership in “The Money Club,” “Tele-Money
Club,” “Smart Savers Club,” or “Cash Card Express.” Membership
would entitle the individual to a pre-approved VISA credit card and
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up to $2,500 in coupons. The cost of these memberships varied from
$49.95 to $149.95, but at no time did Katz have an agreement with
a credit card issuer or financial institution to make such offers.
Rather than distributing the promised cards or coupons, Katz would
mail the individuals a list of institutions that did offer such
cards.
Lugo initially worked for Katz as a telemarketer, offering
credit card club membership programs to consumers. Subsequently,
Lugo moved up within Katz’s operation and became responsible for
supervising a room of telemarketers, writing sales scripts, and
confirming the individuals’ authorization to debit their checking
account to pay for their memberships. When Katz was later forced
from his organization by his creditors as a result of the growing
number of complaints and requests for refunds, Lugo opened a
separate call center modeled on Katz’s scheme.
Poor performance led to the eventual collapse of the
operation, which left Katz with debts that far exceeded his assets.
Apparently mindful of his potential default, Katz ensured that most
of his property was held in the name of Martha Tuxford, his long-
time girlfriend. Katz eventually capitalized on this arrangement
in filing for personal bankruptcy by declaring only $5,280 in
assets, despite his possession of a house and two cars. During an
investigation into whether Katz’s bankruptcy petition was
fraudulent, authorities learned that Katz’s operation routinely
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issued monthly “Martha checks” that covered the amount of the
mortgage and upkeep on the home, and that almost all of the funds
necessary to acquire the home and two cars came from Katz’s
businesses. Additionally, when authorities investigating the
adequacy of Katz’s bankruptcy petition executed a search warrant at
Katz’s home on April 24, 2001 as part of their inquiry, they
discovered a shotgun in Katz’s bedroom closet.
Three separate trials were conducted with respect to Katz’s
and Lugo’s conduct. A two-day jury trial that began on October 15,
2001 resulted in Katz’s conviction under 18 U.S.C. § 922(g)(1)
(2000) for possessing a shotgun despite a prior felony conviction.
A second jury returned a conviction as to the bankruptcy fraud
charges against Katz on October 23, 2001. The charges related to
Katz’s and Lugo’s participation in the telemarketing fraud scheme
were also tried before a jury, which returned a guilty verdict as
to each defendant on June 6, 2002. At the conclusion of these
trials, the district court sentenced Katz to ninety-seven months’
incarceration followed by three years’ supervised release, and Lugo
to fifty-seven months’ incarceration followed by three years’
supervised release. In addition, the court fined Katz $10,000 and
ordered restitution in the amount of $867.77. Katz and Lugo timely
appeal.
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II.
Katz and Lugo offer five challenges to their convictions.1
First, Katz argues that the district court erred in denying his
request for a jury instruction regarding justification for
possessing a firearm. Second, Katz argues that the court erred in
denying his requests for jury instructions regarding his alleged
reliance on advice of counsel in filing his bankruptcy petition.
Third, Katz challenges the district court’s jury instruction as to
what constitutes an equitable interest in property that must be
disclosed when filing for bankruptcy. Fourth, Katz argues that the
court erred in allowing evidence of an injunction that prevented
him from using the VISA brand name. Finally, Lugo argues that the
court erred in allowing evidence of a prior conviction to be
admitted on cross-examination. We consider these issues in turn.
A.
Katz’s first assignment of error addresses the court’s
decision to deny his request for a jury instruction regarding the
defense of justification in his firearms trial. We review the
denial of a requested jury instruction de novo. United States v.
Perrin, 45 F.3d 869, 871 (4th Cir. 1995). In support of his
1
Prior to argument, Katz and Lugo sought leave to supplement
their brief with claims under Blakely v. Washington, 124 S. Ct.
2531 (2004). Although we granted leave to file a supplemental
brief, we denied relief under Blakely in accordance with United
States v. Hammoud, 381 F.3d 316, 348-53 (4th Cir.) (en banc),
petition for cert. filed,(U.S. Aug. 6, 2004) (No. 04-193).
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proposed instruction, Katz argued that a threat against Martha
Tuxford by a disenchanted creditor in 1998 justified his possession
of the shotgun discovered in his closet in 2001. However, the
district court found the nature of this threat was insufficient to
support a justification defense, and we agree.2 In order to assert
a justification defense, a defendant cannot continue to possess a
weapon long after the threat has ceased to be imminent. See United
States v. Holt, 79 F.3d 14, 16 (4th Cir. 1996). As a result, we
find the district court properly concluded that Katz could not
justify his possession of the shotgun in question in 2001 based on
a threat made three years earlier.
B.
Katz next argues the district court improperly denied a jury
instruction regarding his reliance on the advice of counsel when
completing his bankruptcy petition. In support, Katz asserts that
because he retained Howard Rubenstein, a bankruptcy attorney, and
Andrew Radding, a criminal defense attorney, prior to filing his
fraudulent bankruptcy petition, it should be presumed that he
completed the petition in reliance on their legal advice. Although
demonstrating a reliance on poor legal advice may negate the
inference of fraudulent intent in completing a bankruptcy petition,
2
For purposes of our analysis, we assume without deciding that
a defendant may base a defense of justification on a threat of
death or serious bodily injury to a third person. See United
States v. Newcomb, 6 F.3d 1129, 1135-36 (6th Cir. 1993).
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see, e.g., In re Hatton, 204 B.R. 477, 484 (E.D. Va. 1997), that
defense is not absolute. A defendant must demonstrate that he made
full disclosure of all pertinent facts to counsel and relied on
counsel’s advice in good faith. See United States v. Butler, 211
F.3d 826, 833 (4th Cir. 2000). We agree with the district court
that Katz failed to present an adequate foundation as to either
Radding or Rubenstein under Butler, as Katz offered only the fact
that he retained counsel as a basis for his instruction.3 Such a
foundation is clearly inadequate.
C.
Katz’s third challenge to his conviction concerns the district
court’s instruction to the jury in his bankruptcy fraud trial as to
what constitutes an “equitable interest” in property that he was
required to disclose in filing for bankruptcy. In a bankruptcy
petition, a debtor must disclose all interests in property as of
the date of his petition, including equitable interests. In re
Morehead, 283 F.3d 199, 202 (4th Cir. 2002). The nature of a pre-
petition interest is determined based on state law. In re Shearin,
3
Indeed, Katz actually stipulated prior to trial that he had
not relied on Radding’s advice in completing his bankruptcy
petition. To the extent Katz argues that the district court
improperly allowed the United States to use his stipulation as
leverage to prevent him from presenting at trial the evidence
necessary to support an advice of counsel defense as to Radding, we
agree with the district court that the proper recourse, if Katz
were to proceed with such evidence, was to “allow the stipulation
to be put into evidence, and the jury . . . to decide what effect
it has.” J.A. 77.
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224 F.3d 346, 349 (4th Cir. 2001). Katz argues that he was not
required to disclose an interest in the house held in the name of
Martha Tuxford, as he possessed only a defeasible contingent
remainder interest, and that the jury should have been so
instructed. As before, we review the denial of a requested jury
instruction de novo. Perrin, 45 F.3d at 871.
Our review of the foundation for Katz’s proposed instruction
indicates that it was properly denied. The deed to the home in
which he and Tuxford lived conferred the property and improvements
thereon to Katz in fee simple, while reserving for Tuxford a life
estate and the power “to sell, lease, mortgage, convey or otherwise
dispose of or encumber the whole and entire fee simple estate,”
J.A. 532-33, even in a manner that would defeat Katz’s contingent
remainder interest. Emphasizing the unusually broad powers granted
to Tuxford, Katz cited a Georgia bankruptcy case for the
proposition that a “contingent remainder . . . is not property of
the debtor’s estate.” In re Hicks, 22 B.R. 243, 244 (N.D. Ga.
1982). However, the conclusion in Hicks turned not on the labeling
of the interest in question as a “contingent remainder” but the
fact that such an interest could not be transferred or assigned
under Georgia law. See In re Baydush, 171 B.R. 953, 957 (E.D. Va.
1994) (discussing Hicks as applied to Virginia law). In Maryland,
a contingent interest assigned by the grantor to a designated
remainderman and contingent only to an event is descendible,
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divisible, and may be assigned by the remainderman. See Willoughby
v. Trevisonno, 97 A.2d 307, 311 (Md. 1953). As the only
remainderman to Tuxford’s life estate, Katz had an equitable
interest in the home deeded to Tuxford for life, and thus was
obliged to disclose this interest in his bankruptcy petition.
D.
Katz’s final challenge addresses the introduction of evidence
in his telemarketing fraud trial regarding an injunction that
enjoined Katz from trespassing on the VISA trademark by
“‘participating in any manner in or with any business, enterprise,
venture, entity or individual that solicits customers” or otherwise
used the trademark VISA “‘in any way.’” J.A. 1176, 1181, 1426-34.
Although Katz had secured a pre-trial ruling preventing the United
States from introducing his subsequent criminal contempt conviction
for violating the injunction, Katz testified in his defense, and
during cross-examination the United States indicated its intent to
question Katz about the injunction itself. The court found
discussion of the injunction alone to be appropriate for cross-
examination, and Katz was allowed to explain his understanding of
the injunction on redirect. We review Katz’s challenge to the
district court’s evidentiary determination for an abuse of
discretion. United States v. Godwin, 272 F.3d 659, 670 (4th Cir.
2001).
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We find no merit in Katz’s theory that any reference to the
injunction constituted an attempt to introduce evidence of his
prior conviction in violation of Fed. R. Evid. 404(b). Although
Katz argues that the 1985 injunction was both stale and irrelevant,
we agree with the court below that it was a permissible subject for
cross-examination in light of the heavy reliance on the VISA name
in Katz’s telemarketing strategy and Katz’s assertions that his
offers were not fraudulent. Hence, we find no error on this issue,
or indeed on any of the issues underlying Katz’s convictions.
E.
Turning to Lugo’s only challenge to her conviction on mail and
wire fraud charges, we find no error in the district court’s
decision to allow the United States to reference her prior
conviction for conspiring to distribute cocaine base for
impeachment purposes during trial. Essentially, Lugo argues that
the district court failed to make the findings required by the
balancing test of Fed. R. Evid. 609(a) before allowing discussion
of her prior conviction on cross-examination. United States v.
Gray, 852 F.2d 136, 139 (4th Cir. 1988) (noting a court’s duty to
“make an explicit finding on the record” as to whether the
probative value of the evidence outweighs its prejudicial effect
before allowing a party to question a witness about a prior felony
conviction on cross-examination). Although Lugo’s counsel raised
several objections to the introduction of her prior felony
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conviction, and demonstrated his familiarity with the balancing
requirement for admitting evidence under Rule 609(a), he did not
contest the adequacy of the district court’s findings under Rule
609(a) before or during trial.4
When a defendant presents on appeal an objection she failed to
raise at trial, our review is for plain error only. Under plain
error, Lugo must show: (1) there was error; (2) that is plain; (3)
that affects her substantial rights; (4) and that the error
“affected fairness, integrity or public reputation of judicial
proceedings” to such a degree that this court is persuaded to
exercise its discretion to correct the error. United States v.
Vonn, 535 U.S. 55, 62-63 (2002) (internal quotations omitted).
Assuming for the purposes of our analysis that Lugo has identified
error that qualifies as plain, Lugo completely fails to demonstrate
prejudice beyond the conclusory assertions to that effect in her
brief, which we find unpersuasive given the weight of the evidence
presented against her at trial. See United States v. Hastings, 134
F.3d 235, 240-41 (4th Cir. 1998) (discussing requirement of
demonstrating prejudice in order to satisfy the substantial rights
4
Instead, Lugo’s counsel filed a motion in limine, which the
court denied, and withdrew an objection that the prior conviction
did not constitute a felony for purposes of Rule 609.
Additionally, at trial, Lugo’s counsel objected to the manner in
which the conviction was characterized, and received the jury
instruction he requested, without ever objecting that the court had
failed to conduct the balancing test required by Gray.
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prong of the plain error analysis). As a result, we find Lugo
fails to demonstrate error in her conviction.
III.
Katz and Lugo also offer several challenges to the calculation
of their sentences. Katz and Lugo first argue jointly that the
court erred in denying their request for the aid of a forensic
accountant at sentencing. Second, Katz argues that the district
court applied the wrong guideline in determining his sentence.
Third, Lugo contends the district court erred in applying a two-
level enhancement under U.S. Sentencing Guidelines Manual § 3C1.1
(1998).5 Finally, Lugo also argues the court failed to properly
determine her degree of responsibility in Katz’s criminal
enterprise. We consider each issue in turn.
5
At sentencing, the district court used the 1998 Sentencing
Guidelines Manual. Generally, a sentencing court applies the
Guidelines Manual that is in effect on the date of sentencing.
USSG § 1B1.11(a) (2004). However, a sentencing court must apply
instead “the Guidelines Manual ‘in effect on the date that the
offense of conviction was committed,’ if it determines that use of
the Guidelines Manual ‘in effect on the date that the defendant is
sentenced would violate the ex post facto clause of the United
States Constitution.’” Elliott v. United States, 332 F.3d 753, 767
n.12 (4th Cir.) (quoting § 1B1.11(b)(1)), cert. denied, 72 U.S.L.W.
3308 (U.S. Nov 03, 2003) (No. 03-6382). Because there appears to
be little difference between the 1998 and 2002 Guidelines Manuals,
and to attenuate any potential confusion, we rely on the 1998
Guidelines Manual.
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A.
Katz and Lugo first argue jointly that the district court
abused its discretion in denying their request for a forensic
accountant to assist in establishing the total loss for which they
could be held accountable at sentencing. Under the Criminal
Justice Act of 1964, see 18 U.S.C. § 3006A, the district court may,
at its discretion, authorize appointed counsel “to obtain
investigative, expert, or other services necessary for adequate
representation,” provided the expertise is necessary “and that the
person is financially unable to obtain them.” Id. The district
court nevertheless determined that a forensic accountant was
unnecessary, as “the evidence presented at trial and the arguments
set forth in the government’s sentencing memorandum” indicated that
the loss exceeded $1.5 million by a wide margin. J.A. 1502. The
district court’s denial of authorization for an expert witness is
reviewed for an abuse of discretion. United States v. Hartsell,
127 F.3d 343, 349 (4th Cir. 1997).
We find no abuse of discretion under the present
circumstances. The Sentencing Guidelines permit a sentencing court
to make “a reasonable estimate of the loss” based on the evidence
presented. USSG § 2F1.1, cmt. n.8 (1998). Here, the loss figure
underlying the Appellants’ sentencing calculations was based on
evidence and testimony presented at trial. The Appellants were
able to cross-examine the witnesses who testified as to loss in
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order to probe the validity of their calculations and the manner in
which the final numbers were derived. Finally, the records
substantiating these estimations of loss were presented at trial
and explored in some detail. Because the method used in
calculating the loss was clear, as was the foundation for the loss
figures presented by the United States at trial, we find no error
in the district court’s denial of a court-appointed forensic
accountant.
B.
Katz next argues the court applied the wrong guideline in
determining his sentence. Generally, a district court’s
application of the Sentencing Guidelines is reviewed de novo, while
any underlying factual findings are reviewed for clear error.
United States v. Daughtrey, 874 F.2d 213, 217 (4th Cir. 1989). The
district court calculated Katz’s sentence under the guideline
applicable to mail and wire fraud as defined by 18 U.S.C. §§ 1341,
1343, see § 2F1.1, rather than money laundering as defined by 18
U.S.C. § 1956(a)(1)(B)(1), see USSG § 2S1.1 (1998). However, Katz’s
contention that his conviction for money laundering under § 1956
represents the “most serious offense,” as § 2S1.1 provides a higher
base offense level than § 2F1.1, reflects a mistaken understanding
of the Sentencing Guidelines.
Under the Sentencing Guidelines, convictions for offenses
punishable under § 2F1.1 (mail and wire fraud) and § 2S1.1 (money
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laundering) are closely related counts that must be grouped. See
USSG § 3D1.2(d) (1998). When offenses are grouped under
§ 3D1.2(d), the sentencing court is to apply “the offense guideline
that produces the highest offense level” when determined “in
accordance with Chapter Two and Parts A, B and C of Chapter Three”
as applied to the defendant’s aggregate conduct. USSG § 3D1.3(b)
(1998). Hence, the “most serious” offense is that which yields the
highest total offense level, rather than the conviction that
carries the highest base offense level. See id.6 Katz’s argument
is premised on his misunderstanding that “most serious offense” is
predicated on base offense level, rather than total offense level,
and as such is without merit.
C.
Turning to the first of Lugo’s two challenges to her sentence,
we find no error in the district court’s decision to apply a two-
level enhancement to Lugo’s offense level following her perjurious
testimony at trial. Lugo’s presentence report states that Lugo
testified at trial that she was merely “a clerical employee
fulfilling only administrative duties,” misrepresented her dates of
employment by Katz, and denied (a) “being a supervisory employee,”
6
See also United States v. Harris, 959 F.2d 246, 267 (D.C.
Cir. 1992), overruled on other grounds, Bailey v. United States,
516 U.S. 137 (1995) (noting that “any error in the choice of the
base offense level when convictions are grouped pursuant to section
3D1.2 always benefits the defendant, because the Guidelines require
the imposition of the highest available offense level”).
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(b) opening a telemarketing room on behalf of a successor to Katz,
and (c) knowing that the sales promises underlying the scheme were
empty. Lugo argues that these are insufficient bases to justify an
offense level enhancement for obstruction of justice under § 3C1.1.
In order to apply § 3C1.1 based on a defendant’s testimony at
trial, the sentencing court must find that the defendant gave
“false testimony concerning a material matter with the willful
intent to provide false testimony” under oath. United States v.
Dunnigan, 507 U.S. 87, 94-95 (1993).
Here, we find no error in the district court’s application of
§ 3C1.1. Lugo argues that some of the issues on which she is
accused of testifying falsely include her awareness during
verification calls of a particular individual’s age or whether
another individual with whom she was speaking was disabled.
However, Lugo’s statements on these matters were offered to
attenuate her involvement in Katz’s operation, and by extension her
culpability. Further, the district court specifically considered
whether Lugo’s assertions were “knowing falsehoods on a material
issue” and specifically identified as a “knowingly false statement”
Lugo’s representations at trial regarding her awareness of a
particular consumer’s disability status. Hence, the district court
findings are sufficient to support Lugo’s § 3C1.1 enhancement under
Dunnigan.
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D.
We find Lugo’s second sentencing objection, however, to be
well-founded. Lugo argues the district court erred in failing to
properly establish the amount of loss attributable to her in
calculating her sentence. Under the Sentencing Guidelines, when a
defendant is charged with “jointly undertaken criminal activity,”
USSG § 1B1.3(a)(1)(B) (1998), this Court requires “that a
sentencing court, in order to hold a defendant accountable for the
conduct of his coconspirators, should make particularized findings
with respect to both prongs of § 1B1.3(a)(1)(B).” United States v.
Bolden, 325 F.3d 471, 499 (4th Cir. 2003). Specifically, in
calculating fraud loss, “a sentencing court must first apply the
principles of ‘relevant conduct.’” Id at 498 (citing § 1B1.3). As
a result “the fraud loss properly attributable to a defendant[]
must be determined on the basis of (1) the acts and omissions
committed, aided, abetted, counseled, commanded, induced, procured,
or willfully caused by a defendant; and (2) in the case of a
jointly undertaken criminal activity, all reasonably foreseeable
acts and omissions of others in furtherance of the jointly
undertaken criminal activity.” Id. Lugo argues that the district
court failed to identify “(1) the scope of the criminal activity
[s]he agreed to jointly undertake, [and] (2) whether all the
[losses] were reasonably foreseeable.” Id. at 499.
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This assignment of error reflects a legal determination under
the Sentencing Guidelines that is reviewable de novo. Daughtrey,
874 F.2d at 217. As noted above, the loss attributable to Katz’s
scheme was amorphous. Evidence at trial demonstrated that Lugo
served as a supervisor of one of Katz’s telemarketing rooms and
that in that capacity, Lugo oversaw several operators, was familiar
with the scheme, distributed scripts to the operators, and
confirmed the authorization of debits from the victims. Further,
there was sufficient evidence to demonstrate her willful
participation. However, while the loss attributable generally to
a defendant’s fraud may be reasonably estimated, see § 2F1.1, cmt.
(n.9), when the defendant is not situated at a top position in a
particular criminal organization, the district court must go beyond
simply estimating what portion may fairly be attributed to that
defendant.
At sentencing, the district court did not make the
particularized findings this court subsequently found to be
necessary in Bolden. Rather, the district court stated
in the absence of a clearer indication of
precisely when Ms. Lugo not only foresaw, as
you say, but culpably insinuated herself with
the scheme, so far as I can tell, the $1.6
million or the $1.5 million is excessive. So,
I am going to give Ms. Lugo the benefit of a
doubt that is, and I can understand the
government’s position on this, a doubt that
perhaps she is not entitled to. But I am going
to find that Ms. Lugo’s relevant conduct fell
between $500,000 and $800,000. Frankly, I
think that is a generous finding.
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J.A. 1565. Although the district court did not have the benefit of
Bolden in calculating Lugo’s sentence in 2002, we conclude that
Bolden requires re-sentencing. Indeed, the district court’s
attempt to apportion the loss on a temporal basis appears to
recognize the need for some objective specificity. The need for
such specificity is apparent from the circumstances surrounding
Lugo’s involvement in Katz’s telemarketing operations, and Bolden
makes clear that “a verdict speaks to the scope of the defendant’s
agreement only in very general terms: It does not address the
question of which specific actions demonstrated at trial were in
furtherance of that single conspiracy or were foreseeable to the
conspirators.” 325 F.3d at 498. Although there was ample evidence
to implicate Lugo in Katz’s scheme, the calculation of Lugo’s
sentence is not supported by that evidence alone, as
“[n]otwithstanding the verdict, the court was obliged to make
individualized findings on fraud loss.” Id. (emphasis added).
IV.
In light of the foregoing we find no error in either
Appellant’s conviction or Katz’s sentence. However, because the
district court did not have the benefit of Bolden in determining
Lugo’s sentence, we vacate her sentence and remand for resentencing
in accordance with the principles discussed herein.
AFFIRMED IN PART;
VACATED AND REMANDED IN PART
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