United States v. Kristen Way ( 2012 )

Case: 11-20034 Document: 00511811427 Page: 1 Date Filed: 04/04/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 4, 2012
No. 11-20034
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
KRISTEN ANNE WAY,
Defendant - Appellant
Appeals from the United States District Court
for the Southern District of Texas
USDC No. 4:08-CR-394-5
Before SMITH, BARKSDALE, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Kristen Anne Way challenges the below-Guidelines’-sentencing-range
sentence imposed following her jury-trial convictions for: conspiracy to commit
mail and wire fraud; aiding and abetting wire fraud; conspiracy to commit
money laundering by engaging in financial transactions in criminally derived
property; engaging in monetary transactions involving criminally derived
property; and aiding and abetting money laundering. With an advisory
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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No. 11-20034
sentencing range of 151-188 months, Way was sentenced to 51-months’
imprisonment.
Way first contends the district court erred in imposing an 18-level
sentencing enhancement pursuant to Sentencing Guideline § 2B1.1(b)(1)(J)
based on the amount of loss involved in the offenses. She claims the
enhancement was error because the Presentence Investigation Report (PSR):
contains no evidence to establish the method used to value the collateral; did not
contain an evaluation of the factors listed in United States v. Goss, 549 F.3d
1013, 1018 (5th Cir. 2008); and did not refer to the fair market value of
comparable sold properties. The Government contends Way waived this issue
at sentencing, when Way’s counsel stated that “the way [the probation officer
has] done it in this case is technically right under the guidelines”. Because
Way’s counsel also filed an objection to the enhancement (contending crash in
real estate market responsible for portion of loss), the record does not clearly
indicate that Way waived any objection to this enhancement. Because Way did
not raise in district court the specific objection she now raises on appeal,
however, review is limited only to plain error. E.g., Puckett v. United States, 556
U.S. 129, 135 (2009).
The district court’s application of the enhancement was not plain (clear or
obvious) error. The PSR and the Second Addendum to the PSR stated that Way
was responsible for a total loss of approximately $6,012,191. The PSR based
that calculation on the loans in which Way acted as a licensed loan officer and
received monetary compensation. The PSR also included a chart showing the
total amount of the original loans and the amount of loss suffered by the lenders.
The probation officer explained: the value of the real estate pledged as collateral
for the loans was credited against the loss from the fraudulent loans; the loss
amount did not include any fees, penalties, or interest; and the loss amount was
determined based on documents obtained from lenders, title companies, Way’s
employer, and interviews with witnesses. The district court was entitled to
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adopt the PSR’s findings without additional inquiry because the facts had an
evidentiary basis with sufficient indicia of reliability, and Way did not present
rebuttal evidence to show that the collateral was not properly valued or
demonstrate that the information was materially unreliable. See United States
v. Scher, 601 F.3d 408, 413-14 (5th Cir. 2010).
Way also maintains the district court erred in imposing a two-level
enhancement for use of sophisticated means under Guideline § 2B1.1(b)(9)(C)
because: there was nothing “especially complex” or “especially intricate” about
the offenses; and there was no evidence of corporate shells, offshore financial
accounts, or that the Government faced unusual hurdles in investigating and
gathering evidence. Whether an offense involved sophisticated means is a
factual determination that is reviewed for clear error. E.g., United States v.
Conner, 537 F.3d 480, 492 (5th Cir. 2008). Way has not shown that the district
court clearly erred in imposing the enhancement. See, e.g., United States v.
Wright, 496 F.3d 371, 379 (5th Cir. 2007) (affirming sophisticated means
adjustment for real estate scheme in which defendant used funds from his own
account to purchase cashier’s checks for home purchasers to make them appear
creditworthy to lenders).
Finally, Way maintains the district court erred in imposing a two-level
enhancement for her abuse of a position of trust under Guideline § 3B1.3,
because: she had an ordinary, arms-length relationship with the lenders
involved; and there was no evidence that her position enabled her to commit or
conceal the offenses. Review of the district court’s abuse-of-trust determination
is for clear error. E.g., Wright, 496 F.3d at 375. Because Way was a licensed
loan officer working for a mortgage brokerage office, the lenders expected Way
to perform due diligence in preparing loan packages and trusted her to verify
and submit accurate and truthful information in loan applications. See U.S.S.G.
§ 3B1.3 & cmt. n.4 (authorizing adjustment when defendant uses special skill
and explaining that to commit or conceal offense “refers to a skill not possessed
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No. 11-20034
by members of the general public and usually requiring substantial education,
training, or licensing”). Way also used her position and knowledge as a licensed
loan officer to recruit borrowers, submit false loan applications and false
verification information, to obtain and conceal loan proceeds, and to avoid
problems with credit bureaus.
AFFIRMED.
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