United States v. Duruisseau ( 2021 )

Case: 20-30649 Document: 00516118709 Page: 1 Date Filed: 12/06/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
December 6, 2021
No. 20-30649 Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Deion A. Duruisseau,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 1:12-CR-320-1
Before Higginbotham, Stewart, and Wilson, Circuit Judges.
Per Curiam:*
Defendant-Appellant Deion A. Duruisseau (“Deion”) appeals his
sentence for a second time after a panel of this court vacated and remanded
his original sentence on grounds that the district court erred in calculating
the loss amount. Because we hold that the district court did not commit
reversible plain error on remand, we AFFIRM.
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 20-30649 Document: 00516118709 Page: 2 Date Filed: 12/06/2021
No. 20-30649
I. Factual & Procedural Background
From June 2004 through approximately October 2009, Deion, his
wife, Lashawn A. Duruisseau (“Lashawn”), and their title attorney Harold
L. Lee, entered into a partnership for the purpose of defrauding various
financial institutions. Through their real-estate development company
Billionaire Properties, Deion and Lashawn claimed to flip homes by
purchasing and remodeling properties to sell for a profit. Deion, Lashawn,
and Lee collectively recruited buyers to purchase properties at inflated
prices, submitted fraudulent loan documents to the mortgage lenders, and
pocketed the proceeds when the mortgages closed. The misrepresentations
on the loan documents related to monthly income, side agreements, source
of down payments, and distribution of proceeds. Many of the properties were
foreclosed on because the owners defaulted on their payments.
In 2016, a jury convicted Deion, Lashawn, and Lee of conspiracy to
commit bank fraud 1 and two counts of bank fraud. 2 The district court
subsequently granted a motion for judgment of acquittal on one of the
substantive counts based on the Government’s failure to establish that the
lender was federally insured. In preparing Deion’s presentence investigation
report (“PSR”), the probation officer aggregated all of the down payments
made during and in furtherance of the conspiracy, which resulted in a total
loss amount of $652,846. This resulted in a 14-level upward adjustment to
Deion’s sentence under U.S.S.G. § 2B1.1(b)(1)(H). Deion objected to the
probation officer’s use of down payments to calculate the loss amount. He
argued that the district court should have instead utilized intended loss,
which could be calculated by aggregating the profits realized from selling the
1
18 U.S.C. § 1349.
2
18 U.S.C. § 1344.
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properties involved in the scheme and subtracting the related expenses. In an
Addendum to the PSR, the probation officer stressed the difficulties of
calculating the loss amount given the complex nature of the scheme and
argued that Deion’s proposed method for calculating loss was flawed and that
his objections should be overruled.
The district court agreed with the probation officer, overruled Deion’s
objections, and sentenced him within the advisory guidelines range to con-
current terms of imprisonment of 144 months to be followed by a five-year
term of supervised release. It also imposed a fine of $15,000 and ordered
Deion to pay $70,598.91 in restitution to the victim that submitted proof of
loss.
A panel of this court upheld Deion’s convictions but held that the dis-
trict court erred in relying on the probation officer’s use of the down pay-
ments on the properties to calculate the loss amount under U.S.S.G. § 2B1.1.
See United States v. Duruisseau, 796 F. App’x 827, 830, 839–41 (5th Cir.
2019). In doing so, the panel explained:
[W]e see no reason why the district court could not determine
actual loss to the banks by a traditional net-loss calculation—
that is, the total of the amounts loaned but not recouped. The
district court stated that some lenders were unable to provide
the information, but that seems to weigh against holding the
defendants responsible for money that cannot be proven to
have been lost. That is, if the bank received the money, either
from the borrower or by selling the property, it was not an ac-
tual loss. To suggest that the down payments actually made
(even if the source was fraudulently stated) were “intended
loss” equally makes no sense.
Id. at 840. The panel remanded with instructions for the district court to uti-
lize a loss calculation with “a closer nexus to the actual or intended loss”
than the aggregation of the down payments. Id.
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Following remand, counsel for both sides agreed that, for guidelines
purposes, the loss that should be attributed to Deion was between $150,000
and $249,000, which resulted in a 10-level upward adjustment and yielded a
guidelines range of 84 to 105 months. This court granted Deion’s motion to
expand the record to include a copy of a written stipulation signed by
Lashawn, her counsel, Deion’s counsel, and counsel for the Government.
The district court accepted the stipulation and ordered that the PSR be re-
vised to reflect it.
The resentencing hearing was conducted by video on October 13, 2020.
At the outset of the hearing, the district court inquired if there were any ob-
jections to the PSR and confirmed that there were none. It also confirmed
that there was a revised stipulated loss amount of $150,000 to $249,000. It
then adopted the revised PSR. Defense counsel offered mitigation arguments
in favor of a downward variance that would result in a sentence of time
served. The district court declined to grant the variance and sentenced Deion
to concurrent terms of 100 months of imprisonment. It also reimposed a five-
year term of supervised release and again ordered Deion to pay $70,598.91 in
restitution. Deion filed this appeal.
II. Standard of Review
When there is no objection at sentencing with respect to the district
court’s compliance with Rule 32(i)(1)(A), plain error review applies on ap-
peal. United States v. Esparza-Gonzalez, 268 F.3d 272, 274 (5th Cir. 2001)
(citing FED. R. CRIM. P. 32(i)(1)(A)). To prevail, the defendant must show
a forfeited error that is clear or obvious and that affects his substantial rights.
Puckett v. United States, 556 U.S. 129, 135 (2009). In the sentencing context,
demonstrating an impact on substantial rights generally requires showing “a
reasonable probability that, but for the district court’s error, the appellant
would have received a lower sentence.” United States v. Davis, 602 F.3d 643,
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647 (5th Cir. 2010). If the defendant makes the requisite showing, this court
has the discretion to correct the error but only if it “seriously affect[s] the
fairness, integrity or public reputation of judicial proceedings.” Puckett, 556
U.S. at 135 (internal quotation marks and citation omitted).
III. Discussion
On appeal, Deion contends that the district court plainly erred by fail-
ing to confirm at sentencing that he had reviewed the revised PSR with his
attorney, as required by Rule 32(i)(1)(A). He argues that if he had been af-
forded the opportunity to read and review the PSR with his counsel before
being sentenced, he would have objected to the stipulated loss amount. He
further asserts that the stipulated loss amount in the revised PSR is arbitrary,
and under this court’s decision remanding for resentencing, the district court
was required to base its loss calculation on actual, documented losses, which
were limited to $70,600. We address each of his arguments in turn.
In United States v. Diggles, this court held that a sentencing court must
“verify that the defendant reviewed the PSR with counsel. If he has not, the
sentencing should not proceed.” 957 F.3d 551, 560 (5th Cir. 2020) (en banc)
(internal citation omitted) (citing Fed. R. Crim. P. 32(i)(1)(A)). There,
we explained that this procedure protects the defendant’s Fifth Amendment
right to be given “notice of the sentence and an opportunity to object.” Id. at
560. “We have declined to interpret Rule 32 as creating an absolute require-
ment that the district court ‘specifically . . . ask a defendant whether he has
read the [PSR].’” Esparza-Gonzalez, 268 F.3d at 274 (quoting United States
v. Victoria, 877 F.2d 388, 340 (5th Cir. 1989)). “Instead, we ‘draw reasonable
inferences from court documents, the defendant’s statements, and counsel’s
statements’ to determine whether the defendant has been given an oppor-
tunity to read the PSR with his counsel.” Id. (quoting Victoria, 877 F.2d at
340.
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As a preliminary matter, we agree with the Government that the
record does not support Deion’s claim that he did not review the revised PSR
with his attorney prior to resentencing. The sole issue at Deion’s
resentencing hearing was the loss amount. The district court confirmed at
the outset of the hearing that there were no objections to the PSR by stating,
“All right. The revised presentence report was published . . . and we received
no objections to that. Are there any comments with regard to the new
presentence report, the revised one?” Deion’s counsel replied in Deion’s
presence, “No, Your Honor. Just like the case before this, the [G]overnment
and [Deion] entered into a stipulation as to the loss amount, which was the
kind of sole reason for the case to be re-sentenced.” The district court
replied:
That’s correct. And to reiterate for purposes of
Deion[’s] case, we had a stipulation to amount of loss,
the amount of loss being between $150,000 and
$249,000, thus affecting the guideline level. All right.
Without objections to the presentence report as
amended, I’m going to adopt them as the court’s
findings of fact on this re-sentencing proceeding.
Deion’s counsel then referenced a sentencing memorandum that he had
prepared and numerous letters that he had submitted on Deion’s behalf in
favor of mitigation and the district court acknowledged his receipt and review
of the documents.
The district court then directly asked Deion if there was anything he
wanted to say in mitigation prior to sentencing. Deion replied affirmatively
and spoke at length, referencing his regret, the effect of his actions on his
family, and his own decision to transform his life moving forward. In
addressing the district court, Deion spoke eloquently and quoted from the
Bible and Abraham Lincoln’s biography. At no point during his multiple
exchanges with the district court did he express that he had not reviewed the
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PSR with his counsel or that he disagreed with the stipulated loss amount
contained therein. Given Deion’s obvious intelligence and preparation in
advance of resentencing, his failure to alert the district court of any purported
disagreement he had with the PSR, and his defense counsel’s statements to
the district court in his presence that there were no objections to the PSR and
that the parties had agreed upon the revised stipulated loss amount, Deion’s
claim that he did not review the revised PSR with his counsel prior to
resentencing appears disingenuous at best.
Nevertheless, the record reveals that although the district court
confirmed at the outset of the hearing that there were no objections to the
revised PSR and that the parties had agreed to the stipulated loss amount
contained therein, it did not specifically verify that Deion had reviewed the
PSR with his counsel prior to resentencing. See Diggles, 957 F.3d at 560.
Thus, for the purposes of our analysis here, we assume that the district
plainly erred in failing to do so. See Puckett, 556 U.S. at 135.
According to Deion, this error affected his substantial rights because,
had the district court known that he objected to the stipulated loss amount in
the PSR, it would have been “compelled to reject” it and would have instead
calculated a loss of $70,600. He argues that this loss amount would have
yielded a reduced guidelines range of 57 to 71 months of imprisonment and
the district court would have sentenced him within that range. We disagree.
As the Government points out, the loss amount of $70,600 that Deion
proposes is only attributable to one of the several financial institutions that
he defrauded. At his first sentencing hearing, Deion’s counsel proposed a
loss amount of $70,000 using the same argument that Deion advances here
and the district court expressly rejected it. In doing so, the district court
reasoned that the fact that the other defrauded lenders in this case did not
seek to recoup their losses did not mean that they did not sustain the losses.
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Moreover, at resentencing the district court acknowledged with
approval Deion’s statement that “his life has changed” but declined to grant
a downward variance on that basis. The district court emphasized that it was
“not all about the guidelines” and noted that it was also required to consider
the applicable sentencing factors under 18 U.S.C. § 3553(a). It then pointed
out that Deion’s criminal history category of IV was significant and noted
that his pretrial release had been revoked because he had committed another
instance of bank fraud while awaiting trial in this case.
These statements by the district court indicate that it would likely
have imposed the same sentence regardless of whether Deion had objected
to the PSR and, for the second time, proposed a loss amount of approximately
$70,600. Accordingly, Deion has failed to show that his substantial rights
were affected by the district court’s failure to confirm that he had reviewed
the revised PSR with his counsel prior to resentencing. See Davis, 602 F.3d
at 647. Consequently, he has not demonstrated reversible plain error. See
Puckett, 556 U.S. at 135.
IV. Conclusion
For the foregoing reasons, we AFFIRM the sentence imposed by the
district court on remand.
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