United States v. San Juana Lopez , 531 F. App'x 528 ( 2013 )

Case: 12-41070 Document: 00512285799 Page: 1 Date Filed: 06/25/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 25, 2013
No. 12-41070
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
SAN JUANA AIDEE LOPEZ, also known as San Juana Lopez,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:12-CR-112-1
Before STEWART, Chief Judge, and KING and CLEMENT, Circuit Judges.
PER CURIAM:*
San Juana Aidee Lopez appeals from her conviction of mail fraud. She
challenges only the restitution component of her sentence. She challenges the
inclusion of a $20,474.20 amount of loss that resulted from a scheme other than
the scheme for which she was convicted. The Government concedes error as to
that amount. She challenges the inclusion of a $11,006.14 amount of loss
resulting from the scheme for which she was convicted, arguing that the finding
by the Texas Commissioner of Insurance of $29,006.14 of loss was erroneous
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-41070
because only an amount of slightly more than $18,000 of that loss was claimed
by the defrauded company in a declaration of victim losses. Lopez finally argues
that the district court failed to take into account her ability to make payments
when it imposed a monthly payment schedule for her to follow when she is
released from prison.
As to the $20,474.20 in loss attributable to the scheme to defraud Care
Improvement Plus, we find that the district court committed reversible plain
error. The scheme was set out in two counts of the indictment to which Lopez
did not plead guilty, and the indictment sets out two discrete, temporally
separate schemes to defraud. See United States v. Sharma, 703 F.3d 318, 322
(5th Cir. 2012), petition for cert. filed (Apr. 30, 2012) (No. 12-1312); United States
v. Inman, 411 F.3d 591, 595 (5th Cir. 2005). As to the $20,474.20, the judgment
is vacated and remanded for the district court to issue a new restitution order.
The inclusion of $11,006.14 found to have been paid by United Funeral
Directors Life Insurance Company (United Funeral) towards the total
$29,006.14 attributable to the scheme to defraud United Funeral was argued
and decided by the district court in conjunction with the calculation of the
amount of loss for the establishment of Lopez’s sentencing offense level. We
review Lopez’s contention under the clear error standard. See United States v.
Tedder, 81 F.3d 549, 550 (5th Cir. 1996). “Factual findings are not clearly
erroneous if they are plausible in light of the record read as a whole.” United
States v. Ayala, 47 F.3d 688, 690 (5th Cir. 1995). A finding “is clearly erroneous
when the reviewing court on the entire evidence is left with the definite and firm
conviction that a mistake has been committed.” United States v. Coleman, 609
F.3d 699, 708 (5th Cir. 2010) (internal question marks and citation omitted).
The Chief Executive Officer of United Funeral swore in a declaration of
losses dated after the issuance of the 2011 decision of the Texas Commissioner
of Insurance that United Funeral’s specific losses were $18,316.34, and that
Juan Garza had repaid the company that amount. Garza’s own declaration of
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Case: 12-41070 Document: 00512285799 Page: 3 Date Filed: 06/25/2013
No. 12-41070
losses listed the same amount. The decision of the Commissioner of Insurance
on which the district court based the loss amount as to the United Funeral
scheme is not included in the record. We hold that the $11,006.14 figure in
losses to be paid to United Funeral is clearly erroneous, and we remand for
redetermination of the amount, if any, payable to United Funeral, “based upon
the evidence in the record.” United States v. Arledge, 553 F.3d 881, 899 (5th Cir.
2008).
Moreover, an apparent mathematical error in the amount paid by United
Funeral to reimburse policy holders, however, makes it unclear exactly how
much restitution may be owed to the company. If the total amount of loss from
the United Funeral scheme is $29,006.14, and the amount due to Juan Garza is
$18,316.34, then the amount owed to United Funeral would be $10,689.80. If,
however, the amount owed by Garza is $18,316.34, and the amount owed to
United Funeral is $11,006.14, then the total loss attributable to the United
Funeral scheme was $29,322.48. Should the district court find that any
restitution is owed to United Funeral, the district court should make a new
mathematical calculation as to the amount.
Because the district court must enter a new restitution order, the issue
whether the district court erred when ordering a schedule as to the vacated
amount of restitution is moot. See United States v. Hunt, 940 F.2d 130, 131-32
(5th Cir. 1991). As to that issue, the appeal is dismissed.
VACATED AND REMANDED IN PART; APPEAL DISMISSED IN PART.
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