United States v. Euneisha Hearns , 845 F.3d 641 ( 2017 )


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  •      Case: 16-40222   Document: 00513826679        Page: 1   Date Filed: 01/09/2017
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    United States Court of Appeals
    Fifth Circuit
    No. 16-40222                       FILED
    January 9, 2017
    UNITED STATES OF AMERICA,                                         Lyle W. Cayce
    Clerk
    Plaintiff - Appellee
    v.
    EUNEISHA HEARNS,
    Defendant - Appellant
    Appeal from the United States District Court
    for the Eastern District of Texas
    Before WIENER, CLEMENT, and HIGGINSON, Circuit Judges.
    WIENER, Circuit Judge:
    Defendant-Appellant Euneisha Hearns was convicted of one count of
    conspiracy to commit bank fraud. The district court attributed to Hearns loss
    amounts from nine additional transactions that allegedly occurred within the
    same scheme to defraud mortgage lenders when calculating her advisory range
    under the Sentencing Guidelines. The court concluded that her advisory
    Guidelines range was 46 to 57 months in prison and sentenced her to 46
    months imprisonment followed by 5 years supervised release. The district
    court also held Hearns jointly and severally liable with her co-conspirators for
    restitution totaling $180,235.45 and ordered her to pay a special
    Case: 16-40222     Document: 00513826679     Page: 2   Date Filed: 01/09/2017
    No. 16-40222
    assessment of $100. We affirm Hearns’s conviction, vacate her sentence, and
    remand for resentencing.
    I. FACTS AND PROCEEDINGS
    Hearns was a mortgage loan officer who was charged in a one-count
    amended second superseding indictment (“the indictment”) with conspiracy to
    commit bank fraud, in violation of 
    18 U.S.C. § 1349
    . As part of the conspiracy,
    Hearns made materially false statements on prospective buyers’ loan
    applications to help them obtain loans for which they did not qualify. In June
    2008, a co-conspirator referred a prospective buyer who was interested in
    purchasing property at 4006 Brownstone Ct., Dallas, Texas (“the Brownstone
    Property”) to Hearns to obtain a mortgage loan. Despite knowing that the
    buyer did not have enough money to make a down payment on the Brownstone
    Property and likely would not qualify for the loan, Hearns prepared and
    submitted a loan application with materially false statements on his behalf. As
    a result, Countrywide Bank, FSB (“Countrywide”) provided the buyer with a
    loan to purchase the Brownstone Property. The buyer purchased the
    Brownstone Property, but he ultimately defaulted on the loan and the bank
    foreclosed on the property.
    The indictment charged Hearns with conspiring to knowingly execute a
    scheme to defraud Countrywide “[f]rom [o]n or about June 11, 2008, . . .
    through on or about July 1, 2008.” At the conclusion of a four-day trial, the jury
    convicted Hearns of one count of bank-fraud conspiracy. The presentence
    report (“PSR”) prepared after trial attributed to the conspiracy a total loss of
    $865,940.18, which included $180,235.45 for the Brownstone Property plus
    loss amounts related to nine other properties. Based on the total loss amount,
    Hearns’s base offense level was 21, pursuant to United States Sentencing
    2
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    Guidelines (“USSG”) § 2B1.1 and § 2X1.1. 1 Her offense level was increased by
    two levels for “abus[ing] a position of public or private trust,” pursuant to
    USSG § 3B1.3, for a total offense level of 23. With Hearns’s criminal history
    category of I, her sentencing range was 46 to 57 months. 2
    Hearns objected to the PSR, contending that the loss figure should have
    been limited to $180,235.45 for the Brownstone Property, which would have
    reduced her base offense level from 21 to 17. 3 The district court overruled
    Hearns’s objection at the sentencing hearing and ruled that the total loss of
    $865,940.18 was attributable to the conspiracy and was foreseeable by Hearns.
    She was sentenced to 46 months imprisonment followed by 5 years supervised
    release. The district court also held Hearns jointly and severally liable with
    her co-conspirators for restitution totaling $180,235.45 and ordered her to pay
    a special assessment of $100. Hearns timely appealed.
    II. ANALYSIS
    Hearns asserts on appeal that (1) her conviction violated the Ex Post
    Facto Clause of the U.S. Constitution, (2) the court constructively amended the
    indictment by not requiring the jury to find that the defrauded institution was
    a “mortgage lending business,” and (3) the court incorrectly determined the
    amount of loss for which Hearns was responsible.
    1   All references to the Sentencing Guidelines are to the 2015 edition.
    2   U.S. SENTENCING GUIDELINES MANUAL ch. 5, pt. A (U.S. SENTENCING COMM’N
    2015).
    U.S. SENTENCING GUIDELINES MANUAL § 2B1.1(a)(1), (b)(1)(F) (U.S. SENTENCING
    3
    COMM’N 2015). With the two-level increase under USSG § 3B1.3, Hearns’s total offense level
    would have been 19, and her sentencing range would have been 30 to 37 months. U.S.
    SENTENCING GUIDELINES MANUAL ch. 5, pt. A (U.S. SENTENCING COMM’N 2015).
    3
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    A.     Ex Post Facto Challenge
    Hearns argues that her conviction violates the Ex Post Facto Clause of
    the U.S. Constitution because Countrywide was not a “financial institution” as
    statutorily defined at the time of her offense conduct, so “the conduct for which
    she was convicted was not a crime at the time she engaged in the conduct.”
    Because Hearns did not raise this argument in the district court, we review it
    for plain error. 4 “Plain error exists if (1) there is an error, (2) the error is
    plain, . . . (3) the error affect[s] substantial rights and (4) the error seriously
    affect[s] the fairness, integrity or public reputation of judicial proceedings.” 5
    The Constitution provides that “[n]o . . . ex post facto [l]aw shall be
    passed.” 6 A law violates this clause “if it (1) punishes as a crime an act
    previously committed which was not a crime when done; (2) makes more
    burdensome the punishment for a crime after it has been committed; or
    (3) deprives a defendant of any defense available according to the law at the
    time the charged act was committed.” 7
    The indictment charged Hearns with conspiracy to commit bank fraud
    against Countrywide from June 11, 2008, through July 1, 2008. In 2008, 
    18 U.S.C. § 1344
     made it a crime to “knowingly execute[], or attempt[] to execute,
    a scheme or artifice . . . (1) to defraud a financial institution; or (2) to obtain
    any of the moneys, funds, credits, assets, securities, or other property owned
    by, or under the custody or control of, a financial institution, by means of false
    4   United States v. Hickman, 
    331 F.3d 439
    , 445 (5th Cir. 2003).
    5United States v. Gordon, 
    838 F.3d 597
    , 604 (5th Cir. 2016) (alterations in original)
    (quoting United States v. Garcia-Carrillo, 
    749 F.3d 376
    , 378 (5th Cir. 2014) (per curiam)).
    6   U.S. CONST. art. I, § 9, cl. 3.
    7   Hickman, 
    331 F.3d at 445
    .
    4
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    or fraudulent pretenses, representations, or promises.” 8 “It is the financial
    institution itself . . . that is the victim of the fraud the statute proscribes.” 9
    Title 18 of the United States Code provided nine definitions of “financial
    institution” in 2008. 10 Hearns insists that the government relied on a tenth
    definition of “financial institution”—“a mortgage lending business”—that was
    not added until 2009. 11
    The government responds on appeal that it used the definition of
    “financial institution” found in 
    18 U.S.C. § 20
    (1) at the time of Hearns’s
    charged conduct: “an insured depository institution (as defined in section
    3(c)(2) of the Federal Deposit Insurance Act).” Section 3(c)(2) of the Federal
    Deposit Insurance Act defined “insured depository institution” as “any bank or
    savings association the deposits of which are insured by the [Federal Deposit
    Insurance] Corporation.” 12
    Although the indictment identified Countrywide as “a residential
    mortgage lender,” it also defined Countrywide as “a financial institution”
    whose “deposits were insured by the Federal Deposit Insurance Company,”
    thus satisfying the definition of “financial institution” at the time of the offense
    conduct. 13 At trial, the government presented evidence to show that
    8    
    18 U.S.C. § 1344
     (West 2008). The text of 
    18 U.S.C. § 1344
     has not changed since
    2008.
    9   United States v. Saks, 
    964 F.2d 1514
    , 1518 (5th Cir. 1992).
    10   
    18 U.S.C. § 20
     (West 2008).
    11   See United States v. Grasso, 
    724 F.3d 1077
    , 1089 n.13 (9th Cir. 2013) (“In 2009,
    Congress amended 
    18 U.S.C. § 20
    (1), which supplies the definition of ‘financial institution’
    for § 1344, to cover ‘mortgage lending businesses’ . . . . This amendment applies prospectively
    . . . .” (citation omitted)); 
    18 U.S.C. § 20
    (10) (West 2010).
    12   
    12 U.S.C. § 1813
    (c)(2) (West 2008).
    See 
    18 U.S.C. § 20
    (1) (West 2008) (defining “financial institution” as “an insured
    13
    depository institution (as defined by section 3(c)(2) of the Federal Deposit Insurance Act)”).
    5
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    Countrywide satisfied this definition. 14 Hearns did not present evidence to the
    contrary or otherwise challenge that Countrywide was insured by the Federal
    Deposit Insurance Company at trial or at sentencing.
    At the close of the evidence, the district court instructed the jury that the
    government could establish bank fraud under 
    18 U.S.C. § 1344
     in either one of
    two ways: (1) to hold Hearns guilty of bank-fraud conspiracy under § 1344(1),
    the jury must find, among other factors, that “Countrywide, FSB, was a wholly-
    owned subsidiary of Bank of America, a financial institution”; (2) to hold
    Hearns guilty of bank-fraud conspiracy under § 1344(2), the jury must find
    that “Countrywide Bank, FSB, was a wholly-owned subsidiary of Bank of
    America, a financial institution insured by the Federal Deposit Insurance
    Corporation.” 15 The district court never instructed the jury that it had to find
    14The vice president and business support manager of Bank of America, which later
    acquired Countrywide, testified as follows:
    Q: [In June of 2008], was Countrywide Bank, FSB, a federally insured
    financial institution?
    A: Yes.
    Q:   Their accounts were insured by the [Federal Deposit Insurance
    Corporation]; is that correct?
    A: Yes.
    15 Curiously, the reference to Bank of America also appears in both the government’s
    and Hearns’s proposed jury instructions. As the government concedes, however, the record
    reflects that Bank of America did not acquire Countrywide until after Hearns completed her
    offense conduct.
    Also, the government’s proposed jury instructions contained the definition of
    “financial institution” found in 
    18 U.S.C. § 20
    (1) in 2008: “an institution that is insured by
    the Federal Deposit Insurance Corporation.” Although the government included this
    definition in the context of proposed instructions regarding a later-dismissed money-
    laundering count under 
    18 U.S.C. § 1956
    , the same definitions of “financial institution,”
    found in 
    18 U.S.C. § 20
    , applied to both the money-laundering count under 
    18 U.S.C. § 1956
    and the bank-fraud conspiracy count under 
    18 U.S.C. §§ 1344
    , 1349. See 
    18 U.S.C. § 20
     (West
    2008) (defining the term “financial institution” “[a]s used in this title”). The district court,
    however, did not include this definition in its instructions to the jury.
    6
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    that Countrywide was a “mortgage lending business” pursuant to the
    definition of “financial institution” added in 2009.
    Hearns fails to show that the definition of “financial institution” added
    in 2009 was applied retroactively, 16 and the record demonstrates that the
    government and the district court used the term “financial institution” as it
    was defined in 2008. Hearns thus fails to demonstrate any ex post facto error
    in her conviction.
    B.     Constructive Amendment of the Indictment
    Hearns claims that the district court constructively amended the
    indictment by failing to instruct the jury that it must find that Countrywide
    was a “mortgage lending business.” “[A]n action of either the judge or
    prosecutor [that] allows the jury to convict the defendant upon a factual basis
    that effectively modifies an essential element of the offense charged constitutes
    an improper constructive amendment and is grounds for reversal.” 17
    The indictment charged Hearns with conspiracy to commit bank fraud
    against Countrywide and defined it as “a financial institution” whose “deposits
    were insured by the Federal Deposit Insurance Company.” As discussed above,
    the government was relying on one of the nine definitions of “financial
    institution” set forth in 
    18 U.S.C. § 20
     in 2008—namely, “an insured depository
    institution.” “Residential mortgage lender” was not a statutory definition of
    “financial institution” at the time of Hearns’s offense conduct. The district
    court did not err when it did not instruct the jury that it must find that
    Countrywide is a “residential mortgage lender.”
    16See Ortiz v. Quarterman, 
    504 F.3d 492
    , 499 (5th Cir. 2007) (“Under the Ex Post
    Facto Clause, [the appellant] must prove that the law, retroactively applied to him, caused
    him some disadvantage.”).
    17 United States v. Cooper, 
    714 F.3d 873
    , 878 (5th Cir. 2013) (alterations in original)
    (internal quotation marks omitted).
    7
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    C.     Loss Amount
    Hearns contends that the district court erred procedurally in
    determining that the loss amount for which she was responsible totaled
    $865,940.18, thereby miscalculating her Sentencing Guidelines advisory
    range. We agree.
    1. Standard of Review
    We review factual findings related to a district court’s loss calculations
    under the Sentencing Guidelines for clear error and that court’s calculation
    methodology de novo. 18 A relevant-conduct determination is a finding of fact. 19
    “A sentence will be upheld unless it was imposed in violation of law, was an
    incorrect application of the sentencing guidelines, or is outside the range of the
    applicable sentencing guideline.” 20 “Failure to object to either the PSR or the
    district court’s sentence,” however, “results in review for plain error.” 21
    The parties dispute whether Hearns preserved this challenge. “There is
    ‘[n]o bright-line rule . . . for determining whether a matter was raised below.’” 22
    “[I]f a party wishes to preserve an argument for appeal, the party must press
    and not merely intimate the argument during the proceedings before the
    district court. An argument must be raised to such a degree that the district
    18United States v. Minor, 
    831 F.3d 601
    , 607 (5th Cir. 2016); see United States v. Ocana,
    
    204 F.3d 585
    , 588 (5th Cir. 2000).
    19   United States v. Ekanem, 
    555 F.3d 172
    , 175 (5th Cir. 2009).
    20   Ocana, 
    204 F.3d at 588
    .
    21Id.; see United States v. Garcia-Perez, 
    779 F.3d 278
    , 281 (5th Cir. 2015) (“When a
    defendant objects to his sentence on grounds different from those raised on appeal, we review
    the new arguments raised on appeal for plain error only.” (quoting United States v. Medina–
    Anicacio, 
    325 F.3d 638
    , 643 (5th Cir. 2003))).
    22  United States v. Brown, 
    561 F.3d 420
    , 435 n.12 (5th Cir. 2009) (alterations in
    original) (quoting Castillo v. Cameron Cty., 
    238 F.3d 339
    , 355 n.21 (5th Cir. 2001)).
    8
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    court has an opportunity to rule on it.” 23 “The raising party must present the
    issue so that it places the opposing party and the court on notice that a new
    issue is being raised.” 24
    Hearns objected to the PSR, claiming that the probation officer “provided
    contradictory information with regard to the total loss amount deemed
    attributable to his client ($865,940.18) and the amount of restitution owed by
    his client.” Hearns argued that the loss figure should have been limited to the
    loss associated with the Brownstone Property, or $180.235.45, which would
    have reduced her base offense level from 21 to 17. 25 At the sentencing hearing,
    Hearns’s attorney addressed her objection: “We would ask that the base level
    be reduced to 17. We would base that on the fact that Ms. Hearns was convicted
    for the charge on the 4006 Brownstone property. The loss amount was
    approximately $180,000. We would ask that that be used as the amount to
    determine the calculation.”
    The probation officer responded to Hearns’s objection to the PSR, noting
    that the total loss amount was the result of relevant conduct and thus was
    appropriately used to calculate Hearns’s offense level pursuant to USSG
    § 1B1.3(a)(1)(B). At the sentencing hearing, in response to Hearns’s objection,
    the Assistant United States Attorney stated that the fraud related to the nine
    additional properties was “relevant conduct and . . . part of the same course of
    23Dallas Gas Partners, L.P. v. Prospect Energy Corp., 
    733 F.3d 148
    , 157 (5th Cir. 2013)
    (quoting Keelan v. Majesco Software, Inc., 
    407 F.3d 332
    , 340 (5th Cir. 2005)); see also Garcia-
    Perez, 779 F.3d at 282 (“The ‘objection must be sufficiently specific to alert the district court
    to the nature of the alleged error and to provide an opportunity for correction.’” (quoting
    United States v. Neal, 
    578 F.3d 270
    , 272 (5th Cir. 2009))).
    24Kelly v. Foti, 
    77 F.3d 819
    , 823 (5th Cir. 1996) (quoting Portis v. First Nat’l Bank, 
    34 F.3d 325
    , 331 (5th Cir. 1994)).
    25Hearns’s base offense level would be 7, pursuant to USSG § 2B1.1(a)(1), plus an
    additional 10 levels for a loss greater than $150,000, pursuant to USSG § 2B1.1(b)(1)(F), as
    opposed to a 14-level increase for a loss greater than $550,000 pursuant to § 2B1.1(b)(1)(H).
    9
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    conduct,” language found in § 1B1.3. The district court overruled Hearns’s
    objection, concluding that the total loss amount “ha[d] to do with the amount
    attributable to . . . [the] conspiracy.” The district court did not use the term
    “relevant conduct,” but it noted that the nine other transactions were
    “foreseeable” to Hearns as part of the conspiracy, a factor considered in a
    relevant-conduct determination under § 1B1.3(a)(1)(B)(iii). The court also
    adopted the factual findings and Guidelines applications contained in the PSR,
    which relied on § 1B1.3(a)(1)(B) when attributing the loss amounts for the nine
    other properties to Hearns and her co-conspirators. The probation officer’s
    response to Hearns’s objection to the PSR and the exchange at the sentencing
    hearing reflect that both the government and the district court understood
    Hearns’s challenge to address whether the alleged fraud related to the nine
    additional properties qualified as relevant conduct under the Guidelines. 26
    Hearns’s challenge to the PSR, which was addressed at the sentencing
    hearing, was therefore sufficient to put the government and the district court
    on notice that Hearns was raising a relevant-conduct challenge and “to permit
    the district court to rule on [her objection].” 27 We review Hearns’s challenge for
    clear error.
    26 See Ocana, 
    204 F.3d at 589
     (finding that, “[w]hile [the defendant] did not specifically
    cite to the USSG section which the PSR applied,” she made “a general objection that notified
    the court of her disagreement” and thus “sufficiently raised the issues which she
    now appeals”).
    27See In re Liljeberg Enters., Inc., 
    304 F.3d 410
    , 427 n.29 (5th Cir. 2002) (noting that
    an argument is preserved “if the argument on the issue before the district court was sufficient
    to permit the district court to rule on it”); see also Ocana, 
    204 F.3d at 589
     (“The purpose of
    requiring defendants to make timely objections to the PSR and actual sentence is ‘founded
    upon considerations of fairness to the court and to the parties and of the public interest in
    bringing litigation to an end after fair opportunity has been afforded to present all issues of
    law and fact.’” (quoting United States v. Ruiz, 
    43 F.3d 985
    , 988 (5th Cir. 1995))).
    10
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    2. Whether the District Court Clearly Erred
    “The sentencing judge is in a unique position to assess the evidence and
    estimate          the   loss    based   upon    that   evidence.” 28      “A   district   court
    may . . . exercise wide evidentiary latitude at sentencing and may look to the
    whole conspiracy to determine whether the acts of others were reasonably
    foreseeable.” 29 But the district court “must still make specific findings as to the
    scope of that conspiracy.” 30 “These findings need not be expressly made, but
    the meaning of the [district] court’s findings must be clear.” 31 “We will not
    upset these findings unless they are implausible in light of the record as
    a whole.” 32
    The loss amount “need not be determined with precision,” but “to satisfy
    th[e] clear error test all that is necessary is that the finding be plausible in
    light of the record as a whole.” 33 “Before a court may attribute losses to a
    defendant’s fraudulent conduct, there must be some factual basis for the
    conclusion that those losses were the result of fraud.” 34 We generally consider
    the PSR “reliable evidence for sentencing purposes.” 35 “In making its factual
    findings for sentencing, a district court may adopt the findings of the PSR
    without additional inquiry if those facts have an evidentiary basis with
    United States v. Cooks, 
    589 F.3d 173
    , 185 (5th Cir. 2009) (quoting United States v.
    28
    Holbrook, 
    499 F.3d 466
    , 468 (5th Cir. 2007)).
    29   United States v. Mateo Garza, 
    541 F.3d 290
    , 293 (5th Cir. 2008).
    30   
    Id.
    31   United States v. Hammond, 
    201 F.3d 346
    , 351 (5th Cir. 1999).
    32   Mateo Garza, 
    541 F.3d at 293
    .
    33   United States v. Reasor, 
    541 F.3d 366
    , 369 (5th Cir. 2008) (internal quotation marks
    omitted).
    United States v. Bernegger, 
    661 F.3d 232
    , 242 (5th Cir. 2011) (per curiam) (quoting
    34
    United States v. Randall, 
    157 F.3d 328
    , 331 (5th Cir. 1998)).
    35   Reasor, 
    541 F.3d at 369
     (internal quotation marks omitted).
    11
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    sufficient indicia of reliability and the defendant does not present rebuttal
    evidence or otherwise demonstrate that the information is materially
    unreliable.” 36 The defendant has the burden of showing that the information
    in the PSR is materially unreliable. 37 “If the factual recitation [in the PSR]
    lacks sufficient indicia of reliability, then it is error for the district court to
    consider it at sentencing—regardless of whether the defendant objects or offers
    rebuttal evidence.” 38
    The district court adopted the factual findings and undisputed Guideline
    applications contained in the PSR and concluded that “the information
    contained in the presentence report has sufficient indicia of reliability to
    support its probable accuracy.” The PSR relied on USSG § 1B1.3(a)(1)(B) to
    consider the loss amounts related to the nine additional properties in
    calculating Hearns’s base offense level. Under § 1B1.3(a)(1)(B), “a defendant
    can be liable for conduct that is (1) within the scope of the jointly undertaken
    criminal activity, (2) in furtherance of that criminal activity, and (3) reasonably
    foreseeable in connection with that criminal activity.” 39
    36 United States v. Ford, 
    558 F.3d 371
    , 377 (5th Cir. 2009) (per curiam) (quoting United
    States v. Valles, 
    484 F.3d 745
    , 759 (5th Cir. 2007)).
    37   
    Id.
    38United States v. Zuniga, 
    720 F.3d 587
    , 591 (5th Cir. 2013) (per curiam) (alteration
    in original) (quoting United States v. Harris, 
    702 F.3d 226
    , 231 (5th Cir. 2012)); see also
    United States v. Windless, 
    719 F.3d 415
    , 420 (5th Cir. 2013); United States v. McGee, 559 F.
    App’x 323, 327 n.17 (5th Cir.) (per curiam), cert. denied, 
    135 S. Ct. 130
     (2014).
    United States v. Gonzales, 
    841 F.3d 339
    , 359 (5th Cir. 2016) (internal quotation
    39
    marks omitted) (quoting U.S. SENTENCING GUIDELINES MANUAL § 1B1.3(a)(1)(B) (U.S.
    SENTENCING COMM’N 2015)). Specifically, § 1B1.3(a)(1) provides as follows:
    Unless otherwise specified, (i) the base offense level where the guideline
    specifies more than one base offense level, (ii) specific offense characteristics
    and (iii) cross references in Chapter Two, and (iv) adjustments in Chapter
    Three, shall be determined on the basis of the following:
    12
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    The PSR explained as follows: “The Government has identified 10
    properties [including the Brownstone Property] that involved fraud in the
    mortgage loan process. Government records reflect that with respect to these
    properties, . . . Hearns [and her co-conspirators] were all involved in the
    scheme to defraud.” The PSR otherwise provided no information or evidence to
    support the loss amounts or Hearns’s involvement in the other transactions.
    The government presented evidence with respect to three of these properties
    at trial, but the remaining six properties were not mentioned either at trial or
    at sentencing. 40 Nothing in the record reflects when the six remaining
    transactions occurred, whether criminal activity was associated with the
    transactions, or whether Hearns was involved in them. 41 The facts contained
    (A) all acts and omissions committed, aided, abetted,
    counseled, commanded, induced, procured, or willfully caused by the
    defendant; and
    (B) in the case of a jointly undertaken criminal activity (a
    criminal plan, scheme, endeavor, or enterprise undertaken by the
    defendant in concert with others, whether or not charged as a
    conspiracy), all acts and omissions of others that were—
    (i) within the scope of the jointly undertaken criminal activity,
    (ii) in furtherance of that criminal activity, and
    (iii) reasonably foreseeable in connection with that criminal
    activity;
    that occurred during the commission of the offense of conviction, in
    preparation for that offense, or in the course of attempting to avoid
    detection or responsibility for that offense[.]
    These six properties are 1610 Jensen Ct., Denton, Texas; 611 Oriole Blvd. #2401,
    40
    Duncanville, Texas; 611 Oriole Blvd. #2402, Duncanville, Texas; 611 Oriole Blvd. #2403,
    Duncanville, Texas; 611 Oriole Blvd. #2404, Duncanville, Texas; and a duplex at 1464 and
    1466 Brook Meadow Circle, Lancaster, Texas.
    41 We also note that § 1B1.3(a)(1) requires that the relevant conduct “occur[] during
    the commission of the offense of conviction, in preparation for that offense, or in the course
    of attempting to avoid detection or responsibility for that offense,” and we have explained
    that this provision can temporally limit the application of § 1B1.3(a)(1). See, e.g., United
    States v. Barraza, 
    655 F.3d 375
    , 385 (5th Cir. 2011) (“[S]eparate acts or conduct that did not
    occur during the commission of the presently charged offense may not be relevant conduct
    13
    Case: 16-40222        Document: 00513826679           Page: 14     Date Filed: 01/09/2017
    No. 16-40222
    in the PSR regarding these six properties lack an evidentiary basis with
    sufficient indicia of reliability. “Although a PSR may be considered as evidence
    by the court when making sentencing determinations, bare assertions made
    therein are not evidence standing alone.” 42
    On this record, the district court clearly erred when it relied on the PSR
    to include the loss amounts from the six properties in its calculation of Hearns’s
    base offense level. We therefore vacate Hearns’s sentence and remand for
    resentencing. Of course, on remand, the district court might reach the same
    conclusion regarding relevant conduct and the loss amount that it did initially
    and re-enter the same sentence. 43
    [under § 1B1.3(a)(1)].”); United States v. Fowler, 
    216 F.3d 459
    , 461–62 (5th Cir. 2000) (finding
    that the defendant’s receipt of “other sadistic images” did not constitute relevant conduct
    under § 1B1.3(a)(1) because, while “[t]he electronic mailing of the image that was the basis
    of the count of conviction occurred at a discrete moment,” the defendant’s “receipt of the other,
    sadistic images did not occur ‘during the commission of the offense of conviction’” and because
    “there was no proof that the sadistic images were part of preparing for the offense of
    conviction or avoiding detection of the crime”). Neither the PSR nor the district court
    explained whether these transactions occurred during the commission of the offense of
    conviction—here, “[f]rom [o]n or about June 11, 2008, . . . through on or about July 1, 2008”—
    in preparation for the offense of conviction, or in the course of attempting to avoid detection
    or responsibility for that offense.
    By contrast, § 1B1.3(a)(2) does not contain the same temporal limitation as Subsection
    (a)(1). Subsection (a)(2) applies to “all acts and omissions described in [Subsection (a)(1)] that
    were part of the same course of conduct or common scheme or plan as the offense of
    conviction.” Thus, conduct undertaken in the commission of separate conspiracies to defraud
    various victims at different times would qualify as relevant under (a)(2) as long as the
    separate conspiracies were part of the same course of conduct, common scheme, or plan as
    the offense of conviction. See, e.g., United States v. Hinojosa, 
    484 F.3d 337
    , 341–42 (5th Cir.
    2007); United States v. Payne, 
    226 F.3d 792
    , 796 (7th Cir. 2000). Notably, in oral argument,
    the government commendably conceded that this legal error—that is, the district court’s
    application of Subsection (a)(1) rather than (a)(2)—would control.
    42Bernegger, 
    661 F.3d at 242
     (internal quotation marks omitted); see Zuniga, 720 F.3d
    at 591 (“[B]ald, conclusionary statements in a PSR are not sufficiently reliable.” (internal
    quotation marks omitted)).
    43 See United States v. Locke, 
    643 F.3d 235
    , 246 (7th Cir. 2011) (“[W]e acknowledge
    that the district court might find—based upon sufficient evidence presented during
    resentencing—the conduct in the unconvicted counts relevant to [the defendant’s] sentencing.
    It could then state its findings with specificity and, presumably, enter the same sentence we
    14
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    No. 16-40222
    III. CONCLUSION
    We affirm Hearns’s conviction, vacate her sentence, and remand to the
    district court for resentencing consistent with this opinion.
    vacate today.”); see also United States v. Marmolejo, 
    139 F.3d 528
    , 530–31 (5th Cir. 1998)
    (holding that “[t]he only issues on remand properly before the district court are those issues
    arising out of the correction of the sentence ordered by this court” and clarifying that the
    district court on remand may “gather[] relevant facts and evidence on the specific and
    particular issues heard by the appeals court and remanded for resentencing”).
    If on remand the district court concludes that any defrauding allegedly related to
    these six properties does not constitute relevant conduct, the total loss amount would be
    $418,802.79, and Hearns’s base offense level would be 19, pursuant to USSG § 2B1.1(a)(1)
    and (b)(1)(G). With the two-level increase under § 3B1.3, Hearns’s total offense level would
    be 21, and her sentencing range would be 37 to 46 months. U.S. SENTENCING GUIDELINES
    MANUAL ch. 5, pt. A (U.S. SENTENCING COMM’N 2015).
    15