United States v. Zamora, Leonides Jr. ( 2003 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 01-3063
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
LEONIDES ZAMORA, JR., also known
as JOSE ZAMORA,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 01 CR 26—Charles N. Clevert, Judge.
____________
ARGUED NOVEMBER 27, 2001—DECIDED FEBRUARY 24, 2003
____________
Before BAUER, HARLINGTON WOOD, JR., and MANION,
Circuit Judges.
HARLINGTON WOOD, JR., Circuit Judge. Defendant
Leonides Zamora, Jr.’s guilt in this case involving misuse
of a passport is not questioned. The only issue raised by
Zamora is whether the district court properly enhanced
his offense level by nine levels under Section 2J1.6(b)(2)(A)
of the United States Sentencing Guidelines (“U.S.S.G.”
or “the Guidelines”). Because we agree with the district
court’s finding that § 2J1.6(b)(2)(A) applies, Zamora’s sen-
tence is affirmed.
Zamora was indicted in February 2001 on two counts
stemming from charges that he helped Yogesh Shah, his
2 No. 01-3063
former brother-in-law, flee from this country while Shah
was awaiting sentencing on multiple fraud convictions
in another case pending in the Eastern District of Wis-
consin.1 Shah was also indicted in the present case, but
did not appear.2
The fugitive, Shah, was a real estate developer in the
Milwaukee area. He was indicted in December 1999 in the
Eastern District of Wisconsin on fraud and money launder-
ing charges. In October 2000, Shah was convicted follow-
ing a bench trial of five fraud counts but acquitted on
the money laundering charges.3 The losses resulting
from the fraud counts exceeded $20 million. After his con-
viction, Shah was allowed to remain free on bail pend-
ing sentencing, but the district judge added an additional
condition to his release, that Shah be placed on electronic
monitoring. Sentencing was set for January 11, 2001.
Shah’s possible statutory penalties totaled eighty years;
however, Shah did not appear for his sentencing. In No-
vember 2000, while he was free on bail following his con-
viction, Shah began socializing with appellant Zamora,
who was the brother of Shah’s ex-wife. Shah’s purpose
was more than mere socializing. In mid-November, with
Shah’s help Zamora began altering his appearance to
look like Shah. He changed the color of his hair from gray-
blond to black and went from “mangy” looking hair, as
the government describes it, to a neat look. Zamora shaved
off his mustache. He also bought at a convenience store
1
See United States v. Shah, 193 F.Supp. 2d 1091 (E.D. Wis.
2002), dealing with the government’s request for a forfeiture of
Shah’s bond, for background.
2
At the time the government’s brief was filed in this case, Shah
had been apprehended in India and was facing extradition.
3
Shah was convicted of fraud under 18 U.S.C. §§ 1343, 1344,
and 2314.
No. 01-3063 3
a pair of black glasses he did not otherwise need as he
wore prescription contacts. The photo exhibits in the rec-
ord suggest a Hollywood makeup artist could not have
done better to facilitate Shah and Zamora’s scheme.
On November 16, 2000, Zamora secured a new Wiscon-
sin driver’s license. On November 21, he borrowed Shah’s
Porsche to drive to Chicago to get a passport. According
to Zamora, Shah could not accompany Zamora to Chicago
because the electronic monitoring did not allow Shah
to leave his home. Zamora obtained the passport, using
his new driver’s license as identification. For the pass-
port photo, Zamora wore a sport jacket and tie, instead
of one of his customary t-shirts. The clothes were pro-
vided to him by Shah so, as Zamora explained it, he could
“look more professional.”
Then it was Shah’s turn. On December 22, 2000, Shah,
who wears prescription glasses, purchased new frames
from an optical store. These frames were shaped like
the ones worn by Zamora in his new passport photo.
Shah was now ready to go. On December 23, he went
to Midway Airport in Chicago. Delta Air Lines records
show that someone using Leonides Zamora’s passport
departed from Midway Airport on December 23 and trav-
eled to Cincinnati, then to Atlanta, and from Atlanta
to Frankfort, Germany, finally arriving in Bombay, India
on December 25. Bank records show that a debit card in
the name of Yogesh Shah was used in Frankfort and
Bombay during this time period. Additionally, just be-
fore December 23, Shah wired $30,000 to India. Other
bank records show that on November 22, 2000, one of
Shah’s daughters wrote a $50 check to an attorney repre-
senting Zamora in a traffic matter and, on December 12,
2000, that daughter wrote a $300 check payable to Zamora.
In January 2001, the FBI interviewed Zamora about
his passport. Zamora admitted to getting the new pass-
4 No. 01-3063
port and stated that he obtained the passport because
Shah had offered to purchase a trip to India for him. When
asked what happened to the passport, Zamora stated
that shortly after Thanksgiving 2000, he looked for the
passport but could not find it. Zamora told the FBI agent
that the last time he remembered seeing the passport,
he had taken it out to show Shah, because Shah had
asked to see it. Zamora said that, when he could not
find the passport, he attempted unsuccessfully to contact
Shah several times to see if Shah had it. Zamora de-
nied receiving any money from Shah, although he did
inform the agent that Shah paid for both the new driver’s
license and the passport. The agent also questioned
Zamora about the radical change in his appearance just
before the passport photo was taken. Zamora stated that
he had decided to change his hair and mustache be-
cause when he would go to bars in the Milwaukee area
people would tease him about his appearance. When asked
why he wore glasses in his passport photo, Zamora ex-
plained that, while he regularly wore contact lenses, he
wore drugstore glasses for the photo so it would be accu-
rate in case he ever lost his contacts and had to resort
to glasses.
Zamora was indicted on February 13, 2001 on charges
of conspiring to assist Shah in failing to appear in court
for sentencing in violation of 18 U.S.C. §§ 371 and 3146,
conspiring to have Shah use a passport issued for the use
of another in violation of 18 U.S.C. §§ 371 and 1544,
and misuse of a passport in violation of 18 U.S.C. § 1544.
Zamora was found guilty following a jury trial and was
sentenced on August 1, 2001. With respect to the conspir-
acy charges, the proper guideline for violations falling
under 18 U.S.C. § 371 is U.S.S.G. § 2X1.1(a). Under
U.S.S.G. § 2X1.1(a), the defendant’s base offense level
is “[t]he base offense level from the guideline for the sub-
stantive offense, plus any adjustments from such guide-
No. 01-3063 5
line for any intended offense conduct that can be estab-
lished with reasonable certainty.” For the conspiracy
to assist in failing to appear charge, the district court,
therefore, turned to U.S.S.G. § 2J1.6, entitled “Failure
to Appear by Defendant,” and assigned a base offense
level of 6. The district court then applied a nine-level
enhancement under § 2J1.6(b)(2)(A), which provides for
a nine-level increase in cases in which the “underlying
offense” is punishable by imprisonment for a term of fif-
teen years or more. Application Note 1 to § 2J1.6 defines
“underlying offense” as “the offense in respect to which
the defendant failed to appear.” The district court re-
jected Zamora’s contention that the § 2J1.6(b)(2)(A) en-
hancement did not apply to him because it was Shah, not
Zamora, who failed to appear on the underlying charges.
The district court sentenced Zamora to thirty months
imprisonment on each count with the sentences to run
concurrently.
Zamora filed a timely notice of appeal. As previously
noted, Zamora is challenging only the applicability of
U.S.S.G. § 2J1.6(b)(2)(A). We review the legal interpreta-
tion of a section of the Guidelines de novo. United States
v. Jones, 313 F.3d 1019, 1021 (7th Cir. 2002).
It is undisputed that Shah’s possible statutory expo-
sure on the fraud charges was eighty years. Zamora
contends that § 2J1.6(b)(2)(A) should not apply to his
sentence because (1) there is no evidence that Zamora
knew or reasonably should have known the range of
penalties Shah was facing and (2) the length of Shah’s
sentence was determined prior to the conspiracy being
formed and played no role in furthering the objectives of
the conspiracy. Zamora asserts that the intent of the
Guidelines is “only to hold defendants in a conspiracy
liable for acts which occurred during the conspiracy
that were foreseeable.” Under Zamora’s reasoning, the
§ 2J1.6(b)(2) enhancements are predicated on the pre-
6 No. 01-3063
sumption that the defendant knows his possible statu-
tory exposure on the underlying offense, a presumption
that he believes is generally reasonable when the defen-
dant in the failure to appear case is the actual fugitive.
However, Zamora asserts that in the present case it is
unjust to presume he knew the range of penalties Shah
was facing and to hold him accountable for conduct
which occurred before he joined the conspiracy.
We turn first to Zamora’s foreseeability argument. Sec-
tion 2J1.6(b)(2)(A) is a specific offense characteristic. Un-
der U.S.S.G. § 1B1.3(a)(1)(B), in determining specific
offense characteristics for a conspiracy, the court may
consider “all reasonably foreseeable acts and omissions
of others in furtherance of the jointly undertaken crim-
inal activity.” Assuming Zamora is correct in asserting that
the underlying statutory exposure must be either known
or reasonably foreseeable in order for § 2J1.6(b)(2)(A)
to be applied to a co-conspirator, Zamora’s argument
nevertheless fails. The district court expressly rejected
Zamora’s contention that Zamora was unaware of the
penalties Shah was facing. The district court noted that
Zamora was not a stranger to Shah, but rather his brother-
in-law, and that Shah talked with and assisted Zamora
throughout the entire process of obtaining a passport. The
district court concluded, “it’s difficult for me to believe
that Mr. Zamora did not know that Mr. Shah was fac-
ing substantial incarceration. It defies logic to conclude
otherwise.” This factual finding is not clearly erroneous.
See United States v. Girardi, 62 F.3d 943, 946 n.2 (7th
Cir. 1995). In addition to the fact that Zamora was Shah’s
former brother-in-law, the record reveals that Shah and
Zamora were often in contact with one another soon after
Shah was convicted and that Zamora knew Shah was
subject to electronic monitoring.
We turn next to Zamora’s contention that Shah’s statu-
tory exposure on the underlying offense, determined be-
No. 01-3063 7
fore the conspiracy was formed, was not conduct occur-
ring during the conspiracy and played no role in further-
ing the objectives of the conspiracy. As the Ninth Circuit
noted in United States v. Nelson, 919 F.2d 1381, 1383-84
(9th Cir. 1990), the § 2J1.6(b)(2) enhancements are tied
solely to the status of the defendant at the time he flees
and apply even if that defendant is ultimately acquitted
of the charges from which he fled. The § 2J1.6(b)(2) en-
hancements increase a defendant’s sentence based on
the seriousness of the situation at the time the failure to
appear occurred and are not designed as punishment for
the underlying offense. See id. at 1384-85. Similarly,
applying § 2J1.6(b)(2)(A) in Zamora’s case does not pun-
ish Zamora for Shah’s conduct prior to Zamora’s joining
the conspiracy. It is clear that Zamora played no role in
the fraud which constituted the underlying offense. How-
ever, Zamora assisted Shah in fleeing the country when
Shah had been convicted on serious charges and was fac-
ing sentencing which could result in possible imprison-
ment for up to eighty years. The district court did not err
in applying the § 2J1.6(b)(2)(A) enhancement. Zamora’s
sentence is affirmed.
AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—2-24-03