United States v. Randy Beltramea ( 2015 )


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  •                   United States Court of Appeals
    For the Eighth Circuit
    ___________________________
    No. 14-1899
    ___________________________
    United States of America
    lllllllllllllllllllll Plaintiff - Appellee
    v.
    Randy Beltramea
    lllllllllllllllllllll Defendant - Appellant
    ____________
    Appeal from United States District Court
    for the Northern District of Iowa - Cedar Rapids
    ____________
    Submitted: February 12, 2015
    Filed: May 6, 2015 (Corrected: May 7, 2015)
    ____________
    Before BYE, BEAM, and BENTON, Circuit Judges.
    ____________
    BEAM, Circuit Judge.
    Randy Beltramea was sentenced to a total sentence of 111 months'
    imprisonment and 5 years' supervised release and ordered to forfeit various properties
    owned by Beltramea or by one of his legal entities. Beltramea appeals his sentence
    and the forfeiture order. We reverse the forfeiture order and otherwise affirm.
    I.    BACKGROUND
    The government alleged that Beltramea engaged in a multi-faceted criminal
    scheme, in which he solicited investments from numerous individuals and represented
    that the money would be used to open a Subway restaurant franchise, when in fact
    Beltramea used the investment funds for his personal use and for a real estate
    development project called Castlerock Estates. Beltramea's criminal scheme also
    involved fraudulent representations to two banking institutions, and attempts to avoid
    paying taxes and complying with tax-related obligations. On October 24, 2013,
    Beltramea was charged with sixteen counts of financial, fraud and tax-related crimes
    in a second superseding indictment. On October 31, 2013, Beltramea pled guilty to
    eight of the sixteen counts, including: Counts 1 and 2, wire fraud, in violation of 18
    U.S.C. § 1343; Count 3, aggravated identity theft in violation of 18 U.S.C. §
    1028(A)(a)(1); Count 4, money laundering, in violation of 18 U.S.C. § 1957; Count
    7, money laundering, in violation of 18 U.S.C. § 1956(a)(1)(A)(ii) and (a)(1)(B)(i);
    Counts 8 and 12, false statement to a financial institution, in violation of 18 U.S.C.
    §1014; and Count 16, tax evasion, in violation of 26 U.S.C. § 7201.
    Beltramea's recommended United States Sentencing Guidelines (Guidelines or
    U.S.S.G.) sentencing range prior to the application of any departures was 63 to 78
    months, based upon a total offense level of 26 and a criminal history category of I.
    The government urged an additional upward departure pursuant to U.S.S.G. § 4A1.3,
    for understated criminal history, and an upward departure pursuant to U.S.S.G. §
    5K2.21, for dismissed and uncharged conduct. The district court found the
    government had proven the grounds for both upward departures, and accordingly
    increased Beltramea's criminal history to a category of II. As a result, Beltramea's
    adjusted Guidelines' range increased to 70 to 87 months, prior to adding the statutory
    mandatory 24 consecutive months for aggravated identity theft. At sentencing, the
    district court imposed 87 months on Counts 1, 2, 4, 7, 8, and 12, to be served
    concurrently, and 60 months on Count 16, also to be served concurrently. On Count
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    3, Beltramea was sentenced to 24 months, to be served consecutively, for a total term
    of imprisonment of 111 months, and 5 years supervised release. Additionally, the
    district court explained in detail at sentencing that, even if it erred in granting the
    upward departures, the court "would vary and impose the very same sentence . . .
    based on all the statutory factors under 18 U.S.C. 3553(a)."
    In addition to the original sixteen counts Beltramea was charged with, the
    second superseding indictment also listed various properties owned by Beltramea–or
    by a legal entity established by Beltramea–for which the government was seeking
    forfeiture, pursuant to 18 U.S.C. § 981(a)(1)(C), 28 U.S.C. § 2461(c) and 18 U.S.C.
    § 982(a)(1). The properties identified as targeted for forfeiture included three rental
    properties, four parcels of property that comprised Castlerock Estates, $125,000 in
    proceeds from wire fraud, and $65,472.02 in proceeds from money laundering.
    Subsequently, on December 11, 2013, the government filed a motion for a
    preliminary order of forfeiture, listing the same property identified in the second
    superseding indictment, and the district court granted the motion. The judgment
    entered by the district ordered that Beltramea forfeit all the property listed in the
    preliminary forfeiture order. Beltramea appeals his sentence, and the district court's
    forfeiture order.
    II.   DISCUSSION
    A.     Upward Departure
    We review a district court's sentencing decision to depart upward for abuse of
    discretion. United States v. Johnson, 
    648 F.3d 940
    , 942 (8th Cir. 2011).
    Section 4A1.3(a)(1) of the Guidelines provides that a district court may apply
    an upward departure "[i]f reliable information indicates that the defendant's criminal
    history category substantially under-represents the seriousness of the defendant's
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    criminal history or the likelihood that the defendant will commit other crimes." The
    type of information a court may consider as the basis for an upward departure
    includes "[p]rior similar misconduct established by a civil adjudication or by a failure
    to comply with an administrative order." U.S.S.G. § 4A1.3(a)(2)(C). The
    government bears the burden of proving the application of an upward departure.
    United States v. Khang, 
    904 F.2d 1219
    , 1222 (8th Cir. 1990).
    Here, in regard to the upward departure pursuant to U.S.S.G. § 4A1.3, the court
    credited the testimony of Brian Fagan, an attorney who represented a group of
    investors that filed suits against Beltramea in the early 2000s for alleged fraud and
    an investment scheme perpetrated by Beltramea. These investors obtained a default
    judgment against Beltramea for more than $184,000. As a result of this conduct, the
    National Association of Securities Dealers (NASD) barred Beltramea in 2004 and the
    Iowa Insurance Division revoked his license to sell securities in 2005.
    Beltramea argues that Fagan's testimony was not sufficient evidence to
    establish that his criminal history was under-represented. He claims that U.S.S.G. §
    4A1.3(a) only allows the court to consider the types of evidence listed in U.S.S.G. §
    4A1.3(a)(2), such as "prior similar conduct established by a civil adjudication."
    Despite Beltramea's claims, the evidence listed in U.S.S.G. § 4A1.3(a)(2) is not an
    exhaustive list of what information the court can consider. We have held that while
    the court may consider the five factors set out in U.S.S.G. § 4A1.3(a)(2), "the court
    is not limited to considering only these factors." United States v. Outlaw, 
    720 F.3d 990
    , 992 (8th Cir. 2013); United States v. Porter, 
    439 F.3d 845
    , 849 (8th Cir. 2006)
    (same). In addition, "the court is free to consider, among other information, the
    substantial likelihood a defendant will commit future crimes." 
    Porter, 439 F.3d at 849
    . Based on Fagan's testimony, the district court was within its discretion to find
    Beltramea "is at a high likelihood to recidivate based on his history and pattern of
    cheating people out of money, [and] knowingly making false statements to achieve
    his ends." Additionally, Beltramea argues that the claims asserted by Fagan's clients
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    included both fraud and non-fraud claims–such as negligence, and breach of duty–and
    that from the evidence in the record it is not possible to discern on which basis the
    NASD found in favor of Fagan's clients. However, Fagan's testimony clearly stated
    that at least $121,000 of the judgment against Beltramea was "based on the behavior,
    representations and fraudulent conduct of Mr. Beltramea." Accordingly, the district
    court did not abuse its discretion in departing upward for understated criminal history
    pursuant to U.S.S.G. § 4A1.3(a).1
    B.     Forfeiture
    Normally, in an appeal from a forfeiture proceeding, we review the district
    court's "factual findings for clear error but apply a de novo standard of review to [the
    issue] of whether or not those facts render the [asset] subject to forfeiture." United
    States v. Adetiloye, 
    716 F.3d 1030
    , 1041 (8th Cir. 2013) (alterations in original), cert.
    denied, 
    134 S. Ct. 1775
    (2014). However, because Beltramea's trial counsel did not
    timely object to the forfeiture of the property, we limit our review to plain error.
    United States v. Marquez, 
    685 F.3d 501
    , 510 (5th Cir. 2012). Under plain error
    review, the defendant must show: "(1) error, (2) that is plain, and (3) that affects his
    substantial rights." 
    Id. The defendant
    must also show the plain error "seriously
    affect[s] the fairness, integrity or public reputation of judicial proceedings." 
    Id. (alteration in
    original).
    Beltramea argues the district court plainly erred by failing to establish the
    required nexus between each item of property the government sought in the forfeiture
    1
    As noted, the district court's upward departure under U.S.S.G. § 4A1.3(a) was
    not an abuse of discretion. Because of this, and the district court's detailed
    explanation as to how it would have varied upward pursuant to the § 3553(a) factors
    regardless of the § 4A1.3(a) upward departure, making any error harmless, United
    States v. Timberlake, 
    679 F.3d 1008
    , 1011 (8th Cir. 2012), we decline to review the
    propriety of the district court's upward departure pursuant to U.S.S.G. § 5K2.21.
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    order and Beltramea's criminal conduct. Additionally, Beltramea argues the district
    court plainly erred by improperly double and triple counting proceeds in the
    forfeiture.
    In the second superseding indictment, the government sought forfeiture of
    various properties pursuant to 18 U.S.C. § 981(a)(1)(C), and 28 U.S.C. § 2461(c),
    with regard to the allegations in Counts 1 and 2; and 18 U.S.C. § 982(a)(1), with
    regard to the allegations in Counts 4, 5, 6, and 7. 18 U.S.C. § 981(a)(1)(C) provides
    that "[a]ny property, real or personal, [is subject to forfeiture] which constitutes or is
    derived from proceeds traceable to a violation of" various specified offenses,
    including violations of 18 U.S.C. § 1343, wire fraud, as charged against Beltramea
    in Counts 1 and 2. 18 U.S.C. § 981(a)(1)(C) (emphasis added). 18 U.S.C. §
    982(a)(1) provides that "[t]he court, in imposing sentence on a person convicted of
    an offense in violation of section 1956, 1957, or 1960 of this title, shall order that the
    person forfeit to the United States any property, real or personal, involved in such
    offense, or any property traceable to such property." 18 U.S.C. § 982(a)(1) (emphasis
    added). Pursuant to Federal Rule of Criminal Procedure 32.2(b)(1)(A), "if the
    government seeks forfeiture of specific property, the court must determine whether
    the government has established the requisite nexus between the property and the
    offense." Fed. R. Crim. P. 32.3(b)(1)(A) (emphasis added). The government must
    prove the elements of forfeiture under 18 U.S.C. § 982(a)(1) by a preponderance of
    the evidence. United States v. Hasson, 
    333 F.3d 1264
    , 1277 (11th Cir. 2003). The
    preponderance of the evidence standard also applies to forfeitures under 28 U.S.C.
    § 2461(c). See 28 U.S.C. § 2461(c) (stating that the procedures set forth in 21 U.S.C.
    § 853 apply to criminal forfeiture proceedings under 28 U.S.C. § 2461(c)); United
    States v. Bieri, 
    21 F.3d 819
    , 822 (8th Cir. 1994) (holding criminal forfeiture
    proceedings under 21 U.S.C. § 853 were subject to a preponderance of evidence
    standard). However, in the instant case, it appears that there is no evidence in the
    record that the government met its burden to show a nexus between the property
    sought for forfeiture and an offense of conviction with respect to certain properties.
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    There are no facts in the record establishing a nexus between three of the
    properties the government sought for forfeiture– 944 18th Ave. SW, 201 26th St. NW
    and 449 24th St. NW (collectively the "Rental Properties")–and a criminal offense for
    which Beltramea was convicted. Likewise, the record regarding some of the
    Castlerock lots sought for forfeiture–26.33 acres of undeveloped land in Parcel B and
    40.620 acres of undeveloped land in Parcel A (collectively "Undeveloped
    Lots")–appear lacking in facts establishing a nexus between the Undeveloped Lots
    and the offense of conviction. The government argues, in essence, that Beltramea
    waived his right to contest the forfeiture because his trial counsel's signature on the
    preliminary forfeiture order constituted Beltramea's consent to the forfeiture and
    agreement that the government had established the requisite nexus between the
    properties and his offenses. However, we do not believe a defendant's consent to
    forfeiture abrogates the requirement that a nexus exist between the property sought
    for forfeiture and the conviction of offense. The district court had an independent
    duty to ensure that the required nexus exists. Fed. R. Crim. P. 32.2(b)(1)(A)-(B); 21
    U.S.C. § 853; see also Libretti v. United States, 
    516 U.S. 29
    , 42 (1995) (noting that
    § 853 "limits forfeiture by establishing a factual nexus requirement"). As the Court
    in Libretti explained,
    [w]e do not mean to suggest that a district court must simply accept a
    defendant's agreement to forfeit property, particularly when that
    agreement is not accompanied by a stipulation of facts supporting
    forfeiture, or when the trial judge for other reasons finds the agreement
    problematic. In this regard, we note that the Department of Justice . . .
    issued [a policy] . . . to instruct that, among the procedures necessary to
    ensure a valid forfeiture agreement,[2] "[t]he settlement to forfeit
    2
    In Libretti, the defendant entered into a forfeiture agreement in conjunction
    with his plea 
    agreement. 516 F.3d at 33-34
    . In the instant case, Beltramea did not
    enter into a forfeiture agreement per se, but the government asserts Beltramea agreed
    to the preliminary forfeiture order, later entered by the district court, and thus
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    property must be in writing and the defendant must concede facts
    supporting the 
    forfeiture." 516 U.S. at 43
    (sixth alteration in original). The government presented no factual
    allegations connecting the Rental Properties and the Undeveloped Lots to any offense
    for which Beltramea was convicted; accordingly, the district court plainly erred. The
    forfeiture of Beltramea's property without a proper basis in law and fact violates his
    substantial rights, United States v. Sum of $185,336.07 U.S. Currency Seized, 
    731 F.3d 189
    , 197 (2d Cir. 2013), and affects the integrity of judicial proceedings, thus
    affording us discretion to order remedy of the error. 
    Marquez, 685 F.3d at 510
    .
    III.   CONCLUSION
    We affirm Beltramea's sentence, but vacate and remand the forfeiture order for
    proceedings consistent with this opinion.
    ______________________________
    necessarily consented to the forfeiture and its factual nexus. For the purposes of
    determining whether the required nexus existed, we believe this is a distinction
    without a difference.
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