United States v. Lazaro Velazquez

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-10820
Non-Argument Calendar
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D.C. Docket No. 8:15-cr-00173-SDM-MAP-6
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LAZARO VELAZQUEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
________________________
(January 19, 2017)
Before MARTIN, JORDAN, and ROSENBAUM, Circuit Judges.
PER CURIAM:
Lazaro Velazquez appeals the 21-month sentence he received after he
pleaded guilty to conspiracy to commit bank fraud and to substantive bank fraud.
Velazquez’s role in the conspiracy was to deposit stolen money orders in his bank
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accounts, cash those stolen money orders, and return most of that cash to the two
leaders of the conspiracy. 1 The leaders paid him as much as fifty or sixty dollars
per money order.
After a conversation about financial struggles, Velazquez introduced Yensy
Guevara to Juan Carlos Miranda-Noda, who was one of the leaders of the
conspiracy. Velazquez accompanied them on Guevara’s first trip to deposit and
cash a money order. He later had discussions with her about opening more bank
accounts to cash more money orders and about police interaction. At Velazquez’s
sentencing, the district court calculated the guideline enhancement for loss by
including both the money Velazquez deposited and that deposited by Guevara.
Velazquez argues on appeal that the district court erred by attributing Guevara’s
losses to him. After careful review, we affirm.
I.
Velazquez pleaded guilty to one count of conspiracy to commit bank fraud,
in violation of 18 U.S.C. § 1349, and nineteen counts of substantive bank fraud, in
violation of 18 U.S.C. §§ 1344 and 2. His guilty plea did not include a written plea
agreement. Instead, Velazquez and the government stipulated to facts in
Velasquez’s sentencing memorandum, as well as to the facts set out in the
1
We refer to the two people in the conspiracy who stole the money orders and received
most of the stolen money as the “leaders.” This does not reflect a role determination made at
sentencing.
2
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Presentence Investigation Report (“PSR”). At Velazquez’s sentencing hearing, the
government presented the testimony of Special Agent Manny Fernandez who
served as a translator during Guevara’s interview at the U.S. Attorney’s Office.
The details of the conspiracy were as follows: The two leaders of the
conspiracy burglarized rent-payment drop boxes in apartment complexes. In total,
they stole $430,860 in money orders from more than 250 tenants throughout
Florida and Georgia. They then “washed” the names on the “pay to” line of the
money orders and either deposited the money orders into their bank accounts or
gave them to Velazquez or other coconspirators to deposit. When Velazquez
deposited a money order, he would withdraw the cash, keep a small portion for
himself, and return the rest to the leaders of the conspiracy. During his time in the
conspiracy, Velazquez deposited seventy-two money orders totaling $39,475 into
his three bank accounts.
While involved in the conspiracy, Velazquez had a conversation with
Guevara, his coworker, about her financial struggles. Velazquez then told Guevara
about the scheme to cash money orders in return for as much as fifty or sixty
dollars per money order. Velazquez introduced Guevara to Miranda-Noda and
accompanied them the first time Guevara deposited a stolen money order. Some
time later, Velazquez advised Guevara to open more bank accounts. Miranda-
Noda gave her the same advice, and she then opened three new accounts. Agent
3
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Fernandez testified that Guevara mentioned a conversation with Velazquez toward
the end of the conspiracy about their interactions with police. During cross-
examination, both parties agreed that Guevara originally gave law enforcement a
false story. During her time in the conspiracy, Guevara deposited 143 money
orders totaling $76,593 into her bank accounts.
The PSR recommended Velazquez be held accountable only for the $39,475
that he deposited. This resulted in a recommended 4-level enhancement for a loss
between $15,000 and $40,000 under United States Sentencing Guidelines
§ 2B1.1(b)(1)(C). After all adjustments, the PSR recommended a total offense
level of 13 along with a criminal history category of I, resulting in a recommended
guideline imprisonment range of 12 to 18 months for Velazquez.
The government objected to the PSR’s loss calculation. It argued Velazquez
should be sentenced either for the full amount of loss in the conspiracy, or for both
the amount he deposited and the amount Guevara deposited. The district court
overruled the objection that Velazquez should be sentenced to the full amount of
loss in the conspiracy. But it granted the government’s alternative argument that
the money Guevara deposited should be added to the money Velazquez deposited
for a total loss amount of $116,068. The district court applied an 8-level
enhancement for a loss between $95,000 and $150,000 under Guidelines
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§ 2B1.1(b)(1)(E), which (after adjustments) resulted in a total offense level of 16 2
and a guideline imprisonment range of 21 to 27 months. The district court
sentenced Velazquez to 21-months imprisonment. 3
In accepting the government’s alternative argument, the district court found
Velazquez implicitly agreed to a joint undertaking with Miranda-Noda in which
Velazquez would recruit Guevara. The court continued: “So Mr. Velazquez’s
recruitment and the introduction of the recruit into the purpose, operation, and
means of the conspiracy, that is the pattern of the conspiratorial enterprise, was
jointly undertaken criminal activity or I guess more precise it was within the scope
of their jointly undertaken criminal activity.” The district court said the
enlargement of the conspiracy furthered the conspiracy’s objectives, including an
attempt to avoid the consequences as law enforcement closed in on the conspiracy.
It further found Guevara’s deposits were “readily foreseeable.” The district court
summarized that Velazquez understood and instigated Guevara’s activities in the
conspiracy, the conspiracy benefited from those activities, and Velazquez benefited
from those activities “if not directly in terms of cash . . . at least in terms of the
aggregate proceeds [and] the vitality and life and progress of the conspiracy.”
2
The 8-level enhancement for loss allowed for a 3-level, rather than a 2-level, decrease
for acceptance of responsibility. See USSG § 3E1.1. The total offense level therefore rose by
only 3 levels.
3
The district court also ordered Velazquez to pay restitution for the amounts he and
Guevara deposited.
5
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Thus, the district found Velazquez responsible for Guevara’s activity and added
$76,593 to the loss calculation.
II.
We review de novo whether the district court misapplied Guidelines
§ 1B1.3. United States v. McCrimmon, 362 F.3d 725, 728 (11th Cir. 2004) (per
curiam). But a district court’s findings as to the amount of loss are reviewed for
clear error. Id. at 728.
Guidelines § 1B1.3(a)(1) says, in relevant part, that specific offense
characteristics such as loss calculation shall be determined from:
(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 . . . .
Id.; see also id. § 2B1.1(b)(1)(listing the enhancements for each loss amount). It’s
clear that the deposits Velazquez made personally should count toward his
enhancement for loss. See id. § 1B1.3(a)(1)(A). However, Velazquez argues the
district court misapplied § 1B1.3(a)(1) by enhancing his sentence for Guevara’s
deposits as well. Velazquez specifically argues Guevara’s deposits were not
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within the scope of Velazquez’s jointly undertaken criminal activity. See id.
§ 1B1.3(a)(1)(B)(i).
The commentary to Guidelines § 1B1.3 provides guidance for evaluating
whether a defendant should be held accountable for the conduct of others. 4 See
USSG § 1B1.3 cmt. nn.3–4. Application Note Three explains that a court “must
first determine the scope of the criminal activity the particular defendant agreed to
jointly undertake.” Id. at n.3(B). “In doing so, the court may consider any explicit
agreement or implicit agreement fairly inferred from the conduct of the defendant
and others.” Id. But the defendant’s accountability “for the acts of others is
limited by the scope of his or her agreement.” Id. Thus, an act of another outside
the scope of the defendant’s agreement, no matter how reasonably foreseeable, is
not attributable to the defendant. See id.; Reese, 67 F.3d at 906–07.
Velazquez and the government did not dispute the facts of his case at
sentencing. What they did and continue to dispute is whether those facts imply an
agreement to expand the scope of Velazquez’s criminal activity. The district court
found it “clear” that Velazquez and Miranda-Noda had an implicit agreement to
recruit Guevara. Velazquez points to our precedent in United States v. Hunter, 323
F.3d 1314 (11th Cir. 2003), in response.
4
“The commentary of section 1B1.3, and its examples, are binding on this court.”
United States v. Reese, 67 F.3d 902, 908 (11th Cir. 1995).
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The district court in Hunter held check cashers similar to Velazquez
responsible for the total actual loss of the conspiracy because it was reasonably
foreseeable they were participating in a larger scheme. 323 F.3d at 1318. On
appeal, this Court held “that the district court misapplied U.S.S.G. § 1B1.3 by
failing to make particularized findings as to the scope of criminal activity
undertaken by each [check casher].” Id. at 1316. In other words, we vacated the
defendants’ sentences because the district court skipped the first step of
determining the scope of the jointly undertaken criminal activity and only analyzed
reasonable foreseeability. Id. at 1320 (citing USSG § 1B1.3 cmt. n.3(B)).
Because application of the Guidelines was at issue, we performed a de novo
review in Hunter. See Reese, 67 F.3d at 908–909. Here, however, the district
court did not skip any steps in the legal analysis, and made the factual finding that
Velazquez implicitly entered into an agreement to expand the scope of his jointly
undertaken criminal activity. Thus, we review the district court’s decision under
the deferential clear error standard. United States v. Barrington, 648 F.3d 1178,
1195 (11th Cir. 2011). “A factual finding is clearly erroneous when although there
is evidence to support it, the reviewing court on the entire evidence is left with the
definite and firm conviction that a mistake has been committed.” Id. (quotation
omitted).
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The government points out that Velazquez recruited Guevara, introduced her
to Miranda-Noda, accompanied her on her first deposit, encouraged her to open
more bank accounts for depositing more money orders, and discussed police
interaction with her. Velazquez argues he took no part in “designing and executing
the scheme,” see Hunter, 323 F.3d at 1321, and acted independently of Guevara
outside of these interactions. Whether these interactions implied an agreement to
enlarge the scope of his jointly undertaken criminal activity is a close call. Thus,
we defer to the judgment of the district court, which did not clearly err by inferring
an agreement between Velazquez and Miranda-Noda from these facts. 5
AFFIRMED
5
Velazquez also argues the district court’s sentence was procedurally unreasonable
because other codefendants with different roles were not also held responsible for the losses of
their coconspirators. But “disparity between the sentences imposed on codefendants is generally
not an appropriate basis for relief on appeal.” United States v. Cavallo, 790 F.3d 1202, 1237
(11th Cir. 2015) (quotation omitted and alteration adopted).
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