United States v. Bliss

13-649
United States v. Bliss
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 16th day of May, two thousand fourteen.
5
6 PRESENT: DENNIS JACOBS,
7 ROBERT D. SACK,
8 GERARD E. LYNCH,
9 Circuit Judges.
10
11 - - - - - - - - - - - - - - - - - - - -X
12 United States of America,
13 Appellee,
14
15 -v.- 13-649-cr
16
17 Heather Bliss,
18 Defendant-Appellant.
19 - - - - - - - - - - - - - - - - - - - -X
20
21 FOR APPELLANT: RANDALL D. UNGER, Law Offices of
22 Randall D. Unger, Bayside, New
23 York.
24
25 FOR APPELLEE: RAHUL KALE, Assistant United
26 States Attorney (with Edward
27 Chang, Assistant United States
28 Attorney, Of Counsel, on the
1
1 brief), for Deirdre M. Daly,
2 United States Attorney for the
3 District of Connecticut,
4 Bridgeport, Connecticut.
5
6 Appeal from a judgment of the United States District
7 Court for the District of Connecticut (Hall, J.).
8
9 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
10 AND DECREED that the judgment of the district court be
11 AFFIRMED.
12
13 Heather Bliss appeals from a judgment of conviction
14 entered on February 19, 2013, sentencing her chiefly to 30
15 months’ imprisonment following her guilty plea to one count
16 of conspiracy to commit wire fraud, in violation of 18
17 U.S.C. § 371. Bliss challenges the procedural and
18 substantive reasonableness of her sentence. We assume the
19 parties’ familiarity with the underlying facts, the
20 procedural history, and the issues presented for review.
21
22 From 2005 through 2009, Bliss, together with her
23 husband, William Trudeau, and other co-conspirators,
24 defrauded banks and mortgage lenders of millions of
25 dollars.1 As part of the scheme, Bliss submitted false
26 applications for mortgage loans that were used to purchase
27 properties, and executed worthless mortgages to secure cash
28 loans from private lenders in order to perpetrate the fraud.
29 Bliss also owned Huntington South Associates, LLC, a shell
30 company described by the district court as one of the
31 “engine[s] running these frauds.” Tr. of Sentencing, at 38,
32 Feb. 12, 2013.
33
34 On July 30, 2010, Bliss entered a guilty plea pursuant
35 to a written agreement, subject to the condition that she
36 would not testify against her husband. Trudeau proceeded to
37 jury trial before Judge Hall and was convicted of one count
1
Bliss’s co-conspirators included (1) her husband
William A. Trudeau, who orchestrated the scheme; (2)
attorney Joseph Kriz, who transferred over $1.2 million from
his attorney trust account to Huntington South Associates,
LLC, in order to help finance the scheme; (3) mortgage
broker Fred Stevens, who knowingly filed false mortgage loan
applications; (4) property appraiser Thomas Preston; and (5)
attorney John Bryk.
2
1 of wire fraud and one count of conspiracy to commit mortgage
2 fraud.
3
4 The district court sentenced Bliss and Trudeau at a
5 single sentencing hearing on February 12, 2013. The
6 district court calculated Bliss’s Guidelines range as 63 to
7 78 months’ imprisonment, subject to a statutory maximum of
8 60 months. Ultimately, Bliss was sentenced to 30 months’
9 imprisonment.2 This appeal followed.
10
11 Sixth Amendment. Bliss argues that the district court
12 violated her Sixth Amendment right to a jury trial by
13 calculating the Sentencing Guidelines range using facts
14 found by a preponderance. This challenge fails because the
15 district court’s factual findings affected only the
16 calculation of the non-binding Sentencing Guidelines, not a
17 statutory minimum or maximum penalty. As the Supreme Court
18 (again) recognized in Alleyne v. United States, 133 S. Ct.
19 2151 (2013), the Sixth Amendment does not apply to
20 “factfinding used to guide judicial discretion in selecting
21 a punishment ‘within limits fixed by law,’” even though
22 “such findings of fact may lead judges to select sentences
23 that are more severe than the ones they would have selected
24 without those facts.” Id. at 2161 n.2 (quoting Williams v.
25 New York, 337 U.S. 241, 246 (1949)).
26
27 Although Bliss relies on Peugh v. United States, 133 S.
28 Ct. 2072 (2013), for support, Peugh dealt only with the Ex
29 Post Facto Clause, and is therefore inapposite. See id. at
30 2088 (“[T]he Sixth Amendment and Ex Post Facto Clause
31 inquiries are analytically distinct.”).
32
33 The facts found by the district court did not impact
34 the statutory minimum or maximum sentence to which Bliss was
35 subject. Accordingly, the district court’s fact-finding did
36 not implicate the Sixth Amendment.
37
38 Reasonableness of Sentence. We review criminal
39 sentences deferentially, for reasonableness only. See Gall
40 v. United States, 552 U.S. 38, 51 (2007) (“The fact that the
41 appellate court might reasonably have concluded that a
42 different sentence was appropriate is insufficient to
43 justify reversal of the district court.”). “Reasonableness
2
Trudeau, the mastermind of the scheme, was
sentenced to 188 months.
3
1 review requires an examination of the length of the sentence
2 (substantive reasonableness) as well as the procedure
3 employed in arriving at the sentence (procedural
4 reasonableness).” United States v. Johnson, 567 F.3d 40, 51
5 (2d Cir. 2009). The standard of review for both inquiries is
6 abuse of discretion. United States v. Verkhoglyad, 516 F.3d
7 122, 127 (2d Cir. 2008).
8
9 Procedural Reasonableness. “A district court commits
10 procedural error where it fails to calculate (or improperly
11 calculates) the Sentencing Guidelines range, treats the
12 Sentencing Guidelines as mandatory, fails to consider the
13 [18 U.S.C.] § 3553(a) factors, selects a sentence based on
14 clearly erroneous facts, or fails adequately to explain the
15 chosen sentence.” United States v. Robinson, 702 F.3d 22,
16 38 (2d Cir. 2012) (citing Gall, 552 U.S. at 51).
17
18 Bliss argues that her sentence was based on an
19 erroneous loss calculation. The district court held Bliss
20 accountable for the entire loss caused by the fraudulent
21 scheme, $4,260,008.40--a finding that raised her offense
22 level by 18 points. See U.S.S.G. § 2B1.1(b)(1)(J). Bliss
23 accepts responsibility for a loss amount of only $38,700,
24 and contends that the balance was neither caused by nor
25 reasonably foreseeable to her.
26
27 A district court need only make a “reasonable estimate”
28 of the loss amount for purposes of determining a defendant’s
29 offense level under the Sentencing Guidelines. See U.S.S.G.
30 § 2B1.1 cmt. n.3(C). The loss amount attributable to a
31 particular defendant includes the loss caused by the
32 defendant’s own acts and omissions and, “in the case of
33 jointly undertaken criminal activity[,] . . . all reasonably
34 foreseeable acts and omissions of others in furtherance of
35 the jointly undertaken criminal activity.” U.S.S.G. §
36 1B1.3(a)(1); see also United States v. Royer, 549 F.3d 886,
37 905 (2d Cir. 2008).
38
39 “We review the district court’s factual findings on
40 loss for clear error and its conclusions of law de novo.”
41 United States v. Carboni, 204 F.3d 39, 46 (2d Cir. 2000).
42 And because the district court “presided over a week[]-long
43 trial and heard a great deal of live testimony” pertinent to
44 the workings of the fraudulent scheme and Bliss’s role in
45 it, the court’s “‘loss determination is entitled to . . .
46 deference.’” United States v. Lacey, 699 F.3d 710, 720 (2d
47 Cir. 2012) (quoting U.S.S.G. § 2B1.1 cmt. n.3(C)).
4
1 The district court, having presided over Trudeau’s
2 trial, was familiar with the workings of the fraud and
3 Bliss’s role in it. Evidence adduced at trial and in
4 Bliss’s submission support the district court’s conclusion
5 that although the conspiracy was “led by Mr. Trudeau,” Bliss
6 was “involved from the beginning” and was “all over
7 everything[:] . . . [s]he’s filling out or signing mortgage
8 applications that are . . . just bold face lies” and, later,
9 providing mortgages to victims “to keep the house of cards
10 up.” Tr. of Sentencing, at 88, Feb. 19, 2013. Bliss,
11 moreover, was “savvy and sophisticated about the manner in
12 which the mortgage business worked and had no problem
13 signing the false applications.” PSR ¶ 20 (recounting trial
14 testimony of mortgage broker and co-conspirator Fred
15 Stevens). The district court was certainly free to reject
16 Bliss’s claim to be an unwitting participant who was unaware
17 of the schemes. The district court did not clearly err in
18 holding Bliss responsible for the entirety of the loss
19 caused by the fraud.
20
21 Bliss also argues that the district court improperly
22 rejected her application for a departure based on her family
23 circumstances. “[S]uch a departure is not permitted except
24 in extraordinary circumstances.” United States v. Cutler,
25 520 F.3d 136, 164 (2d Cir. 2008) (internal quotation marks
26 omitted). In any event, “‘a refusal to downwardly depart is
27 generally not appealable,’ and . . . review of such a denial
28 will be available only ‘when a sentencing court
29 misapprehended the scope of its authority to depart or the
30 sentence was otherwise illegal.’” United States v. Stinson,
31 465 F.3d 113, 114 (2d Cir. 2006) (per curiam) (quoting
32 United States v. Valdez, 426 F.3d 178, 184 (2d Cir. 2005)).
33 “In the absence of ‘clear evidence of a substantial risk
34 that the judge misapprehended the scope of his departure
35 authority,’ we presume that a sentenc[ing] judge understood
36 the scope of his authority.” Id. (quoting United States v.
37 Gonzalez, 281 F.3d 38, 42 (2d Cir. 2002)).
38
39 Nothing in the record suggests that the district court
40 failed to understand its authority to grant the requested
41 departure. The court considered Bliss’s arguments and
42 attempted to craft a sentence that reflected “the
43 seriousness of [the] offense.” Tr. of Sentencing at 170-71,
44 Feb. 12, 2013. The district court then balanced that
45 against Bliss’s positive characteristics, including her role
46 as a supportive mother. Id.
47
5
 1 Substantive Challenge. “In reviewing [a sentence] for
2 substantive reasonableness, we consider the totality of the
3 circumstances, and reverse only in exceptional cases where
4 the trial court’s decision cannot be located within the
5 range of permissible decisions[.]” United States v. Mason,
6 692 F.3d 178, 181 (2d Cir. 2012) (internal quotation marks
7 and citation omitted). The standard “provide[s] a backstop
8 for those few cases that, although procedurally correct,
9 would nonetheless damage the administration of justice
10 because the sentence imposed was shockingly high, shockingly
11 low, or otherwise unsupportable as a matter of law.” United
12 States v. Rigas, 583 F.3d 108, 123 (2d Cir. 2009).
13
14 The record confirms that the district court
15 thoughtfully considered all of the relevant sentencing
16 factors Bliss presented in light of the seriousness of the
17 offense of conviction and her criminal history. After doing
18 so, the district court imposed a sentence well below the
19 advisory Guidelines range. Based on our review of the
20 record, we cannot conclude that that sentence is
21 substantively unreasonable.
22
23 For the foregoing reasons, and finding no merit in
24 Bliss’s other arguments, we hereby AFFIRM the judgment of
25 the district court.
26
27 FOR THE COURT:
28 CATHERINE O’HAGAN WOLFE, CLERK
29
6