United States v. Nawaz

11-4080-cr(L)
United States v. Nawaz, et al.
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.
At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
on the 10th day of July, two thousand fourteen.
Present:
JON O. NEWMAN,
PETER W. HALL,
GERARD E. LYNCH,
Circuit Judges.
____________________________________________________
UNITED STATES OF AMERICA,
Appellee,
v. Nos. 11-4080-cr(L), 11-4309-cr(CON)
RAB NAWAZ, WENDY WERNER,
Defendants-Appellants.
____________________________________________________
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FOR APPELLANTS: Donna R. Newman, New York, NY, for Appellant Nawaz.
Charles F. Willson, Nevins Law Group LLC, East Hartford,
CT, for Appellant Werner.
FOR APPELLEE: Susan L. Wines, Assistant United States Attorneys, for Deirdre
M. Daly, United States Attorney for the District of Connecticut,
New Haven, CT.
____________________________________________________
Appeal from a judgment of the United States District Court for the District of
Connecticut (Thompson, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED,
and that the motion of Defendant-Appellant Wendy Werner to recall the mandate issued on
February 19, 2014 is DENIED.
On January 29, 2014, this Court affirmed the district court’s judgment with respect to
Defendants-Appellants Rab Nawaz (“Nawaz”) and Wendy Werner (“Werner”), except that
we withheld determination of Nawaz’s appeal of that portion of the district court’s judgment
requiring payment of restitution pending the Supreme Court’s disposition of United States v.
Robers, 698 F.3d 937 (7th Cir. 2012), cert. granted, 82 U.S.L.W. 3231 (U.S. Oct. 21, 2013) (No.
12-9012). That mandate later issued on February 19, 2014. Subsequently, Werner filed a
motion to recall the mandate on the ground that this Court overlooked the potential impact
of Robers on her appeal.
The Supreme Court’s decision, Robers v. United States, 572 U.S. 2---, 134 S. Ct. 1854(2014), was issued May 5, 2014. Thereafter, we directed Nawaz to file a supplemental letter
brief addressing the effect of Robers on his appeal. Despite her failure to raise a challenge to
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the restitution order on appeal or before the district court,1 we have also permitted Werner
to address the effect of Robers on her motion to recall the mandate as well as on her appeal
from that portion of the judgment ordering restitution in the event we were to recall the
mandate and examine that issue.
1. Nawaz’s Appeal from the Restitution Order
We review a district court’s order imposing restitution under the Mandatory Victims
Restitution Act (“MVRA”), 18 U.S.C. §§ 3663A et seq., for plain error when, as here, “a
defendant fails to object to the restitution order at the time of sentencing.” United States v.
Zangari, 677 F.3d 86, 91 (2d Cir. 2012). Plain error exists where “(1) there is an error; (2) the
error is clear or obvious, rather than subject to reasonable dispute; (3) the error affected the
appellant’s substantial rights, which in the ordinary case means it affected the outcome of the
district court proceedings; and (4) the error seriously affects the fairness, integrity or public
reputation of judicial proceedings.” United States v. Marcus, 560 U.S. 258, 262 (2010)
(alteration and internal quotation marks omitted). We assume the parties’ familiarity with the
facts, procedural context, and issues on appeal.
Nawaz contends that the district court plainly erred in calculating his restitution
amount by (1) relying on nominal resale values for the properties sold via strict foreclosure
proceedings and (2) accepting the government’s appraisal values of the properties that had
yet to be sold at the time of sentencing. Nawaz further argues that (3) the victims caused
their own losses by refusing to proceed with the sales using public bidding or an auction and
1 At oral argument, in response to the panel’s question concerning whether an argument regarding restitution
had previously been raised, Werner’s counsel suggested that Robers could have an impact on the determination
of the amount of restitution Werner would owe. At no time, however, did Werner challenge explicitly the
restitution order entered in the district court.
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(4) the district court’s use of the government appraisal values at the time of sentencing failed
to allow for a credit against the loan as well as avoid potential windfalls for the victims in
contravention of the MVRA. We disagree.
In Robers, the Supreme Court held that under the MVRA the phrase “‘any part of the
property’ refers only to the specific property lost by a victim, which, in the case of a
fraudulently obtained loan, is the money lent. Therefore, no ‘part of the property’ is
‘returned’ to the victim until the collateral is sold and the victim receives money from the
sale.” Robers, 134 S. Ct. at 1856. “[A] sentencing court must reduce the restitution amount
by the amount of money the victim received in selling the collateral, not the value of the
collateral when the victim received it.” Id. The Supreme Court further indicated that other
provisions of the statute, namely §§ 3664(f)(2), 3664(f)(3)(A) and 3664(f)(4) “seem[ed] to
give a court adequate authority to count, as part of the restitution paid, the value of collateral
previously received but not sold.” Id. at 1858.
Based on Robers and this Court’s precedent in United States v. Boccagna, 450 F.3d 107,
117 (2d Cir. 2006), the district court did not plainly err by using in its restitution calculation
the resale values of the properties sold and the appraisal values obtained by lenders in the
foreclosure proceedings for the unsold properties. Moreover, we have already rejected the
notion that the properties were sold for nominal prices. United States v. Nawaz, 555 F. App’x
19, 25-26 (2d. Cir. 2014) (summary order). Indeed, the record reflects that in the case of the
sold properties, the cost of carrying the properties in some instances was approximately
equal to or greater than the resale value. We discern no error in the district court’s approach.
The district court reduced Nawaz’s restitution amount by the appraisal values for the homes
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that had not been resold in order to give Nawaz credit for collateral the lenders received, a
process comporting with Robers. Finally, as the government indicates, the district court’s
calculation inured to Nawaz’s benefit because it reduced the restitution ordered by an
amount Nawaz had previously accepted as fair.
2. Werner’s Motion to Recall the Mandate
Preliminarily, we note that Werner’s brief paragraph response adopting Nawaz’s
argument that the victims caused their own losses by refusing to proceed with the
foreclosure sales using public bidding or an auction fails to respond to this Court’s directive
to address the effect of Robers on her motion to recall the mandate. Any argument on that
point is thus waived. In addition, as stated above this argument is without merit.
It is well established that our power to recall our mandate must be “exercised
sparingly, and reserved for exceptional circumstances.” Sargent v. Columbia Forest Prods., Inc.,
75 F.3d 86, 89 (2d Cir. 1996) (internal citations and quotation marks omitted). When
determining whether to recall a mandate, we consider “(1) whether the governing law is
unquestionably inconsistent with the earlier decision; (2) whether the movant brought to the
Court’s attention that a dispositive decision was pending in another court; (3) whether there
was a substantial lapse in time between the issuing of the mandate and the motion to recall
the mandate; and (4) whether the equities ‘strongly favor’ relief.” Stevens v. Miller, 676 F.3d
62, 69 (2d Cir. 2012) (quoting Sargent, 75 F.3d at 90). Werner fails to identify any
extraordinary circumstance, and we see none. Additionally, Robers provides no basis to
challenge this Court’s decision affirming Werner’s sentence nor to challenge the district
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court’s calculation of Werner’s restitution amount, in sum no basis for this Court to recall its
mandate. Accordingly, Werner’s motion is denied.
We have examined Nawaz and Werner’s remaining arguments and find them to be
without merit. For the foregoing reasons we AFFIRM the district court’s judgment
regarding restitution Nawaz is required to pay, and we DENY Werner’s motion to recall the
mandate.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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