United States v. Calabrese

15-2995-cr
United States v. Calabrese
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 19th day of September, two thousand sixteen.
PRESENT: REENA RAGGI,
DENNY CHIN,
CHRISTOPHER F. DRONEY,
Circuit Judges.
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UNITED STATES OF AMERICA,
Appellee,
v. No. 15-2995-cr
JASON CALABRESE,
Defendant-Appellant,
RYAN GEDDES, RICHARD GEDDES, and DUSTIN
WHITTEN,
Defendants.*
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APPEARING FOR APPELLANT: NAOMI FETTERMAN (Aaron J. Romano, on
the brief), Aaron J. Romano, P.C., Bloomfield,
Connecticut.
APPEARING FOR APPELLEE: HENRY H. KOPEL, Assistant United States
Attorney (Sandra S. Glover, Assistant United
States Attorney, on the brief), for Deirdre M.
*
The Clerk of Court is directed to amend the caption as set forth above.
1
Daly, United States Attorney for the District of
Connecticut, New Haven, Connecticut.
Appeal from a judgment of the United States District Court for the District of
Connecticut (Janet Bond Arterton, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment entered on September 23, 2015, is AFFIRMED.
Defendant Jason Calabrese, a former loan officer, was convicted after a guilty plea
of conspiracy to commit bank fraud, see 18 U.S.C. §§ 1344, 1349, and sentenced to a
below-Guidelines prison term of six months, which he has yet to begin serving.1 On
appeal, Calabrese challenges only the district court’s imposition of a two-level Guidelines
enhancement for using a “special skill” in a manner that “significantly facilitated” his
commission or concealment of the offense. U.S.S.G. § 3B1.3; see United States v.
Downing, 297 F.3d 52, 64 (2d Cir. 2002). We review de novo the legal question of
what constitutes a special skill, and review for clear error a sentencing court’s finding
that use of a special skill significantly facilitated the commission or concealment of an
offense. See United States v. Kimber, 777 F.3d 553, 563 (2d Cir. 2015). In doing so,
we assume the parties’ familiarity with the facts and record of prior proceedings, which
we reference only as necessary to explain our decision to affirm.
1
This sentence represented downward variances from the applicable 15-to-21-month
range under the 2014 Guidelines (which governed Calabrese’s September 8, 2015
sentencing), and the applicable 12-to-18-month range under the 2015 Guidelines,
which—although not effective until November 1, 2015—the district court applied to
Calabrese’s benefit at sentencing.
2
1. Special Skill
Calabrese faults the district court’s conclusion that he possessed a § 3B1.3
“special skill,” arguing that, at the time of the charged conspiracy (November 2005
through November 2006), he (a) was not a licensed mortgage broker, (b) lacked
professional or managerial discretion, and (c) had not received substantial training or
education. 2 To the extent these claims are even cognizable on appeal, they are
meritless.
Calabrese argues that, although records identified by the Probation Office
(“Probation”) indicate that he was “registered as a loan officer [in 2002,] he did not
become a licensed mortgage originator until 2010.” Appellant’s Br. 12 (emphasis in
original). Calabrese did not timely raise this issue below.3 Moreover, he points to no
2
While Calabrese also complains that the court failed to consider the absence of lender
reliance on representations in applications for stated-income loans, he does not explain
why this omission—to the extent preserved for appeal—is relevant to the special-skill
determination. Accordingly, we consider it only in reviewing the court’s
significant-facilitation conclusion. See infra Section 2.
3
In urging otherwise, Calabrese relies on defense counsel’s objection to the initial
presentence report (“PSR”), in which counsel stated that “Calabrese’s work as a
mortgage broker, during the time period at issue, did not involve any training or
licensing. (We understand that Mr. Calabrese first received his license on or about
March 31, 2010.).” Def.’s Aug. 5, 2015 Ltr. at 2, United States v. Calabrese, No.
3:14cr228 (JBA), ECF No. 160-2. Probation responded, “This is inconsistent with the
information obtained from the National Mortgage Licensing System, which notes he was
first licensed as a mortgage loan originator effective October 1, 2002.” PSR Addendum
at 3, United States v. Calabrese, No. 3:14cr228 (JBA), ECF No. 160-4. At the
sentencing hearing, when asked by the court whether there was “any objection to factual
statements in the Presentence Report that require the Court’s resolution,” defense counsel
responded, “[N]o, other than what has already been included in our briefing.” J.A. 134–
35. Calabrese did not further pursue the licensure issue until September 22, 2015—14
days after he had been sentenced—when, through newly obtained counsel, he filed a Fed.
3
record evidence of any material difference between a registered loan officer and licensed
mortgage originator for purposes of § 3B1.3 analysis. 4 Accordingly, we deem the
objection waived. See United States v. Jass, 569 F.3d 47, 66 (2d Cir. 2009) (“When a
defendant fails to challenge factual matters contained in the presentence report at the time
of sentencing, the defendant waives the right to contest them on appeal.” (emphasis
added) (internal quotation marks omitted)); see also Fed. R. Crim. P. 32(i)(3)(A) (“At
sentencing, the court . . . may accept any undisputed portion of the presentence report as a
finding of fact.”).
The same waiver conclusion obtains with respect to Calabrese’s claimed lack of
professional or managerial discretion, a conclusory allegation that he never made in the
district court. See United States v. Jass, 569 F.3d at 66. In any event, the record
incontrovertibly demonstrates Calabrese’s exercise of discretion in (1) recommending
particular loan products, (2) accepting his client’s income representations despite
knowledge of their falsity, and (3) submitting false loan applications to lenders.5
R. Crim. P. 35 motion identifying the distinction described above and suggesting that,
unlike a licensed mortgage originator, “a registered loan officer [has] no special training
or education.” J.A. 89. In any event, Calabrese does not assert that this filing
preserved the issue for appeal.
4
Thus, even if Calabrese had not waived the argument, we would resolve it against him.
As explained below, the district court did not err in concluding that Calabrese possessed a
special skill based on knowledge he acquired through years of experience.
5
Accordingly, we need not address Calabrese’s argument—also raised for the first time
on appeal—that whether a defendant exercises such discretion is relevant to the district
court’s special-skill assessment because the same inquiry governs application of the
§ 3B1.3 enhancement for abuse of a position of trust. See U.S.S.G. § 3B1.3 cmt. n.1
4
Insofar as Calabrese maintains that his lack of substantial training or education
precludes a special-skill enhancement, he relies on Guidelines commentary explaining
that “‘[s]pecial skill’ refers to a skill not possessed by members of the general public and
usually requiring substantial education, training or licensing.” U.S.S.G. § 3B1.3 cmt.
n.4 (emphasis added). The argument is defeated by precedent construing the modifier
“usually” to signal that a § 3B1.3 enhancement is not categorically limited to “those with
formal educations or professional skills.” United States v. Spencer, 4 F.3d 115, 120 (2d
Cir. 1993); accord United States v. Gormley, 201 F.3d 290, 296 (4th Cir. 2000); United
States v. Noah, 130 F.3d 490, 500 (1st Cir. 1997). The Guidelines require only that the
relevant skill (1) be obtained through the equivalent of such training or education and
(2) not be possessed by the general public. See United States v. Gormley, 201 F.3d at
296. That is this case because Calabrese’s knowledge of the approval processes for
various loan products, as well as his ability to calculate the minimum income necessary
for clients to obtain desired loans, “exceeds the knowledge of the average person,”
United States v. Fritzson, 979 F.2d 21, 23 (2d Cir. 1992), and was acquired through years
of on-the-job experience.6
(explaining that “public or private trust” position is “characterized by professional or
managerial discretion”).
6
Our sister circuits have applied the same reasoning to uphold special-skill
enhancements to loan officers and mortgage brokers alike. See United States v. Grant,
479 F. App’x 904, 906 (11th Cir. 2012) (“Grant gained a detailed knowledge of
loan-application and loan-processing procedures during the three years he worked as a
loan officer or mortgage broker before committing mortgage fraud. That knowledge is a
special skill . . . because ‘an average person off the street does not possess’ it.” (quoting
United States v. De La Cruz Suarez, 601 F.3d 1202, 1219 (11th Cir. 2010))); United
5
In sum, we identify no error in the district court’s conclusion that Calabrese
possessed a special skill for § 3B1.3 purposes.
2. Significant Facilitation
Calabrese argues that, even if he possessed a special skill, the evidence was
insufficient to show that his skill “significantly facilitated” his bank fraud offense.
U.S.S.G. § 3B1.3. In finding significant facilitation, the district court concluded that
fraudulently obtained loans would not have been approved without Calabrese’s
“participation and signoff as the mortgage broker, and his knowledge of what income [his
client] would have to have, such that that information would then appear on the
application in order to ‘qualify.’” J.A. 144. This preponderance determination was not
clearly erroneous. See United States v. Nuzzo, 385 F.3d 109, 115–17 (2d Cir. 2004)
(reviewing preponderance finding of significant facilitation for clear error).
In urging otherwise, Calabrese insists that the indictment suggested that lenders
independently verified loan applicants’ income and employment representations. See
Appellant’s Br. 29–30 (quoting Indictment ¶ 19, United States v. Calabrese, No.
3:14cr228 (JBA), ECF No. 1). The argument fails because Calabrese pleaded guilty to
bank fraud conspiracy, and § 3B1.3 applies to inchoate crimes if the district court
determines “with reasonable certainty” that the defendant “specifically intended” to use
his special skill “in a manner that would have significantly facilitated the . . . object of the
States v. Longwell, 410 F. App’x 684, 691–92 (4th Cir. 2011) (“While mortgage brokers
may not endure the same level of training as a doctor, pilot, or lawyer, they certainly
possess a skill not possessed by members of the general public which is obtained through
training and licensing. Thus, the skill possessed by a mortgage broker qualifies as a
special skill . . . .”).
6
conspiracy.” United States v. Downing, 297 F.3d at 65 (emphasis added) (internal
quotation marks omitted). Such a determination was supported here by Calabrese’s
admissions that he (a) submitted loan applications intending that approval be granted on a
stated-income (i.e., unverified) basis and, in doing so, (b) relied on his
knowledge—acquired through mortgage-brokering experience—as to the particular
income and employment representations necessary to succeed in that objective. See
J.A. 144; PSR ¶ 17. In any event, Calabrese mischaracterizes the indictment. While it
alleged that a coconspirator falsely verified the November 2006 application’s
representations, the indictment made no such allegation with respect to the original loan
obtained in November 2005.
Insofar as Calabrese concedes that he “may have ‘facilitated’ the fraud,” but
contends that he did not “significantly facilitate” it because “any loan officer” would
have advised Calabrese’s client as to minimum income requirements, Appellant’s Br. 27
(emphasis in original), the argument is defeated by precedent, see United States v.
Kimber, 777 F.3d at 564 (“‘The fact that the same offenses could have been committed
by a person without the defendant’s special training is immaterial.’” (quoting United
States v. Fritzson, 979 F.2d at 22)). Calabrese’s role as a mortgage broker and his
knowledge obtained therefrom did not “merely place[] him in a position where he had the
opportunity to commit the offense,” Appellant’s Br. 28; they increased the conspirators’
chances of both succeeding, see United States v. Kimber, 777 F.3d at 564, and avoiding
detection, see United States v. Fritzson, 979 F.2d at 22, because Calabrese knew that
(1) stated-income loans were not subject to rigorous income and employment
7
verification, and (2) lenders expected that he would identify problems arising from
applications that he submitted. Thus, Calabrese’s reliance on United States v. Elefant,
999 F.2d 674, 678 (2d Cir. 1993), wherein the defendant’s skill had no effect on the
commission or concealment of the crime, is entirely misplaced.
Accordingly, the district court’s determination that Calabrese’s skill significantly
facilitated commission or concealment of the bank fraud conspiracy manifests no clear
error.
3. Double Counting
Calabrese argues that special skill is “subsumed” within his bank fraud conviction,
such that application of the § 3B1.3 enhancement constitutes impermissible double
counting. Because Calabrese did not raise this argument in the district court, our
review—as he concedes—is for plain error, which we will identify only if: (1) there is
error; (2) that is “clear or obvious, rather than subject to reasonable dispute”; (3) that
affected the defendant’s substantial rights; and (4) that seriously impugns the fairness,
integrity, or public reputation of judicial proceedings. United States v. Marcus, 560
U.S. 258, 262 (2010) (internal quotation marks omitted); accord United States v. Kimber,
777 F.3d at 563. Calabrese’s challenge fails at the first step of analysis.
The Guidelines preclude a § 3B1.3 enhancement when a defendant’s special skill
“is included in the base offense level or specific offense characteristic.” U.S.S.G.
§ 3B1.3. Nothing in § 2B1.1(a), which establishes the base offense level for fraud
crimes, or § 2B1.1(b), which sets forth enhancements for specific fraud characteristics,
references—much less adjusts for—a defendant’s status or experience as a mortgage
8
broker or loan officer. Nor is such status an element of (or even a statutorily
enumerated means of committing) substantive or conspiratorial bank fraud. See 18
U.S.C. §§ 1344, 1349; see also United States v. Crisci, 273 F.3d 235, 239–40 (2d Cir.
2001) (stating that bank fraud requires proof that defendant (1) engaged in conduct
designed to deceive federal financial institution into releasing property, and (2) possessed
intent to victimize institution by exposing it to actual or potential loss).
Accordingly, we reject Calabrese’s double-counting challenge.7
4. Conclusion
We have considered Calabrese’s remaining arguments and conclude that they are
without merit. Accordingly, the judgment of the district court is AFFIRMED.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, Clerk of Court
7
Even if Calabrese’s offense of conviction and use of special skill were premised on the
same underlying “course of conduct,” as he contends, Appellant’s Br. 34, that would not
demonstrate that a § 3B1.3 enhancement constitutes “[i]mpermissible double
counting . . . in contravention of the applicable statute or Sentencing Guideline,” United
States v. Reyes, 557 F.3d 84, 86 (2d Cir. 2009) (emphasis added) (internal quotation
marks omitted). We have consistently held that double counting is permissible in
calculating a Guidelines sentence where, as here, each of the multiple Guidelines sections
applicable to a single act serves a distinct purpose or represents a discrete harm. See
United States v. Maloney, 406 F.3d 149, 153 (2d Cir. 2005).
9