U.S. v. Garza

• Decision Date: 25 October 2005
• Docket Number: No. 04-10813.,04-10813.
• Citation: 429 F.3d 165
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Maria Elena GARZA, also known as Maria Elena Villarreal-Coronado, also known as Maria Elena Elizondo; Enrique Elizondo, also known as Rickey Elizondo, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

429 F.3d 165

UNITED STATES of America, Plaintiff-Appellee, v. Maria Elena GARZA, also known as Maria Elena Villarreal-Coronado, also known as Maria Elena Elizondo; Enrique Elizondo, also known as Rickey Elizondo, Defendants-Appellants.

No. 04-10813.

United States Court of Appeals, Fifth Circuit.

October 25, 2005.

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William C. Brown, U.S. Dept. of Justice, Criminal Div., Washington, DC, for Plaintiff-Appellee.

Jason Douglas Hawkins, Ira Raymond Kirkendoll, Federal Public Defender, Dallas, TX, for Maria Elena Garza.

Lydia M. Brandt, The Brandt Law Firm, Richardson, TX, for Enrique Elizondo.

Appeals from the United States District Court for the Northern District of Texas.

Before BENAVIDES, STEWART and OWEN, Circuit Judges.

PER CURIAM:

Enrique Elizondo and Maria Elena Garza appeal their convictions and sentences. We find no error in any conviction. We affirm Garza's sentence but must vacate and remand Elizondo's sentence for proceedings consistent with United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).

Elizondo and Garza perpetrated a scheme to defraud undocumented aliens by pretending to be agents of the Immigration and Naturalization Service ("INS") and by purporting to help the aliens with fake immigration forms. A jury convicted both Elizondo and Garza of conspiring to commit mail fraud and convicted Garza, additionally, of three substantive counts of mail fraud and of obtaining money by pretending to be a federal employee. The court sentenced Elizondo to thirty-seven months imprisonment and Garza to ninety-seven months imprisonment. It also ordered $172,176 restitution to be paid jointly and severally by Elizondo, Garza, and a third co-defendant who is not before this Court.

I. Sufficiency of the Evidence

Appellant Elizondo complains that the evidence was insufficient to support his conspiracy conviction. This claim has no merit. "The three elements of conspiracy to commit mail fraud are (1) an agreement between appellant[] and others (2) to commit the crime of mail fraud, and (3) an overt act committed by one of the conspirators in furtherance of that agreement." United States v. Sneed, 63 F.3d 381, 385 (5th Cir.1995) (internal quotation marks omitted).¹ Additionally, the defendant must have acted with intent to defraud. See United States v. Manges, 110 F.3d 1162, 1173 (5th Cir.1997).

Evidence adduced at trial established an immigration scheme through which the conspirators obtained money from undocumented aliens by promising them immigration services. Garza, sometimes assisted by Elizondo, had undocumented aliens fill out fake applications for INS residency authorizations or work permits. The conspirators misrepresented to the victims that they worked for the INS and that the applications were genuine. They initially charged the victims several hundred dollars as an "application fee" and subsequently sent the victims an "approval notice." The notices instructed the victims to submit an additional fee, generally $1202, to an "INS Department Ctr." in either Corsicana, Mesquite, or Pleasant Grove, Texas. Garza had created a company called "Independent National Services" (which has the same initials as the Immigration and Naturalization Service), and the addresses had been set up by the conspirators to send and receive mail relating to the scheme. Neither Garza nor Elizondo actually worked for or filed any papers with the INS, and none of the victims received the benefits they were promised. The conspirators defrauded at least 224 people of at least $172,176.

Trial evidence also revealed Elizondo's broad participation in the conspiracy. He assisted aliens in filling out what appeared to be "immigration paperwork" in exchange for money on multiple occasions. Additionally, Elizondo rented an office used to carry out the scheme, and one of the misleading "INS Department Ctr." post office boxes was opened in the name of his company, "Elizondo and Associates." Witnesses also testified that Elizondo collected mail addressed to "INS Department Ctr." and told his landlord that he and Garza "helped non U.S. citizens with different types of paperwork." Lastly, fake immigration applications, fraudulent approval forms, receipts and other documents related to the scheme were found in common areas of the home that Elizondo shared with Garza.

This evidence is clearly sufficient for a rational jury, viewing the evidence in the light most favorable to the Government, to have found all the elements of conspiracy to commit mail fraud beyond a reasonable doubt. See United States v. Rivera, 295 F.3d 461, 466 (5th Cir.2002). We find no error in Elizondo's conviction.

II. Booker Error

Next, Elizondo claims two different errors under United States v. Booker. First, Elizondo contends that the district court committed Booker error by ordering restitution under the Mandatory Victims Restitution Act of 1996 ("MVRA"). See 18 U.S.C. §§ 3663A-3664. Elizondo did not object below to the order of restitution or to the district court's use of the MVRA. His claim is, therefore, reviewable only for plain error. See FED.R.CRIM.P. 52. Under United States v. Olano, Elizondo must show that (1) there is an error, and that the error (2) is plain, (3) affects substantial rights, and (4) seriously affects the fairness, integrity, or public reputation of judicial proceedings. See, e.g., United States v. Inman, 411 F.3d 591, 595 (5th Cir.2005) (citing Olano, 507 U.S. 725, 732-34, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)).

Elizondo's argument fails at least the first two prongs of the Olano test. Booker's holding that the Sentencing Guidelines are advisory does not directly affect the MVRA since it is a statute "distinct and separate from the United States Sentencing Guidelines." See United States v. Sosebee, 419 F.3d 451, 462 (6th Cir.2005). We agree with our sister Circuits, who have uniformly held that judicial fact-finding supporting restitution orders does not violate the Sixth Amendment. See id. at 461-62; United States v. Reichow, 416 F.3d 802, 808 (8th Cir.2005); United States v. Bussell, 414 F.3d 1048, 1060-61 (9th Cir.2005); United States v. George, 403 F.3d 470, 473 (7th Cir.2005). In any event, even if there were Booker error in the restitution order, any error would certainly not be plain under current law.

Elizondo also claims that the district court committed Booker error by applying upward adjustments based on judicial fact-finding under the then-mandatory Federal Sentencing Guidelines.² The Government concedes (and we agree) that Elizondo preserved the error by making this claim below and citing Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). Thus, we review under the harmless-error standard. The Government bears the burden of showing that Booker error was harmless, and to do so it must "prove beyond a reasonable doubt that the district court would not have sentenced [the defendant] differently had it acted under an advisory Guidelines regime." United States v. Akpan, 407 F.3d 360, 377 (5th Cir.2005). We have noted that this is an "arduous burden," and this Court "will ordinarily vacate the sentence and remand" where Booker error has been preserved. United States v. Pineiro, 410 F.3d 282, 284-87 (5th Cir.2005) (quoting United States v. Mares, 402 F.3d 511, 520 n. 9 (5th Cir.2005)).

Indeed, this Circuit has held that the Government met its burden in showing Booker error harmless under only two circumstances. First, we have held that Booker error is harmless where the district court stated at sentencing that it would not impose a lower sentence even absent mandatory Guidelines. See United States v. Saldana, 427 F.3d 298, 314, 2005 WL 2404810, at *10 (5th Cir. Sept. 30, 2005) (court stated it would impose "the same amount of imprisonment" even if the Guidelines were deemed unconstitutional); United States v. Nelson, 2005 WL 1994287, at *1 (5th Cir. Aug. 19, 2005) (unpublished) (court expressed disappointment that there was not a greater statutory maximum and indicated that a sentence above the maximum would have been appropriate). Second, in an unpublished decision, we determined that Booker error was harmless where the sentencing court expressly refused to run the defendant's federal Guidelines sentence concurrently with his state sentence. United States v. Prones, 2005 WL 2009546, at *1 (5th Cir. Aug. 23, 2005) (unpublished). We find that the Government's evidence in the instant case falls woefully short of the circumstances presented in these cases.

The Government contends that the Booker error was harmless because the district court sentenced Elizondo in the middle of the applicable Guidelines range. It claims that this proves the district court would not have sentenced Elizondo differently under an advisory regime because it already had discretion to impose a lower sentence and chose not to do so. It is equally possible, however, that the court's sentence reflected a judgment about the appropriate sentence for Elizondo relative to other defendants with the same Guidelines range rather than a judgment as to the appropriate absolute sentence. Indeed, this Circuit has rejected the claim that a court's decision to sentence in the middle of a Guidelines range establishes Booker error as harmless in two recent unpublished decisions. See United States v. Yancey, 2005 WL 1608590, at *1 (5th Cir. July 11, 2005) (unpublished) (per curiam); United States v. Benavides, 2005 WL 2055884, at *1 (5th Cir. Aug. 26, 2005) (unpublished).

The Government also points to the district court's statement that it might have the power to downwardly depart under the circumstances but that departure would not be appropriate on the record before it. Yet, even a discretionary departure decision is informed by the Guidelines and "thus sheds little light on what a sentencing judge would have done knowing that the guidelines were advisory."...