U.S. v. Hinojosa

• Decision Date: 10 April 2007
• Docket Number: No. 06-40010.,No. 05-41188.,No. 06-40009.,No. 05-40435.,No. 06-40219.,06-40219.,05-40435.,05-41188.,06-40009.,06-40010.
• Citation: 484 F.3d 337
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Carlos J. HINOJOSA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

484 F.3d 337

UNITED STATES of America, Plaintiff-Appellee, v. Carlos J. HINOJOSA, Defendant-Appellant.

No. 06-40219.

No. 05-40435.

No. 05-41188.

No. 06-40009.

No. 06-40010.

United States Court of Appeals, Fifth Circuit.

April 10, 2007.

Renata Ann Gowie, Asst. U.S. Atty. (argued), James Lee Turner, Asst. U.S. Atty., Houston, TX, for Plaintiff-Appellee.

Marjorie A. Meyers, Federal Public Defender, Michael L. Herman, Philip G. Gallagher (argued), Houston, TX, Rudy Xavier Rodriquez, Brownsville, TX, for Defendant-Appellant.

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

Before DAVIS and STEWART, Circuit Judges, and CRONE^*, District Judge.

W. EUGENE DAVIS, Circuit Judge:

Defendant Carlos J. Hinojosa appeals several aspects of his sentence for money laundering imposed after a guilty plea. Hinojosa's principal argument relates to the determination of the value of the funds for purposes of U.S.S.G. § 2S1.1, and the grouping of offenses included in that determination under U.S.S.G. § 3D1.2(d) and U.S.S.G § 1B1.3(a)(1) and (2). Finding no error in the district court's factual finding of relevant conduct, we affirm that part of the sentence predicated on that finding. Because the government concedes error in the order of restitution, we vacate the sentence in that respect and remand for resentencing.

I.

In October 2003, Francisco Loya, Jr., and Carlos Jorge Hinojosa, also known as Carlos J. Hinojosa, were indicted on multiple charges including conspiracy to commit securities fraud in violation of 18 U.S.C. § 371 (Count 1), securities fraud in violation of 15 U.S.C. §§ 77q(a) and 77x as well as aiding and abetting the same in violation of 18 U.S.C. § 2 (Count 2), wire fraud in violation of 18 U.S.C. §§ 2 and 1343 (Counts 3-6), mail fraud in violation of 18 U.S.C. §§ 2 and 1341 (Counts 7-30) and money laundering in violation of 18 U.S.C. §§ 2 and 1956(a)(1)(A)(i) (Counts 31-45).

In August 2005, Hinojosa entered a plea of guilty to Count 31 of the indictment, which alleged that Hinojosa had committed the crime of money laundering by conducting a financial transaction with the proceeds of the charged conspiracy, specifically the writing of a check on a bank account on July 14, 1998, payable to one of the named victims of the conspiracy in the amount of $4,000.

The prosecutor offered the following summary as a factual basis for the plea at Hinojosa's rearraignment/guilty plea proceeding: (1) Hinojosa operated a fraudulent investment program through the entities Economic Solutions and El Crucero in which he promised investors high rates of return and security of principal through investment in secret offshore trading accounts through various banks; (2) the program offered by Hinojosa does not exist; (3) Hinojosa represented falsely that his co-defendant Loya was a certified public accountant; (4) Hinojosa and Loya collected money from investors and sent the funds to another entity, which would return the investors funds to be distributed to earlier investors as purported profits in the form of a Ponzi scheme; (5) Hinojosa, as part of this scheme, caused a purported profits check to be sent to a named victim on July 14, 1998, as recited in the indictment; and (6) Hinojosa operated this investment scheme from January 1998 through November 15, 1998, when the State of Texas Securities Board ordered the operations to cease.

The prosecutor further stated that Hinojosa operated a second fraudulent investment scheme under the company name Solegasa del Norte during 2002. The prosecutor described the program as one in which Hinojosa took money from "members" in the purported investment program and told the members he would invest the money in existing high-yield investment programs. The programs were not in place and did not exist. No criminal charges were filed in connection with this scheme. At rearraignment, the district court admonished Hinojosa that restitution in the amount of $3,559,493.90 could be ordered. This restitution amount relates only to the charged fraud scheme, not the Solegasa del Norte scheme.

In its PSR, the Probation Office, using the 1998 Sentencing Guidelines began with a base offense level of 23 under U.S.S.G. § 2S1.1(a)(1) because Hinojosa was convicted of violating 18 U.S.C. § 1956(a)(1)(A)(i). The PSR applied an enhancement of 9 offense levels because the value of the funds involved in the two schemes exceeded $10,000,000. As a basis for this amount, the PSR stated that the Texas State Securities Board "confirmed the total amount of relevant conduct attributable to Hinojosa is $11,068,502.57." It is clear from the record that this amount includes losses attributable to the 2002 Solegasa del Norte fraud. The PSR also includes an attached list of victims and the amounts of their losses. The PSR further added a four-level enhancement for Hinojosa's role as a leader or organizer of a criminal activity involving more than five participants or that is otherwise extensive, pursuant to U.S.S.G. § 3B1.1(a). The PSR reduced the offense level by two levels for acceptance of responsibility under U.S.S.G. § 3E1.1(a). As a consequence, Hinojosa had a total offense level of 34. With Hinojosa's Criminal History Category of I, this produced a Guideline imprisonment range of 151 to 188 months. The PSR further recommended restitution in the amount of $6,659,493.90, which is based on losses resulting from the scheme underlying the indictment and the amount attributed to the 2002 Solegasa del Norte scheme.

Hinojosa filed two sets of written objections to the PSR. In the first set of objections, Hinojosa objected, among other things, to the attribution of amounts associated with Solegasa del Norte as relevant conduct and to the value of the funds exceeding $10,000,000, stating that the government had failed to prove such amount. Counsel for Hinojosa renewed these objections at sentencing. With regard to Solegasa del Norte, counsel argued that losses attributable to that scheme were not relevant conduct because that scheme was not charged in the indictment, was not a common plan or scheme with the charged conduct, and did not have common victims. Counsel further challenged the reliability of the evidence related to the calculation of losses exceeding $10 million, stating that the appropriate amount of loss was the $6.5 million set forth in the judgment with the State of Texas, as reflected in the PSR. Counsel further argued that the $10 million amount was improper because it included losses attributable to Solegasa del Norte and because no documentary proof was provided supporting the amount.

At sentencing, the district court overruled the objections. The district court stated that Solegasa del Norte losses were properly treated as relevant conduct because it was a common scheme with the charged conduct. The district court further found that Hinojosa did not object to the reference to Solegasa del Norte at the rearraignment. Upon further questioning of the government, the district court noted that the Probation Officer's response indicated that the Texas State Securities Board investigators stated that evidence established a total loss amount of $7,968,502.57 attributable to the charged conspiracy and $3,100,000 attributable to the uncharged Solegasa del Norte conduct. The district court determined that the combined amount was properly treated as the total loss. The district court imposed a sentence of imprisonment of 169 months, followed by three years of supervised release, a $100 special assessment and ordered restitution in the amount of $6,659,493.90, which includes net losses attributable both to the conspiracy charged in the indictment and to the Solegasa del Norte scheme.

Hinojosa appeals.

II.

The district court's interpretation and application of the Sentencing Guidelines is reviewed de novo and its factual determinations for clear error. United States v. Rodriguez-Mesa, 443 F.3d 397, 400-01 (5th Cir.2006). "A finding by the district court that unadjudicated conduct is part of the same course of conduct or common scheme or plan is a factual determination subject to review by this court under the clearly erroneous standard." United States v. Ocana, 204 F.3d 585, 589 (5th Cir.2000).

III.

U.S.S.G. § 2S1.1, which applies to money laundering offenses, provides for an enhancement based on the value of the funds involved in the offense. U.S.S.G. § 2S1.1(b)(2). Hinojosa and the government agree that in determining the value of the funds laundered, losses attributable to fraud can be grouped with losses attributable to money laundering if the offenses can be properly grouped under § 3D1.2(d). See U.S.S.G. § 1B1.3(a)(1) and (2). U.S.S.G. § 1B1.3 groups offenses (1) "that occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense," and acts (2) "that were part of the same course of conduct or common scheme or plan as the offense of conviction." Hinojosa's offenses were grouped under the second category.

The Commentary to U.S.S.G. § 1B1.3 states that "common plan or scheme" and "same course of conduct" are closely related concepts:

(A) Common scheme or plan. For two or more offenses to constitute part of a common scheme or plan, they must be substantially connected to each other by at least one common factor, such as common victims, common accomplices, common purpose, or similar modus operandi. For example, the conduct of five defendants who together defrauded a group of investors by computer manipulations that unlawfully transferred funds over an eighteen-month period would qualify as a common scheme or plan on the basis of any of the above listed factors; i.e., the commonality of victims (the same investors were defrauded on an ongoing basis), commonality of offenders (the conduct constituted an ongoing conspiracy), commonality of purpose (to defraud the...