U.S. v. Miro

• Decision Date: 08 August 1994
• Docket Number: No. 93-3387,93-3387
• Citation: 29 F.3d 194
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Carlos I. MIRO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 194

29 F.3d 194

UNITED STATES of America, Plaintiff-Appellee, v. Carlos I. MIRO, Defendant-Appellant.

No. 93-3387.

United States Court of Appeals Fifth Circuit.

Aug. 8, 1994.

Robert Barnard, Asst. Federal Public Defender (court-appointed), New Orleans, LA, for appellant.

Mervyn Hamburg, Atty., U.S. Justice Dept., Washington, DC, Herbert W. Mondros, Shaun G. Clarke, Asst. U.S. Attys., Robert J. Boitmann, U.S. Atty., New Orleans, LA, for appellee.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before WISDOM and JONES, Circuit Judges, and COBB, ¹ District Judge.

COBB, District Judge:

Carlos I. Miro appeals his sentence for mail fraud. We find no error and AFFIRM.

I. Background

Carlos I. Miro (Miro) engineered an insurance scam which resulted in the collapse of the Louisiana based Anglo-American Insurance Company (Anglo). The State of Louisiana licensed Anglo to do business in August, 1986. Primarily, Anglo marketed workers' compensation insurance. The company was purportedly reinsured by the Anglo-American International Reinsurance Company (Reinsurer), operated out of Dublin, Ireland. Miro operated the insurers, directed their solicitation of business, and successfully sought loans on the companies' behalf.

Unfortunately for the policy holders, Anglo and its Reinsurer were shams. After receiving premium payments from various subscribers, Anglo would forward these funds overseas to the Reinsurer. This gave the appearance that certain risks were covered. In reality, however, Miro instead deposited portions of these receipts into foreign bank accounts for personal use. Other portions of the proceeds were funnelled back into Anglo's accounts, fraudulently inflating the company's assets. With increased assets, Anglo could (and did) secure loans and receive authorization from the Louisiana Department of Insurance to underwrite more policies.

In addition to the reinsurance farce, Anglo received favorable treatment from the Louisiana Department of Insurance, with which the company filed quarterly and annual statements reflecting its solvency. The favorable treatment was a product of bribes sent by Miro to Mr. Sherman Barnard, the then Louisiana Commissioner of Insurance. However, when Barnard failed to secure re-election, his successor launched an investigation into Louisiana insurance fraud. Before long, the fraud became evident, and Anglo was placed in liquidation. Anglo's collapse caused a total loss estimated at over $20,000,000.00.

The United States secured an indictment charging Miro with eighteen counts of mail fraud and one count of money laundering arising out of his activities in the Eastern District of Louisiana. Subsequently, the government acquired a superseding indictment which dropped two of the mail fraud counts. The remaining mail fraud counts charged Miro with receipt through the mail of blocks of premium checks from its policy holders, the proceeds of which contributed to execution of the fraudulent scheme. The money laundering count charged Miro with executing bank transfers to London in an attempt to conceal the source of money unlawfully obtained from the mail fraud.

Perhaps coincidentally, Miro was visiting Spain at the time the grand jury returned its original indictment. When the United States began extradition proceedings, Miro was arrested and held in custody there. Miro spent approximately eight months in Spanish custody during the pendency of the extradition. Ultimately, Spain extradited Miro but limited prosecution to the mail fraud counts because the charge for money laundering did not state an offense under Spanish law. Miro was returned to the United States in July, 1992.

After negotiating with federal authorities, Miro agreed to plead guilty to certain charges. The plea agreement provided, inter alia, that Miro would plead guilty to counts one through sixteen of the superseding indictment and fully cooperate with law enforcement authorities in related prosecutions. In exchange, the government (1) would not prosecute Miro for the remaining count for money laundering; (2) would not proceed with prosecution for related money laundering charges pending in the Middle District of Louisiana; and (3) would bring the extent of Miro's cooperation to the attention of the district court, and, in the government's discretion, acknowledge Miro's substantial assistance prior to sentencing pursuant to Sec. 5K1.1 of the United States Sentencing Guidelines.

Miro entered guilty pleas on November 18, 1992. He then assisted federal authorities in four related prosecutions. As promised, the government sent a letter to the court advising it of the extent of Miro's service. Prior to sentencing, the government memorialized the letter by filing a Sec. 5K1.1 motion to acknowledge substantial assistance.

On May 26, 1993, the district court imposed sentence. That court reasoned that counts one through nine involved mailings that occurred prior to the effective date of the Guidelines and sentenced Miro to five years on each count, all to run concurrently. As to the remaining counts, the court applied the Guidelines and imposed a forty-six month term on each count, also to run concurrently. ² With respect to these counts, the district court calculated Miro's offense level using the entire $20,000,000. See U.S.S.G. Sec. 2F1.1(b)(1). The court ordered the forty-six month Guidelines sentence to run consecutive to the five year pre-Guidelines sentence for a total sentence of 106 months. The court considered the Sec. 5K1.1 motion, but chose not to grant a downward departure. This appeal timely followed.

II. Discussion

We will affirm Miro's sentence unless he establishes "that it was imposed in violation of the law, was imposed because of an incorrect application of the Guidelines, or is outside the range of applicable Guidelines and is unreasonable." United States v. Parks, 924 F.2d 68, 71 (5th Cir.1991).

A.

Miro first argues that his consecutive sentences for pre-Guidelines and Guidelines offenses violate Double Jeopardy. The district court took into account the total amount of the loss for purposes of computing Miro's offense level because the loss was incapable of division between the pre-Guidelines and Guidelines counts. Miro argues that when the loss attributable to pre-Guidelines offenses cannot be apportioned from Guidelines offenses, Double Jeopardy requires the court to run the sentences concurrently.

We have consistently rejected similar arguments and do so again today. For starters, in Parks, we held that district courts possess wide discretion to impose consecutive sentences for pre-Guidelines and Guidelines offenses. 924 F.2d 68, 71 (5th Cir.1991). We relied on Judge Wilkins' conclusion that "nothing in the guidelines or the Sentencing Reform Act precludes the court from ordering that a sentence imposed on a pre-guidelines count be served consecutively to a sentence imposed on a guidelines count." Parks, 924 F.2d at 73 (quoting United States v. Watford, 894 F.2d 665, 669 (4th Cir.1990) (Wilkins, J., Chairman of the United States Sentencing Commission)). Judge Wilkins had emphasized one fundamental distinction between pre-Guidelines and Guidelines sentences: Parole is available for the former, but not the latter. Watford, 894 F.2d at 670. We concluded that nothing in the Sentencing Reform Act precluded a judge, when fashioning what he or she believes an appropriate punishment, from ordering consecutive sentences. Parks, 924 F.2d at 73.

To be sure, Parks did not expressly decide the Double Jeopardy challenge here presented. We did, however, reject the argument in United States v. Gaudet, 966 F.2d 959, 963 (5th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1294, 122 L.Ed.2d 685 (1993). As the government points out, the constitutional issue is really the same question addressed by Parks. In multiple punishment cases such as this, the issue is simply whether Congress intended to allow consecutive sentences when it enacted the Sentencing Reform Act. This court canvassed that question in Parks and disposed of it. We recognize the apparently contrary position taken by the Ninth Circuit in United States v. Niven, 952 F.2d 289, 294 (9th Cir.1991). However, we are bound by our prior holdings in Parks, Gaudet, and most recently, United States v. Kings, 981 F.2d 790, 794-95 (5th Cir.1993). We therefore hold that Miro's consecutive sentences do not violate Double Jeopardy.

B.

Miro's second challenge is that the Guidelines apply to all of his convictions because the mail fraud scheme straddled November 1, 1987, the effective date of the Sentencing Reform Act. He argues that because the guideline commentary requires grouping of mail fraud offenses, the district court was bound to order concurrent sentences on all counts. We disagree.

The Guidelines apply to all offenses committed after November 1, 1987. United States v. White, 869 F.2d 822, 826 (5th Cir.), cert. denied, 490 U.S. 1112, 109 S.Ct. 3172, 104 L.Ed.2d 1033 (1989). The Guideline commentary suggests grouping of mail fraud counts which comprise part of a single course of conduct with a single criminal objective representing one composite harm to the victim. U.S.S.G. Sec. 3D1.2. We are bound by the commentary when it interprets or explains a guideline unless it violates the Constitution or a federal statute, or is inconsistent with or a plainly erroneous reading of that guideline. Stinson v. United States, --- U.S. ----, ---- - ----, 113 S.Ct. 1913, 1917-18, 123 L.Ed.2d 598 (1993). However, we read Stinson only to mean that courts are bound by the commentary with respect to offenses that are actually covered by the Guidelines themselves. Congress has made it plain that the Guidelines apply only to crimes committed after November 1, 1987.

Anticipating this reading of Stinson, Miro urges that his convictions arose as part of a continuing or "straddle" offense. We have recognized that the...