United States v. Cingari

• Decision Date: 17 March 2020
• Docket Number: No. 17-12262,17-12262
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Rosa Enedia Pazos CINGARI, Domenico Cingari, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

952 F.3d 1301

UNITED STATES of America, Plaintiff-Appellee,

v.Rosa Enedia Pazos CINGARI, Domenico Cingari, Defendants-Appellants.

No. 17-12262

United States Court of Appeals, Eleventh Circuit.

March 17, 2020

Holly Lynn Gershow, Karin Bethany Hoppmann, U.S. Attorney Service - Middle District of Florida, U.S. Attorney's Office, Tampa, FL, for Plaintiff-Appellee.

Thomas A. Burns, Arda Goker, Burns, PA, Tampa, FL, for Domenico Cingari.

Domenico Cingari, Pro Se.

Dane K. Chase, Chase Law Firm, PA, Saint Petersburg, FL, for Rosa Cingari.

Before JORDAN, GRANT, and SILER,^* Circuit Judges.

GRANT, Circuit Judge:

Defendants Domenico and Rosa Cingari, a husband and wife who defrauded hundreds of undocumented aliens into paying about $740,000 for falsified federal immigration forms, contest their sentences. They say that they should not be jointly and severally liable for the forfeiture judgment in the amount that they collected in their scheme; that way, one of them could be liable for some "minimal amount," allowing them to pay off that liability and then "live their lives" as "a happily married couple." Additionally, they say, they should be sentenced under the lesser penalty set out for falsifying immigration forms rather than the greater penalty set out for fraud and deceit. Because the district court committed no plain error in holding them jointly and severally liable for repaying the proceeds of their illegal conduct, and because the Sentencing Guidelines direct that they be sentenced for fraud and deceit, we affirm the judgment of the district court.

I.

A.

For more than four years, migrant workers and other aliens went to the Cingaris’ business looking for help getting Florida driver’s licenses. The Cingaris had apparently mastered the art of obtaining a key Department of Homeland Security document formally known as a Form I-797C Notice of Action, but nicknamed "the torch" for its torch watermark. Under Florida law, aliens can use "the torch" to prove their identity and lawful status for licensing purposes. See Fla. Stat. § 322.08(2)(c)(8).

Those coming to the Cingaris for help knew the couple could get them the document; what they did not know was how the Cingaris did it. To obtain a Form I-797C, the Cingaris would fill out and mail two other kinds of federal immigration documents: (1) a Form I-589 application for asylum and withholding of removal, and (2) a Form I-130, a document used to establish a relationship between a citizen (or lawful permanent resident) and an alien. Once DHS received these two forms, it would generally issue a Form I-797C.

Without the applicants’ knowledge, the Cingaris would often alter the facts provided in applications. Some falsely reported that an applicant had suffered persecution, while others manufactured a false identity. Still others lied about the applicant’s lawful status, residential address, and social security number. On each fraudulent application, the Cingaris listed their own business address as the applicant’s mailing address, so that they, rather than the applicant, could correspond with the federal government. As several applicants would later testify, they paid the Cingaris to procure the torch document—but would not have done so if they had known about the couple’s deceptive practices.

The Cingaris’ scheme left behind hundreds of victims. But it also produced a small fortune. During the conspiracy, the Cingaris filed forms for more than 1,000 aliens and usually charged $500–$800 per application. Both spouses fraudulently completed forms, with Domenico personally working on at least 200. All in all, as a direct result of the fraudulent conspiracy, the victims lost more than $791,000. Of that, about $740,000 went to the Cingaris, with the remainder going to immigration attorney fees. Some victims paid a much higher price: several were deported because the Cingaris—who, you will recall, intercepted all application-related mail—failed to advise applicants when the federal government demanded interviews or requested information about an application.

B.

Domenico and Rosa were tried by jury and convicted of three crimes: (1) falsifying immigration forms, in violation of 18 U.S.C. §§ 2 and 1546(a) ; (2) mail fraud, in violation of 18 U.S.C. §§ 2 and 1341 ; and (3) conspiracy to do the same, in violation of 18 U.S.C. § 371.

For their crimes, the Cingaris were sentenced to prison and held jointly and severally liable for a money judgment. "Based on the evidence presented at trial," the district court found that "the Defendants received criminal proceeds in the amount of $740,880.00." Consistent with that conclusion, the court ordered that "the Defendants shall be held jointly and severally liable for a forfeiture money judgment in the amount of $740,880.00." Cf. 18 U.S.C. §§ 982(a)(6) (criminal asset forfeiture), 981(a)(1)(C) (civil asset forfeiture); 28 U.S.C. § 2461(c) (allowing forfeiture, including under 18 U.S.C. § 981(a)(1)(C), in criminal proceedings). At that point, the Cingaris did not object to the imposition of joint and several liability.

The district court also sentenced them to prison. The presentence investigation report (PSR) initially recommended that the Cingaris be sentenced under § 2L2.1 of the United States Sentencing Guidelines. According to the PSR calculations, the sentencing range under that guideline was 30–37 months.

Both the Cingaris and the government objected to portions of the PSR. As relevant here, Domenico argued that because he played an insignificant role in the criminal conspiracy, he should receive a minor-role reduction in his sentence. In arguing for this reduction, Domenico’s trial attorney told the district court that he supposed that "the money is going into the family coffers," recognized that "there really has been no testimony as to ... how they divided it under the circumstances," and conceded that the court could "assume that he did benefit to a point because he was married to Mrs. Cingari." Domenico also objected to the PSR’s factual representation that he had operated the business together with Rosa. The district court overruled both objections.

For its part, the government argued that the Cingaris’ sentence should be calculated under § 2B1.1, rather than § 2L2.1 as suggested in the PSR. Section 2L2.1 applies specifically to the criminal offense of falsifying federal immigration documents, while § 2B1.1 applies generally to offenses involving deception and fraud. U.S. Sentencing Guidelines §§ 2L2.1, 2B1.1 (Nov. 2016). Section 2B1.1 would also result in a higher sentencing range for the Cingaris: 168–210 months for Rosa, and 108–135 months for Domenico. Only that guideline, the government contended, could account for the totality of the Cingaris’ criminal scheme—their deception of both the federal government and their victims. The Cingaris conceded that § 2B1.1 applied, at least as an initial matter, but contended that § 2L2.1 was the right provision in the end because of § 2B1.1 ’s cross reference. That cross reference, they said, directs the court to apply § 2L2.1 where the conviction conduct establishes the offense of falsifying immigration forms, an offense "specifically covered" by § 2L2.1. See U.S.S.G. §§ 2B1.1(c)(3)(C), 2L2.1.

Agreeing with the government, the Probation Office amended the PSR to recommend sentencing the Cingaris under § 2B1.1 rather than § 2L2.1. The district court also agreed with the government, and sentenced the Cingaris within the higher sentencing range set out in § 2B1.1. "Although making false statements in the immigration applications [was] certainly a component of the mail fraud charges," the district court explained, "the Cingaris’ ultimate goal was to obtain money from their clients." The Cingaris now appeal.

II.

When a party does not object to an issue at sentencing, we review only for plain error. United States v. Beckles , 565 F.3d 832, 842 (11th Cir. 2009). The party raising the issue on appeal has the burden to show that "(1) there is an error; (2) that is plain or obvious; (3) affecting his substantial rights in that it was prejudicial and not harmless; and (4) that seriously affects the fairness, integrity, or public reputation of the judicial proceedings." Id. (punctuation and citation omitted). We review de novo the interpretation and application of the Sentencing Guidelines. United States v. Fox , 926 F.3d 1275, 1278 (11th Cir. 2019).

III.

A.

The Cingaris first argue that the district court erred in holding them jointly and severally liable. But because they did not raise this issue below, the plain error standard applies. "As we have repeatedly recognized, an error cannot meet the ‘plain’ requirement of the plain error rule if it is not clear under current law." United States v. Castro , 455 F.3d 1249, 1253 (11th Cir. 2006) (per curiam) (citation omitted). The Cingaris have failed to make this showing.

As their chief support for the law’s clarity, the Cingaris point to the Supreme Court’s recent decision in Honeycutt v. United States , ––– U.S. ––––, 137 S. Ct. 1626, 198 L.Ed.2d 73 (2017). In Honeycutt , the Court rejected the idea that a defendant can be jointly and severally liable under 21 U.S.C. § 853 "for property that his co-conspirator derived from the crime but that the defendant himself did not acquire." Id. at 1630. Honeycutt, a salaried employee at his brother’s store, sold large amounts of a product that the police had told him could be used to make methamphetamine; he was later convicted of several drug-related crimes. Id. at 1630. The Court held that he could not be jointly and severally liable with his brother for the profits from the illegal sales because § 853 requires forfeiture of " ‘any property constituting, or derived from, any proceeds the person obtained, directly or indirectly, as the result of’ certain drug crimes." Id. at 1630 (quoting 21 U.S.C. § 853 ). "Neither the dictionary definition nor the common usage of the word ‘obtain’ supports the conclusion that an individual ‘...