United States v. Maisonet-González

• Decision Date: 04 May 2015
• Docket Number: No. 13–2003.,13–2003.
• Citation: 785 F.3d 757
• Parties: UNITED STATES of America, Appellee, v. Harry W. MAISONET–GONZÁLEZ, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

785 F.3d 757

UNITED STATES of America, Appellee

v.Harry W. MAISONET–GONZÁLEZ, Defendant, Appellant.

No. 13–2003.

United States Court of Appeals, First Circuit.

May 4, 2015.

Marlene Aponte, on brief for appellant.

John A. Matthews II, Assistant United States Attorney, Rosa Emilia Rodríguez–Vélez, United States Attorney, and Nelson Pérez–Sosa, Assistant United States Attorney, Chief, Appellate Division, on brief for appellee.

Before LYNCH, Chief Judge, TORRUELLA and KAYATTA, Circuit Judges.

Opinion

TORRUELLA, Circuit Judge.

Defendant-appellant Harry W. Maisonet–González (“Maisonet”) pled guilty to conspiracy to commit bank fraud in violation of 18 U.S.C. § 1344. He was sentenced to a fifty-one-month term of imprisonment, at the top of his Guidelines imprisonment range. Maisonet now appeals, challenging the district court's calculation of loss and other aspects of the procedural and substantive reasonableness of his sentence. After careful consideration, we affirm.

I. Facts

Because Maisonet pled guilty, our discussion of the facts is drawn from the change-of-plea colloquy, the Presentence Report (“PSR”), and the transcript of the sentencing hearing. See United States v. Cintrón–Echautegui, 604 F.3d 1, 2 (1st Cir.2010).

Between August 2005 and February 2006, Maisonet, owner of Harry Maisonet Auto Sales and Harry Entertainment Group, conspired to devise a scheme to fraudulently obtain money from Pentagon Federal Credit Union (“Pentagon”) by submitting fraudulent automobile and personal loan applications in the name of third parties, some of them deceased. Specifically, Maisonet opened accounts at Pentagon in the name of third parties and then provided these names to a co-defendant who had access to a database maintained by the Puerto Rico Department of Treasury.¹ Maisonet's co-defendant provided personal information about these third parties to Maisonet, who, in turn, used this information to obtain loans on their behalf without their knowledge. As result of this scheme, Maisonet obtained a total of $445,000 from Pentagon. Maisonet deposited this money in the Harry Maisonet Auto Sales account at Doral Bank,² for which he was the sole account holder.

Pentagon eventually detected the fraud and, in April 2006, filed a civil suit against Maisonet in the Puerto Rico Court of First Instance, San Juan Part, seeking reimbursement of the money he fraudulently obtained. An additional and related state civil suit was filed involving Pentagon, Doral Bank, and Maisonet.³ The parties eventually reached a private settlement agreement which put an end to these two state cases. Pursuant to the terms of the settlement agreement, executed on May 1, 2008, Maisonet paid restitution to Pentagon in the amount of $327,297.32.

Almost two years later, on March 10, 2010, a federal grand jury sitting in the District of Puerto Rico returned a twenty-five count indictment against Maisonet and one co-defendant. Pertinently, Count One charged Maisonet with conspiracy and attempt to defraud a financial institution in violation of 18 U.S.C. § 1344(1) and (2).

On June 3, 2011, Maisonet pled guilty to Count One of the Indictment, pursuant to a plea agreement. In the plea agreement, the parties calculated a total offense level of fourteen, broken down as follows: a base offense level of seven pursuant to the United States Sentencing Guidelines (“U.S.S.G.”) § 2B1.1(a)(1) ; an eight-level increase pursuant to U.S.S.G. § 2B1.1(b)(1)(E) because the amount of loss was more than $70,000 but did not exceed $120,000; a two-level increase pursuant to U.S.S.G. § 2B1.1(b)(2)(A) because the offense involved between ten and forty-nine victims; and a three-level decrease pursuant to U.S.S.G. § 3E1.1(a) and (b) due to Maisonet's timely acceptance of responsibility. The parties, which did not stipulate to Maisonet's Criminal History Category, ultimately recommended a sentence of time served, six months of home detention, three years of supervised release, and two hundred hours of unpaid community service. For its part, the government agreed to request the dismissal of the remaining counts.

The PSR, which was disclosed to the parties on February 17, 2012, calculated a total offense level of twenty. The difference between the total offense level calculated in the PSR and the one calculated by the parties in their plea agreement stemmed from the U.S.S.G. § 2B1.1(b)(1) increase for the victim losses attributable to Maisonet's conduct. The PSR used Pentagon's total loss of $445,000 and, thus, applied a fourteen-level increase, as opposed to the parties' calculation which discounted from Pentagon's total loss the amount restituted by Maisonet pursuant to the settlement agreement reached in the state court civil litigation, resulting in only an eight-level increase. The probation officer stated in the PSR that the total loss amount should be used in determining the applicable level increase under U.S.S.G. § 2B1.1(b)(1) because Maisonet waited until after Pentagon (the victim) had learned of the fraud to make any restitution. In addition, according to the PSR, Maisonet had a Criminal History Category of III, because he had two prior convictions and he committed the instant offense while on probation for one of his previous convictions.

On July 30, 2012, Maisonet filed his sentencing memorandum, which included objections to the PSR. Specifically, he objected to the victim losses attributable to his conduct and argued that his circumstances warranted a departure. Maisonet asserted that, because he restituted $327,297.32 before he was indicted or was aware he was being investigated by the government, the restitution should have been deducted from the loss calculation, leaving an outstanding loss of $117,703. The probation officer responded and reiterated his conclusion that the total loss should be used to calculate the offense level increase.

The sentencing hearing was held on July 24, 2013. There, Maisonet once again argued that the amount he previously restituted should be deducted from the loss amount calculation for sentencing purposes. He also encouraged the court to consider a non-Guidelines sentence and follow the recommendations made in the parties' plea agreement. The court rejected Maisonet's contentions. It first noted that it was not bound by the stipulation made by the government in the parties' plea agreement. The court then refused to discount any restitution previously made by Maisonet because Pentagon had detected the offense long before Maisonet began to make restitution, and because any restitution was not voluntary, but rather was made due to the settlement agreement in the civil cases. Ultimately, the court calculated a total offense level of twenty, which broke down the same way as in the PSR: a base offense level of seven pursuant to U.S.S.G. § 2B1.1(a)(1) ; a fourteen-level increase pursuant to U.S.S.G. § 2B1.1(b)(1)(H) because the amount of loss was more than $400,000 but did not exceed $1,000,000; a two-level increase pursuant to U.S.S.G. § 2B1.1(b)(2)(A) because the offense involved between ten and forty-nine victims; and a three-level decrease pursuant to U.S.S.G. § 3E1.1(a) and (b) due to Maisonet's timely acceptance of responsibility. The court also determined that Maisonet had a Criminal History Category of III, that he had a series of prior arrests and two prior criminal convictions, and that Maisonet committed the instant offense while on probation for a sentence imposed in 2004,⁴ in clear disregard for the law. The total offense level of twenty and the Criminal History Category of III yielded a Guidelines sentencing range of forty-one to fifty-one months of imprisonment.

The district court also noted that it did not see any indication of repentance by Maisonet. It found that Maisonet tried to minimize his participation during his allocution even though the fraudulent scheme, which was very well-planned and articulated, was Maisonet's idea and he was the main player; Maisonet paid others to help him commit the fraud; and the checks from Pentagon were deposited into an account over which Maisonet had the sole control. The district court stated that Maisonet “throughout his life has displayed a conduct in which he has managed to get away with whatever he wants, and that his conduct reflects so,” and “even his demeanor has betrayed him here in court.”

After considering the plea agreement, the advisory Guidelines, the sentencing factors in 18 U.S.C. § 3553(a) —especially Maisonet's history and characteristics, the need to promote adequate correctional treatment, deterrence, and respect for the law—the court concluded that Maisonet's blatant disregard for the law and the seriousness of the offense warranted a sentence at the higher end of the Guidelines range. Accordingly, Maisonet was sentenced to an imprisonment term of fifty-one months, five years of supervised release, a forfeiture order in the amount of $89,994.22,⁵ and a monetary assessment fee of $100. This appeal followed.⁶

II. Discussion

Maisonet challenges both the procedural and substantive reasonableness of his sentence. He contests the “calculation of loss” component of his total offense level, which he claims resulted in an incorrect total offense level of twenty instead of fourteen, and thus a higher Guidelines sentencing range. Maisonet also claims that the district court abused its discretion by sentencing him at the higher end of his Guidelines based on his prior criminal record and lack of remorse. He argues that his prior criminal record was already contemplated in his Criminal History Category and, thus, considering his prior criminal record again as part of the 18 U.S.C. § 3553(a) sentencing factors constituted “double counting.” He also alleges that the court's perception of a lack of remorse is not supported by the record. Finally, Maisonet posits that his sentence was “greater than necessary” and that the district court did not “acknowledg[e] the combination of factors that could justify”...