United States v. Rodriguez

• Decision Date: 15 May 2014
• Docket Number: No. 10–12065.,10–12065.
• Citation: 751 F.3d 1244
• Court: U.S. Court of Appeals — Eleventh Circuit
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Nelida RODRIGUEZ, Defendant–Appellant.

751 F.3d 1244

UNITED STATES of America, Plaintiff–Appellee,

v.Nelida RODRIGUEZ, Defendant–Appellant.

No. 10–12065.

United States Court of Appeals, Eleventh Circuit.

May 15, 2014.

Anne R. Schultz, Wifredo A. Ferrer, U.S. Attorney, Lois A. Foster–Steers, Ryan Dwight O'Quinn, Kathleen M. Salyer, for Plaintiff–Appellee.

Richard Carroll Klugh, Jr., Attorney at Law, Miami, FL, for Defendant–Appellant.

Appeal from the United States District Court for the Southern District of Florida. D.C. Docket No. 1:09–cr–20628–DLG–3.

Before MARCUS, Circuit Judge, and COOGLER ^* and BOWEN, ^** District Judges.

COOGLER, District Judge:

I. Introduction

This appeal presents several issues arising from the seventy-month prison sentence of Defendant Nelida Rodriguez (“Rodriguez”) following her guilty plea to conspiracy to commit mail and wire fraud, 18 U.S.C. § 1349; mail fraud, 18 U.S.C. §§ 1341 and 2; and wire fraud, 18 U.S.C. §§ 1343 and 2. She argues, first, that her guilty plea violated her constitutional rights and was not knowing and voluntary. Her basis for this argument is that she told the district judge she suffered from a mental illness, consulted with her attorney multiple times, and did not receive the full protections of Federal Rule of Criminal Procedure 11 (“Rule 11”). She argues, second, that we should vacate and remand for re-sentencing because the district court applied unsupported sentencing enhancements and applied the incorrect legal standard when denying a minor role reduction. Finally, she contends that the district court's restitution award lacked evidentiary support, and that the delay of two years between her sentencing and the amended judgment ordering restitution removed jurisdiction from the district court to order restitution and violated her due process rights.

After careful review of the record and the briefs of the parties, and having the benefit of oral argument, we affirm Rodriguez'sguilty plea, sentence, and the restitution order.

II. Background

a. Facts ¹

A mortgage fraud scheme was operated from June 2005 through March 2007 involving Rodriguez and other defendants. As part of the scheme, numerous fraudulent loan applications were submitted to lenders across the United States in order to obtain loans on properties in Miami–Dade County and Broward County, Florida. As a result of the scheme, several lenders were caused to lose significant sums of money.

Magile Cruz (“Cruz”), the leader and organizer of the scheme, owned and operated Star Lending Mortgage, State Mortgage Lending, Sherley Title Services, Doral Title Services, and Professional Title Express. Cruz would identify residential properties for sale through her mortgage brokerage and mortgage lending businesses. She and others would then prepare on behalf of “straw buyers” fraudulent mortgage loan applications. The applications included false employment verifications, pay stubs, income and funds on deposit verifications, and Internal Revenue Service forms. In addition, some of the co-conspirators would recruit and pay individuals to pose as buyers and to ostensibly participate in the purchase of the selected properties. These straw buyers had no intention of residing in the purchased properties but made contrary representations to the lenders. Cruz and her co-conspirators paid the straw buyers $5,000 for every property on which their credit was used. In addition, as part of the fraudulent loan documentation submitted to the lenders, Cruz and the co-conspirators would represent themselves to be agents for title insurance companies and falsely claim the subject property to be covered by title insurance.

Lenders, after clearing the loans for closing, would forward the funds via wire, from outside the state of Florida, to companies owned and controlled by Cruz and her co-conspirators located in Florida. The lenders would then send various mortgage documents which included the Good Faith Estimate, Servicing Agreement, and RESPA Compliance documentation to the straw buyers via the United States Postal Service.

Finally, as part of the scheme to defraud, Cruz and her co-conspirators filed change of address forms with the United States Postal Service on behalf of the straw buyers. The forms changed the straw buyers' addresses from the loan properties to a P.O. Box under the control of Cruz and her co-conspirators. By submitting the change of address forms on behalf of the straw buyers, Cruz and her co-conspirators concealed from the individuals actually living at the addresses that their properties had been fraudulently sold.

Cruz and her co-conspirators then made payments on the fraudulently obtained mortgages via checks and money orders in order to keep the mortgage loans afloat until the properties could be “resold,” often to another straw buyer. Ultimately Cruz ceased making payments on the properties, causing them to go into default and some into foreclosure.

Rodriguez, a friend of Cruz, worked for her at one of her companies and was listed as President of Professional Title Express, another of Cruz's companies. At Cruz's request, Rodriguez opened two P.O. Boxes in Doral, Florida, to which mortgage-related documents were redirected via change of address forms in order to avoid detection of the fraud. Rodriguez also made monthly mortgage payments on mortgages in straw buyers' names to lenders by checks drawn on her own account at Union Planters Bank. One straw buyer identified Rodriguez as the person who delivered her check as payment for the use of her credit, while another straw buyer identified Rodriguez as the person who went to the bank and returned with money to pay him for his participation in the scheme.

Rodriguez, herself, acted as a straw buyer for the “purchase” of a property located at 10224 Northwest 130 Street, Hialeah Gardens, Florida, receiving $12,000 for the use of her credit. Rodriguez was also the purported seller of property in a fraudulent transaction involving her husband, co-defendant Pedro Huezo.

b. Procedural History

On July 23, 2009, a Southern District of Florida grand jury returned a twenty-count indictment, charging Rodriguez and eighteen co-defendants with participating in the above-described mortgage fraud scheme. On January 9, 2010, Rodriguez pled guilty to Count One, conspiracy to commit mail and wire fraud, 18 U.S.C. § 1349; Count Two, mail fraud, 18 U.S.C. §§ 1341 and 2; and Count Twelve, wire fraud, 18 U.S.C. §§ 1343 and 2. There was no oral or written plea agreement.

According to her PSI, Rodriguez's base offense level was seven.² The PSI asserted that the fraudulent transactions resulted in over $19 million being lost by at least twenty-three lenders. As such, the PSI increased the base offense level by twenty levels, pursuant to U.S.S.G. § 2B1.1(b)(1)(K), based upon a loss of more than $7 million and less than $20 million. The offense level was further increased by two levels, pursuant to section 2B1.1(b)(2)(A)(i), because the offense involved ten or more victims, and another two levels, pursuant to section 2B1.1(b)(10)(C), because the offense involved the use of sophisticated means. Finally, it was increased by three levels, pursuant to section 3B1.1(b), because of Rodriguez's role in the offense as a manager or supervisor, but then decreased by three levels, pursuant to section 3E1.1(a) and (b), for acceptance of responsibility. As a result, Rodriguez was assigned a total offense level of thirty-one, which when combined with a criminal history category of I, resulted in a guideline sentencing range of 108 to 135 months' imprisonment.

Rodriguez objected to the PSI on several grounds. She argued that she was not paid $60,000 for a transaction involving her husband, that the loss amount attributed to her was overstated, and that she was not a supervisor but instead played a minor role in the scheme.

The district court conducted Rodriguez's sentencing hearing over the course of two days, at which time Rodriguez made only two objections: one based upon the enhancement for her role in the offense and the other based upon the enhancement for the loss amount attributable to her. Along with her objection to the supervisory role enhancement, Rodriguez also moved for a two-level minor role reduction pursuant to U.S.S.G. § 3B1.2(b). At sentencing, the government argued that the loss amount applicable to Rodriguez was $12,024,168.03, deriving this figure by assigning a loss-value to each of the properties connected to her. After weighing the extensive evidence including hours of testimony and argument, the district court sustainedRodriguez's objection to the supervisory role enhancement but denied her request for a two-level minor role reduction, and determined that the loss attributable to Rodriguez was over $12 million. The court recalculated the total offense level at twenty-eight, rather than thirty-one, resulting in a sentencing range of seventy-eight to ninety-seven months' imprisonment. However, the court determined that a sentence below the guideline range was appropriate to prevent a disparity in sentencing among other co-conspirators as well as Cruz. The court noted that Cruz, who had been indicted in a separate case, had been held responsible for less than $7 million. Rodriguez was ultimately sentenced to seventy months' imprisonment as to each count with each count to run concurrently, and a three year term of supervised release following her imprisonment.

At the conclusion of the sentencing hearing, the court stated that “mandatory restitution is appropriate,” but noted that the victims' losses were not yet ascertainable and informed the parties that it would set a date for the final determination of restitution “not to exceed ninety days after sentencing.” (District Court Docket Entry (“D.E.”) 734 at 87:13–22.) When the court entered its judgment on April 30, 2010, it noted that “the determination of restitution is deferred until July 28, 2010” at which time an amended judgment would be...