United States v. Matos

United States Court of Appeals
For the First Circuit

No. 09-1178

UNITED STATES OF AMERICA

Appellee,

v.

ANTHONY MATOS

Defendant, Appellant,

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Michael A. Ponsor, U.S. District Judge]

Before

Torruella, Circuit Judge,
Souter, Associate Justice,*
and Stahl, Circuit Judge.

Edward J. O'Brien, by Appointment of the Court, for appellant.
Mark T. Quinlivan, Assistant U.S. Attorney, with whom Carmen
M. Ortiz, United States Attorney, was on brief for appellee.

July 7, 2010

*
The Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
 STAHL, Circuit Judge. The United States District Court,

District of Massachusetts sentenced Defendant Anthony Matos to 84

months' imprisonment and four years' supervised release for three

counts of wire fraud and one count of conspiracy to launder money

on October 16, 2006. Matos challenges his sentence in four

respects. First, he argues that his sentence on the wire fraud

counts was illegal because he was sentenced to a term higher than

the statutory maximum for those counts. Next, he contends that his

sentence should be vacated and remanded for resentencing in light

of (1) Amendment 709 to the Sentencing Guidelines (adopted after

Matos was sentenced), which restated the rules for determining when

multiple prior sentences should be counted as one for criminal

history purposes when imposed on the same day; and (2) error

committed by the district court in attributing criminal history

points to certain of his prior sentences that he claims were

excludable under the law. Finally, Matos challenges the

restitution order imposed by the court on the grounds that it

derived from dismissed counts and that it may have incorrectly

included amounts recovered by the victims.

As the government concedes, the district court erred in

imposing a term of four years of supervised release on Matos, and

therefore we vacate this term of supervised release and remand to

the district court to impose a term of supervised release of no

more than three years. Otherwise, we affirm Matos's sentence.

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 I. Facts and Background1

From approximately 1995 through May 2002, a number of

individuals in the Springfield, Massachusetts area conspired to

participate in a land-flipping scheme. Several individuals,

including Matos, purchased distressed properties typically located

in low-income neighborhoods and then sold them at a much higher

price to home buyers, many of whom did not have the financial

strength to qualify for loans. Matos and others worked with

mortgage brokers and real estate appraisers to obtain mortgage

loans for these otherwise unqualified home buyers by submitting

false loan documentation and inflated appraisals to various lending

institutions. Albert Innarelli, a real estate attorney and co-

conspirator, generated false closing documents to facilitate and

conceal the fraud. The conspirators shared in the loan proceeds

they obtained from various lending institutions at the closings of

the flipped properties.

Ultimately, as one might expect, many of the buyers were

unable to pay their mortgage loans and defaulted.

On September 21, 2005, a federal grand jury returned a

sixty-nine count superseding indictment charging Matos and other

co-defendants with wire fraud, in violation of 18 U.S.C. § 1343

1
As Matos was sentenced following a guilty plea, "[w]e distill
the facts from the plea colloquy, the undisputed portions of the
presentence investigation report . . . and the transcript of the
disposition hearing." United States v. Innarelli, 524 F.3d 286,
288 (1st Cir. 2008) (citations and internal quotations omitted).

-3-
(Counts 1 through 68), and conspiracy to launder money, in

violation of 18 U.S.C. §§ 1956(h) and 1957 (Count 69). On May 4,

2006, Matos pleaded guilty to Counts 12, 52, 65, and 69 of the

superseding indictment, and the remaining counts against him were

dismissed.

At Matos's sentencing on October 16, 2006, the court

assessed fifteen criminal history points, which under the

Sentencing Guidelines ("Guidelines") equated to a Criminal History

Category of VI.2 Matos objected to his Criminal History Category,

arguing that it overstated the seriousness of his criminal history

and that he "should be entitled to a departure pursuant to U.S.S.G.

4A1(3)(b) [sic]."3 Finally, the district court calculated Matos's

Total Offense Level to be 22, and with a Criminal History Category

2
Matos was sentenced under the 2001 Guidelines. Under the
2001 Guidelines (as well as the current version), a defendant with
thirteen or more criminal history points is assigned a Criminal
History Category of VI.
3
Though imprecisely cited in his written objections to the
Presentence Report (Dkt. No. 272), we assume that Matos was
referring to U.S.S.G. § 4A1.3, which states, in relevant part:
There may be cases where the court concludes that a
defendant's criminal history category significantly over-
represents the seriousness of a defendant's criminal
history or the likelihood that the defendant will commit
further crimes. . . . The court may conclude that the
defendant's criminal history was significantly less
serious than that of most defendants in the same criminal
history category . . ., and therefore consider a downward
departure from the guidelines.
U.S.S.G. § 4A1.3 (2001).

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of VI, the result was an advisory Guidelines range of 84-105

months.

The district court sentenced Matos to 84 months'

imprisonment on each count, to be served concurrently, to be

followed by forty-eight months of supervised release on each count,

also to be served concurrently. Matos was also ordered to pay

restitution in the amount of $350,000 to Equicredit Corporation

(now Bank of America), and $8,331 to Onell Agueda.

II. Discussion

A. Legality of Sentencing Above the Relevant Statutory Maximum for
the Wire Fraud Counts

1.

Matos first argues that his concurrent sentences of 84

months' imprisonment and four years of supervised release on the

wire fraud counts should be vacated because the superseding

indictment did not allege that the violations affected financial

institutions, and therefore he should have been subjected only to

a statutory maximum of five years' imprisonment and three years of

supervised release on each of those counts.

The Presentence Report ("PSR") stated that Matos was

subject to a statutory maximum term of imprisonment of thirty years

on each of the wire fraud counts and ten years on the money

laundering conspiracy. The PSR also provided that Matos was

subject to a statutory maximum term of supervised release of five

years on the wire fraud counts and three years on the money

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laundering conspiracy count.4 Matos did not object to either of

those calculations, nor did he object to his sentence of 84 months'

imprisonment and four years of supervised release on the ground

that it exceeded the relevant statutory maximums.

Because Matos did not argue below that he was subject to

a statutory maximum term of five years' imprisonment on the wire

fraud counts, we review only for plain error. United States v.

Hilario-Hilario, 529 F.3d 65, 76 (1st Cir. 2008). To prevail under

this standard, Matos "bears the heavy burden of showing (1) that an

error occurred; (2) that the error was clear or obvious; (3) that

the error affected his substantial rights; and (4) that the error

also seriously impaired the fairness, integrity, or public

reputation of judicial proceedings." United States v. Riccio, 529

F.3d 40, 46 (1st Cir. 2008) (citations omitted). This is a burden

which he cannot meet.

Matos contends that his sentence of 84 months'

imprisonment on the wire fraud counts was illegal because the

4
In fact, the PSR set forth two different maximum terms of
supervised release on the wire fraud counts. At one point, it
listed the wire fraud counts as Class B felonies and determined
that, under 18 U.S.C. § 3583(b), the Court could impose a term of
supervised release of not more than five years on those counts.
However, when describing the plea agreement, the PSR stated that
Matos and the government had agreed that the maximum term of
supervised release Matos was facing on the wire fraud counts was
three years. We need not address any impropriety in this
discrepancy as we conclude, in any event, that the court committed
plain error in sentencing Matos to a term of supervised release
above three years.

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superseding indictment did not allege that his wire fraud offenses

affected "financial institutions," as required by Jones v. United

States, 526 U.S. 227 (1999), and that the correct statutory maximum

for those crimes therefore was only five years, not thirty years.

While Matos is correct that the superseding indictment did not

allege that his wire fraud offenses affected financial

institutions, he cannot establish that his concurrent sentences of

84 months constitute plain error.

At the time of the fraud in Matos's case, a wire fraud

conviction invoked a maximum term of imprisonment of five years,

unless the fraud affected a financial institution, in which case

the statutory maximum was thirty years' imprisonment. See 18

U.S.C. § 1343 (2001).5 The government concedes that the

aggravating circumstance for this offense -- whether the crime

"affects a financial institution" -- constitutes an offense element

that must be alleged in the indictment and either admitted by the

defendant or proven to a jury beyond a reasonable doubt. See

United States v. Ubakanma, 215 F.3d 421, 426 (4th Cir. 2000). The

5
18 U.S.C. § 1343 provided, at the time of the offense:
Whoever, having devised or intending to devise any scheme or
artifice to defraud, or for obtaining money or property by means of
false or fraudulent pretenses, representations, or promises,
transmits or causes to be transmitted by means of wire, radio, or
television communication in interstate or foreign commerce, any
writings, signs, signals, pictures, or sounds for the purpose of
executing such scheme or artifice, shall be fined under this title
or imprisoned not more than five years, or both. If the violation
affects a financial institution, such person shall be fined not
more than $1,000,000 or imprisoned not more than 30 years, or both.

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government further concedes that the superseding indictment alleged

that Matos and his co-conspirators "devised a scheme and artifice

to defraud and obtain money from various lending institutions" and

that the term "lending institution," at least on its face, does not

fall within the statutory definition of "financial institution" in

place at the time of the offenses of conviction. See 18 U.S.C. §

20 (2001).6

Matos therefore may be able to show that in sentencing

him in accordance with an aggravating element that was not charged

in the indictment, the district court committed error which was

6
The definition of "financial institution" was as follows:
As used in this title, the term "financial institution"
means --
(1) an insured depository institution (as defined in
section 3(c)(2) of the Federal Deposit Insurance Act);
(2) a credit union with accounts insured by the National
Credit Union Share Insurance Fund;
(3) a Federal home loan bank or a member, as defined in
section 2 of the Federal Home Loan Bank Act (12 U.S.C.
1422), of the Federal home loan bank system;
(4) a System institution of the Farm Credit System, as
defined in section 5.35(3) of the Farm Credit Act of
1971;
(5) a small business investment company, as defined in
section 103 of the Small Business Investment Act of 1958
(15 U.S.C. 662);
(6) a depository institution holding company (as defined
in section 3(w)(1) of the Federal Deposit Insurance Act
[sic];
(7) a Federal Reserve bank or a member bank of the
Federal Reserve System;
(8) an organization operating under section 25 or section
25(a) of the Federal Reserve Act; or
(9) a branch or agency of a foreign bank (as such terms
are defined in paragraphs (1) and (3) of section 1(b) of
the International Banking Act of 1978).

-8-
"clear or obvious"; however, he cannot show that his substantial

rights were affected by that error. Matos's 84-month sentences on

the wire fraud counts were concurrent with the identical 84-month

sentence on the money laundering count, which was within the ten-

year statutory maximum for a violation of the federal money

laundering statute. See 18 U.S.C. § 1957 (2001). Any error,

therefore, was harmless, as we have held in similar circumstances.

See, e.g., United States v. Ziskind, 471 F.3d 266, 271 (1st Cir.

2006) (defendant who argued that his 18-month sentence exceeded the

authorized statutory maximum was not prejudiced because that

sentence ran concurrent with a 235-month sentence imposed on the

same day on an unrelated felon-in-possession charge); cf. United

States v. Marino, 277 F.3d 11, 38 n.10 (1st Cir. 2002) (rejecting

an argument not raised by defendant that "[it] matter[ed] not" to

defendant's term of incarceration that defendant was sentenced to

360 months' imprisonment on two counts when the statutory maximum

for those counts was 240 months because defendant's equivalent

sentence of 360 months on a third count, imposed concurrently, was

appropriate); see also United States v. Ellis, 326 F.3d 593, 599-

600 (4th Cir. 2003) (concluding, under plain error review, that

sentence in excess of statutory maximum authorized for one count

did not affect substantial rights where defendant received valid

equal or longer concurrent sentences on other counts).

-9-
 While we acknowledge Matos's argument that "the District

Court's misunderstanding of the applicable statutory maximum may

have contributed to the length of the sentence the Court impose[d]

and to the Court's refusal to depart downward from the guideline

sentence," we find it to be unpersuasive. The district court made

clear at sentencing that the sentence of 84 months was being guided

not by the applicable statutory maximums, but rather by balancing

the 18 U.S.C. § 3553(a) factors and taking the advisory Guidelines

range of 84-105 months into account. The court noted that Matos's

"very substantial criminal history category" increased his sentence

over the general level of that of his co-defendants. In explaining

the sentence imposed, the court explicitly stated that "my decision

has to be guided by the context of the advisory guidelines, the

considerations set forth in 3553(a) and under those circumstances,

I think that the 84 month sentence is the appropriate sentence

here."7

Additionally, while we are not unmindful of United States

v. Klopf, 423 F.3d 1228 (11th Cir. 2005), which defendant cites for

the proposition that when one sentence of a multiple-count

7
The section 3553(a) factors which courts are required to
consider include "the nature and circumstances of the offense";
"the history and characteristics of the defendant"; "the need for
the sentence imposed . . . to reflect the seriousness of the
offense, to promote respect for the law, and to provide just
punishment for the offense"; and "the kinds of sentence and the
sentencing range established for . . . the applicable category of
offense committed by the applicable category of defendant as set
forth in the guidelines . . . ." 18 U.S.C. § 3553(a).

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"sentencing scheme" is illegal (here, the wire fraud sentences),

the "scheme is disrupted . . . [and] it is appropriate that the

entire case be remanded for resentencing," id. at 1245 (citations

omitted), we are not persuaded. We note that Klopf was decided on

the basis of "established precedent" in the Eleventh Circuit that

"vacating the sentence for one count disrupts the sentencing

package and requires resentencing for all counts of conviction."

Id. at 1246. We are bound by no such precedent here.

Though we find that Matos has not met the plain error

standard with regard to his sentence of imprisonment, the district

court's imposition of a term of four years of supervised release

was, in fact, plain error, as the government concedes. As the

statutory maximum for the wire fraud counts was five years,

inasmuch as the superseding indictment did not allege that the

offenses affected a financial institution, those crimes constitute

Class D felonies under 18 U.S.C. § 3559(a)(4) that are subject to

a maximum term of supervised release of not more than three years

under 18 U.S.C. § 3583(b)(2). Matos's money laundering conspiracy

conviction constitutes a Class C felony under Section 3559(a)(3)

that is also subject to a maximum term of supervised release of not

more than three years under Section 3583(b)(2).

Consequently, as the maximum term of supervised release

for Matos's crimes was three years, we find that Matos's term of

supervised release should be vacated and remanded for the sole

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purpose of the imposition of a new term of supervised release on

all counts that does not exceed three years. See Ziskind, 471 F.3d

at 271-72.

2.

In his reply brief, Matos asks us for the first time to

review the propriety of his money laundering conviction in light of

the Supreme Court's decision in United States v. Santos, 553 U.S.

507, 128 S.Ct. 2020 (2008). Matos claims that he committed no

violation of the money laundering statute, as construed by Santos,

because he engaged in no monetary transaction involving "proceeds"

obtained from a criminal offense (his wire fraud offenses). See 18

U.S.C. §§ 1957(a), 1957(f)(2), and 1957(f)(3).

On a routine basis, we do not consider claims which are

raised for the first time in a reply brief, see, e.g., Esso

Standard Oil Co. (Puerto Rico) v. Rodriguez-Perez, 455 F.3d 1, 6

(1st Cir. 2006), and in any event, it is hardly certain that the

Santos holding would have any application here. We thus decline to

address the merits of Matos's argument.

B. Grouping of Certain of Matos's Prior Sentences for Criminal
History Purposes

We next address Matos's claim that his sentence should be

vacated and remanded so that the district court might consider

whether five of his prior convictions should be grouped under

Amendment 709 to the Guidelines, which has restated the rules for

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determining when multiple crimes are to be counted as one for

criminal history purposes.

As Matos did not argue below that the offenses at issue

should be consolidated, pursuant to Amendment 709 or otherwise, we

apply plain error review.8 See United States v. Ahrendt, 560 F.3d

69, 76 (1st Cir. 2009).

Matos's argument concerns five prior convictions for

which he was sentenced on February 8, 1995, and for which,

collectively, the Probation Office assigned him eleven criminal

history points.9 Amendment 709 to the Guidelines, adopted in 2007

after Matos was sentenced, states, in relevant part:

Prior sentences always are counted separately if the
sentences were imposed for offenses that were separated
by an intervening arrest (i.e., the defendant is arrested
for the first offense prior to committing the second
offense). If there is no intervening arrest, prior
sentences are counted separately unless (A) the sentences
resulted from offenses contained in the same charging
instrument; or (B) the sentences were imposed on the same
day. Count any prior sentence covered by (A) or (B) as
a single sentence.

U.S.S.G. § 4A1.2(a)(2)(2009). Matos argues that if the revised

Guidelines had been in effect at the time of his sentencing, the

8
We note that we have twice vacated and remanded a defendant's
sentence for reconsideration in light of Amendment 709 even in the
absence of plain error. See Ahrendt, 560 F.3d at 80; United States
v. Godin, 522 F.3d 133, 136 (1st Cir. 2008) (per curiam). However,
as we will discuss at greater length below, those cases are
distinguishable on their facts.
9
In fact, it appears from the PSR that Matos was sentenced for
six offenses on February 8, 1995. We will refer here only to those
five which Matos discusses in his brief.

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five offenses for which he was sentenced on February 8, 1995, would

have been deemed to have been one prior sentence for criminal

history purposes because he was sentenced for all five on the same

day without, he claims, an intervening arrest. Therefore, he

argues, we should remand to the district court for resentencing

consistent with our decisions in United States v. Ahrendt, 560 F.3d

69 (1st Cir. 2009), and United States v. Godin, 522 F.3d 133 (1st

Cir. 2008) (per curiam), so that the district court might "consider

the [Sentencing] Commission's current thinking for whatever use it

may be in exercising the court's judgment about the proper

sentence." Godin, 522 F.3d at 136. We find that Ahrendt and Godin

are distinguishable and that remand for resentencing in

consideration of Amendment 709 is not appropriate in this case.

In both Ahrendt and Godin, it was evident that if the

Guidelines as amended in 2007 had been in effect at the time of the

defendant's sentencing, the offenses at issue would have been

counted as one. See Ahrendt, 560 F.3d at 79; Godin, 522 F.3d at

134. In this case, that point is far from clear. The Guidelines

as revised by Amendment 709 explicitly state that prior sentences

always are counted separately if they were imposed for offenses

that were separated by an intervening arrest. In this case, the

PSR indicates that an arrest followed one of the five February 8,

1995, offenses which Matos discusses, the last offense in

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chronological order, and is silent as to whether Matos was arrested

for the other four.10

In both Ahrendt and Godin, we vacated and remanded not

because some error, plain or otherwise, by the district court

required it, but because we thought it "prudent to allow the

[district] court the opportunity to consider the Sentencing

Commission's updated views" in light of Amendment 709. See

Ahrendt, 560 F.3d at 80. Under the facts of this case, we do not

consider that exercise to be a prudent one.

Were we to vacate and remand to provide the district

court an opportunity to reconsider Matos's sentence in light of

Amendment 709, the court would first be required to engage in fact-

finding to determine whether the Amendment applies to Matos, by

10
The first of the offenses for which Matos was sentenced on
February 8, 1995, was violation of probation on a 1993 conviction
for assault by dangerous weapon (four counts) and malicious
destruction of property. For violating his probation, Matos was
sentenced to twenty-two months' imprisonment. The other four
offenses which Matos cites were committed over a period of nearly
30 months preceding February 8, 1995. (1) Operating a motor
vehicle after a suspended license and attaching wrong motor vehicle
plates (92-8451). According to the PSR, the offenses occurred on
July 30, 1992, and Matos was arraigned on December 11, 1992. (2)
Operating a motor vehicle after a suspended license (94-8123). The
PSR indicates that the offense occurred on July 8, 1994, and that
Matos was arraigned on September 15, 1994. (3) An assault and
battery (94-11982) committed on October 22, 1994, for which Matos
was arraigned on October 24, 1994. (4) Operating a motor vehicle
after a revoked license and operating a motor vehicle to endanger
lives and safety (94-12364). The PSR states that the offenses
occurred on November 1, 1994, and that Matos "was placed under
arrest by officers from the Massachusetts State Police after their
arrival on the scene." Matos was arraigned the following day,
November 2, 1994.

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determining whether the offenses for which he was sentenced on

February 8, 1995, were not, in fact, separated by intervening

arrests. Ultimately, it is highly unlikely that Amendment 709

would apply, as the timing of the offenses and arraignments

indicates that the offenses were almost certainly separated by

intervening arrests. While it is theoretically possible that Matos

was arraigned for the four crimes as to which there is no arrest

information in the PSR pursuant to summonses rather than arrests,11

see Mass. R. Crim. P. 6(a)(1), Matos has offered no evidence to

support that conclusion.

We conclude that Godin and Ahrendt do not advocate in

favor of remanding for resentencing in light of Amendment 709, and

so we elect not to do so.

C. Inclusion of Certain of Matos's Prior Sentences for Criminal
History Purposes

Next, Matos argues that the district court erred in

calculating his criminal history by assigning criminal history

points to three of his prior convictions: operating after a

suspended license and attaching wrong motor vehicle plates;

receiving stolen property; and larceny by check. We disagree.

11
We have previously noted, without deciding the issue, that
treating an intervening summons as the functional equivalent of an
intervening arrest for the purposes of U.S.S.G. § 4A1.2 seems
problematic. United States v. Correa, 114 F.3d 314, 316 n.3 (1st
Cir. 1997). We acknowledge the same concern here but, again, do
not reach the issue.

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 Though we would typically review the district court's

interpretation and application of the Guidelines de novo, United

States v. Stoupis, 530 F.3d 82, 84 (1st Cir. 2008), Matos did not

raise this argument below, and so we review only for plain error.

United States v. Vasco, 564 F.3d 12, 22 (1st Cir. 2009). Matos did

object more generally to his criminal history category, arguing

that it "overstate[d] the seriousness" of his criminal history and

that he should be "entitled to a departure pursuant to U.S.S.G.

4A1(3)(b) [sic]." Matos complained that he had "received 7

Criminal History Points for a combination of State misdemeanor, and

motor vehicle offenses, occurring more than 10 years ago." He also

noted that "[t]he receiving stolen property charge concerned a

license plate; the larceny charge was a state misdemeanor,

involving less than $200.00; in each case a nominal fine was

imposed."

The district court correctly construed Matos's objection

as a motion for downward departure. Section 4A1.3, which Matos

cited in his objection, addresses departures from the Guidelines

range, including downward departures, when a defendant's criminal

history category "significantly over-represents the seriousness of

a defendant's criminal history." U.S.S.G. § 4A1.3 (2001). At

sentencing, Matos's counsel expressed concern that seven of Matos's

criminal history points "had to do with what is characterized as

traffic offenses, and the others are two state misdemeanors for

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which he received either a fine, disposition and an order of

restitution." Counsel concluded that portion of his argument to

the court by saying, "I think there should be a departure basis on

the appropriate section of the guidelines. It does permit a Court

to depart if it finds that the criminal history is

overrepresented." Matos did not argue, as he does now, that

certain of his prior sentences should have been completely excluded

under the Guidelines. Consequently, we review the district court's

criminal history calculation only for plain error.

1.

Matos first argues that it was error to include in his

criminal history his prior sentence of operating a motor vehicle

after a suspended license and attaching wrong motor vehicle plates

because he received a sentence of only ten days' imprisonment,

which was suspended, and a term of probation of only 90 days.

U.S.S.G. § 4A1.2(c) states that misdemeanor and petty

offenses are counted towards a defendant's criminal history, but it

excludes a group of enumerated offenses (and offenses "similar to

them") unless the sentence for the offense was a term of probation

of at least one year or a term of imprisonment of at least thirty

days, or the offense was similar to an instant offense. U.S.S.G.

§ 4A1.2(c) (2001). If a misdemeanor offense is not "similar to"

one of the enumerated offenses, then it is counted regardless of

the length of the sentence imposed.

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 Here, Matos's conviction for operating a motor vehicle

after suspended license is clearly "similar to" the offense of

"[d]riving without a license or with a revoked or suspended

license" enumerated in Section 4A1.2(c)(1). U.S.S.G. § 4A1.2(c)(1)

(2001). However, Matos was also convicted of attaching wrong motor

vehicle plates. We find that the district court did not commit

plain error in implicitly concluding that this offense was not

"similar to" any of the Section 4A1.2(c)(1) offenses and assigning

it one criminal history point. Cf. United States v. Caputo, 978

F.2d 972, 977-78 (7th Cir. 1992) (holding that the offense of using

a false driver's license is "categorically more serious" and thus

not similar to the 4A1.2(c)(1) offenses of "driving without a

license or with a revoked or suspended license" and giving "false

information to a police officer"); United States v. Guajardo, 218

Fed. Appx. 294, 297-98, 2007 WL 579914, at **2-3 (5th Cir. Feb. 12,

2007) (concluding that the offense of displaying a counterfeit

inspection sticker was not similar to the offense of "driving

without a license or with a revoked or suspended license"). We

reach no conclusion as to whether the offense of attaching wrong

motor vehicle plates is, in fact, similar to the Section

4A1.2(c)(1) offenses of "driving without a license or with a

revoked or suspended license" or providing "false information to a

police officer," as Matos argues, but merely conclude that the

district court did not plainly err in finding that the offenses

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were not similar and counting the attaching wrong motor vehicle

plates offense toward Matos's criminal history.

2.

Matos also received one criminal history point for the

offense of knowingly receiving stolen property, for which he was

fined $100, and one point for the offense of larceny by check, for

which he was fined $300. Matos argues that because these

convictions resulted only in a fine, they should not have been

included in his criminal history score.12

12
We disagree with Matos's general proposition that a prior
conviction resulting only in a fine cannot count toward a
defendant's criminal history. Matos relies on U.S.S.G. § 4A1.1,
Application Note 4, which states that a sentence to pay a fine does
not, by itself, count as a "criminal justice sentence." U.S.S.G.
§ 4A1.1, Application Note 4 (2001). But that Guideline, by its
terms, is limited to the definition of what constitutes a "criminal
justice sentence" for purposes of a two-point enhancement under
Section 4A1.1(d), and does not support Matos's assertion that any
sentence resulting only in a fine does not count for criminal
history purposes.
Our decision in United States v. Castro, 279 F.3d 30 (1st Cir.
2002), on which Matos also relies, similarly does not support his
position. In that case, we noted that a prior offense "similar to"
one of the offenses enumerated at Section 4A1.2(c)(1) of the
Guidelines (specifically, "[d]isorderly conduct or disturbing the
peace") was properly counted if, pursuant to the terms of the
Guideline, "the sentence was a term of probation of at least one
year." Castro, 279 F.3d at 35. We stated that "[t]he 'at least
one year' requirement imposed by the guidelines, U.S.S.G. §
4A1.2(c)(1)(A), reflects a plausible determination that disorderly
conduct convictions resulting in at least one year of probation are
the type of convictions that are sufficiently serious to be
included in one's criminal history, while such convictions, should
they result only in a fine, are not." Id. Our reasoning in Castro
applies to those offenses which are similar to those enumerated at
Section 4A1.2(c)(1), but as Matos's convictions for receiving
stolen property and larceny by check are not such offenses, Castro
is inapposite.

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 First, as to Matos's conviction for receiving stolen

property, it is not clear from the record whether the district

court counted the offense as a felony or as a misdemeanor, but

under either classification, the court did not commit error. The

Guidelines provide that "[s]entences for all felony offenses are

counted." U.S.S.G. § 4A1.2(c) (2001). A "felony offense" is

defined as "any federal, state, or local offense punishable by

death or a term of imprisonment exceeding one year, regardless of

the actual sentence imposed." U.S.S.G. § 4A1.2(o) (2001). Under

Massachusetts law, the crime of receipt of stolen goods is

punishable for a first offense (if the value of the goods does not

exceed $250, as the PSR states it did not in this case) by

imprisonment of up to two and one-half years. See Mass. Gen. Laws

ch. 266, § 60 (2000). Thus, it would have been proper for the

district court to count Matos's prior conviction for receiving

stolen property as a felony offense under the Guidelines because it

is punishable by a term of imprisonment exceeding one year. See

United States v. Almenas, 553 F.3d 27, 31-32 (1st Cir. 2009)

(finding that district court correctly determined that defendant's

resisting arrest conviction was a "felony offense" under § 4A1.2(c)

because it carried a punishment of up to two and one-half years'

imprisonment under Massachusetts law, and thus was "punishable by

. . . a term of imprisonment exceeding one year").

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 Even if the district court determined that receiving

stolen property is a misdemeanor and not a felony offense under the

Guidelines, it still was not error for the district court to count

it. "Sentences for misdemeanor and petty offenses" are counted if

they are not "similar to" the offenses enumerated in Section

4A1.2(c)(1), and receiving stolen property is not similar to any of

the offenses listed therein.13

Finally, the district court did not plainly err, in

counting Matos's conviction for larceny by check. Matos argues

that this offense is similar to the offense of "[i]nsufficient

funds check" enumerated in Section 4A1.2(c)(1), and thus should not

be counted because the sentence was only a fine rather than "a term

of probation of at least one year or a term of imprisonment of at

least thirty days" as required by Section 4A1.2(c)(1)(A). U.S.S.G.

§ 4A1.2(c)(1)(A) (2001).

13
The following offenses are listed:
Careless or reckless driving[;] [c]ontempt of court[;]
[d]isorderly conduct or disturbing the peace[;] [d]riving
without a license or with a revoked or suspended
license[;] [f]alse information to a police officer[;]
[f]ish and game violations[;] [g]ambling[;] [h]indering
or failure to obey a police officer[;] [i]nsufficient
funds check[;] [l]eaving the scene of an accident[;]
[l]ocal ordinance violations (excluding local ordinance
violations that are also criminal offenses under state
law)[;] [n]on-support[;] [p]rostitution[;] [r]esisting
arrest[;] [t]respassing.

U.S.S.G. § 4A1.2(c) (2001).

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 The district court committed no "clear or obvious" error

in implicitly finding that Matos's offense was not similar to that

of "[i]nsufficient funds check." The commentary to Section 4A1.2

states that "'[i]nsufficient funds check,' as used in §

4A1.2(c)(1), does not include any conviction establishing that the

defendant used a false name or non-existent account." U.S.S.G. §

4A1.2, Application Note 13 (2001). The PSR states that according

to court records, Matos wrote a check on a closed account to the

Ames Department store in the amount of $178. As other circuits

have reasoned, "[a] closed account is a nonexistent account and

distinguishable from an open account having insufficient funds on

deposit to cover a check when presented for payment." United

States v. Wilson, 980 F.2d 259, 262-63 (4th Cir. 1992); see also

United States v. McClain, 176 F.3d 486 (Table), 1999 WL 282446, at

*1 (9th Cir. Apr. 15, 1999) (mem.) (equating a closed account with

a non-existent account for purposes of § 4A1.2, Application Note

13). Thus, the district court did not commit plain error in

counting Matos's conviction for larceny by check, when the account

on which the check was written was a closed account.

D. Restitution

Finally, Matos argues that the restitution orders to

Onell Agueda and Equicredit Corporation should be vacated. Matos

objected to restitution at sentencing, but only on the ground that

the Mandatory Victims Restitution Act ("MVRA") permits restitution

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to individuals, but not to corporations. He did not object to the

restitution order as to Agueda, nor did he argue, as he does here,

that the district court incorrectly calculated the loss amount as

to Equicredit Corporation. Therefore, we again review only for

plain error. See United States v. Theodore, 354 F.3d 1, 8 (1st

Cir. 2003). The restitution order itself we review for abuse of

discretion and subsidiary factual findings for clear error. Id.

1. Restitution to Onell Agueda

Matos argues that the record does not show that he

committed an offense against Agueda, and thus the district court's

order that he pay Agueda restitution should be vacated. We

disagree.

Matos claims that because he is not listed in the PSR as

being involved in the sale 22 Burr Street, the property purchased

by Agueda, or in the distribution of the sale proceeds of the

property, the district court's order of restitution is not

substantiated by the record. While Matos was listed in the

superseding indictment as having been involved in the sale of 22

Burr Street, he notes that the relevant count (Count 57) was

dismissed as part of his plea agreement.

However, pursuant to the MVRA, 18 U.S.C. § 3663A, where

the defendant's criminal conduct includes "an offense that involves

as an element a scheme, conspiracy, or pattern of criminal

activity," a victim is defined as "any person directly harmed by

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the defendant's criminal conduct in the course of the scheme,

conspiracy, or pattern." 18 U.S.C. § 3663A(a)(2) (2008); see

United States v. Acosta, 303 F.3d 78, 86 (1st Cir. 2002) (same,

interpreting identical provision in the Victim and Witness

Protection Act ("VWPA"), 18 U.S.C. § 3663). "In such cases, the

district court may order restitution without regard to whether the

conduct that harmed the victim was conduct underlying the offense

of conviction." Acosta, 303 F.3d at 86-87.

As we explained in United States v. Hensley, 91 F.3d 274

(1st Cir. 1996), when interpreting the identical provision in the

VWPA:

[T]he district court may order restitution to every
victim directly harmed by the defendant's conduct "in the
course of the scheme, conspiracy, or pattern of criminal
activity" that is an element of the offense of
conviction, without regard to whether the particular
criminal conduct of the defendant which directly harmed
the victim was alleged in a count to which the defendant
pled guilty or was even charged in the indictment. Thus,
the outer limits of a VWPA § 3663(a)(2) restitution order
encompass all direct harm from the criminal conduct of
the defendant which was within any scheme, conspiracy,
or pattern of activity that was an element of any offense
of conviction.

Id. at 277 (citations omitted).

Here, Matos pled guilty to three counts of wire fraud, in

violation of 18 U.S.C. § 1343. Because a "scheme or artifice to

defraud" is an element of the wire fraud offenses to which Matos

pled guilty, see 18 U.S.C. § 1343, the district court correctly

applied MWRA § 3663A(a)(2).

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 Matos argues that he engaged in no conduct whatsoever

toward Mr. Agueda, but we find that the district court had reason

to believe that Agueda was a MVRA victim of Matos's conduct. At

sentencing, Matos objected to the district court's consideration of

five properties in determining the amount of loss on the ground

that he had no financial interest in them. The court sustained the

objection. 22 Burr Street was not one of the properties to which

Matos objected. Moreover, while Matos is correct that the PSR does

not list him as having been involved in the sale of 22 Burr Street,

the superseding indictment does state as much.

Thus, we find that Matos has not met his burden of

showing that the district court's order of restitution to Mr.

Agueda was plain error.

2. Restitution as to Equicredit Corporation

Similarly, as to Equicredit, Matos argues that the wire

fraud counts to which he pled guilty did not involve Equicredit as

the lender, and therefore, as the restitution award to Equicredit

derived from dismissed counts, it should be vacated.

As discussed above, this is a case in which under 18

U.S.C. § 3663A(a)(2), a "victim" is defined as one directly harmed

by the defendant's conduct "in the course of the scheme,

conspiracy, or pattern of criminal activity" "without regard to

whether the particular criminal conduct of the defendant which

directly harmed the victim was alleged in a count to which the

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defendant pled guilty." Hensley, 91 F.3d at 277. Here, both the

superseding indictment and the PSR name Equicredit as a victim of

the wire fraud and money laundering conspiracy with which Matos was

charged. The district court properly ordered him to pay

restitution to Equicredit.

Matos makes one final argument: that the district court

did not explain how it arrived at the restitution amount of

$350,000 to Equicredit, and consequently may not have offset any

amounts that Equicredit was able to recover. Matos notes that the

PSR lists the amounts that Equicredit recovered in loan payments

and foreclosures as "unknown." He argues that the case must be

remanded in order to determine the amount of Equicredit's actual

loss and to offset any loss by any amount recouped by Equicredit,

including any resale of the relevant properties at foreclosure.14

But Matos "made no effort to highlight any deficiencies

in the court's calculations" of the restitution order at

14
Matos appears to make this argument as to Agueda as well.
He states that the district court may not have offset the amounts
recovered by "the victims," and therefore we must remand in order
to determine "the amount of actual loss, not the intended loss
incurred by the victims Equicredit and Aguedo [sic], as the result
of Matos' conduct, and to offset any loss by any amount recouped by
the victims . . . ." While the district court may not have
articulated the basis for its order of $8,331 to Mr. Agueda, there
is a clear basis in the record for the order. Agueda's victim
impact statement provides that Agueda incurred a total of $16,662
in out-of-pocket expenses on the 22 Burr Street property. The
restitution order of $8,331 is exactly half that amount. The
district court separately ordered one of Matos's co-defendants,
Michael Bergdoll, to pay the remaining $8,331 to Mr. Agueda in
restitution when Bergdoll was sentenced.

-27-
sentencing, United States v. Curran, 525 F.3d 74, 84 (1st Cir.

2008), and he cannot demonstrate that the restitution order of

$350,000 to Equicredit amounted to plain error. The PSR reflects

that the loss amounts set forth in the superseding indictment for

Equicredit were $4,028,668, and the victim impact statement

submitted by Bank of America listed total losses in the amount of

$4,827,537.65. Under the MVRA, the district court had discretion

to order Matos and his co-defendants to make restitution to

Equicredit and apportion their liability based on their level of

contribution to the total loss, see 18 U.S.C. § 3664(h), and the

district court apparently did so here, ordering Matos to pay

$350,000 in restitution to Equicredit, and ordering several of his

co-defendants to also pay restitution to Equicredit, in amounts

ranging from $1,245,157.44 (Defendant Albert Innarelli) to $10,000

(Defendant Mark McCarthy).15

Though it might have been preferable for the district

court to explain how it arrived at the restitution figure of

$350,000 in Matos's case, we have held that "absolute precision is

not required in calculating restitution under the MVRA," and that

"only a modicum of reliable evidence is required to establish a

15
It appears from the record that the court ordered eight of
the defendants, including Matos, to pay a combined total of
$2,062,015.44 in restitution to Equicredit. We note that this is
far less than the loss amounts listed for Equicredit in either the
superseding indictment or Equicredit's (Bank of America's) victim
impact statement.

-28-
restitution award." United States v. Mahone, 453 F.3d 68, 74 (1st

Cir. 2006) (citations and internal quotations omitted).

Thus, we find that the district court did not commit

plain error in ordering $350,000 in restitution to Equicredit.16

III. Conclusion

For the foregoing reasons, we vacate and remand for

resentencing on the term of supervised release and affirm Matos's

sentence in all other respects.

16
We contrast our holding in this case with our holding in the
appeal of Matos's co-defendant, Albert Innarelli, see Innarelli,
524 at 293-94 (1st Cir. 2008), where we remanded to the district
court to recalculate restitution. In that case, on de novo review,
we noted that the record included calculations by a defense expert
as to the amounts which the lender-victims had recovered through
the resale of the properties at issue after foreclosure. Id. at
293.

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