United States Court of Appeals
For the First Circuit
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No. 99-2204
UNITED STATES of AMERICA,
Appellee,
v.
ROLANDO SOLARES,
a/k/a Miguel Gamez,
a/k/a Joes Armento Vasquez,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Mary M. Lisi, U.S. District Judge]
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Before
Boudin, Lynch, and Lipez,
Circuit Judges.
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Barry S. Pollack, with whom Dechert Price & Rhoads was on brief,
for defendant-appellant.
Donald C. Lockhart, Assistant U.S. Attorney, with whom Margaret
E. Curran, U.S. Attorney, and Terrence P. Donnelly, Assistant U.S.
Attorney, were on brief, for appellee.
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December 29, 2000
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LYNCH, Circuit Judge. Ten members of a conspiracy
defrauded two banks through a counterfeit check cashing scheme.
Defendant Rolando Solares was among them, and appeals from three
aspects of his sentence following his guilty plea.
Solares and the others obtained counterfeit payroll
checks that appeared to be issued by A & H Manufacturing, a
business based in Rhode Island. The conspirators also obtained
counterfeit identification cards in the names of the payees
listed on the counterfeit checks. Acting alone and in groups of
two or three, the conspirators then quickly cashed 224 of these
counterfeit checks at fifteen different Rhode Island branches of
Citizens Bank by using the false identification. This scheme
took place over three days, from Friday, February 26, 1999,
through Sunday, February 28, 1999. This took advantage of the
fact that the company, A & H, was closed for the weekend and so
Citizens Bank was unable to contact the business to verify the
authenticity of any of the checks. The total loss to Citizens
was $87,586.80.
In a second round, an identical scheme was employed to
defraud Fleet Bank, except this time a new company was used, the
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Cavicchio Greenhouses. The total loss to Fleet was documented
to be $20,069.85.
Solares pled guilty to bank fraud and conspiracy. See
18 U.S.C. § 1344 (bank fraud); 18 U.S.C. § 371 (conspiracy to
commit bank fraud). There were nine co-defendants. On appeal,
Solares argues three objections to his sentence. He says that
the district court erred (1) in making a four level upward
adjustment on the basis that Solares was a leader and organizer,
and in not considering instead a two level adjustment on a
finding that he played only a managerial or supervisory role;
(2) in ordering restitution of $107,656.65 for all losses from
the conspiracy; and (3) in ordering that the defendant remain
outside the United States if he was deported by the INS. We
take each argument in turn.
Upward Adjustments
The Pre-Sentence Report recommended that Solares
receive a four level upward adjustment for leadership and as an
organizer under U.S.S.G. § 3B1.1(a). The PSR recommendation was
based on the fact that Solares recruited co-defendant Luis
Avelar and organized the out-of-state defendants as part of the
second phase of the conspiracy. Solares's counsel filed no
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objection to the PSR and at sentencing said that he was in
agreement with the factual report as well as the Sentencing
Guidelines computations in the PSR.
The government says that by such agreement, the
defendant forfeited or waived his right to challenge the upward
adjustment. We choose not to explore again the differences
between forfeiture and waiver but will instead assume arguendo
that Solares should have the benefit of plain error review. See
United States v. Olano, 507 U.S. 725, 732 (1993).
The defendant’s main argument is that the court did not
make sufficient findings to support its conclusions. The
court’s findings were that Solares recruited other members of
the conspiracy and that he took a greater share in the proceeds
of the criminal activity. The defendant denies that there is
evidence he took a greater share of the proceeds and says that
the evidence showed only that he recruited defendant Avelar.
From the record and the PSR, it is clear that Solares was the
only Providence-based defendant, apart from defendant Avelar.
Solares recruited defendant Avelar in the second phase. It is
reasonable to infer that Solares was the one familiar with the
Providence area and with the local bank branches, that he was in
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charge of the operations, and that he instructed the out-of-
state defendants about the logistics of the second phase of the
operation. Telephone records show that seven phone calls were
placed by out-of-state defendants to his residence just before
the second phase began. It is reasonable to infer that Solares
recruited the others, just as he had recruited Avelar. Thus,
many of the seven factors we have identified to show whether a
defendant qualifies as an organizer or leader were met. See
United States v. Robbio, 186 F.3d 37, 45 (1st Cir. 1999)
(listing factors), cert. denied, 120 S. Ct. 602 (2000). The
record thus supports the district court’s determination, and
there is no error.
Where the defendant did not challenge the PSR, we will
not entertain the defendant's final argument that the court
failed to state adequately in open court the reasons for its
imposition of the particular sentence. The court was on no
notice that there was any issue as to the court’s statement of
reasons, and the defendant, who created that situation, cannot
gain advantage from it.
Amount of the Restitution Award
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Solares objects to the restitution order, which
requires him to pay back the entire loss to the two banks.
Under the Victim and Witness Protection Act, 18 U.S.C. §§
3663(a), 3664(a), restitution awards are limited to "the loss
caused by the specific conduct that is the basis of the offense
of conviction." Hughey v. United States, 495 U.S. 411, 413
(1990). Under the VWPA, "in the case of 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 the defendant’s criminal conduct in the course of the
scheme, conspiracy, or pattern" 18 U.S.C. § 3663(a)(2). We
have held that a defendant in a conspiracy is liable for all
reasonably foreseeable losses caused to the victims by the
conspiracy. See United States v. Collins, 209 F.3d 1, 4 (1st
Cir. 1999).
Once again, as to this issue, Solares filed no
objection to the PSR, and indeed said that he affirmatively
agreed with the facts and Sentencing Guidelines calculations in
the PSR. Again, we give him the benefit of plain error review.
For the reasons stated above, it was quite reasonable for the
district court to conclude that this was a well organized
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conspiracy, and that Solares himself organized and was deeply
involved in it. Thus, he could have reasonably foreseen the
losses at issue. There was no error.
Condition of Supervised Release
Solares argues that the district court erred at
sentencing when it ordered, as a condition of supervised
release, that if Solares were deported, he was to remain outside
the U.S. for the entire term of his supervised release. Again
he failed to object to this condition, and review is at most for
plain error.
Solares concedes a key distinction here. While we have
held that a district court may not order a defendant to be
deported as a condition of supervised release, United States v.
Sanchez, 923 F.2d 236, 237 (1st Cir. 1991), the court may, if
the defendant is deported, provide, in the words of the statute,
"as a condition of supervised release, that he be deported and
remain outside the United States," 18 U.S.C. § 3583(d).
Solares argues first that under Sanchez, this court’s
interpretation of § 3583(d) indicates that it is not to disturb
the power of the Executive Branch. That is an overreading of
Sanchez, which does not prohibit the order at issue here. His
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next argument is that to the extent that the statute authorizes
the type of order issued here, the statute violates the
separation of powers doctrine. We do not see why, and the point
is not argued, and so is waived. Solares also makes a vague due
process claim which again we reject as not having been argued
and as facially appearing to have no merit. To the extent
Solares is raising a hypothetical future concern about the
effect of the court order if the INS were willing to readmit him
to the country, that issue can be faced later. If the district
court order stood as an obstacle at that time, a point on which
we express no opinion, Solares would be free then to ask for a
modification.
For these reasons, the sentence is affirmed in all
pertinent respects.
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