United States Court of Appeals
For the First Circuit
No. 03-2182
UNITED STATES,
Appellee,
v.
HÉCTOR FLORES-SEDA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Salvador E. Casellas, U.S. District Judge]
Before
Torruella, Lipez, and Howard, Circuit Judges.
Stephen Hrones, with whom Hrones & Garrity was on brief, for
appellant.
German A. Rieckehoff, Assistant United States Attorney, with
whom H.S. Garcia, United States Attorney, and Nelson Pérez-Sosa,
Assistant United States Attorney, were on brief, for appellee.
September 8, 2005
LIPEZ, Circuit Judge. Following a jury conviction on one
count of conspiring to defraud the United States, one count of
insurance fraud, and six counts of mail fraud, the district court
sentenced Héctor Flores-Seda ("Flores") to 51 months in prison
under the then-mandatory United States Sentencing Guidelines.
Flores does not challenge his conviction on appeal. Rather, he
assigns error to the district court's calculation of his sentence
and asserts that, in any event, he is entitled to resentencing in
light of United States v. Booker, 125 S. Ct. 738 (2005). We reject
both claims and affirm his sentence.
I.
The sentencing issues on appeal do not require us to
recount in detail the events that led to Flores's conviction. We
therefore provide only a brief outline of the relevant history.
At all times relevant to this case, Flores owned and
operated an automobile repair shop called "Taller El Poder" in Vega
Baja, Puerto Rico. Between October 1995 and June 2001, Flores
participated in a fraudulent car insurance scheme wherein he and
his co-conspirators staged car crashes and had police officers,
also participants in the scheme, prepare false police reports
documenting the accidents. Through his repair shop, Flores would
then prepare inflated estimates for insurance claims based on the
staged accidents, claiming both the damages sustained in the
accidents and additional damage that did not, in fact, exist. This
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scheme was lucrative. At sentencing, an attorney for a consortium
of defrauded insurance companies testified that the total loss to
the insurance companies was more than $4 million, and that just the
claims attributable to Flores, his shop, and his wife totaled more
than $600,000.
On July 9, 2002, a grand jury returned a multi-count
indictment against Flores and seventeen other individuals,
including one of Flores's employees, an insurance salesman, an
insurance claims adjustor, and numerous police officers, in
connection with the car insurance scheme. Nine of the counts in
the indictment implicated Flores: conspiracy to defraud the United
States, 18 U.S.C. § 371 (Count One), insurance fraud, 18 U.S.C. §
1033 (Count Two), and mail fraud, 18 U.S.C. § 1341 (Counts Three
through Eight and Sixteen). On February 18, 2003, following a ten
day trial, the jury convicted Flores on Counts One, Two, Three
through Seven, and Sixteen, and acquitted him on Count Eight.
Flores was sentenced on July 22, 2003 under the 1998
edition of the United States Sentencing Guidelines. See U.S.S.G.
§ 1B1.11(b)(1) (1998) ("If the court determines that use of the
Guidelines Manual in effect on the date that the defendant is
sentenced would violate the ex post facto clause of the United
States Constitution, the court shall use the Guidelines Manual in
effect on the date that the offense of conviction was
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committed.").1 The district court grouped the counts of conviction
together pursuant to U.S.S.G. § 3D1.2(d), and assigned a base
offense level of 6. Id. § 2F1.1(a).2 Over Flores's objections,
the court then imposed a 10-level increase based on its finding
that the offense involved a loss of more than $500,000, see
U.S.S.G. § 2F1.1(b)(1)(k), a 2-level increase based on its finding
that the offense involved more than minimal planning, see id.
§ 2B1.1(4)(a), and a 4-level increase based on its finding that
Flores was an organizer or leader of an extensive criminal
activity, see U.S.S.G. § 3B1.1(a), for a total offense level of 22.
Based on Flores's criminal history category of I, his guideline
sentencing range was 41 to 51 months. Flores asked the court to
sentence him at the low end of the range on the grounds that he has
two minor children and that his co-defendants -- who pled guilty
rather than proceeding to trial -- received "a sentence very
distant, even to the lower end of this offense level." The
government recommended a sentence at the upper end of the range,
emphasizing that "as far as we can tell, the defendant is still not
repentant." After hearing a victim impact statement by Rafael
Barreto, an attorney for the defrauded insurance companies in a
1
All Guidelines citations in this opinion are to the 1998
edition, unless otherwise noted.
2
Section 2F1.1 "was deleted by consolidation with § 2B1.1
effective November 1, 2001." U.S.S.G. § 2F1.1, historical note
(2004).
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related civil case, the court sentenced Flores to 51 months in
prison, the top of the applicable range, on each count, to run
concurrently. The court also imposed a fine of $5,000 and ordered
Flores to cooperate with Barreto in the related civil case. This
appeal followed.
II.
On appeal, Flores objects to his sentence on two grounds.
First, he assigns error to the district court's finding that the
loss from his fraudulent activities was in excess of $500,000.
Second, he contends that he is entitled to resentencing in light of
Booker. We consider each claim in turn.3
A. Loss calculation
The Guidelines section applicable to Flores's offense of
conviction provides for incremental sentencing increases based on
the amount of the loss due to fraud. See U.S.S.G. § 2F1.1. Based
on testimony by Barreto, the pre-sentence report estimated the
amount of the loss attributable to Flores as being in excess of
$500,000, and thus recommended a 10-level increase to Flores's base
offense level. See id. § 2F1.1(b)(1)(k).
At sentencing, the court asked Barreto to explain his
calculations regarding the "counts and losses attributable to the
3
As we explained in United States v. Antonakopoulos, 399 F.3d
68, 81 (1st Cir. 2005), even post-Booker, "we will continue to
review pre-Booker type claims of Guideline error where it is
plausible that the error committed affected the sentence."
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scheme in which this defendant participated." Barreto testified
under oath that
in the civil complaint that is parallel to the criminal
case, the losses sustained by the insurance companies
actually surpassing right now over $4 million.
Nonetheless, we understand that there might have been a
few schemes, a few conspiracies against the insurance
companies, and therefore, in order to be just, and in
order to be able to sustain or to specify the losses
caused by this defendant, what we did was to address only
those cases and those claims made that were caused
directly by this defendant. We did not include the $4
million because we could not say that all of the claims
were all [attributable] directly to the defendant. . . .
The $600,000 amount that we provided to the probation
officer was the amount that added up all the claims that
had to do with Héctor Flores, with Taller El Poder, and
[with] his wife. Not necessarily that means that they
were in the claims that were included in the indictment.
There were other claims not included in the indictment
that nonetheless were included in the civil complaint
that were attributable to Héctor Flores.
The court asked Barreto to confirm that his testimony was that "the
insurance fraud scheme and claims attributable directly to the
participation by Mr. Flores, his wife, and Taller El Poder, is over
$600,000." Barreto responded that the court was correct.
Flores was then given an opportunity to question Barreto.
He declined, stating that "we are in a total state of non-defense,
so we cannot argue as to that matter." Flores's only comment on
this point was to emphasize that the indictment cited a loss of
just $334,529 and that he had been acquitted on one count, which
would suggest a lower total. In response, the government informed
the court that the amount alleged in the indictment was
attributable only to the counts on which Flores was convicted.
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Even if not covered in the indictment, the government asserted that
the amounts stated by Barreto "are relevant conduct as to this
case." See U.S.S.G. § 1B1.3(a)(2) (defining relevant conduct to
include "all acts and omissions . .. that were part of the same
course of conduct or common scheme or plan as the offense of
conviction").
After hearing Barreto's testimony and arguments from both
sides, the court found that the losses stated by Barreto were
relevant conduct and "sustain[ed] the finding of the probation
officer in the pre-sentence report . . . that this defendant should
be sentenced with losses in excess of $500,000 which is less than
the $600,000 that the victim has supplied to this court and to the
probation officer." On appeal, Flores asserts that this finding
was erroneous. We review the district court's loss calculation for
clear error. See United States v. Antonakopoulos, 399 F.3d 68, 82
(1st Cir. 2005).
Flores attacks the court's loss calculation on several
grounds. He asserts that the government failed to establish a
nexus between all of the losses included in Barreto's estimate and
the conduct for which he was convicted, that it was in Barreto's
interest, because of the pending civil case, to "err on the side of
exaggeration," and that Barreto's calculation included some non-
fraudulent claims filed by Flores. More broadly, Flores also
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contends that "it was not established by a preponderance of the
evidence that the loss exceeded $500,000." We reject these claims.
As we have explained, "[d]etermination of actual loss
need not be precise; '[t]he court need only make a reasonable
estimate of the range of loss, given the available information.'"
United States v. Brandon, 17 F.3d 409, 457 (1st Cir. 1994) (quoting
U.S.S.G. § 2F1.1 cmt. n.8 (1994)). Here, the court relied on an
estimate by a representative of Flores's victims of the losses
based on the "insurance fraud scheme and claims attributable
directly to the participation by Mr. Flores, his wife, and Taller
El Poder." Barreto's testimony that the losses were attributable
to Flores's participation in the insurance fraud scheme established
that they were relevant conduct for sentencing purposes, and Flores
has not offered any evidence to the contrary. See U.S.S.G.
§ 1B1.3(a)(2) (defining "relevant conduct" to include "all acts .
. . that were part of the same course of conduct or common scheme
or plan as the offense of conviction").
Nor are we persuaded by Flores's claim that Barreto's
estimate was unreliable because he had an incentive to exaggerate
the loss or because he included non-fraudulent claims by Flores.
Barreto testified, under oath, that the loss specifically
attributable to Flores's participation in the insurance fraud
scheme was over $600,000. When given the opportunity to question
Barreto regarding his estimate, Flores declined. He made no effort
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to impeach Barreto's testimony, either by raising the possibility
of bias or by questioning him about the inclusion of non-fraudulent
claims, nor did he offer an alternative estimate. "A defendant
dissatisfied with the sentencing court's quantification of the
amount of loss in a particular case must go a long way to
demonstrate that the finding is clearly erroneous." United States
v. Ranney, 298 F.3d 74, 80 (1st Cir. 2002) (internal quotation
marks omitted). In light of Barreto's testimony regarding the
estimated loss to the insurance companies and the absence of any
evidence from Flores to refute Barreto's calculations, we reject
Flores's claim of clear error.
B. Booker claim
In a supplemental brief filed after oral argument in this
case, Flores also claims that he is entitled to resentencing in
light of United States v. Booker, 125 S. Ct. 738, 756-57 (2005),
which held that the Guidelines must be treated as advisory, rather
than mandatory. Because Flores failed to preserve his Booker claim
in the district court, we review it only for plain error.
Antonakopoulos, 399 F.3d at 76. The first two prongs of plain
error review are satisfied by the fact that Flores was sentenced
under the mandatory Guidelines. See id. at 77.4 To be entitled to
4
In his opening brief, filed before the Supreme Court decided
Booker, Flores assigned constitutional error to the district
court's calculation of his sentence based in part on judicial
factfinding -- namely, the court's findings that the scheme
involved more than minimal planning, that Flores was a leader or
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resentencing, however, Flores must also "point to circumstances
creating a reasonable probability that the district court would
impose a different sentence more favorable to the defendant under
the new 'advisory Guidelines' Booker regime." Id. at 75.
Flores argues first that the district court's comments
indicate that it "felt the Guidelines required the adjustments that
were imposed." The specific comments to which he points are the
court's description of various increases to the base offense level
as "warranted" or "authorized" by the Guidelines. This argument is
easily dismissed. Although the court's comments do reflect the
reality that Flores's sentence was shaped by the Guidelines, they
in no way indicate that the court would impose a more favorable
sentence under the advisory Guidelines.
Flores next asserts that he would have received a lower
sentence under the advisory Guidelines because the district court
would have been free to consider two mitigating factors: the fact
that Flores has two minor children relying on him for financial
support, and the fact that many of Flores's co-defendants received
substantially lower sentences than he did, thus leading to a
organizer, and that the loss exceeded $500,000. We subsequently
clarified that the Booker error "is not that a judge (by a
preponderance of the evidence) determined facts under the
Guidelines which increased a sentence beyond that authorized by the
jury verdict or an admission by the defendant; the error is only
that the judge did so in a mandatory Guidelines system."
Antonakopoulos, 399 F.3d at 75. Flores's pre-Booker argument
regarding judicial factfinding is therefore incorrect.
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disparity. Flores brought both of these factors to the district
court's attention, asking it to impose a sentence of 41 months, the
bottom of the applicable Guidelines range, in the interest of
"humanism" and "uniformity." Although the district court did not
comment on Flores's children, it responded with regard to the
sentencing disparity that "the other co-defendants in this case
pled guilty, and negotiated their pleas with the U.S. Attorney, and
the Court had that in mind when it sentenced the defendants in this
case. So it is very difficult to argue uniformity in this case."
The court then sentenced Flores to 51 months in prison, the top of
the applicable Guidelines range. Given the court's decision to
impose a sentence at the top of the Guidelines after being
presented with the only mitigating factors that Flores has
identified on appeal, Flores has not established a reasonable
probability that the court would impose a more favorable sentence
under the advisory Guideline regime. See United States v.
Gonzalez-Mercado, 402 F.3d 294, 304 (1st Cir. 2005) ("When, under
a mandatory guidelines regime, a sentencing court has elected to
sentence the defendant substantially above the bottom of the range,
that is a telling indication that the court, if acting under an
advisory guidelines regime, would in all likelihood have imposed
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the same sentence."). He therefore is not entitled to
resentencing.5
Affirmed.
5
In light of this disposition, Flores's claims regarding the
sentencing procedures to be used on remand are inapposite.
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