United States Court of Appeals
For the First Circuit
No. 10-1230
UNITED STATES OF AMERICA,
Appellee,
v.
RAÚL POL-FLORES,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Gustavo A. Gelpí, U.S. District Judge]
Before
Torruella, Siler,* and Howard, Circuit Judges.
Rafael F. Castro Lang for appellant.
Nelson J. Pérez-Sosa, Assistant United States Attorney, with
whom Rosa Emilia Rodríguez-Vélez, United States Attorney, was on
brief for appellee.
April 29, 2011
*
Of the Sixth Circuit, sitting by designation.
Siler, Circuit Judge. Raul Pol-Flores (“Pol”) referred
two investors to Luis Herrero-Rovira (“Herrero”), a friend and
former co-worker. The investors were subsequently defrauded of
their entire $290,000 investment, and Pol personally received
nearly $20,000 of the misappropriated funds. He later was indicted
and convicted by a jury on ten counts of wire fraud, and the
district court sentenced him to 37 months’ imprisonment. He now
appeals both his conviction and sentence. We AFFIRM.
I.
In 2006, two investors met Pol at a property closing.
When they expressed their desire to invest money from the sale, Pol
gave them Herrero’s name and telephone number, describing him as a
friend from when they worked together at a bank.
The investors called Herrero and met with him the week of
the real estate closing. He talked to them about investments and
said those he offered were guaranteed. Herrero explained that
banks in Puerto Rico did not provide much interest and recommended
they invest in Polarco, Inc., an entity he described as an
investment company. The investors committed a total of $290,000
for a five-year period.
Pol was the incorporator and president of Polarco, a for-
profit land development company. He was the only authorized signer
on the account, and when the $290,000 investment was deposited, the
bank contacted him because the amount was inconsistent with typical
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deposits. Pol explained the funds were for carrying out investments
but conceded he was not authorized to engage in such activity. He
subsequently informed the bank he was not going to carry out the
transaction but rather would refund the money.
Herrero then returned the funds to the investors, but
also talked with them about CLIEGG, International (“CLIEGG”) as an
investment option. He stated that the terms for investing in CLIEGG
were the same as the terms for Polarco and that the investment was
guaranteed. They again committed $290,000 in funds to the care of
Herrero, but, despite his assurances, the investors only received
a single interest payment of $3,611.
CLIEGG was incorporated in the British Virgin Islands in
October 2005, and its directors were Herrero, Pol, and a third
unindicted individual. CLIEGG opened its bank account the same day
the $290,000 was deposited and was not authorized to sell
investments in Puerto Rico.
The money deposited in CLIEGG was never used for
investment purposes; rather, the CLIEGG account funded numerous
wire transfers to banks in Puerto Rico totaling $119,072. Herrero
also made a total of $125,000 in cash withdrawals from the CLIEGG
account. Two of the wire transfers totaling almost $20,000 were
made to Pol’s company, Polarco.
Pol was found guilty by a jury on ten counts of wire
fraud. At sentencing, the district court imposed both a two-level
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vulnerable victim enhancement and a twelve-level loss enhancement
against Pol and sentenced him to 37 months’ imprisonment, the
bottom of his guidelines range.
II.
Pol contends there was insufficient evidence presented at
trial to convict him as an aider and abettor to wire fraud.
When conducting a sufficiency review, we proceed de novo,
United States v. Baltas, 236 F.3d 27, 35 (1st Cir. 2001),
determining “whether a rational factfinder could have found each
element of the crime in question beyond a reasonable doubt,” United
States v. Vazquez-Botet, 532 F.3d 37, 59 (1st Cir. 2008).
To be subject to aiding and abetting liability, an
individual must have “in some way associated himself with the
fraudulent scheme and . . . shared the criminal intent of the
principal.” United States v. Serrano, 870 F.2d 1, 6 (1st Cir.
1989). Pol has waived any challenge to the existence of the
underlying wire fraud scheme. We therefore only review and decide
the issue of Pol’s participation in Herrero’s fraudulent activity.
A reasonable jury could have concluded beyond a
reasonable doubt Pol participated in Herrero’s wire fraud scheme
with knowledge and intent to defraud the investors. Pol is the
person who gave the investors Herrero’s name, and Herrero deposited
the initial investment into the Polarco account, for which Pol was
the only authorized signer. Furthermore, Pol was a director of
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CLIEGG, was in the Dominican Republic when the funds were initially
deposited into the CLIEGG account, and received two wire transfers
representing nearly twenty thousand dollars of the investors’
money. Pol also exchanged a total of 345 calls with Herrero over
a six-month period spanning the time of the investment.
III.
Pol next contends the district court erred when it
imposed a two-level vulnerable victim enhancement pursuant to USSG
§ 3A.1(b).
“We review the district court’s interpretation and
application of the Guidelines de novo and its factual findings for
clear error.” United States v. Bailey, 405 F.3d 102, 113 (1st Cir.
2005) (internal quotation marks and citations omitted).
Before imposing a vulnerable victim enhancement under
§3A1.1(b), a court must determine 1) “that the victim of the crime
was vulnerable” and 2) “the defendant knew or should have known of
the victim’s unusual vulnerability.” United States v. Bailey, 405
F.3d 102, 113 (1st Cir. 2005) (internal quotation marks and
citations omitted).
When the district court imposed the enhancement based on
the vulnerability of one of the investors, it explained she was a
senior. It continued
She had just received the money after several
years of trying to resolve the issue of the
inheritance of her husband, who had passed
away. She receives it and she wants to invest
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that money. Those are her life savings, and
she wants to invest that money so she received
the interest and received an income throughout
the rest of her life.
This was a proper application of the enhancement. The
victim lost her investment in a Ponzi scheme to which she was
particularly susceptible based on her advanced age, status as a
widow, difficulty resolving her husband’s estate, and desire to
invest the money to establish an income. She died in 2008, between
the time of the fraud and the trial. Her daughter indicated the
mother’s death was the result of emotional distress brought on from
the loss of her money. Pol could observe she was a senior, knew of
her desire to invest, and through his presence at the land closing
reasonably should have known the circumstances of the sale.
IV.
Pol contends the district court further erred by imposing
a loss enhancement pursuant to USSG § 2B1.1, which provides a
twelve-level enhancement if the amount of the reasonably
foreseeable pecuniary harm is between $200,000 and $400,000. This
extends to reasonably foreseeable acts of others in furtherance of
jointly undertaken criminal activity. United States v. Pizarro-
Berrios, 448 F.3d 1, 6 (1st Cir. 2006).
The $290,000 in losses were reasonably foreseeable. Pol
was a director of CLIEGG and, therefore, knew it did not have a
Puerto Rican investment license. He received almost $20,000 of the
funds in the form of a kickback. A reasonable person would know
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that when a company is not authorized to manage an investment and
pays kickbacks to one of its directors the entire investment sum is
likely to be misappropriated.
V.
Pol finally contends that the district court’s failure to
grant a downward variance renders his sentence substantively
unreasonable.
In reviewing the substantive reasonableness of a
sentence, our inquiry examines “the totality of the circumstances.”
United States v. Stone, 575 F.3d 83, 94 (1st Cir. 2009) (internal
citations and quotation marks omitted). We give deference to the
district court’s determination that the § 3553(a) factors justified
a sentence, and it is not a proper basis for reversal that we would
have sentenced the defendant differently. Id. Rather, “[t]he
linchpin of a [substantively] reasonable sentence is a plausible
sentencing rationale and a defensible result.” United States v.
Martin, 520 F.3d 87, 96 (1st Cir. 2008).
We have previously held “[o]ne ground supporting a below-
guideline sentence could be that the intended loss attributed to
[the defendant] overvalued the seriousness of the offense.” United
States v. Thurston, 456 F.3d 211, 219 (1st Cir. 2006), rev’d on
other grounds, 552 U.S. 1092 (2008). While it is true Herrero
misappropriated the bulk of the investment funds, it was Pol who
connected the investors with Herrero and provided the initial bank
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account for the investment. This crucial assistance made the
fraudulent scheme possible, and, therefore, Pol’s assistance was
not so minor as to render his sentence substantively unreasonable.
We have also held, “[a] sentencing court could plausibly
conclude that extremely divergent sentences would undermine the
accepted notion that similar conduct should be punished in a
somewhat similar manner.” Id. at 219-20. While the court may have
been authorized to grant a variance based on Herrero’s sentence of
probation (because of Herrero’s mental illness), Pol cites no
authority holding that it was required to do so. This therefore
does not render his sentence substantively unreasonable.
The district court also did not abuse its discretion by
failing to give greater weight to Pol’s personal circumstances
pursuant to 18 U.S.C. § 3553(a). Rather, the district court was
entitled to conclude an educated person with a stable family who
does charity work should be sentenced within his guideline range.
AFFIRMED.
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