United States v. Maisonet-González

United States Court of Appeals
For the First Circuit

No. 13-2003

UNITED STATES OF AMERICA,

Appellee,

v.

HARRY W. MAISONET-GONZÁLEZ,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

[Hon. Aida M. Delgado-Colón, U.S. District Judge]

Before

Lynch, Chief Judge,
Torruella and Kayatta, Circuit Judges.

Marlene Aponte, on brief for appellant.
John A. Matthews II, Assistant United States Attorney, Rosa
Emilia Rodríguez-Vélez, United States Attorney, and Nelson Pérez-
Sosa, Assistant United States Attorney, Chief, Appellate Division,
on brief for appellee.

May 4, 2015
 TORRUELLA, Circuit Judge. Defendant-appellant Harry W.

Maisonet-González ("Maisonet") pled guilty to conspiracy to commit

bank fraud in violation of 18 U.S.C. § 1344. He was sentenced to

a fifty-one-month term of imprisonment, at the top of his

Guidelines imprisonment range. Maisonet now appeals, challenging

the district court's calculation of loss and other aspects of the

procedural and substantive reasonableness of his sentence. After

careful consideration, we affirm.

I. Facts

Because Maisonet pled guilty, our discussion of the facts

is drawn from the change-of-plea colloquy, the Presentence Report

("PSR"), and the transcript of the sentencing hearing. See United

States v. Cintrón-Echautegui, 604 F.3d 1, 2 (1st Cir. 2010).

Between August 2005 and February 2006, Maisonet, owner of

Harry Maisonet Auto Sales and Harry Entertainment Group, conspired

to devise a scheme to fraudulently obtain money from Pentagon

Federal Credit Union ("Pentagon") by submitting fraudulent

automobile and personal loan applications in the name of third

parties, some of them deceased. Specifically, Maisonet opened

accounts at Pentagon in the name of third parties and then provided

these names to a co-defendant who had access to a database

maintained by the Puerto Rico Department of Treasury.1 Maisonet's

1
Maisonet obtained the names for the deceased third parties by
going through newspaper obituaries.

-2-
co-defendant provided personal information about these third

parties to Maisonet, who, in turn, used this information to obtain

loans on their behalf without their knowledge. As result of this

scheme, Maisonet obtained a total of $445,000 from Pentagon.

Maisonet deposited this money in the Harry Maisonet Auto Sales

account at Doral Bank,2 for which he was the sole account holder.

Pentagon eventually detected the fraud and, in April

2006, filed a civil suit against Maisonet in the Puerto Rico Court

of First Instance, San Juan Part, seeking reimbursement of the

money he fraudulently obtained. An additional and related state

civil suit was filed involving Pentagon, Doral Bank, and Maisonet.3

The parties eventually reached a private settlement agreement which

put an end to these two state cases. Pursuant to the terms of the

settlement agreement, executed on May 1, 2008, Maisonet paid

restitution to Pentagon in the amount of $327,297.32.

Almost two years later, on March 10, 2010, a federal

grand jury sitting in the District of Puerto Rico returned a

twenty-five count indictment against Maisonet and one co-defendant.

Pertinently, Count One charged Maisonet with conspiracy and attempt

2
On February 27, 2015, Doral Bank was closed by the Office of the
Commissioner of Financial Institutions of Puerto Rico, which
appointed the Federal Deposit Insurance Corporation as receiver.
See http://www.fdic.gov/news/news/press/2015/pr15024.html.
3
These civil actions were filed under Civil Nos. KDP2006-0508 and
KPE2006-1851.

-3-
to defraud a financial institution in violation of 18 U.S.C.

§ 1344(1) and (2).

On June 3, 2011, Maisonet pled guilty to Count One of the

Indictment, pursuant to a plea agreement. In the plea agreement,

the parties calculated a total offense level of fourteen, broken

down as follows: a base offense level of seven pursuant to the

United States Sentencing Guidelines ("U.S.S.G.") § 2B1.1(a)(1); an

eight-level increase pursuant to U.S.S.G. § 2B1.1(b)(1)(E) because

the amount of loss was more than $70,000 but did not exceed

$120,000; a two-level increase pursuant to U.S.S.G. § 2B1.1(b)

(2)(A) because the offense involved between ten and forty-nine

victims; and a three-level decrease pursuant to U.S.S.G. § 3E1.1(a)

and (b) due to Maisonet's timely acceptance of responsibility. The

parties, which did not stipulate to Maisonet's Criminal History

Category, ultimately recommended a sentence of time served, six

months of home detention, three years of supervised release, and

two hundred hours of unpaid community service. For its part, the

government agreed to request the dismissal of the remaining counts.

The PSR, which was disclosed to the parties on

February 17, 2012, calculated a total offense level of twenty. The

difference between the total offense level calculated in the PSR

and the one calculated by the parties in their plea agreement

stemmed from the U.S.S.G. § 2B1.1(b)(1) increase for the victim

losses attributable to Maisonet's conduct. The PSR used Pentagon's

-4-
total loss of $445,000 and, thus, applied a fourteen-level

increase, as opposed to the parties' calculation which discounted

from Pentagon's total loss the amount restituted by Maisonet

pursuant to the settlement agreement reached in the state court

civil litigation, resulting in only an eight-level increase. The

probation officer stated in the PSR that the total loss amount

should be used in determining the applicable level increase under

U.S.S.G. § 2B1.1(b)(1) because Maisonet waited until after Pentagon

(the victim) had learned of the fraud to make any restitution. In

addition, according to the PSR, Maisonet had a Criminal History

Category of III, because he had two prior convictions and he

committed the instant offense while on probation for one of his

previous convictions.

On July 30, 2012, Maisonet filed his sentencing

memorandum, which included objections to the PSR. Specifically, he

objected to the victim losses attributable to his conduct and

argued that his circumstances warranted a departure. Maisonet

asserted that, because he restituted $327,297.32 before he was

indicted or was aware he was being investigated by the government,

the restitution should have been deducted from the loss

calculation, leaving an outstanding loss of $117,703. The

probation officer responded and reiterated his conclusion that the

total loss should be used to calculate the offense level increase.

-5-
 The sentencing hearing was held on July 24, 2013. There,

Maisonet once again argued that the amount he previously restituted

should be deducted from the loss amount calculation for sentencing

purposes. He also encouraged the court to consider a non-

Guidelines sentence and follow the recommendations made in the

parties' plea agreement. The court rejected Maisonet's

contentions. It first noted that it was not bound by the

stipulation made by the government in the parties' plea agreement.

The court then refused to discount any restitution previously made

by Maisonet because Pentagon had detected the offense long before

Maisonet began to make restitution, and because any restitution was

not voluntary, but rather was made due to the settlement agreement

in the civil cases. Ultimately, the court calculated a total

offense level of twenty, which broke down the same way as in the

PSR: a base offense level of seven pursuant to U.S.S.G.

§ 2B1.1(a)(1); a fourteen-level increase pursuant to U.S.S.G.

§ 2B1.1(b)(1)(H) because the amount of loss was more than $400,000

but did not exceed $1,000,000; a two-level increase pursuant to

U.S.S.G. § 2B1.1(b)(2)(A) because the offense involved between ten

and forty-nine victims; and a three-level decrease pursuant to

U.S.S.G. § 3E1.1(a) and (b) due to Maisonet's timely acceptance of

responsibility. The court also determined that Maisonet had a

Criminal History Category of III, that he had a series of prior

arrests and two prior criminal convictions, and that Maisonet

-6-
committed the instant offense while on probation for a sentence

imposed in 2004,4 in clear disregard for the law. The total

offense level of twenty and the Criminal History Category of III

yielded a Guidelines sentencing range of forty-one to fifty-one

months of imprisonment.

The district court also noted that it did not see any

indication of repentance by Maisonet. It found that Maisonet tried

to minimize his participation during his allocution even though the

fraudulent scheme, which was very well-planned and articulated, was

Maisonet's idea and he was the main player; Maisonet paid others to

help him commit the fraud; and the checks from Pentagon were

deposited into an account over which Maisonet had the sole control.

The district court stated that Maisonet "throughout his life has

displayed a conduct in which he has managed to get away with

whatever he wants, and that his conduct reflects so," and "even his

demeanor has betrayed him here in court."

After considering the plea agreement, the advisory

Guidelines, the sentencing factors in 18 U.S.C. § 3553(a) --

especially Maisonet's history and characteristics, the need to

promote adequate correctional treatment, deterrence, and respect

for the law -- the court concluded that Maisonet's blatant

disregard for the law and the seriousness of the offense warranted

4
According to the district court's findings, in 2004 Maisonet was
convicted and sentenced to three years probation stemming from
charges related to the distribution of marijuana.

-7-
a sentence at the higher end of the Guidelines range. Accordingly,

Maisonet was sentenced to an imprisonment term of fifty-one months,

five years of supervised release, a forfeiture order in the amount

of $89,994.22,5 and a monetary assessment fee of $100. This appeal

followed.6

II. Discussion

Maisonet challenges both the procedural and substantive

reasonableness of his sentence. He contests the "calculation of

loss" component of his total offense level, which he claims

resulted in an incorrect total offense level of twenty instead of

fourteen, and thus a higher Guidelines sentencing range. Maisonet

also claims that the district court abused its discretion by

sentencing him at the higher end of his Guidelines based on his

prior criminal record and lack of remorse. He argues that his

prior criminal record was already contemplated in his Criminal

5
By the time of sentencing, Pentagon certified that the amount
still owed to it was $89,994.22.
6
We note that even though Maisonet's plea agreement contained a
waiver-of-appeal clause, his appeal is properly before us. Here,
Maisonet waived his right to appeal to the extent he was
subsequently sentenced in accordance with the terms and conditions
set forth in the "Sentence Recommendation" provisions of the plea
agreement. The sentence ultimately imposed was not in accordance
with the terms and conditions of the "Sentence Recommendation"
provisions, which recommended a sentence of time served, three
years of supervised release, six months of home detention, and two
hundred hours of unpaid community service. Thus, as the government
correctly concedes, the waiver-of-appeal clause does not bar the
instant appeal. See United States v. Murphy-Cordero, 715 F.3d 398,
400 (1st Cir. 2013) (holding that a waiver-of-appeal clause only
precludes appeals falling within its scope).

-8-
History Category and, thus, considering his prior criminal record

again as part of the 18 U.S.C. § 3553(a) sentencing factors

constituted "double counting." He also alleges that the court's

perception of a lack of remorse is not supported by the record.

Finally, Maisonet posits that his sentence was "greater than

necessary" and that the district court did not "acknowledg[e] the

combination of factors that could justify" the imposition of a non-

Guidelines sentence of time served, as recommended by the parties

in the plea agreement. Each of Maisonet's claims fails, as his

sentence is both procedurally and substantively reasonable.

We review "the reasonableness of a sentence 'under a

deferential abuse-of-discretion standard.'" United States v.

Battle, 637 F.3d 44, 50 (1st Cir. 2011) (quoting Gall v. United

States, 552 U.S. 38, 41 (2007)). First, we determine whether the

district court made any procedural errors, such as "failing to

calculate (or improperly calculating) the Guidelines range,

treating the Guidelines as mandatory, failing to consider the

section 3553(a) factors, selecting a sentence based on clearly

erroneous facts, or failing to adequately explain the chosen

sentence -- including an explanation for any deviation from the

Guidelines range." United States v. Rivera-Moreno, 613 F.3d 1, 8

(1st Cir. 2010) (quoting Gall, 552 U.S. at 51) (internal quotation

marks omitted). "When assessing procedural reasonableness, our

abuse of discretion standard is multifaceted. We review factual

-9-
findings for clear error, arguments that the sentencing court erred

in interpreting or applying the guidelines de novo, and judgment

calls for abuse of discretion simpliciter." United States v.

Trinidad-Acosta, 773 F.3d 298, 309 (1st Cir. 2014) (quoting United

States v. Serunjogi, 767 F.3d 132, 142 (1st Cir. 2014)) (internal

quotation marks omitted) (alterations omitted).

We then consider the substantive reasonableness of the

sentence imposed. Serunjogi, 767 F.3d at 142. "When conducting

this review, we take into account the totality of the

circumstances, including the extent of any variance" from the

Guidelines. Trinidad-Acosta, 773 F.3d at 309 (quoting

Rivera-Moreno, 613 F.3d at 8). "Although we evaluate the

reasonableness of a sentence even when it falls within the

Guidelines, 'a defendant who attempts to brand a within-the-range

sentence as unreasonable must carry a heavy burden.'" Battle, 637

F.3d at 51 (quoting United States v. Pelletier, 469 F.3d 194, 204

(1st Cir. 2006)). A sentence will withstand a substantive

reasonableness challenge so long as there is "a plausible

sentencing rationale and a defensible result." United States v.

Martin, 520 F.3d 87, 96 (1st Cir. 2008).

A. Calculation of Loss for Sentencing Purposes

Maisonet challenges the calculation of loss component of

his total offense level and its resulting Guidelines range.

Specifically, he argues that the district court miscalculated the

-10-
amount of loss by disregarding U.S.S.G. § 2B1.1(b)(1) Application

Note 3(E) (Credits Against Loss), which resulted in an incorrect

total offense level of twenty instead of fourteen, and thus a

higher Guidelines sentencing range. He asserts that, prior to his

charge and arrest, he was not on notice of any criminal

investigation and that Pentagon did not press criminal charges

against him. Maisonet claims that, because he did not know of any

criminal investigation when he restituted close to three-fourths of

the amount obtained by fraud, the district court erred by failing

to discount the restituted amount from the amount of loss and,

instead, using the entire amount of loss for sentencing purposes.

We disagree.

As discussed above, we review the district court's

interpretation and application of the Sentencing Guidelines de

novo, and its underlying factual findings for clear error. See

United States v. Batchu, 724 F.3d 1, 7 (1st Cir. 2013).

Application Note 3(E)(i) to U.S.S.G. § 2B1.1(b)(1)

provides an offset from the amount of loss for:

[t]he money returned, and the fair market
value of the property returned and the
services rendered, by the defendant or other
persons acting jointly with the defendant, to
the victim before the offense was detected.
The time of detection of the offense is the
earlier of (I) the time the offense was
discovered by a victim or government agency;
or (II) the time the defendant knew or
reasonably should have known that the offense
was detected or about to be detected by a
victim or government agency.

-11-
U.S.S.G. § 2B1.1(b)(1) cmt. n.3(E)(i) (emphasis added).

Maisonet's contention that he was not on notice of any

criminal investigation and that Pentagon did not seek to have

criminal charges brought against him is irrelevant because what is

determinative under the Guidelines is the time of detection of the

offense by either the victim or the government. See United States

v. Mardirosian, 602 F.3d 1, 12 (1st Cir. 2010) ("The Sentencing

Commission's commentary is to be 'read in a straightforward,

commonsense manner.'" (quoting United States v. Carrasco-Mateo, 389

F.3d 239, 244 (1st Cir. 2004))). Pursuant to the clear language of

the Guidelines, in order to be entitled to a deduction in the loss

amount, Maisonet must have restituted the money before either

Pentagon or the government detected the offense. See id.

("[C]redit for the return of property under Application Note 3(e)

is only available if the property is returned before either the

victim or law enforcement becomes aware of the crime."); United

States v. García-Pastrana, 584 F.3d 351, 391-92 (1st Cir. 2009)

(defining "'time of detection' as 'the earlier of (I) the time of

the offense was discovered by a victim or government agency; or

(II) the time the defendant knew or reasonably should have known

that the offense was detected or about to be detected by a victim

or government agency'" (quoting U.S.S.G. § 2B1.1 cmt. n.3(E)(i))).

That clearly did not happen here. The district court correctly

found that Pentagon detected the offense and filed suit in state

-12-
court in April 2006 seeking reimbursement of "the monies that had

been fraudulently obtained." The court further found that "any

restitution made was a result of the Settlement Agreement" reached

by the parties on May 1, 2008, in the civil case. It then

correctly concluded that Maisonet did not restitute any money

before the offense was detected and, thus, was not entitled to any

offset.

In conclusion, because Maisonet failed to begin

restitution of the $445,000 loss amount before Pentagon (the

victim) discovered the offense, the district court correctly found

that the loss amount was more than $400,000 but did not exceed

$1,000,000 and, thus, the sentence enhancement of fourteen levels

was appropriate pursuant to U.S.S.G. § 2B1.1(b)(1)(H). The

resulting total offense level and Guidelines range were also

correct.

B. Double Counting

Maisonet's next procedural challenge -- that the district

court engaged in impermissible double counting by taking into

consideration his prior criminal history in analyzing the 18 U.S.C.

§ 3553(a) sentencing factors, even though this was already

accounted for in his Criminal History Category -- fails as well.

Double counting concerns usually involve the use of a

single factor more than once to calculate the Guidelines sentencing

range. See, e.g., Unites States v. Fiume, 708 F.3d 59, 61 (1st

-13-
Cir. 2013). Here, the district court did not use the same factor

twice to calculate the Guidelines sentencing range. It merely used

Maisonet's prior criminal history to calculate his Criminal History

Category, which in turn was factored into the Guidelines sentencing

range, and then considered all the section 3553(a) sentencing

factors, which included Maisonet's history and characteristics, the

need to promote respect for the law, and to afford adequate

deterrence. See United States v. Romero-Galíndez, ___ F.3d ___,

Case No. 13-2205, 2015 WL 1501617, at *8 n.8 (1st Cir. Apr. 3,

2015) (suggesting that applying the same underlying facts via two

separate Guidelines provisions to set a base offense level and then

enhance a sentence is distinguishable from factoring defendant's

prior criminal history into his base offense level and then

considering their particular gravity as a factor in determining how

stringent his sentence should be). This overlap between the

Guidelines and other sentencing factors enumerated in 18 U.S.C.

§ 3553(a) did not constitute double counting and is neither

surprising nor impermissible. See United States v. Cruzado-

Laureano, 527 F.3d 231, 236 (1st Cir. 2008) ("The court's

consideration of appellant's attitude toward the crime, as well as

the serious nature of the offense, was appropriate under both the

Guidelines and 18 U.S.C. § 3553(a) . . . ."). In fact, "Congress

directed the Sentencing Commission to take into account many of the

same factors in construing the guidelines that it directed

-14-
sentencing courts to consider, along with guidelines, in sentencing

individual defendants." United States v. De Los Santos, 196 F.

App'x 7, 8 (1st Cir. 2006) (comparing 28 U.S.C. § 994 with 18

U.S.C. § 3553(a)).

Maisonet cites United States v. Zapete-García, 447 F.3d

57 (1st Cir. 2006), in support of his contention that the district

court inappropriately engaged in double counting. However,

Maisonet's reliance on Zapete-García is misplaced. There, we

stated that "[w]hen a factor is already included in the calculation

of the guidelines sentencing range, a judge who wishes to rely on

that same factor to impose a sentence above or below the range must

articulate specifically the reasons that this particular

defendant's situation is different from the ordinary situation

covered by the guidelines calculation." Id. at 60 (emphasis

added). Here, however, the district court did not impose a non-

Guidelines sentence. The court merely considered his prior

criminal history in determining to impose a sentence at the higher

end of the Guidelines range. Furthermore, even when a non-

Guidelines sentence is imposed, Zapete-García does not prohibit the

court from relying at sentencing on a factor already included in

the calculation of the Guidelines sentencing range. Instead, it

only requires the district court to specifically articulate the

reasons for doing so. Id. And the district court did so here.

-15-
 In sum, the district court's imposing a higher sentence

than the government recommended based in part on Maisonet's prior

criminal history -- even though his history was also reflected in

his Criminal History Category -- did not constitute double counting

and, in fact, was both permissible and reasonable.

C. Lack of Remorse Finding

Maisonet also argues that the court committed clear error

by concluding that he lacked remorse for his commission of the

offense. We will not find clear error unless "on the entire

evidence [we are] left with the definite and firm conviction that

a mistake has been committed." United States v. Brown, 298 F.3d

120, 122 (1st Cir. 2002) (alterations in the original) (citation

omitted).

At the sentencing hearing, the district court made a

specific finding that Maisonet did not show any repentance. The

district court supported this finding with the fact that Maisonet

was the one responsible for devising and running the entire

fraudulent scheme; he was the main player, who recruited and paid

others to participate with him in the scheme; and he was the sole

holder of the bank account where the fraud proceeds were deposited.

Yet, Maisonet had tried to minimize his participation during his

allocution. The court stated that the way Maisonet behaved during

his allocution was a reflection of how he has always proceeded in

life. Specifically, it stated that throughout his life, Maisonet

-16-
"has displayed a conduct in which he has managed to get away with

whatever he wants, and that his conduct reflects so," and that

"even his demeanor . . . betrayed him . . . in court." Based on

the evidence on the record, we do not find that the district

court's conclusion that Maisonet lacked remorse was erroneous,

clearly or otherwise.

D. Denial of Downward Departure and Non-Guidelines Sentence

Maisonet next argues that the district court did not

"acknowledg[e] the combination of factors that could justify" the

imposition of a non-Guidelines sentence of time served. He,

however, failed to develop this argument. In fact, he did not

discuss, or even mention, which were the factors that allegedly

justified a sentence below the Guidelines. Thus, this argument is

waived. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir.

1990) (holding that arguments raised "in a perfunctory manner,

unaccompanied by some effort at developed argumentation, are deemed

waived").

Finally, we reject Maisonet's broader challenge that the

district court should have granted a "downward departure" and

imposed a non-Guidelines sentence of time served, as recommended by

the parties in the plea agreement.7

7
We note that the district court was not bound by the parties'
plea agreement, and Maisonet was fully aware of this when he
decided to plead guilty. Specifically, through the provisions of
the plea agreement, and at the change of plea hearing, Maisonet was
warned that the plea agreement merely contained a recommended

-17-
 "A district court's discretionary decision not to depart

from the Guidelines is reviewed for reasonableness." Battle, 637

F.3d at 51-52 (citing United States v. Anonymous Defendant, 629

F.3d 68, 73-75 (1st Cir. 2010)). Here, the district court met the

reasonableness standard. It considered Maisonet's arguments but

found them unpersuasive because of Maisonet's leading role in the

offense, his criminal history, his clear disregard for the law and

the rights of his victims, the seriousness of his offense, and the

timing of its occurrence, having been committed while on probation

for a previous offense. We find no abuse of discretion.

In sum, although Maisonet and the government requested a

sentence of time served, the district court, within its discretion,

found that a sentence within the applicable Guidelines sentencing

range was sufficient but not greater than necessary. The district

court carefully considered all relevant factors and explained in

detail the basis for its conclusion that Maisonet warranted a

Guidelines sentence. This was a defensible result, and the court

stated a plausible rationale for reaching it. See United States v.

Ramos, 763 F.3d 45, 58 (1st Cir. 2014).

sentence and that the court was free to disregard the
recommendations of the parties and impose a different sentence
(higher or lower) than the one recommended in the plea agreement.

-18-
 III. Conclusion

The district court properly calculated the victim's loss

attributable to Maisonet for sentencing purposes. After correctly

calculating the total offense level and Guidelines sentencing

range, it sentenced Maisonet to a within-the-Guidelines sentence,

which was both procedurally and substantively reasonable. Thus, we

affirm his sentence.

Affirmed.

-19-