United States v. Garro

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 06-50513
Plaintiff-Appellee,
v.  D.C. No.
CR-02-02429-MJL
JAMES F. GARRO,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of California
M. James Lorenz, District Judge, Presiding

Argued and Submitted
September 25, 2007—Pasadena, California

Filed February 28, 2008

Before: J. Clifford Wallace, Sandra S. Ikuta, and
N. Randy Smith, Circuit Judges.

Opinion by Judge Wallace

1781
 UNITED STATES v. GARRO 1783

COUNSEL

Frank J. Ragen, Julie A. Blair, and Michael Pancer, San
Diego, California, for the appellant James Garro.
1784 UNITED STATES v. GARRO
Karen P. Hewitt, United States Attorney, Bruce R. Castetter
and Mark R. Rehe, Assistant United States Attorneys, San
Diego, California, for appellee the United States.

OPINION

WALLACE, Senior Circuit Judge:

Garro appeals from his 135-month prison sentence after a
jury conviction of eight counts of wire fraud, see 18 U.S.C.
§ 1343, eleven counts of money laundering, see 18 U.S.C.
§§ 1956 (a)(1)(A)(i), (a)(1)(B)(i), and one count of tax eva-
sion, see 26 U.S.C. § 7201. He argues that the district court
erroneously applied the Sentencing Guidelines and imposed
an unreasonable sentence under 18 U.S.C. § 3553(a). We
have jurisdiction pursuant to 18 U.S.C. § 3742 and we affirm
Garro’s sentence.1

I.

In September and October of 1999, Garro, holding himself
out to be a self-employed financial consultant for foreign
countries wanting to stimulate their economies, raised $37.5
million dollars from five investors: (1) TLC America ($20
million); (2) Child’s Hope ($10 million); (3) Kelldeer & Car-
rington ($3.5 million); (4) Veronica Disabello ($2 million);
and (5) Curtis Martin ($2 million). The money was for the
purpose of entering what Garro called a “Leveraged Invest-
ment Program,” which would buy and resell “medium term
bank notes” in foreign markets. Each investor entered into a
written contract with Garro’s business entity, Sienna Finan-
cial, Ltd., and was promised at least double his or her invest-
ment in fifteen days.
1
We affirmed Garro’s conviction, which he challenged along with his
sentence, in a separate disposition.
 UNITED STATES v. GARRO 1785
On October 28, 1999, Garro sent investors a letter indicat-
ing that one phase of the program was complete and that each
investor could expect a wire transfer of profits no later than
November 1, 1999. Garro prepared this letter with the help of
Louis Cimaglia. During the course of the scheme, Garro used
Cimaglia as a “long-distance secretary” from Cimaglia’s
home in Maryland. Cimaglia was a point of contact with
investors and would create documents, send and receive
faxes, and field investor telephone calls for Garro. For his role
in Garro’s scheme, Cimaglia pled guilty to one count of con-
spiracy to commit wire fraud.

November 1 came and went without payment of any prof-
its. After this date passed, investors began contacting Garro
with concerns. On November 10, 1999, Garro sent a letter
apologizing and explaining that the profits were even greater
than anticipated but were so high that they “had come under
strict scrutiny” and been delayed. The letter promised that
200% profits would be in investors’ bank accounts no later
than November 17, 1999.

November 17 passed with no disbursement of profits. On
December 3, 1999, Garro had Cimaglia send another letter
indicating that the money was ready for disbursement but that
Garro had to travel personally to banks to effect the wire
transfers. Contrary to that and subsequent assurances, no
investor received promised profits. In the end, no investor
received any profits.

In fact, the investor money was never invested at all. Inves-
tors deposited the money into an escrow account and later
released it into Garro’s control. Garro then moved the money
from the escrow to a couple of Bank of America accounts
held by a corporation that he incorporated and owned, Navajo
Capital. Once the money was in Garro’s Navajo Capital cor-
porate accounts, he used it to buy and remodel three homes,
manipulating the transactions to mask his involvement in the
purchases.
1786 UNITED STATES v. GARRO
For example, Garro purchased a Santa Fe, New Mexico,
residence through Santa Fe Abstract, Ltd. To do this, he
moved $30 million from one of Navajo Capital’s Bank of
America accounts to one of its Union Bank accounts, then
moved $25 million from the Union Bank account to a U.S.
Bank account held by Citation Financial Management to
obscure his transactions further. That money was then moved
to another account at U.S. Bank. Then, $17.49 million was
transferred from the second Citation Financial Management
account to a Texas Bank One account held by Merlin Finan-
cial, an entity Garro owned, and then to yet another Texas
Bank One account held by Merlin Financial. Merlin Financial
then wired $2,344,635 to Santa Fe Abstract. Garro, through
another of Navajo Capital’s Bank of America accounts, had
also directly wired $260,000 to Santa Fe Abstract. The Santa
Fe home was then paid for in cash by Camelot International,
LLC, another entity created by Garro. Garro signed the pur-
chase agreement in the name “Elissa M. Dee,” his employee.
He also wrote a letter, signed Elissa Dee, directing the seller
that the buyer’s name remain confidential.

Garro used similarly complex transactions involving multi-
ple bank accounts, corporate shells, cash, and others’ names
to purchase homes in La Jolla and Encinitas, California. Most
of the rest of the investor money stayed in accounts held by
Garro and his corporate entities. No money was ever put into
the investment programs he described to investors.

After failing to receive profits, the investors each eventu-
ally demanded their money back. TLC America, after invest-
ing $20 million on September 13, 1999, became worried
when no profits appeared. On October 12, 1999, Garro
returned $4 million of its principal. On November 5, 1999,
after TLC America’s president, Ernest Cossey, told Garro that
he was very concerned about the investment, Garro sent TLC
America another $2 million along with a letter assuring
Cossey that the program was still working and profits were
forthcoming. This failed to reassure Cossey, who wrote Garro
 UNITED STATES v. GARRO 1787
on November 12, 1999, stating that TLC America did not
wish to remain in the program and asking Garro to return the
rest of its principal. Garro asked Cossey to be patient, telling
him that the money was coming, and returned another $4 mil-
lion of TLC America’s principal on December 16, 1999. TLC
America continued to contact Garro asking for its money back
without success. Finally, on September 29, 2000, Garro
agreed to convey his La Jolla home to TLC America to repay
the remainder of TLC America’s principal.

Child’s Hope also became concerned after investing $10
million on September 24, 1999, and failing to see profits
within the promised fifteen days. Child’s Hope’s director
began to “dog [Garro] every day to get [Child’s Hope’s] funds
back.” On November 18, 1999, a Child’s Hope lawyer sent
Garro a letter demanding that he return the money in full and
threatening legal action. Garro initially refused to comply but
on November 24, 1999, he returned $3.5 million to Child’s
Hope. Child’s Hope signed a release acknowledging that it
had received the $3.5 million on December 8, 1999, but at
that point “didn’t feel like there was any validity to the pro-
gram itself” and wanted to get out of the scheme. After
months of pestering, Garro wired Child’s Hope the remaining
$6.5 million of its principal on January 20, 2000.

Kelldeer & Carrington never received back the $3.5 million
that they had invested, despite negotiations and agreements
with Garro. Disabello eventually received all but $550,000 of
her principal. Martin received all $2 million of his principal
in November 1999.

The Federal Bureau of Investigation (FBI) began investi-
gating Garro in 2000. He was arrested in October 2002 for
wire fraud. On March 15, 2005, a twenty-count indictment
charged Garro with wire fraud, money laundering, and tax
evasion. On April 4, 2005, after a seven-day trial, a jury
returned guilty verdicts on all twenty counts. Following a
two-day sentencing hearing, on August 25, 2006, Garro was
1788 UNITED STATES v. GARRO
sentenced to 135 months in prison, three years of supervised
release, and over six-million dollars in restitution.

II.

We review the district court’s interpretation of the Sentenc-
ing Guidelines de novo, the district court’s application of the
Guidelines to the facts for abuse of discretion, and the district
court’s factual findings for clear error. United States v. Can-
trell, 433 F.3d 1269, 1279 (9th Cir. 2006). Although the
Guidelines are only advisory, a material error in calculating
the sentencing range is grounds for resentencing. Id. at 1280.

A.

[1] Garro first argues that the district court erroneously cal-
culated the amount of loss for sentencing purposes. Under the
applicable set of Sentencing Guidelines, Garro’s crime carried
a base level of six. See USSG § 2F1.1(a) (1998). The district
court found that the amount of loss in Garro’s fraudulent
scheme exceeded $20 million, resulting in a sixteen-level
increase. See USSG § 2F1.1(b)(1)(Q) (1998). Garro contends
that the district court erred in calculating the amount of loss
for sentencing purposes by failing to offset the money that he
received by the money that he returned to investors. A calcu-
lation of the amount of loss is a factual finding reviewed for
clear error. See United States v. Lawrence, 189 F.3d 838, 844
(9th Cir. 1999). The “loss need not be determined with preci-
sion,” but “need only [be] a reasonable estimate . . . given the
available information.” United States v. Bussell, 504 F.3d
956, 960 (9th Cir. 2007) (quoting USSG § 2F1.1, cmt. n.8
(1994)).

[2] Although Garro did, in some form or another, return a
substantial portion of the money he had taken, the district
court found that most of the money that Garro returned could
not be credited to him because it was returned after his
scheme was detected, and an amount of loss for sentencing
 UNITED STATES v. GARRO 1789
purposes is only offset by money returned “prior to the dis-
covery of the offense.” United States v. Bright, 353 F.3d
1114, 1118 (9th Cir. 2004); United States v. Stoddard, 150
F.3d 1140, 1146 (9th Cir. 1998).

The district court found that Garro’s offense was “discov-
ered” by TLC America on November 12, 1999, and by
Child’s Hope on December 8, 1999, the dates on which TLC
America and Child’s Hope contacted Garro requesting their
money back. The court found that TLC America’s November
12, 1999 letter to Garro, stating unequivocally that TLC
America “did not wish to remain” in the program and asking
for the return of its full deposit, sufficed to show that TLC
America was “on notice of irregularities” by that date, espe-
cially because two weeks had gone by since Garro told TLC
America that it would receive its profits no later than Novem-
ber 1, 1999. The court also found that Child’s Hope’s steps
to retrieve money, particularly the release that it signed on
December 8, 1999, showed that it, too, was “on notice” of
deceptive conduct on Garro’s part.

Not counting the money returned to TLC America after
November 12, 1999 and to Child’s Hope after December 8,
1999, the amount of loss occasioned by Garro’s scheme
totaled $20 million. Add to that Veronica Disabello’s
$550,000 and Kelldeer & Carrington’s $3.5 million, which
Garro admits was never repaid, and the amount exceeds $20
million without regard to any other losses.

[3] Garro disputes these findings, arguing that the inves-
tors’ requests to receive their money back was not a discovery
of the offense because the investors had not discovered the
criminal nature of Garro’s actions. This argument is unavail-
ing; we do not require that victims discover the actual crime
to determine that a fraud has been “discovered.” In Bright, for
example, we held that a defendant’s fraud had been “discov-
ered” when investors wrote to him demanding their money
back. 353 F.3d at 1118.
1790 UNITED STATES v. GARRO
[4] Here, the district court did not clearly err in determining
that Garro’s fraud had been “discovered” for sentencing pur-
poses on dates when his investors, after waiting and never
receiving a cent of promised profits after delays and empty
reassurances, began demanding their money back. Investors
need not make any specific criminal accusations or say any
magic words for a court to conclude that the offense has been
discovered.

Garro’s claim that the investors merely got cold feet in a
high-stakes investment scheme is belied by the fact that, by
the time they requested their money back, the investors had
been promised a 100% return on their investments within fif-
teen days and had been told that they would see the money no
later than November 1, 1999. Indeed, on November 10, 1999,
Garro promised investors that the profits had already been
made and that they had only to wait for disbursement. When
the dates by which Garro promised payment came and went
without disbursement of a single penny, investors not only
had reason to be disappointed that their financial bets did not
work out, they also had reason to believe that the entire pro-
gram was a sham. While fraud may not be “discovered”
merely when investors voice concerns, what happened in this
case went considerably further. The failure of Garro to deliver
on his unqualified promises coupled with investors’ demands
for their money back shows the district court’s findings were
not clearly erroneous. The district court properly applied the
“economic reality approach” by refusing to credit repayments
Garro made as part of “an effort to reduce accountability”
after the investors discovered Garro’s fraud. Stoddard, 150
F.3d at 1146.

B.

Garro also argues that the district court employed the
wrong standard of proof in arriving at its loss calculation: the
district court used a “preponderance of evidence” rather than
a “clear and convincing” standard of proof. As Garro failed
 UNITED STATES v. GARRO 1791
to object in the district court, we review for plain error. See
United States v. Jordan, 256 F.3d 922, 925 (9th Cir. 2001).

[5] Although a preponderance of evidence standard is ordi-
narily applied to establish facts used in sentencing, when the
combined effect of contested enhancements would have “an
extremely disproportionate effect on the sentence imposed,”
we apply a balancing test to determine whether the higher
“clear and convincing” standard of proof should apply. See
United States v. Staten, 466 F.3d 708, 718 (9th Cir. 2006);
United States v. Riley, 335 F.3d 919, 926-27 (9th Cir. 2003);
Jordan, 256 F.3d at 928-29. In identifying the appropriate
standard of proof, we have distinguished between enhance-
ments based upon charged conduct for which the defendant
has been convicted, and enhancements based upon uncharged
conduct. See, e.g., Riley, 335 F.3d at 926-27. In Riley, we
declined to apply the clear and convincing standard of proof
because the enhancement at issue was “based entirely on the
extent of the conspiracy to which [the defendant] pled guilty.”
Id. at 926. Here, the government’s indictment charging Garro
with a wire fraud scheme specifically alleged that he raised
$37.5 million dollars. A jury found Garro guilty of the con-
duct alleged in the indictment. Thus, the district court’s
enhancement to Garro’s sentence for loss exceeding $20 mil-
lion was based on conduct for which Garro was charged and
convicted. As the sentencing enhancement for amount of loss
was not based on uncharged or acquitted conduct, it was not
plain error for the district court to use a preponderance of evi-
dence standard of proof.

[6] Garro’s argument fails for another reason. Even if the
district court’s application of a preponderance standard of
review were an error, it would not be “plain.” Jordan, 256
F.3d at 926. The court’s use of the preponderance standard of
proof did not, in light of the evidence at trial and the court’s
findings at sentencing, “seriously affect[ ] the fairness, integ-
rity, or public reputation of the judicial proceedings.” Id.
(internal quotation marks omitted).
1792 UNITED STATES v. GARRO
C.

Garro next contends that the district court erroneously
included $13 million dollars of money that he returned to
investors when it calculated that he had laundered $78 mil-
lion. Even if that were true, which we do not decide, the error
would be harmless: the twelve-level enhancement imposed by
the district court applies to sums between $60 and $100 mil-
lion dollars. Thus, even excluding the $13 million, the total
amount of money Garro laundered still falls within the range
to which a twelve-level enhancement applies. Therefore, the
alleged error is harmless and thus not a ground for resentenc-
ing. See, e.g., United States v. Crawford, 185 F.3d 1024, 1029
(9th Cir. 1999) (sentencing errors reviewed for harmlessness).

D.

[7] Garro also argues that the district court erred in enhanc-
ing his sentence for using “sophisticated means.” The district
court found that Garro had “used and incorporated numerous
shell corporations, many of which he incorporated during this
scheme,” that he had intentionally “left behind numerous con-
fusing and misleading documents” regarding the investors’
funds, that he had forged signatures on real estate transac-
tions, and had made “other associates sign for him for other
real estate purchases, to avoid having his name appear on the
transaction or assets.” Garro’s objection notwithstanding, his
conduct was precisely what the Sentencing Guidelines
describe as indicating “sophisticated means”: “conduct such
as hiding assets or transactions, or both, through the use of . . .
corporate shells.” USSG § 2F1.1, cmt. n.15 (1998).

[8] Garro also argues that it was improper for the district
court to impose an enhancement for both more than minimal
planning and the use of sophisticated means. We have not
addressed that specific issue, but the Eleventh Circuit has
rejected the same argument. See United States v. Humber, 255
F.3d 1308, 1314 (11th Cir. 2001) (“We conclude that USSG
 UNITED STATES v. GARRO 1793
§ 2F1.1(b)(2)(A) and USSG § 2F1.1(b)(5)(C) are to be
applied cumulatively, and not in the alternative”). We agree
with the Eleventh Circuit’s approach because it accords with
the language and structure of the Guidelines, as well as our
precedent on related issues.

[9] First, the Guidelines suggest, at least generally, that the
two enhancements can be applied together. The application
notes to the Guidelines explain that “[t]he offense level
adjustments from more than one specific offense characteris-
tic within an offense guideline are cumulative (added
together) unless the guideline specifies that only the greater
(or greatest) is to be used.” USSG § 1B1.1, cmt. n.4 (1998).
Indeed, in the Guidelines, elements that are intended to be
alternative rather than cumulative are clearly defined as such.
See, e.g., USSG § 2F1.1(b)(2) (1998) (“If the offense
involved (A) more than minimal planning, or (B) a scheme to
defraud more than one victim, increase by 2 levels”). There
is no such definition of the enhancements for more than mini-
mal planning and sophisticated means. Each is in a separate
section, and the application notes do not provide that the
enhancements are mutually exclusive. See id. § 2F1.1(b)(2),
(6), cmt. nn.2, 15. The Guidelines on their face, then, permit
the enhancements to be applied cumulatively.

[10] Moreover, our interpretation is supported by the fact
that application note 15 provides, “[i]f the conduct that forms
the basis for an enhancement [for sophisticated means] is the
only conduct that forms the basis for an adjustment under
§ 3C1.1 (Obstruction of Justice), do not apply an adjustment
under § 3C1.1.” Just as the Guidelines provisions explicitly
indicate when one enhancement excludes imposition of
another, the application notes also indicate when imposition
of one enhancement impacts or excludes imposition of
another. Neither the Guidelines nor their commentary provide
that enhancements for more than minimal planning and
sophisticated means are mutually exclusive, and we will not
create such a rule.
1794 UNITED STATES v. GARRO
Garro points out that § 2F1.1 cmt. n.15 provides that “[t]he
enhancement for sophisticated means . . . requires conduct
that is significantly more complex or intricate than the con-
duct that may form the basis for an enhancement for more
than minimal planning.” From this he argues that the enhance-
ment for more than minimal planning is therefore encom-
passed in the enhancement for sophisticated means, and that
the two enhancements cannot be applied cumulatively. We
will not embrace this interpretation because the comment note
does not state that the two enhancements are mutually exclu-
sive, unlike the express statements precluding the concurrent
application of other enhancements.

E.

Garro argues that the district court erred in imposing a two-
level enhancement based on his involvement of another per-
son, Cimaglia, in his scheme. The district court’s finding that
Garro was a leader or organizer is reviewed for clear error.
See United States v. Lopez-Sandoval, 146 F.3d 712, 716 (9th
Cir. 1998).

The two-level aggravating role enhancement applies “[i]f
the defendant was an organizer, leader, manager, or supervi-
sor in any criminal activity.” USSG § 3B1.1(c) (1998). Con-
trary to Garro’s argument, the law does not require that the
supervised person be substantially involved in the criminal
scheme. See United States v. Melvin, 91 F.3d 1218, 1225-26
(9th Cir. 1996).

[11] Cimaglia testified at trial that he prepared materials for
Garro and interacted with investors under Garro’s direction;
additionally, there were tape recordings and writings pre-
sented as evidence at trial that showed Garro directing
Cimaglia in execution of Garro’s scheme. Based on this evi-
dence, the district court did not clearly err in finding that
Garro supervised Cimaglia.
 UNITED STATES v. GARRO 1795
F.

Garro disputes the district court’s two-level sentence
enhancement for obstruction of justice. A factual finding that
a defendant obstructed justice is reviewed for clear error.
United States v. Jimenez, 300 F.3d 1166, 1170 (9th Cir.
2002). The Guidelines state that perjury is obstruction of jus-
tice for enhancement purposes. USSG § 3C1.1, cmt. n.4(b)
(1998). For a court to find that a defendant obstructed justice
through perjury, it must find that (1) the defendant gave false
testimony, (2) on a material matter, (3) with willful intent.
United States v. Jimenez-Ortega, 472 F.3d 1102, 1103 (9th
Cir. 2007).

The district court found that Garro willfully offered several
false, material statements at trial. Many of these statements
expressly contradicted documents that he had prepared and
sworn affidavits he had made. Additionally, in an attempt to
place the blame on Cimaglia, Garro played a tape at trial con-
tending that it related to the investment scheme at issue; the
district court, however, found that it was obvious that the tape
related to an entirely different investment scheme.

[12] Garro does not dispute these findings, but argues that
he had a “grandiose/delusional/demented mental status” and
that he lacked the necessary mental state to act “willfully.” He
relies on the findings of a psychologist who evaluated him
after one meeting and concluded that he had “unrealistic ideas
about reality” and showed signs of dementia. The psycholo-
gist never concluded or suggested, though, that Garro was so
impaired that he could not act willfully or that he actually
believed his trial testimony to be true. Most important, the
psychologist never suggested that Garro suffered from
dementia at the time he testified. The district court found that,
possible dementia notwithstanding, Garro was not credible
and that his false testimony was willful. The district court’s
decision in light of the entire record and its observation of
1796 UNITED STATES v. GARRO
Garro is plausible and thus not clearly erroneous. See Can-
trell, 433 F.3d at 1283-84.

III.

We review a district court’s sentence for reasonableness in
light of the sentencing factors set forth in 18 U.S.C. § 3553(a)
and we reverse a sentence free of procedural error only if the
district court abused its discretion. See Gall v. United States,
128 S. Ct. 586, 594, 597 (2007). A district court is required
only to state the reasons for the sentence imposed in enough
detail to satisfy an appellate court that it has “considered the
parties’ arguments and has a reasoned basis for exercising
[its] own legal decisionmaking authority.” Rita v. United
States, 127 S. Ct. 2456, 2468-69 (2007).

[13] Garro argues that his sentence, which was fifty-three
months below the correctly-calculated Guidelines range, was
unreasonable and that the district court failed to account prop-
erly for the factors enumerated in 18 U.S.C. § 3553(a). How-
ever, the district court gave careful consideration to the
section 3553 factors and supported its conclusions with rea-
soned analysis. In particular, it carefully considered the nature
and circumstances of Garro’s offense and the need to protect
the public and deter crime. It listened to and considered
Garro’s arguments concerning his history and personal char-
acteristics, including his psychological state and age, and
awarded Garro a nearly three-level downward departure based
on those factors. Though Garro argues that his sentence
creates unwarranted sentencing disparities between him and
others involved in his and other financial crimes, the district
court reasoned that Garro was not similarly situated to those
with whom he compared himself because they had either pled
guilty or had committed different crimes. The district court
did everything required by the Supreme Court and its chosen
sentence was neither unreasonable nor reflective of an abuse
of the ample discretion we afford to the district court under
 UNITED STATES v. GARRO 1797
Gall. 128 S. Ct. at 597-602.

SENTENCE AFFIRMED.