United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 25, 2005
______________________
Charles R. Fulbruge III
No. 04-10813 Clerk
______________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MARIA ELENA GARZA AND ENRIQUE ELIZONDO,
Defendants - Appellants.
______________________
Appeals from the United States District Court
for the Northern District of Texas
3:03-CR-395
_____________________
Before BENAVIDES, STEWART, and OWEN, Circuit Judges.
PER CURIAM:
Enrique Elizondo and Maria Elena Garza appeal their
convictions and sentences. We find no error in any conviction. We
affirm Garza’s sentence but must vacate and remand Elizondo’s
sentence for proceedings consistent with United States v. Booker,
__ U.S. __, 125 S. Ct. 738 (2005).
Elizondo and Garza perpetrated a scheme to defraud
undocumented aliens by pretending to be agents of the Immigration
and Naturalization Service (“INS”) and by purporting to help the
aliens with fake immigration forms. A jury convicted both Elizondo
and Garza of conspiring to commit mail fraud and convicted Garza,
additionally, of three substantive counts of mail fraud and of
obtaining money by pretending to be a federal employee. The court
sentenced Elizondo to thirty-seven months imprisonment and Garza to
ninety-seven months imprisonment. It also ordered $172,176
restitution to be paid jointly and severally by Elizondo, Garza,
and a third co-defendant who is not before this Court.
I. Sufficiency of the Evidence
Appellant Elizondo complains that the evidence was
insufficient to support his conspiracy conviction. This claim has
no merit. “The three elements of conspiracy to commit mail fraud
are (1) an agreement between appellant[] and others (2) to commit
the crime of mail fraud, and (3) an overt act committed by one of
the conspirators in furtherance of that agreement.” United States
v. Sneed, 63 F.3d 381, 385 (5th Cir. 1995) (internal quotation
marks omitted).1 Additionally, the defendant must have acted with
intent to defraud. See United States v. Manges, 110 F.3d 1162,
1173 (5th Cir. 1997).
Evidence adduced at trial established an immigration scheme
through which the conspirators obtained money from undocumented
aliens by promising them immigration services. Garza, sometimes
assisted by Elizondo, had undocumented aliens fill out fake
applications for INS residency authorizations or work permits. The
conspirators misrepresented to the victims that they worked for the
1
Mail fraud has the following essential elements: (1) a
scheme to defraud, (2) use of the mails to execute the scheme,
and (3) specific intent to defraud. United States v. Akpan, 407
F.3d 360, 370 (5th Cir. 2005).
2
INS and that the applications were genuine. They initially charged
the victims several hundred dollars as an “application fee” and
subsequently sent the victims an “approval notice.” The notices
instructed the victims to submit an additional fee, generally
$1202, to an “INS Department Ctr.” in either Corsicana, Mesquite,
or Pleasant Grove, Texas. Garza had created a company called
“Independent National Services” (which has the same initials as the
Immigration and Naturalization Service), and the addresses had been
set up by the conspirators to send and receive mail relating to the
scheme. Neither Garza nor Elizondo actually worked for or filed
any papers with the INS, and none of the victims received the
benefits they were promised. The conspirators defrauded at least
224 people of at least $172,176.
Trial evidence also revealed Elizondo’s broad participation in
the conspiracy. He assisted aliens in filling out what appeared to
be “immigration paperwork” in exchange for money on multiple
occasions. Additionally, Elizondo rented an office used to carry
out the scheme, and one of the misleading “INS Department Ctr.”
post office boxes was opened in the name of his company, “Elizondo
and Associates.” Witnesses also testified that Elizondo collected
mail addressed to “INS Department Ctr.” and told his landlord that
he and Garza “helped non US citizens with different types of
paperwork.” Lastly, fake immigration applications, fraudulent
approval forms, receipts and other documents related to the scheme
were found in common areas of the home that Elizondo shared with
3
Garza.
This evidence is clearly sufficient for a rational jury,
viewing the evidence in the light most favorable to the Government,
to have found all the elements of conspiracy to commit mail fraud
beyond a reasonable doubt. See United States v. Rivera, 295 F.3d
461, 466 (5th Cir. 2002). We find no error in Elizondo’s
conviction.
II. Booker Error
Next, Elizondo claims two different errors under United States
v. Booker. First, Elizondo contends that the district court
committed Booker error by ordering restitution under the Mandatory
Victims Restitution Act of 1996 (“MVRA”). See 18 U.S.C. §§
3663A–3664. Elizondo did not object below to the order of
restitution or to the district court’s use of the MVRA. His claim
is, therefore, reviewable only for plain error. See FED. R. CRIM.
P. 52. Under United States v. Olano, Elizondo must show that (1)
there is an error, and that the error (2) is plain, (3) affects
substantial rights, and (4) seriously affects the fairness,
integrity, or public reputation of judicial proceedings. See,
e.g., United States v. Inman, 411 F.3d 591, 595 (5th Cir. 2005)
(citing Olano, 507 U.S. 725, 732–34 (1993)).
Elizondo’s argument fails at least the first two prongs of the
Olano test. Booker’s holding that the Sentencing Guidelines are
advisory does not directly affect the MVRA since it is a statute
4
“distinct and separate from the United States Sentencing
Guidelines.” See United States v. Sosebee, 419 F.3d 451, 462 (6th
Cir. 2005). We agree with our sister Circuits, who have uniformly
held that judicial fact-finding supporting restitution orders does
not violate the Sixth Amendment. See id. at 461–62; United States
v. Reichow, 416 F.3d 802, 808 (8th Cir. 2005); United States v.
Bussell, 414 F.3d 1048, 1060–61 (9th Cir. 2005); United States v.
George, 403 F.3d 470, 73 (7th Cir. 2005). In any event, even if
there were Booker error in the restitution order, any error would
certainly not be plain under current law.
Elizondo also claims that the district court committed Booker
error by applying upward adjustments based on judicial fact-finding
under the then-mandatory Federal Sentencing Guidelines.2 The
Government concedes (and we agree) that Elizondo preserved the
error by making this claim below and citing Blakely v. Washington,
542 U.S. 296 (2004). Thus, we review under the harmless-error
standard. The Government bears the burden of showing that Booker
error was harmless, and to do so it must “prove beyond a reasonable
doubt that the district court would not have sentenced [the
defendant] differently had it acted under an advisory Guidelines
2
Specifically, the district court adjusted Elizondo’s
sentence upwardly upon finding: (1) the offense caused a loss
between $120,000 and $200,000 (U.S.S.G. § 2B1.1(b)(1)), (2) the
offense involved more than 50 victims (U.S.S.G. § 2B1.1(b)(2)),
and (3) the victims were unusually vulnerable (U.S.S.G. §
3A1.1(b)).
5
regime.” United States v. Akpan, 407 F.3d 360, 377 (5th Cir.
2005). We have noted that this is an “arduous burden,” and this
Court “will ordinarily vacate the sentence and remand” where Booker
error has been preserved. United States v. Pineiro, 410 F.3d 282,
284–87 (5th Cir. 2005) (quoting United States v. Mares, 402 F.3d
511, 520 n.9 (5th Cir. 2005)).
Indeed, this Circuit has held that the Government met its
burden in showing Booker error harmless under only two
circumstances. First, we have held that Booker error is harmless
where the district court stated at sentencing that it would not
impose a lower sentence even absent mandatory Guidelines. See
United States v. Saldana, __ F.3d __, 2005 WL 2404810, at *10 (5th
Cir. Sept. 30, 2005) (court stated it would impose “the same amount
of imprisonment” even if the Guidelines were deemed
unconstitutional); United States v. Nelson, 2005 WL 1994287, at *1
(5th Cir. Aug. 19, 2005) (unpublished) (court expressed
disappointment that there was not a greater statutory maximum and
indicated that a sentence above the maximum would have been
appropriate). Second, in an unpublished decision, we determined
that Booker error was harmless where the sentencing court expressly
refused to run the defendant’s federal Guidelines sentence
concurrently with his state sentence. United States v. Prones,
2005 WL 2009546, at *1 (5th Cir. Aug. 23, 2005) (unpublished). We
find that the Government’s evidence in the instant case falls
6
woefully short of the circumstances presented in these cases.
The Government contends that the Booker error was harmless
because the district court sentenced Elizondo in the middle of the
applicable Guidelines range. It claims that this proves the
district court would not have sentenced Elizondo differently under
an advisory regime because it already had discretion to impose a
lower sentence and chose not to do so. It is equally possible,
however, that the court’s sentence reflected a judgment about the
appropriate sentence for Elizondo relative to other defendants with
the same Guidelines range rather than a judgment as to the
appropriate absolute sentence. Indeed, this Circuit has rejected
the claim that a court’s decision to sentence in the middle of a
Guidelines range establishes Booker error as harmless in two recent
unpublished decisions. See United States v. Yancey, 2005 WL
1608590, at *1 (5th Cir. July 11, 2005) (unpublished) (per curiam);
United States v. Benavides, 2005 WL 2055884, at *1 (5th Cir. Aug.
26, 2005) (unpublished).
The Government also points to the district court’s statement
that it might have the power to downwardly depart under the
circumstances but that departure would not be appropriate on the
record before it. Yet, even a discretionary departure decision is
informed by the Guidelines and “thus sheds little light on what a
sentencing judge would have done knowing that the guidelines were
advisory.” United States v. Schlifer, 403 F.3d 849, 854 (7th Cir.
7
2005). No other evidence cited by the Government suggests that
Elizondo would have received the same sentence under an advisory
regime. In sum, the Government has not met its burden of proving
beyond a reasonable doubt that the Booker error was harmless.
Because this Booker violation requires remand and resentencing, we
need not address additional sentencing errors claimed by Elizondo.
III. Conflict of Interest
Appellant Garza claims that the district court erroneously
denied her counsel’s motion to withdraw for conflict of interest
without holding a hearing on the issue. Specifically, Garza claims
(1) that the district court should have held a hearing to determine
whether her trial attorney faced an “actual conflict” and (2) that
her conviction should be overturned on direct review even without
a showing of prejudice. See Cuyler v. Sullivan, 446 U.S. 335,
348–50 (1980) (stating that trial courts have a “duty to inquire
into the propriety of multiple representation” and that no showing
of prejudice is required where there was an “actual conflict”).3
Both the denial of a motion to withdraw and the decision not to
hold an evidentiary hearing are reviewed for abuse of discretion.
See United States v. Powell, 354 F.3d 362, 370 (5th Cir. 2003);
United States v. Wild, 92 F.3d 304, 307 (5th Cir. 1996). The
3
In the absence of Cuyler’s “actual conflict” exception, a
defendant claiming that his attorney had a conflict of interest
must show a reasonable probability that the conflict “prejudiced
the defense, undermining the reliability of the proceeding.”
Beets v. Scott, 65 F.3d 1258, 1273 (5th Cir. 1995) (en banc).
8
district court’s underlying determination as to whether an actual
conflict existed, however, is reviewed de novo. See United States
v. Infante, 404 F.3d 376, 390 (5th Cir. 2005).
On February 2, 2004, Garza pleaded guilty. In support of her
plea, Garza submitted a factual resume, signed by her counsel,
Roderick White, admitting her guilt on all counts. Four days
later, Garza changed her plea to not guilty. On the first day of
trial, White moved to withdraw as counsel, stating that he believed
he had an ethical conflict because Garza intended to testify and he
“[stood] by the representations [he] made on the 2nd.” The
district court denied the motion, inferring from these comments
that Garza was changing her story and that White disbelieved her
proposed testimony. It concluded that this was no reason to delay
the trial. White never requested an evidentiary hearing on his
conflict-of-interest claim nor disputed the court’s understanding
that White believed Garza intended to perjure herself. Garza
eventually testified in narrative form, unassisted by counsel, and
White did not use Garza’s testimony in his closing.
Garza argues that Cuyler’s “actual conflict” rules should
apply because her counsel signed the factual resume supporting her
original guilty plea and because any defense would cast doubt on
the truth of that filing, thereby subjecting White to professional
sanctions for offering false evidence or testimony. These
circumstances, however, do not give rise to an “actual conflict.”
9
In Beets v. Scott, this Circuit “limited Cuyler to actual conflicts
resulting from a lawyer’s representation of multiple criminal
defendants.” Hernandez v. Johnson, 108 F.3d 554, 559 (5th Cir.
1997) (citing Beets, 65 F.3d 1258, 1266 (5th Cir. 1995) (en banc)).
Garza seeks to escape the Beets rule by pointing to our
recognition that some cases might be “the functional equivalent of
a joint representation” (and within Cuyler’s scope) even though the
attorney did not “formally” represent two parties. Beets, 65 F.3d
at 1267. The Beets Court made absolutely clear, however, that
Cuyler only applies where an attorney was effectively, if not
technically, representing multiple clients in the same proceeding.
See id. Garza’s claim, by contrast, involves (insofar as it
involves any cognizable conflict) “an attorney’s conflict of
interest that springs not from multiple client representation but
from a conflict between the attorney’s personal interest and that
of his client.” Beets, 65 F.3d at 1260.
Garza also relies on the Beets Court’s dictum that it had no
“occasion to discuss the . . . powerful argument . . . that a
lawyer who is a potential co-defendant with his client is burdened
by a ‘multiple representation’ conflict . . . .” Id. at 1271 n.17.
Yet, she cites no case that has actually considered this issue.
Nor does she argue that White was actually a potential co-
defendant. It is doubtful that White could be subject even to
professional sanctions, as Garza claims. White made no personal
10
representations in the factual resume and is not responsible for
assertions made by his client. TEXAS DISCIPLINARY RULES OF PROF’L CONDUCT
3.03, cmt. 2. Furthermore, the record reflects that White did not
consider (much less know) that Garza’s admissions in the factual
resume could be false. See id. at 3.03(a)(5) (requiring knowledge
of evidence’s falsity). That defense evidence might cast doubt on
the factual resume is therefore immaterial.4 In short, Garza’s
claim falls within Beets’s broad conclusion that Cuyler should not
apply to attorney self-interest cases. 65 F.3d at 1268–72.
Because the circumstances did not suggest an “actual conflict”
under Cuyler, the trial court did not abuse its discretion in
denying the motion to withdraw. See United States v. Medina, 161
F.3d 867, 870 (5th Cir. 1998). Lastly, because Garza’s trial
counsel did not make allegations that would give rise to a Cuyler
conflict (and she makes none now), the trial court did not abuse
its discretion in declining to hold a sua sponte evidentiary
hearing. See United States v. Powell, 354 F.3d 362, 370 (5th Cir.
2003) (stating that courts should hold evidentiary hearings “when
the defendant alleges sufficient facts which, if proven, would
4
To the extent that Garza’s claim implies that her counsel
had a conflict of interest because he was precluded from
presenting perjured testimony, we find such a suggestion
baseless. See Nix v. Whiteside. 475 U.S. 157, 173–74 (1986). In
any event, Garza insisted on taking the stand and was able to
give her version of the facts in narrative form—a narrative which
ultimately led to the district court finding at sentencing that
she had committed perjury.
11
justify relief”).5
IV. Vulnerable Victims Sentencing Enhancement
Garza also claims that the district court’s finding that the
victims of her mail fraud scheme were unusually vulnerable was
clearly erroneous. See United States v. Angeles-Mendoza, 407 F.3d
742, 747 (5th Cir. 2005) (reviewing a “finding of unusual
vulnerability for clear error”). The Sentencing Guidelines provide
a two-level sentencing enhancement where the victims of the crime
are “unusually vulnerable due to age, physical or mental condition,
or . . . otherwise particularly susceptible to the criminal
conduct.” U.S.S.G. § 3A1.1, cmt. 2, n.1. The district court
explained its finding at sentencing, stating that (1) Garza
specifically targeted illegal aliens; (2) her victims “did not have
much money, were unable to read, write or speak English well, if at
all;” (3) her victims “lived with constant fear of deportation and
permanent separation from their loved ones;” and (4) this fear of
deportation and inability to communicate with the authorities made
the individuals particularly vulnerable to Garza’s scheme.
Garza claims that the section 3A1.1 enhancement was improper
5
Garza argues only that her claim should be analyzed under
Cuyler. Even if Garza were to make a typical conflict-of-
interest complaint under Strickland v. Washington, 466 U.S. 668
(1984), however, that complaint would have to be made on
collateral review. See United States v. Holmes, 406 F.3d 337,
361 (5th Cir. 2005) (stating that “direct appeal of ineffective
assistance claims in the absence of presentment to the district
court and an adequately developed record” is “generally
preclude[d]” under Fifth Circuit precedent).
12
under Angeles-Mendoza, which held that a finding of unusual
vulnerability could not be based solely on the inherent
vulnerabilities of “smuggled aliens” where the offense at issue
necessarily involved smuggled aliens. 407 F.3d at 747–48. Garza’s
Angeles-Mendoza argument fails for two reasons. First, the finding
of unusual vulnerability in the instant case was not based on the
inherent vulnerabilities of undocumented aliens but rather the
specific vulnerabilities of the individual victims. The district
court in Angeles-Mendoza merely found that in general “aliens
coming from Mexico” have certain vulnerabilities. Id. at 747. The
court in Garza’s case observed several of her victims at trial and
properly relied on these specific victims’ poverty, language
problems, and fears of deportation.
Second, the defendant in Angeles-Mendoza had been convicted of
conspiring to smuggle, transport, and harbor illegal aliens. Id.
at 745. Accordingly, the Angeles-Mendoza Court determined that
the victims’ “smuggled alien” status was adequately taken into
account by the sentence for the base-level offense. Id. at 748.
By contrast, none of the offenses at issue here—mail fraud,
conspiracy, and impersonating a federal employee—necessarily
involve undocumented aliens. The status of Garza’s victims as
undocumented aliens was not taken into account by the base-level
offense and consequently would not be an improper consideration
under Angeles-Mendoza. See id. at 748 n.7; see also United States
13
v. Velasquez, 310 F.3d 1217, 1220 (9th Cir. 2002).
Garza also relies on United States v. Moree, 897 F.2d 1329,
1335–36 (5th Cir. 1990), and United States v. Box, 50 F.3d 345,
358–59 (5th Cir. 1995). She argues that these decisions hold that
a section 3A1.1 enhancement is improper where the vulnerability at
issue was indispensable to the defendant’s crime as it was
committed. She contends that her victims’ vulnerability could not
properly be used to enhance her sentence because their particular
vulnerabilities were essential to her particular scheme. Garza
misreads Moree and Box. Those cases stand for the proposition that
susceptibility to the defendant’s scheme alone is not enough to
qualify victims as unusually vulnerable. The victims must also be
“vulnerable . . . members of society” and “fall in the same
category” as “the elderly, the young, or the sick.” United States
v. Gieger, 190 F.3d 661, 665 (5th Cir. 1999) (citing Moree).
Thus, neither the wealthy businessmen victims in Box nor the
government official victim in Moree could qualify as vulnerable
victims under section 3A1.1, even though they were particularly
susceptible to the crimes at issue in those cases, because they did
not qualify as vulnerable members of society. Because Garza’s
victims’ poverty, language problems, and fears of deportation did
make them vulnerable members of society, Moree and Box are
inapposite, and the district court’s finding of unusual
14
vulnerability was not clearly erroneous.6
V. Conclusion
Accordingly, we AFFIRM Elizondo’s conviction for conspiracy to
commit mail fraud but VACATE his sentence and REMAND for
resentencing in accordance with Booker. As to Garza, we AFFIRM her
convictions and sentence.
6
For the first time on appeal, Garza also challenged her
sentence under Booker. She acknowledges that she cannot show
that the judge would have imposed a different sentence under
advisory Guidelines. See Mares, 402 F.3d at 520(requiring such a
showing to merit vacating a sentence under plain-error review).
Furthermore, as Garza’s reply brief concedes, her claim that her
sentence violated the due process or ex post facto clause has
been foreclosed by United States v. Scroggins, 411 F.3d 572, 576
(5th Cir. 2005). Therefore, Garza’s additional sentencing claims
fail.
15