United States v. Mayendia-Blanco

United States Court of Appeals
For the First Circuit

No. 17-1404

UNITED STATES OF AMERICA,

Appellee,

v.

ALEJANDRO MAYENDÍA-BLANCO,

Defendant, Appellant.

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

[Hon. Francisco A. Besosa, U.S. District Judge]

Before

Torruella, Thompson, and Kayatta,
Circuit Judges.

Ignacio Fernández de Lahongrais for appellant.
Mainon A. Schwartz, Assistant United States Attorney, with
whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and
Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief,
Appellate Division, were on brief, for appellee.

September 25, 2018
 THOMPSON, Circuit Judge. What was true in nineteenth-

century Russia is just as true in the twenty-first century First

Circuit, "[h]appy families are all alike; every unhappy family is

unhappy in its own way."1 In this instance, the love between

parent and child spawned a three count indictment for making and

conspiring to make false statements on a mortgage loan application

in violation of 18 U.S.C. § 1014 and § 2. Appellant Alejandro

Mayendía-Blanco ("Mayendía") pleaded guilty to one count, but

appeals his sentence of twenty-one months, claiming that the

district court made several errors in the calculation of his

sentencing guideline range. We find no error suitable for vacating

his sentence, and thus affirm.

I. Background

A. The Facts2

While Mayendía's family story had definitely gone awry

by the time it reached our doorstep, it wasn't always that way.

For many years he earned a legitimate living buying real estate

properties, refurbishing them, and selling them for a profit,

colloquially known as "flipping."3 Over time, Mayendía flipped

1 Leo Tolstoy, Anna Karenina (1877).
2 We draw the facts in this opinion from the record before us
on appeal, in particular the pre-sentence report, the indictment,
the plea agreement, and the sentencing hearing transcript. See
United States v. Lee, 892 F.3d 488, 490 n.1 (1st Cir. 2018).
3 This real estate investing approach is prominently displayed

in numerous television shows on the HGTV channel. See, e.g., HGTV,

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fifteen to twenty properties in both Puerto Rico and Miami. But

Mayendía's livelihood became his liability. Mayendía's work

flipping properties landed him in hot water when in a series of

loan applications, he claimed to have received down payments on

the sale of three properties, when those down payments had actually

been reimbursed to purchasing family members. Here are the

details.

Count One of Mayendía's indictment pertains to a loan

application made on May 24, 2007. Mayendía sold real property in

Puerto Rico to Nell N. Blanco-Casasnovas, his mother, and to

finance that purchase, she applied for a loan in the amount of

$1,320,000 from First Equity Mortgage Bankers, Inc. ("FEMBI").

The mortgage on that loan was eventually assigned, sold, and

transferred to the First Bank of Puerto Rico ("FBPR"), a federally

insured financial institution that falls within the purview of 18

U.S.C. § 1014. Part of the mortgage application process involved

the completion of a joint buyer/seller United States Department of

Housing and Urban Development (HUD) Settlement Statement Form

which itemizes all closing costs imposed on both parties in the

real estate transaction and which gets submitted to the bank along

with the mortgage loan application. On that form Mayendía and his

mother listed that she had given him $314,267.27 as a down payment.

Flip or Flop, About the Show, www.hgtv.com/shows/flip-or-flop
(last visited Sept. 21, 2018).

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However, after the application was made, and without telling the

bank, Mayendía gave the down payment money back to his mom.

In a similar bait and switch in Counts Two and Three,

Mayendía sold two pieces of real estate to Orlando Mayendía-Díaz,

his father. On October 3, 2008, Mayendía's father applied for one

loan worth $140,000 and another loan worth $148,000, both also

from FEMBI, and which also, down the road, were assigned, sold,

and transferred to FBPR. Mayendía and his father stated on the

HUD Settlement Statement Forms that Mayendía had received a down

payment on the first sale of $46,481.60 and on the other,

$48,381.10. However post application loan submissions, Mayendía

returned the money to his dad.

Initially, despite the omission of this information from

the HUD Settlement Statement Forms, all was well. At least with

regard to the property in Count Two, Mayendía's dad made about

fifty mortgage payments between 2008 and 2012, but when his

business closed during the recession, he was unable to continue to

make payments on the property and defaulted on the loan.4 In 2015

Mayendía (along with his parents) was indicted on three counts of

making and conspiring to make false statements on a mortgage loan

application to a federally insured bank, in violation of 18 U.S.C.

4 There is no indication in the record one way or the other
about when Mayendía's parents defaulted on the mortgages from
Counts One and Three, and no information about how any of the
mortgage inaccuracies came to the attention of authorities.

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§ 1014 and § 2. In 2016 Mayendía pled guilty to Count Two of the

indictment and, as part of a plea agreement, Counts One and Three

were dismissed.

B. The Sentencing Hearing

With the procedural history put briefly in place, we

proceed to Mayendía's sentencing because to paraphrase from

Shakespeare, therein lies the rub.5 After Counts One and Three

were dismissed, the parties agreed that Mayendía's total offense

level under the Guidelines should be thirteen, considering only

the loan Mayendía's father received from Count Two as the "loss"

amount, the dollar amount used to reasonably estimate the harm

from monetary crimes such as false statements in mortgage loan

applications, and often the linchpin of the guidelines range in

cases like this one. See U.S.S.G. § 2B1.1.

Probation and Pretrial Services filed a pre-sentence

report ("PSR"), followed by two amended PSRs, each of which, in

contrast to the parties' calculations, recommended a total offense

level of sixteen based on a loss of $409,129.97 because

"[a]ccording to the Indictment the total amount of loss as to

Counts One, Two and Three" equaled that amount.6 From arithmetic

we can infer that $409,129.97 is the sum of the three down payments

5 See William Shakespeare, Hamlet act 3, sc. 2.
6 What we refer to as the PSR here is the final operative
version, the second amended PSR.

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related to Counts One, Two, and Three from the indictment. The

PSR's recommendations result in a guidelines range of 21-27 months

to serve, in contrast to the recommendation from Mayendía's plea

agreement which was 12-18 months incarceration. See U.S.S.G. Appx.

G.

In his sentencing memoranda and written objections to

the PSR, Mayendía made three claims of error to probation's loss

recommendation. First, he argued that the PSR should not have

recommended a loss figure higher than what Mayendía bargained for

with the government in his plea agreement, which was a loss of no

more than $140,000. Second, Mayendía objected to the PSR's use of

the down payments from the two dismissed counts, because he argued

they should not be bundled together with his offense of conviction,

Count Two, as "relevant conduct." See U.S.S.G. § 1B1.3. Third,

Mayendía argued that the substantive amounts of money related to

Counts One and Three should not be considered because Mayendía had

not pleaded guilty to them, and therefore, the amounts were not

supported by any factual findings or evidence.

Mayendía repeated these arguments at his sentencing

hearing in 2017,7 but the district court rejected them all. In

7 Relevant later in the background, one unrelated issue also
cropped up at sentencing. The district court made reference to
documentation from the banks pertaining to the loss calculation,
and Mayendía's attorney claimed that he had not seen or received
these documents, and it was unclear from the record whether the
district court had ultimately relied on them.

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doing so the court decided that the loss was more than $250,000

but less than $550,000; however, it did not explicate the basis

for this decision. Ultimately, the district court sentenced

Mayendía to twenty-one months in prison, the lower end of the

guidelines range for a total offense level of 16.8 Having received

an incarcerative sentence at the low end of his guidelines range,

but having expected a lower guidelines range akin to the plea

agreement's recommendation, Mayendía appealed to us, seeking a do-

over of his guidelines range calculation and sentence.

C. Proceedings on Appeal

Mayendía submitted his opening brief on July 25, 2017,

making five arguments in support of his request that we vacate his

sentence and remand for resentencing, two of which are still

pertinent on appeal. First, and for the first time in the case,

he argued that the district court erred by failing to apply an

application note to the guidelines mandating that loss

calculations relating to mortgage fraud must subtract the fair

market value of the collateral (the loaned property) on the date

the defendant pled guilty from the loss amount, so long as the

property has not been "disposed of." U.S.S.G. § 2B1.1, app.

8 Though irrelevant to Mayendía's appeal, we note that the
court also imposed a $50,000.00 fine, a $98,666.00 restitution
order and five years of supervision upon release.

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n.3(E)(iii).9 Second, he argued that the district court

procedurally erred when it failed to state on the record the basis

and methodology for its loss calculation determination.

On August 17, 2017 we remanded Mayendía's case to the

district court so that it could "provide clarification as to both

the exact loss amount found for purposes of USSG § 2B1.1(b)(1) and

the methodology employed when arriving at that loss amount,

including specification of whether the amount reflects actual or

intended loss." United States v. Mayendía-Blanco, No. 17-1404,

Dkt. 00117190652 (1st Cir. Aug. 17, 2017). The district court

responded promptly -- it explained that the loss was $409,129.97,

based on the actual loss incurred as a result of the down payments

from all three counts in the indictment, as recommended by the

PSR. United States v. Mayendía-Blanco, No. 15-cr-00381-FAB-1,

Dkt. 218 (D.P.R. Aug. 31, 2017).10

9As a part of this point, Mayendía argued in his opening
brief that even if the district court did not commit a separate
error by using the down payment figures rather than the fair market
values, the collateral still should have been subtracted from the
down payment numbers.
10 Because the district court's order clarifies that it based

the loss amount on down payments, rather than loan amounts,
Mayendía's third opening argument--that the district court
erroneously relied on the documents that were being sent piecemeal
from the bank to the probation officer, who Mayendía alleges was
providing these documents to the district court ex parte, without
providing appropriate copies or summaries of that information to
him, see Fed. R. Crim. P. 32(i)(1)(B), and his fourth argument,
made for the first time on appeal--that the district court erred
by considering bank documents attached as exhibits to the PSR which

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 With the district court's reasoning in hand, on

September 5, 2017, we issued an order directing Mayendía to file

"a supplemental memorandum" in support of his pending motion for

bail pending appeal, as well as a supplemental "merits brief." He

complied with our directive and in both filings, Mayendía advanced

two specific arguments.11 First, he resurrected the relevant

conduct argument, raised below at his sentencing hearing but

omitted from his opening brief and initial pre-remand brief in

support of his bail motion;12 and second he hammered again the

subtraction-of-collateral argument, which he had discussed in his

opening brief. The government responded to Mayendía's

supplemental briefing, and in turn, Mayendía filed a reply brief.

With that procedural stage set, we take on Mayendía's

legal arguments.

II. Discussion

Given the district court's clarification of its

reasoning for the sentence imposed, what Mayendía presents to us,

when distilled, boils down to two issues: (1) the district court's

included language that had not been translated from Spanish to
English, are moot. A fifth argument citing judicial bias and
requesting reassignment of his sentencing hearing to another judge
is also moot given today's ruling.
11 Mayendía's supplemental brief incorporates by reference the

arguments he advanced in his memo in support of bail.
12 Before filing his opening brief, on July 19, 2017, Mayendía

had filed his first brief in support of his motion for bail pending
appeal.

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alleged error in considering the down payments from dismissed

Counts One and Three as relevant conduct in his loss calculation

at sentencing without a preponderance of the evidence; and (2) the

district court's alleged error in failing to apply a guidelines

application note mandating that district courts subtract the fair

market value of unsold collateral from the actual loss.13 In taking

up Mayendía's appellate arguments, we stage each substantive issue

in turn.

A. Considering Counts One and Three

Mayendía says the district court erred in considering

Counts One and Three in its actual loss calculation because the

conduct from these counts was not supported by a preponderance of

the evidence. The government responds that Mayendía waived or

forfeited this argument, but even if he didn't that it fails on

the merits. We find that Mayendía waived his argument due to his

failure to raise the preponderance of evidence argument in his

opening brief.

We deem an argument to be waived when a party

"intentionally relinquishes or abandons it." United States v.

Rodriguez, 311 F.3d 435, 437 (1st Cir. 2002). "[A] waived issue

ordinarily cannot be resurrected on appeal." Id. Relevant here,

13The majority does not "recast" Mayendía's argument as the
dissent suggests we have done. Rather, we simply repeat his
argument as we understand it to be.

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it is a well-settled principle that arguments not raised by a party

in its opening brief are waived. Landrau-Romero v. Banco Popular

De P.R., 212 F.3d 607, 616 (1st Cir. 2000) (citing P.R. Tel. Co.

v. Telecomm. Regulatory Bd. Of P.R., 189 F.3d 1, 17 n.14 (1st Cir.

1999)); see also Vargas-Colón v. Fundación Damas, Inc., 864 F.3d

14, 23-25 (1st Cir. 2017). As we laid out before, Mayendía made

three arguments before the district court concerning the PSR's

recommendation that Counts One and Three should be incorporated

into the loss calculation, but failed to raise those arguments

even implicitly in his opening brief, only raising them later in

his supplemental brief, incorporated by reference from his

supplemental brief in support of his bail motion.

Mayendía asks that we excuse the silence in his opening

brief because of the initial ambiguity before the district court,

as well as the two-appeal timeline because of our initial remand.

We decline to do so. We have accepted arguments raised for the

first time in supplemental briefing under exceptional

circumstances, such as a substantial change in applicable law, see

United States v. Vázquez-Rivera, 407 F.3d 476, 487 (1st Cir. 2005),

or even excused waiver when "justice so requires." United States

v. Fields, 823 F.3d 20, 32 n.8 (1st Cir. 2016) (citing United

States v. Torres-Rosario, 658 F.3d 110, 116 (1st Cir. 2011)).

However, to do either in this case would be inappropriate for two

reasons. First, though our initial remand to the district court

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added an additional step to the proceedings, it cannot be said

that it was a particularly complicated or unusual one. A remand

like the one here is not an exceptional circumstance warranting an

exception to our waiver doctrine. See Sindi v. El-Moslimany, 896

F.3d 1, 27-28 (1st Cir. 2018) (listing examples of exceptional

circumstances, including when "the inadequately preserved

arguments are purely legal, are amenable to resolution without

additional factfinding, are susceptible to resolution without

causing undue prejudice, are highly convincing, are capable of

repetition, and implicate matters of significant public concern");

United States v. Pelullo, 399 F.3d 197, 222 n.30 (3d Cir. 2005),

as amended (Mar. 8, 2005) (explaining that the defendant's

"proffered justification" for excusal of waiver, "the complexity

of the case, with its voluminous record and myriad factual and

legal questions," was "less than compelling"). Second, Counts One

and Three were very visible on the horizon to Mayendía, which we

know because he fought to keep them out of the guidelines

calculation before the district court at sentencing, arguing that

they could not be considered because "[t]here ha[d] been no such

finding by a jury or admission by defendant" relating to those

counts, and explained in both his first bail brief and his opening

appellate brief that the PSR's loss calculation was based on the

sum of the down payments from all three counts. See United States

v. Koon Chung Wu, 217 F. App'x 240, 246 n.4 (4th Cir. 2007)

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(unpublished) (finding defendant's argument raised for the first

time on appeal waived "because this argument was readily available

to him at the time he filed his opening brief"). In other words,

lacking any notable exceptional circumstance and given Mayendía's

clear awareness that the issue of loss calculation from Counts One

and Three was a significant issue both below at sentencing and on

appeal, we deem Mayendía's argument concerning consideration of

Counts One and Three as relevant conduct to be waived.14

We now proceed to the second and final comedy of errors

Mayendía alleges with the district court's calculation of actual

loss--consideration of the value of collateral in his loss

calculation.

B. Subtracting Collateral Value from Loss

1. Standard of Review

When we review a sentence, we must ensure that it is

"procedurally sound and substantively reasonable." United States

v. Dávila-González, 595 F.3d 42, 47 (1st Cir. 2010). Procedural

14Finding waiver in this case is also warranted because the
issue usually must be "highly convincing." Sindi, 896 F.3d at 28.
Here, because Mayendía failed to marshal any specific
countervailing facts, before the district court or this court, to
undercut the PSR's reliance on the indictment, the argument he
asks us to consider is not even remotely convincing. See United
States v. Cox, 851 F.3d 113, 121-24 (1st Cir. 2017) (affirming
finding that uncharged conduct was part of a common course of
conduct, scheme, or plan in light of the defendant's generalized
objections at sentencing and failure to marshal any specific
evidence that would create a genuine issue of fact).

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reasonableness includes under its umbrella "failing to calculate

(or improperly calculating) the Guidelines range, treating the

Guidelines as mandatory, failing to consider the 18 U.S.C.

§ 3553(a) factors, selecting a sentence based on clearly erroneous

facts, or failing to adequately explain the chosen sentence.”

United States v. Stone, 575 F.3d 83, 89 (1st Cir. 2009). Though

Mayendía's argument here invokes a broader question of legal

interpretation of the guidelines, fundamentally, his argument

concerning the district court's failure to subtract the value of

collateral from the loss amount sounds in procedural

reasonableness because it is fundamentally an allegation of

incorrect guidelines calculation. Normally, "prototypical

question[s] of legal interpretation," such as the district court's

loss-calculation methodology, are reviewed de novo. Cox, 851 F.3d

at 124-25 (defining loss-calculation methodology as "a

prototypical question of legal interpretation"); see United States

v. Foley, 783 F.3d 7, 23 (1st Cir. 2015) (distinguishing "the

district court's calculation methodology" from "its mathematical

application of this methodology" to conclude same); United States

v. Walker, 234 F.3d 780, 783 (1st Cir. 2000) (same). However,

unlike the effort he made below to convince the district court to

reject Counts One and Three as relevant conduct, Mayendía was as

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silent as a neat's tongue dried15 with respect to either the PSR

or the district court's failure to subtract the value of the

properties from the loss. Because Mayendía "fail[ed] to make a

timely assertion of a right" we find that he forfeited this

argument.16 Rodriguez, 311 F.3d at 437.

Accordingly, we review the district court's failure to

subtract collateral property value from the loss for plain error.

Under plain error review, Mayendía must show "(1) that an error

occurred (2) which was clear or obvious and which not only (3)

affected the defendant's substantial rights, but also (4)

seriously impaired the fairness, integrity, or public reputation

of judicial proceedings." United States v. Marchena-Silvestre,

15William Shakespeare, The Merchant of Venice act 1, sc. 1.
16 In addition to forfeiture, the government argues that
Mayendía waived this argument by conceding in the plea agreement
and at the sentencing hearing that the loss related to Count Two
could be as high as $140,000, the loan amount from Count Two,
because the PSR clearly used the down payments and, on a per-count
basis, its calculation satisfied this condition. Even considering
Mayendía's failure to object to the PSR in a favorable light, the
PSR put Mayendía on notice that use of the down payments was a
possible (and recommended) basis for the loss calculation. At a
minimum a defendant is expected to offer "any objections, including
objections to material information, sentencing guideline ranges,
and policy statements contained in or omitted from the [PSR]"
within 14 days of receiving it. Fed. R. Crim. P. 32(f)(1)
(emphasis added). Given the clear failure to object below, we
need not determine whether Mayendía waived, rather than merely
forfeited, this argument. Furthermore, as we explain, even when
we apply the more defendant-friendly standard of plain error and
review the merits of Mayendía's argument, he fails to demonstrate
any error showing prejudice or harm.

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802 F.3d 196, 200 (1st Cir. 2015) (quoting United States v. Duarte,

246 F.3d 56, 60 (1st Cir. 2001)).

After reviewing the record, we espy no plain error.

2. Loss Calculation Methodology: A Primer

Before we begin our analysis, a loss calculation

soliloquy should help us approach this issue trippingly on the

tongue.17 Guidelines calculations for crimes including false

statements on a mortgage loan application are ratcheted up

according to, among other factors not relevant in Mayendía's case,

the monetary loss attributable to the defendant's crime. U.S.S.G.

§ 2B1.1(b)(1). Loss can take one of two forms: "actual loss" or

"intended loss," and must be the larger of the two in each case.

U.S.S.G. § 2B1.1 app. n.3(A).18 Actual loss, our relevant category

here, is "the reasonably foreseeable pecuniary harm that resulted

from the offense." U.S.S.G. § 2B1.1 app. n.3(A)(i). "Reasonably

foreseeable pecuniary harm" includes "pecuniary harm that the

defendant knew, or, under the circumstances, reasonably should

have known, was a potential result of the offense." U.S.S.G.

§ 2B1.1 app. n.3(A)(iv).

17See William Shakespeare, Hamlet act 2, sc. 2.
18 Though not relevant in Mayendía's case, we note that in
addition if either of these two loss pathways are too difficult to
traverse, the district court can determine "the gain that resulted
from the offense as an alternatie measure of loss." U.S.S.G.
§ 2B1.1 app. n.3(B).

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 The guidelines provide the district court with broad

discretion to determine this number. The district court "need

only make a reasonable estimate of the loss." U.S.S.G. § 2B1.1

app. n.3(C). Furthermore, the guidelines note that "[t]he

sentencing judge is in a unique position to assess the evidence

and estimate the loss based on that evidence" and thus "is entitled

to appropriate deference." Id. And when making that estimate, it

need only be "based on available information, taking into account,

as appropriate and practicable under the circumstances," numerous

specific and general factors, including the fair market value of

the relevant property. Id. Fundamentally, loss calculations must

reflect "the seriousness of the crime and the relative culpability

of the offender." United States v. Alphas, 785 F.3d 775, 783 (1st

Cir. 2015).

But, in seeming tension with section 2B1.1's general

objective of achieving a reasonable estimate under the particular

circumstances of the case, the district court's approach is cabined

by a number of specific exceptions and inclusions it should

consider when constructing its calculation methodology. One of

those considerations, central to Mayendía's appeal, is application

note 3(E), which says that "[l]oss shall be reduced by," U.S.S.G.

§ 2B1.1 app. n.3(E) (emphasis added), among other things:

[in] the case of a fraud involving a mortgage
loan, if the collateral has not been disposed
of by the time of sentencing, us[ing] the fair

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 market value of the collateral as of the date
on which the guilt of the defendant has been
established, whether by guilty plea, trial, or
plea of nolo contendere. In such a case, there
shall be a rebuttable presumption that the
most recent tax assessment value of the
collateral is a reasonable estimate of the
fair market value.

U.S.S.G. § 2B1.1 app. n.3(E)(iii) (application note 3(E)(iii)).

Mayendía is not the first defendant in our circuit to

require a district court to do the math of mortgages. In a prior

case affirming a district court's methodology to calculate loss

from a crime subject to U.S.S.G. § 2B1.1 involving a mortgage loan

and a serial mortgage fraudster who used straw purchasers to flip

properties, we held that "actual loss usually can be calculated by

subtracting the value of the collateral -— or, if the lender has

foreclosed on and sold the collateral, the amount of the sales

price -— from the amount of the outstanding balance on the loan."

United States v. Appolon, 695 F.3d 44, 67 (1st Cir. 2012). After

Appolon, we affirmed the application of this formula by other

district courts. See Cox, 851 F.3d at 124-25; Foley, 783 F.3d at

23-24 (affirming use of mortgage principal as baseline for actual

loss where omissions about down payments "implie[d] Foley's

awareness that the lenders would not have advanced the funds to

borrowers with no skin in the proverbial game" who "presented a

greater risk of default").

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 The preference for this "loan amount minus fair market

value of collateral" methodology makes a great deal of sense. When

a bank is the victim of a false statement or fraud related to a

mortgage loan, the bank has been induced to issue a loan it would

not otherwise have issued, and thus has lost the value of the loan

minus whatever it can recoup from the sale of the collateral, or

has already recovered through reduction of the loan principal.

See, e.g., Foley, 783 F.3d at 23-25 (discussing how, under the

Appolon approach, defendant could reduce actual loss by

introducing actual figures for fair market value of collateral and

principal repayments).

By contrast, down payments will often fail to accurately

capture the victim-bank's loss. As a conceptual matter, because

a down payment is never sent to the bank, but rather to the seller,

its only value to the bank is as criteria to help in determining

whether to issue a mortgage loan. See United States v. Brandon,

17 F.3d 409, 427 n.15 (1st Cir. 1994) (explaining that bank fraud

statute was satisfied because defendants' "down payment scheme

victimized [the bank] because it devalued the mortgages that the

bank was providing," and had the bank known that no down payments

had been made, the bank would have "refused to provide" those

mortgages). And as a practical matter, at least in cases analogous

to Appolon or its progeny where application note 3(E)(iii) is

applicable, because the down payment is a static number, and fails

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to accurately capture the particular market and fact-based

circumstances that might mitigate or aggravate a bank's losses,

such as a fluctuation in housing prices or loan principal

repayments, the district court's decision to adopt one approach

over the other can have material effects on the guideline range.19

For these reasons, absent some rationale by the district court

supported by factual or evidentiary circumstances in a particular

case involving a mortgage loan, using down payments as the lodestar

19
We explain by way of an example and, apologizing in advance,
some judicial arithmetic. Take Count Two, the count of conviction.
As we described before, Mayendía admitted in pleading guilty to
Count Two that his father received a mortgage for $140,000, having
stated to the bank that he had made a $46,481.60 down payment on
that property. According to data from the Federal Housing Finance
Agency, we can estimate that from the time Mayendía's father
executed the mortgage related to Count Two (4Q 2008) and when he
pled guilty (3Q 2016), housing prices in Puerto Rico fell by
approximately 13.47%. See Federal Housing Finance Agency, All-
Transactions House Price Index for P.R., available at
www.fhfa.gov/DataTools/Downloads/Documents/HPI/HPI_AT_pr.xls.
Based on an approximate total cost for the property of $175,000
when it was purchased in 2008, we estimate that the value of the
property when Mayendía pled guilty in 2016 was about $151,427.
Other sources have estimated a 44.5% drop in Puerto Rico housing
prices since 2010. See Zillow, Puerto Rico Home Prices & Values
January 2010-April 2018, available at www.zillow.com/pr/home-
values/. This sharper downturn in prices would result in an
approximate value of $97,125. Thus, depending on the bank's actual
posture given market fluctuations, a loan-amount-based approach
that considers value of the collateral would result in an offense-
level increase of between zero and six levels, adjusting depending
on how much value the bank can recoup from foreclosure sale, see
U.S.S.G. § 2B1.1(b)(1)(A), (D); while on the other hand, the down-
payment-based approach results in a static six-level increase,
even if the bank has lost no money, or has even turned a profit
from the foreclosure. See U.S.S.G. § 2B1.1(b)(1)(D).

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for the calculation of actual loss runs the risk of failing to

reasonably estimate the loss.

"Marry, this is the short and the long of it."20 We now

turn to the particulars of Mayendía's appeal.

3. The Plain Error Gauntlet

Mayendía argues that the district court committed plain

error by not applying application note 3(E)(iii) to subtract the

fair market value of the properties related to Counts One, Two,

and Three from the actual loss. Mayendía's argument begins and

ends with the word "shall" in application note 3(E)(iii). To hear

Mayendía's side, application note 3(E)(iii) mandates that loss

from a crime involving a mortgage loan must be reduced by the value

of the undisposed collateral--no ifs, ands, or buts. Taking to

heart the maxim that "[t]he simplest way to decide a case is often

the best," Stor/Gard, Inc. v. Strathmore Ins. Co., 717 F.3d 242,

248 (1st Cir. 2013) (quoting Chambers v. Bowersox, 157 F.3d 560,

564 n.4 (8th Cir. 1998)), we assume for the purposes of this case

that, given the plain meaning of the text and the problems with a

down-payment-based approach as explained above, the district court

committed a clear or obvious error by failing to heed application

note 3(E)(iii), especially in the absence of a persuasive reason

in the record for finding that the down payments were an

20 William Shakespeare, The Merry Wives of Windsor act 2,
sc. 2.

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alternative reasonable estimate of the loss, and jump to the

question of Mayendía's substantial rights, i.e., whether the error

prejudiced him. Setting the attractions of his appeal's good parts

aside, Mayendía has not carried his burden on this issue.21

As we mentioned before, the clear or obvious error must

have affected the defendant's substantial rights to satisfy plain

error review. An error affects the defendant's substantial rights

when "in the ordinary case [] he or she [can] 'show a reasonable

probability that, but for the error,' the outcome of the proceeding

would have been different." Molina-Martinez v. United States, 136

S. Ct. 1338, 1343 (2016) (quoting United States v. Dominguez

Benitez, 542 U.S. 74, 76, 82 (2004)). In Molina-Martinez, the

Supreme Court held that a defendant can satisfy this burden by

"pointing to the application of an incorrect, higher Guidelines

range and the sentence he received thereunder." Molina-Martinez,

136 S. Ct. at 1347.

Since Molina-Martinez, the Supreme Court has made clear

the importance of the particularity of the showing a defendant

must make under the substantial-rights prong of plain-error

review. In the Court's recent decision in Rosales-Mireles v.

United States, 138 S. Ct. 1897 (2018), the defendant identified

for the first time on appeal that his PSR had mistakenly double-

21 See William Shakespeare, The Merry Wives of Windsor act 2,
sc. 2.

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counted a prior conviction, and that the mistake resulted in a

change to his criminal history category that increased his

guidelines range from 70-87 months to 77-96 months. Id. at 1905.

The Court confirmed that showing "an error resulting in a higher

range than the Guidelines provide usually establishes a reasonable

probability" that the defendant will serve a harsher sentence,

affecting his substantial rights. Id. at 1907. The Court then

concluded that, in the case of a defendant who has made that

showing of prejudice, "[i]n the ordinary case . . . the failure to

correct a plain Guidelines error that affects a defendant's

substantial rights will seriously affect the fairness, integrity,

and public reputation of judicial proceedings." Id. at 1911. In

other words, the Supreme Court has said, and reaffirmed recently,

that when appealing a guidelines calculation error under plain

error review, a defendant-appellant must show that the error he

has meritoriously identified, rather than some other issue in the

case, satisfies the substantial rights prong.

In this case, where the relevant error affecting the

guideline range was the failure to subtract the fair market value

of the collateral as a part of the loss calculation, Mayendía must

point to facts that, had the court considered them below or were

the court to consider them on remand, would allow the court to

reach a specific lower (and correct) guidelines range. Mayendía

has not done that.

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 Across all of his briefing, and reinforced at oral

argument, Mayendía focuses on the fact that failure to consider

the fair market value of the collateral was error, but does not

advance any argument that if that error were cured, he would be

entitled to a lower applicable guideline range. As application

note 3(E)(iii) itself points out, this could be done with as little

evidence as the "most recent tax assessment value of the

collateral," which creates a "rebuttable presumption" that the tax

assessment value is "a reasonable estimate of the fair market

value." U.S.S.G. § 2B1.1, app. n.3(E)(iii). Though it is his

burden to demonstrate plain error here, Mayendía does not proffer

the tax assessments of the properties, nor does he point to any

other number in the record relevant to the subtraction of the fair

market value of collateral, much less an alternative proposed loss

quantity, that would allow us to find that his substantial rights

were affected. See Foley, 783 F.3d at 25 (rejecting defendant’s

argument as "no more than mere speculation" because he "offer[ed]

no figure" to show "that these [loan principal] repayments . . .

bring[] him into a lower Guidelines range[]"). By not doing so,

Mayendía has failed to articulate an argument about any "applicable

. . . Guidelines range" much less "an incorrect, higher" one.

Molina-Martinez, 136 S. Ct. at 1346.

The only number Mayendía does identify to support his

argument that his substantial rights were affected by the district

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court's error is $140,000--the loan amount from Count Two. In his

plea agreement, Mayendía stipulated with the government to a

proposed loss of $95,000-$150,000 based on this amount. According

to Mayendía, because it would have been within the district court's

discretion to adopt the plea agreement's recommendation, and

$140,000 is lower than the $409,129.97 loss amount the district

court found, his burden is satisfied. Not so. The loss amount of

$140,000 that Mayendía and the government jointly proposed in the

plea agreement based only on Count Two does not mention the

subtraction of collateral, the error Mayendía appeals here.

Rather, the $140,000 amount would only be salient if Mayendía had

persuasively argued that the district court had erred by

considering Counts One and Three as related conduct when

calculating the loss. As we explained above, he has waived this

issue and thus did not. In other words, to endure "the slings and

arrows" of plain error review,22 Mayendía must, and cannot,

identify an applicable, correct, and lower actual loss calculation

absent the clear or obvious error in his case.23 See Molina-

Martinez, 136 S. Ct. at 1345-46.

22 William Shakespeare, Hamlet act 3 sc. 1.
23 To the extent Mayendía argues in the alternative that the
fair market value of the collateral should have been subtracted
from the down payments to satisfy application note 3(E)(iii), we
take a brief detour here to explain the infirmity of that argument
before the final curtain. As we explained in the primer, the
district court's top-level objective when calculating loss is to

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 Though "the better part of valor is discretion," the

better part of substantial-rights analysis under plain error

review is specificity.24 Falstaff would fail to satisfy plain

error review, and so does Mayendía. Thus, even if the court erred,

it did not do so plainly.

III. Conclusion

Peace! We stop our mouths,25 and affirm.

-Dissenting Opinion Follows-

make a "reasonable estimate of the loss." U.S.S.G. § 2B1.1 app.
n.3(C). Had the district court subtracted the fair market values
of the properties from the down payments, the resulting numbers
would be negative, and thus certainly unreasonable. Taking Count
Two as an example again, under this formula the home value
($97,125, or even higher) would be subtracted from the down payment
($46,481.60). The absurdity of this result leads us to the obvious
conclusion that this would not be a reasonable estimate of the
loss, and thus, would not satisfy the substantial-rights prong of
plain error review because the alternative proposed loss
calculation (and thus guidelines range) would be neither
applicable nor correct.
24 William Shakespeare, Henry IV Part I act 5, sc. 4.
25 William Shakespeare, Much Ado About Nothing act 5, sc. 4.

- 26 -
 KAYATTA, Circuit Judge, dissenting. I respectfully

dissent.

The record contains one proper basis for calculating

loss: The parties' joint stipulation that the loss on the second

transaction was more than $95,000 but less than $150,000. Neither

the stipulation nor the record as a whole offered any basis to

calculate any loss at all for the other two transactions. So

Mayendía made a very simple point below and on appeal: "At the

sentencing hearing defense counsel correctly and consistently

argued that there was nothing in the record which would warrant a

loss higher than the stipulated loss agreed to with the

government." Had the district court acknowledged the correctness

of this argument, Mayendía's guideline sentencing range would have

been lower than the range calculated by using the down payment

amounts as a proxy for loss.

Rather than confronting this simple argument, the

majority opinion recasts it as an argument that the district

court's error was "in failing to apply a guidelines application

note mandating that district courts subtract the fair market value

of unsold collateral from the actual loss." Certainly Mayendía's

brief explained how the use of the down payment amounts rather

than collateral value was improper under the application note.

That explanation buttressed his premise that the court could not

equate the down payments to the loss. He also explained why the

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record does not contain the collateral values: Because "the

parties jointly recommended to the sentencing court to use the

stipulated loss amount . . . ." But once the district court

explained what it did, Mayendía never argued that the court should

have obtained and used the collateral values. To the contrary, he

stressed exactly the opposite: "neither [he] nor the government

were [sic] required to present evidence as to the market value of

the collateral since none of them were arguing for a loss different

than that to which was stipulated."

Having fundamentally recast Mayendía's central and

repeatedly asserted argument, the majority not surprisingly finds

that the argument as recast was never made below. Thus armed with

plain error review, the majority decrees that Mayendía cannot

satisfy the prejudice prong unless he shows that use of the

collateral values under the application note methodology would

have produced a lower GSR. And, he cannot do that precisely

because he is correct that the record contains no evidence that

would have allowed the district court to use the application note

methodology.

I would rule, instead, that Mayendía was correct in

arguing below and on appeal that the evidence in this record

provides no basis other than the stipulation for calculating any

loss arising out of the three transactions considered by the

district court. Hence, the district court's unsupportable use of

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the down payments to generate a higher loss amount was error (plain

or otherwise). And it prejudiced Mayendía because it produced a

higher GSR than would have the maximum stipulated amount.

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