United States v. Gonzalez-Calderon

United States Court of Appeals
For the First Circuit

No. 17-1519

UNITED STATES OF AMERICA,

Appellee,

v.

XAVIER GONZÁLEZ-CALDERÓN,

Defendant, Appellant.

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

[Hon. Pedro A. Delgado-Hernández, U.S. District Judge]

Before

Thompson, Circuit Judge,
Souter,* Associate Justice,
and Lipez, Circuit Judge.

Ignacio Fernández de Lahongrais on brief for appellant.
Rosa Emilia Rodríguez-Vélez, United States Attorney, Mariana
E. Bauzá-Almonte, Assistant United States Attorney, Chief,
Appellate Division, and Francisco A. Besosa-Martínez, Assistant
United States Attorney, Senior Appellate Counsel, on brief for
appellee.

April 3, 2019

* Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
 LIPEZ, Circuit Judge. Xavier González-Calderón was

charged with crimes arising from a conspiracy to steer

telecommunications contracts with the House of Representatives of

Puerto Rico (the "House") to a company controlled by a

co-conspirator, 3 Comm Global, Inc. ("3 Comm"), through a rigged

bidding process. He pleaded guilty and was ordered to pay

mandatory restitution of $408,208.42 pursuant to the Mandatory

Victims Restitution Act ("MVRA"), 18 U.S.C. § 3663A(a)(1),

(c)(1)(A) & (B). On appeal, he asks us to vacate the restitution

order and remand for a new calculation of restitution. We affirm.

González-Calderón did not object to the restitution

amount at sentencing; hence, we review for plain error.1 See

United States v. Salas-Fernández, 620 F.3d 45, 48 (1st Cir. 2010).

He must therefore show "(1) that an error occurred (2) which was

clear or obvious and which not only (3) affected [his] substantial

rights, but also (4) seriously impaired the fairness, integrity,

or public reputation of judicial proceedings." United States v.

Duarte, 246 F.3d 56, 60 (1st Cir. 2001). His appeal fails at the

1 We assume without deciding, favorably to González-Calderón,
that his conceded failure to object to the district court's
restitution award constituted forfeiture rather than waiver. We
therefore do not opine on whether the government's waiver argument,
which focuses on his failure to object to the restitution
recommendation in the Presentence Investigation Report, is
correct.

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first step because we discern no error in the district court's

restitution calculation.

Generally, a restitution order pursuant to the MVRA is

proper if it is "record-based and constitutes a fair appraisal of

[the victim's] actual losses." United States v. Naphaeng, 906

F.3d 173, 182 (1st Cir. 2018); see also id. at 179 (stating that

restitution under the MVRA "is designed to compensate the victim,

not to punish the offender," and is thus calculated based on the

victim's actual losses). Although the government bears the burden

of proving actual loss by a preponderance of the evidence, see 18

U.S.C. § 3664(e), "[a] district court's calculation of restitution

is not held to standards of scientific precision," United States

v. Sánchez-Maldonado, 737 F.3d 826, 828 (1st Cir. 2013). Rather,

we consider only whether the restitution award has "a rational

basis in the record." Salas-Fernández, 620 F.3d at 48.

Specifically, we assess whether the award is supported by "a

modicum of reliable evidence," Naphaeng, 906 F.3d at 179 (quoting

United States v. Vaknin, 112 F.3d 579, 587 (1st Cir. 1997)), and

whether the district court has made "a reasonable determination of

appropriate restitution by resolving uncertainties with a view

towards achieving fairness to the victim," United States v. Alphas,

785 F.3d 775, 787 (1st Cir. 2015) (quoting United States v. Burdi,

414 F.3d 216, 221 (1st Cir. 2005)).

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 González-Calderón contends that the district court erred

by calculating the restitution amount based on the conspiracy's

pecuniary gain, "the gross amount earned by the conspiracy (the

full value of the property and services acquired)," rather than on

the actual pecuniary loss sustained by the House, i.e., the victim.

Although he does not dispute that "the gross amount earned by the

conspiracy" as a result of the rigged bidding process -- that is,

the total amount paid by the House for the installation and

servicing of a new telecommunications system -- was $482,208.42,

he argues that the payment amount is not equivalent to the victim's

actual loss. To that end, he asserts that the rigged bidding

system resulted in the delivery of a telecommunications system

that the House continues to use, at a lower price than that offered

by other bidders.

It is true that "restitution should not be ordered if

the loss would have occurred regardless of the defendant's

misconduct"; there must be a but-for connection between the

defendant's fraud and the victim's pecuniary harm. Alphas, 785

F.3d at 786 (quoting United States v. Cutter, 313 F.3d 1, 7 (1st

Cir. 2002)). However, the record supports the conclusion that the

House would not have initiated a bidding process for a

telecommunications system if not for the conspiracy. The

uncontested allegations underlying the charges to which

González-Calderón pleaded guilty suggest that the conspirators

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concocted the need for a new telecommunications system with the

goal of steering contracts to 3 Comm. In other words, the record

supports the conclusion that the conspiracy was the but-for cause

of the House's telecommunications payments. González-Calderón has

not pointed to any authority or support for the proposition that

the payments do not constitute a loss merely because the House

continues to use the telecommunications system installed by 3 Comm.

He also has failed to develop any alternative argument that certain

amounts should have been deducted from the restitution calculation

as "legitimate" payments notwithstanding the conspiracy. See

United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (holding

that arguments not sufficiently developed on appeal are deemed

waived).

Finally, we are unconvinced by González-Calderón's

contention that his position draws support from United States v.

Kilpatrick, 798 F.3d 365 (6th Cir. 2015). In Kilpatrick, the Sixth

Circuit reversed a restitution award because the sentencing court

concededly used the defendant's gain as a proxy for the victim's

actual loss where there was essentially no evidence concerning

that loss. 798 F.3d at 389-90. The appellate court, however,

recognized that, in some cases, a "defendant's gain can act as a

measure of . . . the victim's loss." Id. at 390 (emphasis

added). In this case, as we have explained, the record supports

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a determination that the dollar amount pocketed by the conspirators

is a reasonably accurate measure of the victim's actual loss.

We therefore affirm the district court's award of

$408,208.42 in restitution.2

So ordered.

2 We agree with González-Calderón's assumption that the
district court calculated the restitution award based on the amount
of the payments made by the House of Representatives -- $482,208.42
-- but inadvertently ordered payment of $408,208.42. There is
nothing in the record that would otherwise explain the $74,000
discrepancy. The government has not challenged this "oversight,"
which benefits González-Calderón. In any event, whether the
district court intended to award $482,208.42, or simply meant to
use that amount as a starting point before slightly reducing the
award, our analysis remains unchanged. The record supports an
award of $482,208.42, and there is no reason to conclude that a
slightly reduced award constitutes plain error prejudicing
González-Calderón.

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