United States v. Vega-Martinez

United States Court of Appeals
For the First Circuit

Nos. 18-1189, 18-1395; 18-1258

UNITED STATES OF AMERICA,

Appellee,

v.

LUCIANO VEGA-MARTÍNEZ, aka Lucio; RENÉ GARAY-RODRÍGUEZ, aka
Gary,

Defendants, Appellants.

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

[Hon. Gustavo A. Gelpí, Jr., U.S. District Judge]

Before

Torruella, Thompson, Kayatta,
Circuit Judges.

Ignacio Fernández de Lahongrais on brief for appellant Vega-
Martínez.
Julie Sonderlund for appellant Garay-Rodríguez.
Steven J. Mintz, Attorney, U.S. Department of Justice,
Antitrust Division, with whom Makan Delrahim, Assistant Attorney
General, Andrew C. Finch, Principal Deputy Assistant Attorney
General, Richard A. Powers, Deputy Assistant Attorney General,
Michael F. Murray, Deputy Assistant Attorney General, Stratton C.
Strand, Attorney, Antitrust Division, Robert B. Nicholson,
Attorney, Antitrust Division, Mark C. Grundvig, Attorney,
Antitrust Division, Emma M. Burnham, Attorney, Antitrust Division,
and Samson Asiyanbi, Attorney, Antitrust Division, were on brief,
for appellee.
January 31, 2020
 KAYATTA, Circuit Judge. The two appellants in this case

are school-bus operators who contracted with the Caguas, Puerto

Rico municipal school system to drive school children to and from

school each day. Instead of competing with one another in bidding

on routes offered by the municipality in 2013, they gathered

together with four other school-bus operators in an old-fashioned

bid-rigging and market-allocation conspiracy. In brief, they all

agreed on which company would submit the lowest bid on each route,

thereby protecting themselves from the price-reducing effects of

fair competition. Following trial, conviction, and sentencing on

charges of mail fraud and violations of section 1 of the Sherman

Act, Luciano Vega-Martínez and René Garay-Rodríguez now appeal,

claiming an absence of interstate nexus, insufficiency of the

evidence, and assorted other issues. For the following reasons, we

affirm.

I.
In 2013, Vega-Martínez, Garay-Rodríguez, and their co-

defendants owned competing bus companies that sought to provide

busing for low-income students from Caguas to public schools in

the area. That year, the municipality announced that it would

hold an auction for four-year school-bus-transportation contracts.

Rather than submitting competing bids, the conspirators met and

agreed to divide up the routes among themselves. For each route,

a "winner" was pre-designated, and that "winner" was assured that,

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at most, only one other bidder would bid on the route (to make it

look like there was competition). The other bid, if any, would be

a high bid (to allow plenty of room for the winner's non-

competitive "low" bid).

After the meeting, bids were submitted. The

municipality rejected all of the bids and instead negotiated

contracts with each of the low bidders without the benefit of

knowing that the low bids were undisciplined by fair competition.

The municipality then sent award letters to the successful

defendants in the mail. Over a year later, news of the bid rigging

leaked. Worse yet for the defendants, it turned out that one of

the bus-company owners, Raquel Aldea-Rodríguez, had taped the

meeting at which the scheme was put together. In May 2015, the

defendants were charged in an indictment alleging conspiracy to

restrain trade (15 U.S.C. § 1), conspiracy to commit mail fraud

(18 U.S.C. § 1349), and substantive mail fraud counts (18 U.S.C.

§ 1341). After a seven-day trial, all of the defendants were

convicted on all of the charged counts. The defendants made Rule

29 motions, which were all denied. They were each sentenced to a

prison term of one year and one day, plus a year of supervised

release.

The district court then allowed the parties to

separately brief the issue of restitution. To calculate the amount

of restitution due from each defendant, the court ultimately

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compared the price paid for each route under the 2014 contracts

with the prices paid for the same routes in 2017 following a

competitive auction in 2016. Defendants Garay-Rodríguez and Vega-

Martínez now appeal. Garay-Rodríguez challenges several aspects

of his conviction, and both challenge the restitution amounts set

by the district court.

II.

A.

The Sherman Act reaches only activities in the flow of

interstate commerce or that, "while wholly local in nature," would

substantially affect interstate commerce if successful. McLain v.

Real Estate Bd. of New Orleans, Inc., 444 U.S. 232, 241–42 (1980);

see also Summit Health, Ltd. v. Pinhas, 500 U.S. 322, 330–32

(1991). When confronted with horizontal agreements to fix prices

within a single state, the Supreme Court has based jurisdiction

"on a general conclusion that the defendants' agreement 'almost

surely' had a market[-]wide impact and therefore an effect on

interstate commerce." Summit Health, 500 U.S. at 331 (quoting

Burke v. Ford, 389 U.S. 320, 322 (1967)); see also Goldfarb v. Va.

State Bar, 421 U.S. 773, 784–85 (1975) (finding an effect on

interstate commerce where the "volume of commerce involved" was

"substantial" and it was "inseparab[le] . . . from the interstate

aspects of [related] transactions").

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 Garay-Rodríguez nevertheless contends that his bid

rigging was beyond the reach of the Sherman Act for three reasons:

either the indictment failed to allege a sufficient nexus to

interstate commerce, or the proof fell short, or the jury was not

instructed that it was required to find such a nexus. For the

following reasons, we find that the indictment alleged that the

defendants' conduct flowed in and had an effect on interstate

commerce, that the evidence at trial supported those allegations,

and that there was no plain error in the jury instructions.

1.

Before trial, Garay-Rodríguez and his co-defendants

moved to dismiss the Sherman Act count for failure to allege a

nexus between the scheme and interstate commerce.1 The district

court denied the motion. We review de novo the sufficiency of an

indictment. United States v. Stepanets, 879 F.3d 367, 369 (1st

Cir. 2018); United States v. Guerrier, 669 F.3d 1, 3 (1st Cir.

2011). In so doing, we do not evaluate the sufficiency of the

evidence that the government might have to back up the indictment.

Guerrier, 669 F.3d at 4–5. Rather, we will find an indictment

sufficient if it "apprise[s] the defendant of the charged offense

so that the defendant can prepare a defense and plead double

1 They also argued that Puerto Rico was not a state for
purposes of the Sherman Act, but the district court roundly
rejected that argument, and it is not raised on appeal.

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jeopardy in any future prosecution for the same offense." United

States v. Rodríguez-Rivera, 918 F.3d 32, 34 (1st Cir. 2019)

(internal citations omitted) (quoting Stepanets, 879 F.3d at 372);

see also Fed. R. Crim. P. 7(c)(1) ("The indictment or the

information must be a plain, concise and definite written statement

of the essential facts constituting the offense charged."). It

may "parrot 'the statutory language to describe the offense, but

it must also be accompanied by such a statement of facts and

circumstances as to inform the accused of the specific offense

with which he is charged.'" United States v. Parigian, 824 F.3d

5, 9 (1st Cir. 2016) (quoting United States v. Savarese, 686 F.3d

1, 6 (1st Cir. 2012)).

Here, the indictment did more than was necessary. It

plainly set forth the elements of the charged offenses, including

that the defendants' activities "were within the flow of, and

substantially affected, interstate trade and commerce." It

further alleged that the bus contracts were funded or supported at

least in part by federal funds, and that the buses used by the

defendants had all been shipped via interstate commerce. Whether

the evidence was sufficient to back up these assertions was a

matter for trial. See Rodríguez-Rivera, 918 F.3d at 34; Guerrier,

669 F.3d at 4–5.

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 2.

At trial, the government's burden increased. It had to

submit evidence sufficient to establish an interstate nexus beyond

a reasonable doubt. Cf. United States v. DiSanto, 86 F.3d 1238,

1246 (1st Cir. 1996) (requiring interstate-commerce element to be

proven beyond a reasonable doubt in the context of a Commerce

Clause challenge). The government carried this burden. It proved,

for example, that the funds used to pay the defendants were

provided by the federal government under the No Child Left Behind

Act. Raymond Rivera-Pacheco, a CPA hired by the Puerto Rico

Department of Education, testified that Caguas used $436,566.32 in

federal funds from the No Child Left Behind Act to pay for school

transportation in 2013–2014. The conspiracy's grab of those

federal funds is likely sufficient by itself to establish an

interstate nexus, given that the funds flowed in interstate

commerce. See Goldfarb, 421 U.S. at 783–84 (deeming intrastate

price fixing by lawyers for title work on federally guaranteed

real estate purchases to have an interstate nexus); Englert v.

City of McKeesport, 736 F.2d 96, 98 n.4 (3d Cir. 1984) (federal

financing of construction projects "would be sufficient to meet

the jurisdictional requirement" of the Sherman Act); United States

v. Davis, 707 F.2d 880, 884 (6th Cir. 1983) (federal funding of

sheriff's office was sufficient to put sheriff's alleged

racketeering within the flow of interstate commerce in Hobbs Act

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context); United States v. Am. Soc'y of Anesthesiologists, Inc.,

473 F. Supp. 147, 151, 156–57 (S.D.N.Y. 1979) (insurance payments,

including some federal and state funds, flowed in interstate

commerce); DeGregorio v. Segal, 443 F. Supp. 1257, 1267 (E.D. Pa.

1978) (federal nursing home reimbursements flowed in interstate

commerce via the state of Pennsylvania's Medicaid program). But

see Loan Store, Inc. v. Indep. Food Stamps Assocs., Inc., 671 F.

Supp. 844, 848, 848 n.5 (D. Mass. 1987) (federal funding of the

food-stamp program was "far too speculative" a basis for Sherman

Act jurisdiction where the complaint "d[id] not allege [an effect

on] the flow of food stamps").

Here we have more than the federal funds alone. The

defendants' bid packages identified by vin number the specific

buses that they planned to use for each route. Those buses were

all purchased in Florida, meaning that they flowed in interstate

commerce. As the government points out, if prices increased

substantially, demand would likely fall. For example, Caguas might

have responded by merging bus routes or reducing the bus services

it used in other ways, resulting in fewer buses purchased by local

companies from the continental United States. Cf. Katzenbach v.

McClung, 379 U.S. 294, 299 (1964) (explaining that race

discrimination at restaurants would reduce those restaurants'

demand for food stuffs from outside the state: "The fewer

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customers a restaurant enjoys the less food it sells and

consequently the less it buys.").

Given the evidence that the contracts were funded in at

least substantial part by federal funding that had flowed through

interstate commerce and that the contracts were carried out by use

of goods that flowed through interstate commerce, as well as the

resulting inference that the effect of the conspiracy could have

been to reduce demand for those goods, the evidence in total was

sufficient to establish a nexus with interstate commerce.

3.

Next, Garay-Rodríguez argues for the first time on

appeal that the district court's instructions to the jury on

interstate commerce were incorrect. While we ordinarily review

the legal correctness of jury instructions de novo, and issues of

"phrasing and emphasis" for abuse of discretion, United States v.

Allen, 670 F.3d 12, 15 (1st Cir. 2012), we review forfeited

challenges like this one only for plain error, see Ramírez-Burgos

v. United States, 313 F.3d 23, 28 (1st Cir. 2002).

Garay-Rodríguez argues that the district court failed to

fully explain the requirement that an effect on interstate commerce

be "substantial." The district court explained that

A conspiracy may have an effect on interstate
commerce even though some or all of the
conspirators do not themselves engage in
interstate commerce and have confined their
activities within a single state. The precise

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 amount, quantity, or value of interstate
commerce involved is unimportant so long as
you find that the restraint charged in the
indictment or the activities of the parties to
the conspiracy had some non-substantial effect
upon interstate commerce. The government may
establish that there was an effect on
interstate commerce in many different ways,
and you should take into account all the
evidence in determining whether there was, in
fact, a substantial effect on interstate
commerce.

Trial Tr., Dkt. 235 at 184:3–16, United States v. Rivera-Herrera

et al., No. 15-cr-00361 (D.P.R. Feb. 1, 2017) (emphasis added).

The district court's statement that the conspiracy needed to have

"some non-substantial effect" was obviously incorrect, despite

government counsel's sketchy attempt to rewrite the record in its

briefing on appeal. See Gov. Br., Appellate Dkt. 60 at 41–42

(quoting the district court as stating that "some no[t]

[in]substantial effect" was required (alterations in original)).

While it does seem likely to us that the court meant to cite the

Supreme Court's statement in McLain that the effect need only be

"not insubstantial," the district court plainly stated the

opposite. McLain, 444 U.S. at 246 (emphasis added). Nevertheless,

in the very same instruction, and at several other points, the

district court repeatedly explained that the effect needed to be

substantial. Likely for the same reason that no defense counsel

objected to the instruction contemporaneously, a reasonable jury

would not have been confused by the district court's isolated and

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likely apparent mistake considering its numerous correct

explanations. On plain-error review, we find no sufficient showing

of prejudice.

Garay-Rodríguez also argues that the court should have

reiterated the "substantial effect" requirement throughout its

jury instructions on interstate commerce. But the court was clear

enough. A substantial effect is only one possible way to show a

nexus with interstate commerce; activity occurring in the flow of

interstate commerce is another. See Summit Health, 500 U.S. at

337 (citing Klor's, Inc. v. Broadway-Hale Stores, Inc., 359 U.S.

207, 213 (1959)). The court explained both theories, and when it

explained the "substantial effect" test it was always clear that

the effect needed to be substantial (with the exception of the

slight mistake discussed above); it was not required to repeat the

word "substantial" in every single instruction -- especially not

in instructions explaining the "flow" theory. Garay-Rodríguez has

thus failed to show plain error on the interstate-commerce

instructions.

B.

Garay-Rodríguez next argues that the government and the

district court allowed him and his co-defendants to be convicted

for price fixing even though the charges they faced were for bid

rigging and market allocation only. He argues both that this was

a prejudicial variance from and that it was a constructive

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amendment to the indictment. We review these claims de novo. See

United States v. Godfrey, 787 F.3d 72, 78 (1st Cir. 2015). "A

constructive amendment 'occurs where the crime charged has been

altered, either literally or in effect, after the grand jury last

passed upon it.'" Id. at 79 (quoting United States v. Mubayyid,

658 F.3d 35, 49 (1st Cir. 2011)). A variance -- or a change in a

charge that "le[aves] the substance of the charge unaffected" --

is permitted unless "it affect[s] the defendant's 'substantial

rights[,]' . . . i.e., the right[] to have . . . knowledge of the

charge [sufficient] to prepare an effective defense and avoid

surprise at trial, and [the right] to prevent a second prosecution

for the same offense." Id. (first alteration in original) (quoting

United States v. Dowdell, 595 F.3d 50, 67–68 (1st Cir. 2010);

United States v. Fisher, 3 F.3d 456, 463 (1st Cir. 1993)).

The crux of these claims is Garay-Rodríguez's argument

that the government submitted evidence of price fixing even though

the indictment referred to "bid-rigging" and did not expressly

allege price fixing. But the fact that price fixing might be

mentioned in a bid-rigging case strikes us as perfectly

appropriate. Most bid-rigging schemes will necessarily include

discussions of price. Here, for example, the scheme involved

explicitly deciding which companies would submit the high and low

bids on each route. To disallow evidence of those conversations

would be nonsensical and would prevent the government from making

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its bid-rigging case. That evidence was probative of bid rigging,

and it was clearly set out in the indictment. See United States

v. Reeder, 170 F.3d 93, 105 (1st Cir. 1999). Moreover, bid rigging

of the type at issue here is simply one pernicious form of price

fixing. Phillip E. Areeda & Herbert Hovenkamp, Antitrust Law: An

Analysis of Antitrust Principles and Their Application ¶ 2005b (3d

ed. 2012) ("Bid-rigging schemes are commonly thought to be more

harmful than ordinary price fixing because bid-rigging is much

easier for cartel members to enforce."). And even if that were

not the case, the district court was clear with the jury that it

could not convict on bid rigging based solely on evidence of price

fixing alone. Despite Garay-Rodríguez's claim, then, a reasonable

jury would not have believed that it could convict on evidence of

price fixing without more. There was no variance from or

constructive amendment to the indictment.

C.

Next, Garay-Rodríguez argues that the district court

erred in not allowing him to present evidence on the price

negotiations that took place between the "low" bidders and the

municipality after the auction. Specifically, he points to

limitations imposed on his cross-examination of Luz Ortíz-Peña,

the auxiliary director of the Caguas Purchasing and Auctions

Department. Before trial, the district court granted the

government's motion in limine to exclude evidence or arguments

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that the defendants' "agreements to rig bids and allocate the

market for public school bus transportation were reasonable, or

that such agreements had economic, business, or personal

justifications." During Garay-Rodríguez's cross-examination of

Ortíz-Peña, Garay-Rodríguez asked multiple questions about the

process of renegotiating the bids after the auction. His attorney

finally asked whether Ortíz-Peña had told an FBI agent that in

some cases it was more "cost-effective" to merge two routes. She

answered, "That is correct," and when Garay-Rodríguez tried to

follow up the court told him to "move on."

Essentially, Garay-Rodríguez is arguing that he should

have been permitted to show that the final prices decided post-

negotiation with the low bidders were not that bad, even

reasonable. But Garay-Rodríguez and his co-defendants were

charged with bid rigging and market allocation, both per se

violations of the Sherman Act. See N. Pac. Ry. Co. v. United

States, 356 U.S. 1, 5 (1958) ("Among the practices which the courts

have heretofore deemed to be unlawful in and of themselves are

price fixing, division of markets, group boycotts, and tying

arrangements." (internal citations omitted)); Stop & Shop

Supermkt. Co. v. Blue Cross & Blue Shield of R.I., 373 F.3d 57, 62

(1st Cir. 2004) (explaining that horizontal bid rigging is a per

se violation of antitrust laws). Determining the defendants'

liability for that conduct did not require the jury to assess its

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supposed reasonableness. See United States v. Peake, 804 F.3d 81,

93 n.10 (1st Cir. 2015) ("A per se Section 1 violation is not

excused by a showing that the supra-competitive prices were somehow

still reasonable."). Garay-Rodríguez did not proffer any other

reason why the ultimate cost-effectiveness of the final route

allocations was relevant. So, it was well within the district

court's discretion under Federal Rule of Evidence 403 to exclude

evidence at trial about whether the defendants' conduct really

cost Caguas much money.

D.

Garay-Rodríguez argues that the district court abused

its discretion by admitting a summary chart depicting the total

number and duration of calls and attempted calls between the

defendants' telephone numbers daily during the two months within

which they were alleged to have planned and implemented the bid

rigging. Garay-Rodríguez claims that the chart should have been

excluded under Rule 403, which allows exclusion of relevant

evidence "if its probative value is substantially outweighed by a

danger of . . . unfair prejudice, confusing the issues, misleading

the jury, undue delay, wasting time, or needlessly presenting

cumulative evidence." Fed. R. Evid. 403. We review this

evidentiary decision for an abuse of discretion and "usually defer

to the district court's balancing." United States v. Whitney, 524

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F.3d 134, 141 (1st Cir. 2008) (quoting United States v. Smith, 292

F.3d 90, 99 (1st Cir. 2002)).

There was nothing unfairly prejudicial about the chart.

To be sure, it supported an inference that the defendants

conspired. But that simply means that the evidence was probative.

And to the extent defendants claim that the jurors might have

thought the evidence to be more incriminating than that, any such

risk was eliminated by the trial judge's instruction pointing out

the chart's limitations in not showing who actually was on the

calls or what they said.

E.

Garay-Rodríguez's next set of arguments revolves around

the overlap between the mail fraud and Sherman Act counts. Garay-

Rodríguez did not make these arguments below, so we review them

for plain error. United States v. Prieto, 812 F.3d 6, 17 (1st

Cir. 2016).

First, Garay-Rodríguez seems to argue that the district

court should have instructed the jury that it had to find a mail-

fraud scheme that was separate and distinct from the Sherman Act

conspiracy. That is incorrect. Assuming the jury found that the

mail fraud was committed in the process of bid rigging or market

allocation, it was free to find that the defendants' conduct both

violated the Sherman Act and constituted mail fraud. Cf. United

States v. Valdés-Ayala, 900 F.3d 20, 30–34 (1st Cir. 2018)

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(upholding convictions of both bankruptcy fraud and wire fraud for

the same underlying conduct).

Second, Garay-Rodríguez argues that there was not

sufficient evidence to convict him for mail fraud. Sufficiency

challenges like this one that are not preserved through a Rule 29

motion after trial are reviewed under "a particularly exacting

variant of plain error review." United States v. Foley, 783 F.3d

7, 12–13 (1st Cir. 2015).

Here the government presented evidence to establish both

elements of a mail-fraud conviction: that the defendant "devised

or intend[ed] to devise a scheme to defraud (or to perform

specified fraudulent acts), and . . . use of the mail for the

purpose of executing, or attempting to execute, the fraud (or

specified fraudulent acts)." Schmuck v. United States, 489 U.S.

705, 721 (1989). The government presented clear evidence of a

scheme to defraud through the testimony of Aldea-Rodríguez and

documentary evidence of the bids, including the defendants'

certifications that their bids were "fair and free of collusion or

fraud," a statement that the jury obviously decided was false.

The government then showed that the scheme required a relevant and

foreseeable use of the mail because the defendants received the

object of the conspiracy -- their contract award letters -- by

certified mail.

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 Proof of mail fraud does not require proof of an actual

mailing by the specific defendant. United States v. Hebshie, 549

F.3d 30, 36 (1st Cir. 2008) (requiring only that the defendants

"cause[d] the use of the mails, which includes reasonably

foreseeable mailings" and "use[d] the mails for the purpose, or in

furtherance, of executing the scheme to defraud" (emphasis

omitted)). Garay-Rodríguez cites United States v. Berroa, 856

F.3d 141 (1st Cir. 2017), for a more restrictive view of the

causation requirement. Id. at 148–52 (explaining that the

defendants' submission of falsified test scores did not

sufficiently cause the mailing of their resulting medical

licenses, which were not a property interest of the governing

board). Berroa does not control here, however, where the awarding

of the contracts themselves was an alleged financial loss to the

municipality and gain to the defendants. See id. at 152

(explaining that the defendants in Berroa did not profit from their

fraud until "in the ensuing years after becoming licensed, [they]

practiced medicine for profit"). The district court thus did not

plainly err in allowing conviction on this evidence.

Finally, the same evidence described above also supports

the defendants' convictions for conspiracy to commit mail fraud,

which in addition to "intent to commit the substantive offense"

requires "intent to agree" to do so -- whether or not the

substantive offense is ultimately carried out. United States v.

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Delgado Figueroa, 832 F.2d 691, 694–96 (1st Cir. 1987). Aldea-

Rodríguez's testimony and tape recording of the meeting at which

the conspiracy was hatched, as well as documentation of the

defendants' phone calls and bid submissions, sufficiently supports

a finding that the defendants agreed to submit fraudulent bids and

cause the municipality to send out award letters based on that

fraudulent information.

F.

The last set of challenges is to restitution amounts of

$114,181 for Garay-Rodríguez and $93,055 for Vega-Martínez. The

Mandatory Victims Restitution Act of 1996 ("MVRA") requires

restitution for any "offense against property . . . including any

offense committed by fraud or deceit." 18 U.S.C. § 3663A.

Restitution is "based on actual loss, not intended or expected

loss," United States v. Innarelli, 524 F.3d 286, 295 (1st Cir.

2008); see also United States v. Fair, 699 F.3d 508, 513 (D.C.

Cir. 2012) (explaining that the defendant's gain is not a

substitute measure under the MVRA in most circuits), and it is the

government's burden to establish the loss amount by a preponderance

of the evidence, 18 U.S.C. § 3664(e); United States v. Prochner,

417 F.3d 54, 65 (1st Cir. 2005). In calculating the restitution

award, "a sentencing court is not held to a standard of absolute

precision." United States v. Salas-Fernández, 620 F.3d 45, 48

(1st Cir. 2010). Instead, "the restitutionary amount [need only]

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have a rational basis in the record." Id. Legal conclusions

underpinning restitution awards are reviewed de novo, factual

findings for clear error, and orders of restitution on the whole

for abuse of discretion. Innarelli, 524 F.3d at 293; Prochner,

417 F.3d at 65–66.

The district court based the restitution order on the

difference between the prices that Caguas paid the defendants for

their routes in 2014 after the rigged 2013 auction, and the amount

that it paid for those same routes in 2017 after a presumably fair

auction in 2016. The court then allocated the loss between the

defendants based on their routes. Garay-Rodríguez was ordered to

pay $114,181 and Vega-Martínez, $93,055.

1.

Garay-Rodríguez -- but not Vega-Martínez -- first

challenges the restitution award under Apprendi v. New Jersey, 530

U.S. 466 (2000), arguing that the amount of restitution should

have been found by the jury instead of by a judge. This challenge

was not preserved, so we review it for plain error. Prieto, 812

F.3d at 17. This circuit has previously held, "like all of the

other circuits to consider this question," that "Booker and its

antecedents do not bar judges from finding the facts necessary to

impose a restitution order." United State v. Milkiewicz, 470 F.3d

390, 403–04 (1st Cir. 2006). Garay-Rodríguez contends that the

Supreme Court has more recently provided guidance to the contrary

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in Southern Union Co. v. United States, 567 U.S. 343, 347–50

(2012), but that case is clearly distinguishable. There, the

Supreme Court evaluated a statute that imposed a $50,000 fine for

each day of violation and found that because each day increased

the statutory maximum fine, the jury was required to find the

number of days the defendant was in violation. Id. The MVRA,

however, has no statutory maximum amount and instead tasks the

district court with determining the factual amount of loss. 18

U.S.C. § 3663A(b). As a result, in the MVRA context "a judge

cannot find facts that would cause the amount to exceed a

prescribed statutory maximum." United States v. Bengis, 783 F.3d

407, 412 (2d Cir. 2015) (emphasis added). While this court has

not re-evaluated its reasoning in Milkiewicz since Southern Union

was decided, several other courts of appeals have already concluded

that Southern Union does not overrule their previous holdings that

Apprendi does not apply to restitution calculations.2 See United

States v. Sawyer, 825 F.3d 287, 297 (6th Cir. 2016); United States

v. Thunderhawk, 799 F.3d 1203, 1209 (8th Cir. 2015); Bengis, 783

F.3d at 412–13; United States v. Rosbottom, 763 F.3d 408, 420 (5th

Cir. 2014); United States v. Green, 722 F.3d 1146, 1149–50 (9th

Cir. 2013); United States v. Wolfe, 701 F.3d 1206, 1216–17 (7th

2 For the contrary argument, see William M. Acker, Jr., The
Mandatory Victims Restitution Act Is Unconstitutional. Will the
Courts Say So After Southern Union v. United States?, 64 Ala. L.
Rev. 803 (2013).

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Cir. 2012); United States v. Day, 700 F.3d 713, 732 (4th Cir.

2012).

The district court's decision to follow the approach

espoused in Milkiewicz, which accords with the more recent

decisions of our sister circuits, was not plain error.

2.

Moving on from Apprendi, both defendants challenge

whether it was reasonable for the district court to use the

ostensibly fair prices from the 2016-2017 auction as a benchmark

for what fair prices would have been in the 2013-2014 auction.

Vega-Martínez makes two primary arguments on that point. First,

he argues that there were no losses because after the renegotiation

process the municipality ultimately did not pay more than it had

initially budgeted for the routes. This first argument falls flat.

The fact that the municipality might have been able to afford

higher prices than it paid in 2014, even if true, does not preclude

the likelihood that it would have paid less had there been a fair

auction, which is the relevant question. Along those same lines,

Vega-Martínez also argues that he "[h]ad been servicing the same

route for around 27 years for basically the same price" that was

reached in 2014. But that is not the proper measure either. The

municipality presumably opened up the auction in the hope that it

could get lower prices, as it was entitled to do and as it did for

2017. Prices from previous years thus are not a legally

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dispositive benchmark -- especially when those previous years'

prices were not decided by auction.

Second, Vega-Martínez argues that the government failed

to present any evidence to show that there were other companies

and drivers available and willing to provide the services for less

in 2014. This second argument is better but ultimately not

persuasive. As Vega-Martínez points out, neither of the two

cooperating witnesses testified that they would have bid on the

routes in question but for the agreement reached at the bid-rigging

meeting. There was thus no express evidence to establish that

market conditions were equivalent between 2013 and 2016. To back

up this point, Garay-Rodríguez points to a provision in the MVRA

that allows courts not to award restitution where determining the

loss amount would "complicate or prolong the sentencing process to

a degree that the need to provide restitution to any victim is

outweighed by the burden on the sentencing process." 18 U.S.C.

§ 3663A(c)(3)(B). Although the government interprets this

provision to suggest that district courts should not concern

themselves with complex facts when awarding restitution, it

actually suggests that restitution should not be awarded when it

is too difficult to estimate accurately. That is, where the facts

are too difficult to discern, the sentencing court's option is to

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forgo restitution, not to fall back on a factually unsupported

calculation method.3

That being said, "calculation of restitution is not held

to standards of scientific precision." United States v. Sánchez-

Maldonado, 737 F.3d 826, 828 (1st Cir. 2013). Absent evidence to

the contrary, it was permissible for the court to assume that

market conditions were roughly equivalent between 2013 and 2016.

Only three years passed between the two auctions, and the

defendants point to no intervening events that would have seriously

disrupted the supply of or demand for bus servicing in that span

of time.4

Vega-Martínez also argued below that "[t]he routes that

were served by [his company] are currently served differently."

In particular, he contended that a provider who obtained a route

for 2017 used a different number of buses and picked up a different

number of students than he had. But Vega-Martínez provided no

3
See Jennifer Gerarda Brown, Robbing the Rich to Feed the
Poor, 3 Buff. Crim. L. Rev. 261, 275–81 (1999); see, e.g., United
States v. Fountain, 768 F.2d 790, 802 (7th Cir. 1985) (Posner, J.)
(applying the Victim and Witness Protection Act's parallel
complexity exception to reverse a grant of lost future earnings to
a murdered prison guard's family because "projecting lost future
earnings has no place in criminal sentencing if the amount or
present value of those earnings is in dispute" and such an
"elaborate damage calculation requiring expert testimony" was too
complicated for the sentencing context (emphasis omitted)).
4
Hurricane Maria did not land on the island until September
2017, for example.

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direct evidence of those contentions. While he did include

affidavits from community members about their experiences with the

busing services post-2017, the affidavits failed to include any

detailed information about the routes.

Absent an evidence-supported argument from the

defendants that the routes auctioned for 2017 were materially

different than those for 2014, the district court was entitled to

presume that the two auctions were for approximately the same

services in pretty much the same market.

III.

For the reasons explained above, the defendants'

convictions and restitution requirements are affirmed.

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