United States v. Arguedas

United States Court of Appeals, Eleventh Circuit.

No. 94-5344

Non-Argument Calendar.

UNITED STATES of America, Plaintiff-Appellee,

v.

Antonio ARGUEDAS, Defendant-Appellant.

July 1, 1996.

Appeal from the United States District Court for the Southern
District of Florida. (No. 94-237-CR-SM), Stanley Marcus, Judge.

Before ANDERSON, BIRCH and CARNES, Circuit Judges.

CARNES, Circuit Judge:

Antonio Arguedas was charged in a 20-count indictment with

conspiracy to commit mail fraud, wire fraud, interstate

transportation of stolen property, and money laundering, for his

role in a fraud scheme involving two Miami, Florida churches.

Prior to trial, Arguedas pleaded guilty to all counts. The

district court sentenced him to two 108 month terms of

imprisonment, and a term of 60 months imprisonment, all of which

are to be served concurrently. The court also ordered that the

imprisonment was to be followed by a three-year term of supervised

release, and ordered restitution in the amount of $125,457.00.

Arguedas appeals his sentence, contending that the district

court erred by: (1) enhancing his sentence based on a finding that

Arguedas targeted "vulnerable victims"; (2) enhancing his sentence

for obstruction of justice; and (3) refusing to reduce his

sentence for acceptance of responsibility after he pleaded guilty

on all counts. For the reasons discussed below, we affirm

Arguedas's sentence.
 I. BACKGROUND

A. Facts

In 1991, Antonio Arguedas and his wife had known the Reverend

Francisco Ramos, pastor of Iglesia Betania, a Miami church, for
several years. They had developed a fairly close personal

relationship. Knowing that Ramos's wife needed open heart surgery,

Arguedas's wife posed as a cardiologist, in an effort to nurture

the trusting relationship between the two couples. Arguedas's wife

promised that she could take care of the surgery free of cost.
In late 1991, Arguedas and his wife invited Ramos and his

family to visit them at their home in Delaware. Arguedas asked

Ramos about the financial condition of Iglesia Betania Church and

inquired whether the church was a tax-exempt organization under the

Internal Revenue Code. Arguedas advised Ramos that he would apply

for tax-exempt status for the church. In the course of doing this

"favor" for Ramos, Arguedas convinced Ramos that his church owed
approximately $20,000 in back taxes because it was not tax-exempt.

Arguedas put Ramos on the telephone with codefendant Jim Estrada,

who posed as an IRS employee. Estrada convinced Ramos to give

Arguedas $6,452.61 to pay the back taxes, a reduced amount that

Estrada said the IRS would accept because of Estrada's friendship

with Arguedas. Arguedas also convinced Ramos to incorporate his

church in Delaware and to pay Arguedas the fees and expenses he

said were associated with the transfer of the incorporation.

In September 1992, Arguedas told Ramos that he had learned of

a program known as the "Pro Religion Development Fund," which he

said was sponsored and operated by the United States Department of
State. Arguedas told Ramos that the fund provided multi-million

dollar grants to churches for charitable purposes and that once

Iglesia Betania Church had received its tax-exempt status and had

paid certain fees, the church would be eligible to receive a $1.5

million grant. Over the next few months, Arguedas provided

documentation to Ramos, including correspondence purporting to be

between Arguedas and the president of the fund.

Arguedas initially convinced Ramos and board members of the

church to pay $25,000 toward the fund application. In December

1992, after Arguedas convinced Ramos and church members that the

church would be entitled to an increased grant of $3 million, the

church paid Arguedas an additional $35,000 toward their

application. Arguedas even introduced Ramos to a church builder

who discussed designs for a new church, which was to be built with

the proceeds of the fund.

Throughout 1993, Arguedas had various telephone conversations

with Ramos, during which Arguedas asked for additional monies in

increments of $4,000 to $5,000, which he said were to pay for legal

fees, closing costs, and other expenses association with the grant.

In all, Ramos's church paid approximately $100,000 to Arguedas

during the fraud scheme.

In September of 1993, while the scheme was ongoing and Ramos

was expecting his $3 million grant, Arguedas asked Ramos to

recommend other churches that might be good candidates to receive

similar grants from the Pro Religion Development Fund. Ramos

recommended the Iglesia Cristiana Church, in Miami. Arguedas met

with Reverend Perez, the pastor of that church, in October 1993 and
discussed a $500,000 grant for the church, which later was

increased to approximately $1 million. In October and December

1993, Perez sent Arguedas two checks, totalling $25,000, as payment

toward the grant application. From January to May 1994, Arguedas

and other codefendants had additional telephone conversations with

Perez concerning additional monies which would have to be paid to

obtain the grant. Of course, neither church ever received any

grant money.

B. Pre-Sentencing Investigation Report

Arguedas pleaded guilty to the scheme discussed above. A Pre-

Sentencing Investigation Report was prepared. Both the government

and Arguedas filed objections to the PSI. Arguedas objected that

he was entitled to a reduction in offense level based upon his

acceptance of responsibility, because he had made a written

statement of contrition to the probation officer (after the PSI had

been prepared).

The government objected that Arguedas should receive a

two-level upward adjustment, under the United States Sentencing

Guidelines § 3A1.1 for targeting an unusually vulnerable or

susceptible victim. The government also objected that Arguedas

should receive a two-level upward adjustment for obstruction of

justice, pursuant to U.S.S.G. § 3C1.1 (1994). Finally, the

government objected that Arguedas was not entitled to a three-level

reduction for acceptance of responsibility, under U.S.S.G. § 3E1.1

(1994), because, although Arguedas pleaded guilty, he never fully

admitted his culpability and also had obstructed justice.

In response to Arguedas's objection, the probation officer
decided that his initial position had been correct: Arguedas was

not entitled to an acceptance of responsibility reduction. In

response to the government's objections, the probation officer

changed some of the initial PSI recommendations. He agreed that

the victims were unusually vulnerable or susceptible so that

Arguedas's offense level should be enhanced by two levels for that

reason. The probation officer also agreed with the government that

Arguedas had obstructed justice by providing numerous written

proffers after his plea directed at falsely exculpating his

codefendants. As a result, he determined that Arguedas's offense

level should be enhanced by two levels for obstruction of justice.

C. Sentencing Hearing

At the sentencing hearing, Arguedas contended that he should

not receive a two-level upward adjustment for targeting vulnerable

victims, arguing that his victims were not particularly vulnerable

and that his scheme was "just a run of the mill fraud." The

district court disagreed, stating, "I see this as a profoundly

egregious fraud...." The court found that Arguedas "did, indeed,

nurture a close relationship with the pastor and his wife." The

court also found that:

Reverend Ramos was plainly inexperienced in matters of
financial affairs and tax matters, and, indeed the church was
particularly vulnerable in terms of financial wherewithal of
the church. And I think the defendant plainly played on his
knowledge of the victims' weaknesses, plainly played on the
knowledge that they were unusually vulnerable ... because of
their role in the church and the relationship that had been
engendered.

With that explanation, the district court applied the vulnerable

victim enhancement.

The government then asked the district court for a two-level
upward adjustment based on Arguedas's obstruction of justice,

pointing out that, after Arguedas had pleaded guilty, he had made

several contradictory statements to law enforcement officers.

Arguedas had attempted to falsely exonerate codefendant Smith, or

at least play down Smith's involvement; and Arguedas had falsely

stated that his wife was innocent.

In response, Arguedas denied that his false statements had

impeded the government's investigation. His attorney explained

that Arguedas "initially may have attempted to mitigate his wife's

circumstances. He was torn between love for wife and his own

responsibilities...." The district court found that Arguedas had

obstructed justice, and accordingly enhanced his sentence two

levels. The court remarked: "There is no question in this record

... that the defendant's account has changed like the wind," and

concluded, "I am convinced that [Arguedas] lied to me in this

courtroom and that he provided materially false information to a

Judge or Magistrate."

Arguedas contended that he was entitled to a two- or

three-level reduction for acceptance of responsibility, because he

had pleaded guilty and had accepted responsibility for his acts.

The government opposed the reduction because of Arguedas's

obstruction of justice. The district court concluded that, because

of his obstruction, Arguedas had not accepted responsibility and

was not entitled to the reduction.
II. DISCUSSION

A. The Vulnerable Victim Adjustment

Section 3A1.1 of the Sentencing Guidelines provides for a
two-level upward adjustment to a defendant's offense level:

If the defendant knew or should have know that a victim of the
offense was unusually vulnerable due to age, physical or
mental condition, or that a victim was otherwise particularly
susceptible to the criminal conduct.

U.S.S.G. § 3A1.1 (1994).

The district court adjusted Arguedas's offense level based on

its finding that Reverend Ramos was particularly susceptible to

Arguedas's fraud scheme. The district court's application of

section 3A1.1 presents a mixed question of law and fact, which we

review de novo. United States v. Thomas, 62 F.3d 1332, 1344 (11th

Cir.1995), cert. denied, --- U.S. ----, 116 S.Ct. 1058, 134 L.Ed.2d

202 (1996). The district court's determination of a victim's

"vulnerability" is, however, essentially a factual finding to which

we give due deference. United States v. Page, 69 F.3d 482, 488

(11th Cir.1995); United States v. Salemi, 26 F.3d 1084, 1087 (11th

Cir.1994) ("The determination of vulnerability is a factual finding

which is entitled to due deference on review." (citation

omitted)), cert. denied, --- U.S. ----, 115 S.Ct. 612, 130 L.Ed.2d

521 (1994); 18 U.S.C. § 3742(e) ("The court of appeals ... shall

give due deference to the district court's application of the

guidelines to the facts.").

The "vulnerable victim" adjustment should be applied only in

cases in which the defendant selects his victim due to the

defendant's perception of the victim's vulnerability to the

offense. Page, 69 F.3d at 488. In United States v. Long, 935 F.2d

1207, 1210 (11th Cir.1991), we stated that, "[t]he applicability of

section 3A1.1 turns on the defendant's decision to target the

victim." "[T]o determine whether defendants have targeted
"vulnerable victims,' we look to the facts known to defendants when

they decided to target the victims." Page, 69 F.3d at 489

(citation and internal quotation marks omitted).

In enhancing Arguedas's sentence for targeting a vulnerable

victim, the district court looked to the fact that Arguedas had

engendered a personal relationship with Ramos, and had gained

particular knowledge of Ramos's financial situation. Arguedas

targeted Ramos as his victim, worked to learn more about Ramos's

particular susceptibility, and then acted upon that knowledge to

defraud Ramos and his church.

The record reflects that Arguedas befriended and later

targeted Reverend Ramos, a relatively unsophisticated pastor of a

financially-strapped church. Arguedas relied upon his personal

friendship with Ramos, as well as Ramos's religious and trusting

nature, to perpetrate his fraud scheme. Arguedas even had his wife

pose as a cardiologist offering to provide free medical care to

Ramos's sick wife as an additional means of eliciting Ramos's trust

while he defrauded Ramos and his church. But, in this case we need

not decide whether those circumstances alone would justify a

vulnerable victim enhancement, because there is an alternative

ground for the enhancement. Arguedas, by convincing Ramos to apply

for tax-exempt status, gained access to all relevant financial

information concerning Ramos's church. With that financial

information, Arguedas became aware of the church's particular

vulnerability due to its precarious financial situation.

We have held that "being in a precarious financial situation

is a "vulnerability' to fraudulent financial solicitations such as
... advance fee loan scheme[s]." Page, 69 F.3d at 489. A victim's

vulnerable financial situation may alone serve as the basis of a

section 3A1.1 enhancement, if the defendant targeted the victim for

that reason. Id.; see also United States v. Borst, 62 F.3d 43,

46-47 (2d Cir.1995) (victims' financial situation and defendant's

access to their financial records made them especially vulnerable

and enabled defendant to commit crimes for which he was convicted

because they were willing to overlook defendant's suspect business

practice).

Arguedas's fraud scheme was not aimed at the general public,

but instead Arguedas targeted Ramos because Arguedas believed him

to be particularly vulnerable. See Page, 69 F.3d at 490

(discussing advance fee loan scheme that addressed itself to

persons with bad credit). Further, even if Arguedas did not

initially know of Ramos's vulnerability, he warrants a section

3A1.1 enhancement because he learned of the vulnerability during

the course of the loan fraud and thereafter continued to perpetrate

the fraud against Ramos. See id. "[W]here the "thrust of the

wrongdoing' [is] continuing in nature, the defendants' attempt to

exploit the victim's vulnerability will result in an enhancement

even if that vulnerability did not exist at the time the defendant

initially targeted the victim." United States v. Thomas, 62 F.3d

1332, 1345 (11th Cir.1995).

When Arguedas targeted Ramos and his church, knowing of their

precarious financial situation, he targeted vulnerable victims.

Under our Page decision, that alone justifies the sentencing

enhancement. Therefore, we need not consider whether Arguedas's
personal relationship with his victim justifies the vulnerable

victim enhancement.

B. The Obstruction of Justice Adjustment

Section 3C1.1 of the Sentencing Guidelines provides for a

two-level upward adjustment to a defendant's offense level "[i]f

the defendant willfully obstructed or impeded, or attempted to

obstruct or impede, the administration of justice during the

investigation, prosecution, or sentencing of the instant

offense...." U.S.S.G. § 3C1.1 (1994). Examples of such conduct

include providing materially false statements to a judge, or to a

law enforcement officer, that significantly obstruct or impede the

official investigation or prosecution of the offense. U.S.S.G. §

3C1.1 (1994), comment. (n. 3(f), (g), (h)).

This Court reviews the district court's factual finding that

a defendant obstructed justice only for clear error. United States

v. Bagwell, 30 F.3d 1454, 1458 (11th Cir.1994). We review the

district court's application of the Guidelines to that factual

finding de novo. Id. Although it is preferable that the district

court make specific findings as to each alleged instance of

obstruction by identifying the materially false statements

individually, United States v. Dunnigan, 507 U.S. 87, 95, 113 S.Ct.

1111, 1117, 122 L.Ed.2d 445 (1993), it is sufficient if the court

makes a general finding of obstruction of justice that encompasses

all of the factual predicates of perjury, id.; see also United

States v. Dobbs, 11 F.3d 152, 154-55 (11th Cir.1994).

In Dunnigan, the district court had not identified specific

instances of obstruction. The court had, however, stated that:
 the defendant was untruthful at trial with respect to material
matters in this case. [B]y virtue of her failure to give
truthful testimony on material matters that were designed to
substantially affect the outcome of the case, the court
concludes that the false testimony at trial warrants an upward
adjustment....

507 U.S. at 95, 113 S.Ct. at 1117 (alteration in original). The

Supreme Court upheld the district court's sentence because the

record amply demonstrated that the defendant's testimony was

materially false, and therefore supported the court's general

finding. Id.

In this case, the district court's statements were at least

as specific as those in Dunnigan. The district court here stated:

I am quite convinced that [Arguedas] provided materially false
statements to law enforcement agents. I am convinced that it
impeded their investigation. Beyond that, I am convinced that
he lied to me in this courtroom and that he provided
materially false information to a judge or magistrate.... I
believe there was not only an obstruction, but there was
plainly a repeated attempt to obstruct both the investigation
and prosecution of this case.

The record reflects that Arguedas made contradictory

statements regarding the identity and whereabouts of his

codefendants, and his role and the role of his codefendants in the

fraud scheme. For example, at his plea hearing, Arguedas agreed

that the government accurately stated that his codefendant Estrada

assisted in the scheme. However, in an interview with a federal

agent immediately after his plea hearing, Arguedas stated that he

himself played the role of Estrada. Arguedas also stated in that

interview that his codefendant Smith had no knowledge of the fraud

scheme. Yet in his proffer, Arguedas stated that he paid Smith

$1,000 for his part in the scheme. The record supports the

district court's finding that Arguedas obstructed justice by making
materially false statements during the course of his investigation

and prosecution.

C. The Acceptance of Responsibility Adjustment

Section 3E1.1 of the Sentencing Guidelines provides for up to

a three-level downward adjustment to a defendant's offense level

"[i]f the defendant clearly demonstrates acceptance of

responsibility for his offense" by assisting authorities in the

investigation or prosecution of his own misconduct by timely

providing complete information to the government or by timely

notifying authorities of his intention to enter a plea of guilty.

U.S.S.G. § 3E1.1 (1994). This Court reviews the district court's

determination of acceptance of responsibility only for clear error.

United States v. Anderson, 23 F.3d 368, 369 (11th Cir.1994).

Arguedas contends that he was entitled to a three-level

downward adjustment to his offense level because he entered a

guilty plea and accepted full responsibility for his acts. "An

adjustment ... for acceptance of responsibility is not warranted

when a defendant's conduct results in an enhancement for

obstruction of justice." United States v. Kramer, 943 F.2d 1543,

1547 n. 4 (11th Cir.1991) (citing U.S.S.G. § 3E1.1, Application

Note 4), cert. denied, 506 U.S. 818, 113 S.Ct. 63, 121 L.Ed.2d 31

(1992). Although Arguedas did plead guilty, he repeatedly made

materially false statements to the authorities and to the district

court. The district court found that Arguedas's misstatements

impeded the investigation and prosecution of his offenses and,

accordingly, it enhanced Arguedas's sentence for obstruction of

justice. Imposition of that enhancement was not clearly erroneous.
AFFIRMED.