[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
11/24/99
No. 99-4184 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 98-00247-CR-KMM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE JULIO ALAS,
Defendant-Appellant.
________________________
Appeal from the United States District Court for the
Southern District of Florida
_________________________
(November 24, 1999)
Before COX, and WILSON, Circuit Judges, and FAY, Senior Circuit Judge.
PER CURIAM:
Jose Julio Alas appeals his sentence for conspiracy to possess stolen United
States mail and possession of stolen United States mail. Defendant Alas and his
co-defendants, Francisco Hernandez and Arilla Borrego, were involved in a “check
washing” scheme where they stole checks from personal and business mailboxes,
chemically treated the checks, rewrote the checks for larger amounts, made the
checks payable to themselves, and subsequently cashed the checks. This scheme
and conspiracy were in effect from approximately October 10, 1996 to March 23,
1998, when the parties were arrested. Alas pled guilty to a 122-count indictment:
count one charged the parties of conspiring to violate 18 U.S.C. § 1708 by stealing
checks from the U.S. mail and altering and cashing them in violation of 18 U.S.C.
§ 371; counts two through 75 charged appellants with theft of checks that had been
cashed in violation of 18 U.S.C. § 1708; and, counts 76 through 122 charged the
conspirators with theft of the checks which were in their possession, but not
cashed. The district court sentenced Alas to 24 months in prison, followed by three
years of supervised release, and $45,652.42 in restitution. The restitution amount
was based on the value of all of the checks cashed during the conspiracy. Alas
appeals the amount of restitution claiming that because he was imprisoned for an
unrelated offense from February 28, 1997 to May 3, 1997, he should not be
responsible for the value of the checks cashed during that time period.
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We review the validity of a restitution order for abuse of discretion. See
United States v. Twitty, 107 F.3d 1482, 1493 (11th Cir.), cert. denied, 118 S.Ct.
253 (1997). Upon review of the Presentence Investigation Report, the sentencing
hearing transcript, and upon consideration of both parties’ briefs, we find no
reversible error, and AFFIRM.
Alas claims that he should not be jointly and severally liable for restitution
for counts 21 through 35, because the checks were cashed by co-defendants while
Alas was incarcerated for an unrelated offense. Under the most recent amendment
to the restitution statute Alas is liable for the total restitution. Both 18 U.S.C. §
3663 and USSG § 1B1.3 support the trial courts determination that Alas is jointly
and severally liable for the total value of the checks cashed during the duration of
the conspiracy regardless of his temporary incarceration.
Under well established Eleventh Circuit precedent conspirators are liable for
all of the acts and foreseeable consequences of the conspiracy. Where a defendant
pleads guilty or is convicted of conspiracy, the district court may order restitution
for all losses which resulted from the conspiracy. United States v. Davis, 117 F.3d
459, 462 (11th Cir. 1997). Furthermore, “a defendant is liable for reasonably
foreseeable acts of others committed in furtherance of the conspiracy of which the
defendant has been convicted.” Id. at 463. Here, Alas was part of the “check
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washing” conspiracy from its inception. There is no evidence that Alas attempted
to withdraw from the conspiracy during his short stint in prison. In fact, he was
photographed at a bank cashing stolen checks with a co-conspirator shortly after
his release from prison. Additionally, Alas is responsible for all acts of the
conspiracy which are reasonably foreseeable. Alas never denied that he was a
member of the conspiracy, in fact he pled guilty to all charges, including counts 21
through 35, which occurred while he was temporarily incarcerated.
The facts demonstrate that Alas was an integral member of the conspiracy.
Furthermore, it is reasonably foreseeable based on Alas’ resumed participation
after incarceration, that he was aware of the conspiracies continued activity.
However, even if Alas was not aware of the continued operation, he is liable for
the acts that flow as a natural consequence of the conspiracy. Therefore, we affirm
the district courts restitution award and hold Alas jointly and severally liable for
the entire value of the fraudulently cashed checks.
AFFIRMED.
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