NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a0776n.06
FILED
No. 11-3826
Jul 18, 2012
UNITED STATES COURT OF APPEALS LEONARD GREEN, Clerk
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
v. ) COURT FOR THE NORTHERN
) DISTRICT OF OHIO
ROMERO MINOR, )
)
Defendant-Appellant. )
)
BEFORE: SILER and KETHLEDGE, Circuit Judges; MURPHY, District Judge.*
PER CURIAM. Romero Minor appeals his sixty-nine-month sentence for wire fraud,
specifically challenging the district court’s determination of the amount of loss resulting from his
offenses. For the reasons set forth below, we affirm.
Minor pleaded guilty to one count of conspiracy to commit wire fraud in violation of 18
U.S.C. § 371 and forty-eight counts of wire fraud in violation of 18 U.S.C. § 1343. These charges
arose from a mortgage fraud scheme in which Minor recruited investors/straw buyers to purchase
houses, directed the submission of mortgage loan applications containing false information to lenders
to secure loans to purchase the properties, obtained inflated appraisals for the properties, and kept
the excess funds created by the inflated appraisals, using a portion to make kickback payments to
the investors/straw buyers and his co-conspirators.
*
The Honorable Stephen J. Murphy, III, United States District Judge for the Eastern District
of Michigan, sitting by designation.
No. 11-3826
United States v. Minor
According to the plea agreement, the parties were unable to agree on a guidelines calculation
because of their differing views as to the amount of loss attributable to Minor under USSG
§ 2B1.1(b)(1). In the plea agreement, the government took the position that the loss in the case
exceeded $1,000,000, resulting in a 16-level increase to the base offense level; Minor reserved the
right to argue against that calculation.
The presentence report prepared by the probation office included a chart showing the forty-
eight properties involved in the conspiracy and the corresponding loss amounts. The chart presented
three different methods for calculating the loss sustained by the victim lenders. Using the lowest loss
total, $1,311,672.51, the presentence report increased Minor’s base offense level by 16 levels
because the amount of loss exceeded $1,000,000 but was less than $2,500,000. See USSG
§ 2B1.1(b)(1)(I). Minor filed objections to the presentence report’s loss calculation.
At sentencing, the district court heard the arguments of counsel and the testimony of FBI
Special Agent Tom Donnelly regarding the loss calculation. The district court overruled Minor’s
objections, and determined that the loss involved in the case exceeded $1,000,000, specifically
amounting to $1,311,672.51. Applying the corresponding 16-level increase, the district court
calculated Minor’s guidelines range as sixty-three to seventy-eight months. The district court
sentenced Minor to the statutory maximum of sixty months on the conspiracy count and sixty-nine
months on the forty-eight wire fraud counts, all to run concurrently.
This timely appeal followed. Minor raises two issues regarding the loss calculation: (1) the
government’s reliance on a chart to establish the loss calculation violated his constitutional right of
confrontation where the plea agreement reserved his right to argue loss at sentencing and (2) the
district court improperly applied USSG § 2B1.1 in determining “reasonably foreseeable pecuniary
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No. 11-3826
United States v. Minor
harm” where the government failed to present any evidence that he could have reasonably foreseen
the crash of the real estate market or the practice by lenders of reselling mortgages.
We review de novo Minor’s claim that his rights under the Confrontation Clause were
violated. United States v. Katzopoulos, 437 F.3d 569, 573 (6th Cir. 2006). Relying on the Supreme
Court’s recent line of cases addressing the right of confrontation, Bullcoming v. New Mexico, 131
S. Ct. 2705 (2011), Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), and Crawford v.
Washington, 541 U.S. 36 (2004), Minor argues that the district court should have required the
production of live witnesses and admissible documents to establish loss. We have repeatedly held,
post-Crawford, that the Confrontation Clause does not apply in sentencing proceedings. See United
States v. Paull, 551 F.3d 516, 527-28 (6th Cir. 2009); Katzopoulos, 437 F.3d at 575-76; United
States v. Stone, 432 F.3d 651, 654 (6th Cir. 2005). Minor contends that the plea agreement’s
reservation of his right to argue loss at sentencing excepts his case from the general rule that
confrontation rights do not apply at sentencing. But if that were the case, Minor's "exception" would
swallow the rule. It implies that a defendant sentenced without a plea agreement, who therefore
retains the ability to raise any relevant sentencing issue, would also have confrontation rights. In any
case, regardless of any confrontation rights, one of the agents who prepared the loss calculation chart
testified at Minor’s sentencing hearing and was subject to cross-examination.
We review de novo the district court’s method of calculating loss for purposes of USSG
§ 2B1.1(b)(1). United States v. Triana, 468 F.3d 308, 321 (6th Cir. 2006). “[T]he district court is
to determine the amount of loss by a preponderance of the evidence, and the district court’s findings
are not to be overturned unless they are clearly erroneous.” United States v. Rothwell, 387 F.3d 579,
582 (6th Cir. 2004). The application notes under USSG § 2B1.1 provide that the district court “need
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No. 11-3826
United States v. Minor
only make a reasonable estimate of the loss.” USSG § 2B1.1, comment. (n.3(C)). Because “[t]he
sentencing judge is in a unique position to assess the evidence and estimate the loss based upon that
evidence,” the district court’s “loss determination is entitled to appropriate deference.” Id.
Under USSG § 2B1.1’s application notes, loss generally is “the greater of actual loss or
intended loss.” Id. comment. (n.3(A)). “Actual loss” is defined as “the reasonably foreseeable
pecuniary harm that resulted from the offense,” which in turn is defined as “pecuniary harm that the
defendant knew or, under the circumstances, reasonably should have known, was a potential result
of the offense.” Id. comment. (n.3(A)(i), (iv)). In a case involving collateral, the defendant is
entitled to a credit against loss in “the amount the victim has recovered at the time of sentencing
from disposition of the collateral, or if the collateral has not been disposed of by that time, the fair
market value of the collateral at the time of sentencing.” Id. comment. (n.3(E)(ii)).
Here, the district court calculated the loss resulting from Minor’s offenses by taking the
mortgage loan amount and subtracting the fair market value of the collateral at the time of
sentencing, which was determined by using the higher of either average neighborhood sales or
average neighborhood county tax appraisals. Using the fair market value rather than the amount that
the lenders recovered through foreclosure sales benefitted Minor; crediting Minor with the recovery
from foreclosure sales would have resulted in a loss calculation in excess of $2,500,000 and an
additional 2-level increase to his base offense level.
Minor contends that he could not have reasonably foreseen the real estate market crash and
the resulting significant reduction in the fair market value of the properties at issue. Unlike the
application note regarding the determination of loss, the application note regarding credits against
loss does not speak in terms of foreseeability. Id. comment. (n.3(A), (E)). The sentencing
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No. 11-3826
United States v. Minor
guidelines, therefore, require foreseeability of the loss of the unpaid principal, but do not require
foreseeability with respect to the future value of the collateral. See United States v. Turk, 626 F.3d
743, 749-50 (2d Cir. 2010).
Minor also argues that he could not have reasonably foreseen that lenders would resell the
mortgages at a profit. But we agree with the district court that although whether the lender's resold
the mortgages at a profit may be relevant to restitution, it is not relevant to determining loss. The
“reasonably foreseeable pecuniary harm” in this case is the amount of the mortgage loans.
For the foregoing reasons, we AFFIRM Minor’s sentence.
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