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.