United States v. Carrasquillo-Vilches

33 F.4th 36

UNITED STATES of America, Appellee,

v.Miguel Francisco CARRASQUILLO-VILCHES, Defendant, Appellant.

No. 21-1355

United States Court of Appeals, First Circuit.

May 2, 2022

Stephen V. Manning, with whom Spears Manning & Martini LLC was on brief, for appellant.

Maarja Tiganik Luhtaru, Assistant United States Attorney, with whom W. Stephen Muldrow, United States Attorney, Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, and Gregory B. Conner, Assistant United States Attorney, were on brief, for appellee.

Before Thompson, Selya, and Kayatta, Circuit Judges.

SELYA, Circuit Judge.

This is a case in which defendant-appellant Miguel Francisco Carrasquillo-Vilches, an apparent apostle of audacity, has traveled a winding road that led him from the finagled occupancy of an upscale apartment to a prison cell. Following the defendant's guilty plea to charges of falsely impersonating a federal officer and wire fraud, the district court imposed five concurrent eighteen-month terms of immurement and ordered restitution in the amount of $30,605.19. The defendant appeals, challenging both the sentence and the restitution order. After careful consideration, we affirm his sentence and affirm all but a sliver of the restitution order.

I. BACKGROUND

We briefly rehearse the relevant facts and travel of the case. "Because this appeal ‘follows a guilty plea, we glean the relevant facts from the change-of-plea colloquy, the unchallenged portions of the presentence investigation report (PSI Report), and the record of the disposition hearing.’ " United States v. Merced-García, 24 F.4th 76, 78 (1st Cir. 2022) (internal quotation omitted) (quoting United States v. Dávila-González, 595 F.3d 42, 45 (1st Cir. 2010) ).

In July of 2019, the defendant moved from Tennessee to San Juan, Puerto Rico. Prior to moving, he contacted a local realtor to assist with his search for a residence. The realtor put the defendant in contact with a prospective landlord, who had an upscale apartment for rent.

Negotiations ensued. The defendant wanted a provision in the lease that would allow him to terminate it at any time without incurring financial liability. Believing that such an early-termination provision would more readily be made available for certain functionaries of the federal government, the defendant falsely identified himself as an employee of the United States Department of Homeland Security (DHS). Specifically, he referred to himself as "Director Tactical Command of the Mid-South Region for the Homeland Security Investigations agency."

To add a patina of plausibility to his falsehoods, he generated what appeared to be a chain of emails between his personal email address and a doctored DHS email address and displayed this bogus email chain to both the realtor and the prospective landlord. These emails gave the appearance that DHS was aware of the defendant's plan to lease an apartment and was in the process of issuing a formal approval of that plan.

When he submitted his rental application, the defendant falsely represented that he would be entering the lease on behalf of DHS and that he would be the employee who occupied the premises. The application, he said, was "authorized by Bill Whitaker, Sub-Director of DHS." For aught that appears, Whitaker was a figment of the defendant's imagination.

Even though several of the defendant's representations were spurious, his rental application was approved and a twelve-month lease agreement (the Lease) was executed. The Lease bore the signatures of the landlord, the defendant, and what appeared to be the authorizing signature of a DHS official (which the defendant apparently forged). The Lease ran from July 15, 2019 to July 14, 2020 and identified DHS as the lessee, the defendant as the occupant, and the landlord as the lessor. The Lease provided for rent of $7,500 per month, reflecting a total contract price of $90,000 for the twelve-month term. It also provided for the immediate delivery of a security deposit in the amount of $7,500.

At the defendant's instance, the Lease contained a "Diplomatic Clause." This clause made DHS liable for any rent that might remain unpaid should the defendant vacate the apartment before the expiration of the Lease. During a later interview with the probation officer, the defendant indicated that he wanted this clause in the Lease because he planned to return to Tennessee in or around December of 2019. DHS, of course, knew nothing about the Lease and had no knowledge of the "Diplomatic Clause."

The defendant occupied the apartment for the first two months of the term of the Lease without either delivering the security deposit or paying the rent. Blaming nonpayment on processing delays at DHS, the defendant sent the landlord a personal check for the overdue amounts ($22,500). The check bounced and was returned to the landlord for insufficient funds.

The landlord complained to the realtor, and the realtor belatedly submitted an inquiry to DHS regarding the defendant's employment status and DHS's role in the Lease. Another month went by: the defendant continued to reside in the apartment and the rent continued to go begging.

By this time, the landlord's patience was exhausted and he brought an eviction proceeding against the defendant in the Puerto Rico Court of First Instance. During that proceeding, the defendant admitted to owing "almost $30,000" but continued to lie about his employment with DHS. He claimed that he expected DHS to issue a check for the arrearage in short order. Unpersuaded, the Puerto Rico court ordered the defendant's eviction, and the defendant vacated the premises.

At around the same time, DHS responded to the realtor's inquiry. Its response made pellucid that the defendant was not a DHS employee and had no authority to enter into the Lease on DHS's behalf.

The scene soon shifted from a civil proceeding to a criminal proceeding. On October 31, 2019, a federal grand jury returned an indictment that charged the defendant with one count of impersonating a federal officer, see 18 U.S.C. § 912, and four counts of wire fraud related to his interstate email communications with the realtor and the landlord, see id. § 1343. After originally maintaining his innocence, the defendant reversed his field and entered a straight guilty plea to all five counts of the indictment. The district court accepted his guilty plea and ordered the preparation of a PSI Report. In that report, the probation office recommended a total offense level of thirteen, which included a six-level increase for the amount of the intended loss (calculated to be $90,000). See USSG § 2B1.1(b)(1)(D). This offense level, coupled with a criminal history category of I, yielded a guideline sentencing range (GSR) of twelve to eighteen months.

The district court convened the disposition hearing on April 13, 2021. The defendant objected to the PSI Report, contending that the amount of loss was overstated. The court overruled the defendant's objection and adopted the guideline calculations limned in the PSI Report. The defendant then urged the court to impose a sentence of probation. For its part, the government urged the court to impose a prison sentence at the top of the GSR.

The court sentenced the defendant to concurrent eighteen-month terms of immurement on each of the five counts of conviction. It also ordered the defendant to pay $30,605.19 in restitution to the landlord. That sum comprised three months of unpaid rent ($22,500), the unpaid security deposit ($7,500), and the expenses that the landlord incurred in traveling from Florida to Puerto Rico to appear at the eviction proceeding ($605.19). This timely appeal followed.

II. ANALYSIS

The defendant challenges his sentence as procedurally infirm and substantively unreasonable. In addition, he challenges the restitution order as excessive because it includes (improperly, in his view) the unpaid security deposit and the landlord's travel expenses. We address these challenges sequentially.

A. The Sentence.

Our "review of claims of sentencing error entails a two-step pavane." United States v. Vélez-Andino, 12 F.4th 105, 112 (1st Cir. 2021) (quoting United States v. Matos-de-Jesús, 856 F.3d 174, 177 (1st Cir. 2017) ). Thus, "we first determine whether the sentence imposed is procedurally reasonable and then determine whether it is substantively reasonable." United States v. Clogston, 662 F.3d 588, 590 (1st Cir. 2011). "At both steps of this pavane, our review of preserved claims of error is for abuse of discretion." United States v. Díaz-Lugo, 963 F.3d 145, 151 (1st Cir. 2020). Within the abuse-of-discretion rubric, "we review the sentencing court's findings of fact for clear error and questions of law (including the court's interpretation and application of the sentencing guidelines) de novo." United States v. Rivera-Morales, 961 F.3d 1, 15 (1st Cir. 2020).

Against this backdrop, we turn to the defendant's claims of error (all of which were preserved below).

1. The Procedural Claim . The defendant first asserts that his sentence was procedurally infirm because the district court erroneously applied a six-level increase to his base offense level. This assertion does not withstand scrutiny.

The defendant pleaded guilty both to impersonation of a federal officer and to wire fraud. Because the wire fraud counts called for a higher base offense level (seven) than the impersonation count (six), the former provided the starting point for calculation of the GSR. See USSG § 2J1.4(c)(1).

In fraud cases, the amount of loss — actual or intended — is an important integer in the calculation of a defendant's base offense level. USSG § 2B1.1 applies in this case, and that guideline calls for graduated increases to the base offense level depending on the extent of pecuniary loss sustained by the victim. See id. § 2B1.1(b)(1). For this purpose, "loss" is defined as "the greater of actual loss or intended loss." Id. § 2B1.1, cmt. n.3(A).

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