United States v. Rodriguez

UNITED STATES OF AMERICA, Plaintiff - Appellee v. CYNTHIA LUNA RODRIGUEZ, Defendant - Appellant

No. 18-40773

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

February 28, 2020

Appeal from the United States District Court for the Southern District of Texas

USDC No. 7:16-CR-1156-1

Before WIENER, GRAVES, and WILLETT, Circuit Judges.

PER CURIAM:^*

Defendant-Appellant Cynthia Luna Rodriguez was convicted of bank fraud and embezzlement. The district court sentenced her to 85 months in prison, a term within the advisory range calculated under the Sentencing Guidelines. She appeals her sentence based on the application of three Guidelines enhancements. We find no error in two but vacate the sentence for plain error in the application of the third.

I. Facts and Proceedings

Rodriguez pleaded guilty to two counts of bank fraud involving four bank customers and one count of embezzlement by a bank employee. At her rearraignment, Rodriguez admitted that she withdrew money without authorization from customer accounts while employed at First National Bank and its successor, PlainsCapital Bank ("the Bank"), between 2006 and 2014. Rodriguez misdirected account statements and prepared false documents to hide the unauthorized withdrawals. She targeted customers who were less likely to monitor their accounts, such as the elderly or those living out of this country. If a customer complained about missing statements or if an account was set to be closed, Rodriguez would backfill it with money taken from other customer accounts. Rodriguez tampered with the accounts of eleven customers, four of whose accounts were ultimately closed with the correct balances. Rodriguez admitted to withdrawing a total of more than one million dollars, and her Presentence Investigation Report ("PSR") determined the amount to be at least $1.4 million.

In determining the advisory imprisonment range, the district court applied the 2016 edition of the Sentencing Guidelines, which was in effect at the time of sentencing, rather than the 2013 edition, which was in effect at the conclusion of Rodriguez's crimes. The court's Guidelines calculation resulted in a range of 78 to 97 months' imprisonment. The court sentenced Rodriguez to three concurrent terms of 85 months in prison, plus restitution and three years of supervised release.

Rodriguez appeals the application of three enhancements to her offense level under the Guidelines: (1) section 2B1.1(b)(16)(A) for a defendant who derived more than $1,000,000 in gross receipts from a financial institution, (2) section 3A1.1(b)(1) for a defendant who knew or should have known that avictim of the offense was vulnerable, and (3) section 2B1.1(b)(2)(A)(iii) for an offense resulting in substantial financial hardship to at least one victim.

II. Standard of Review

When a defendant has preserved a sentencing issue by objecting in the district court, this court reviews the district court's interpretation and application of the Guidelines de novo and its factual findings for clear error. United States v. Johnson, 619 F.3d 469, 472 (5th Cir. 2010). "A factual finding is not clearly erroneous if it is plausible in light of the record as a whole." United States v. Alaniz, 726 F.3d 586, 618 (5th Cir. 2013) (quoting United States v. Johnston, 127 F.3d 380, 403 (5th Cir. 1997)).

When a defendant has failed to object before the district court, "our review is for plain error under Federal Rule of Criminal Procedure 52(b)."¹ United States v. Fuentes-Canales, 902 F.3d 468, 473 (5th Cir. 2018). Under plain error review, the defendant has the burden to show "(1) an error; (2) that is clear and obvious; and (3) that affected h[er] substantial rights." United States v. Hernandez-Martinez, 485 F.3d 270, 273 (5th Cir. 2007). If all three conditions are present, the court may exercise its discretion to correct the error "only if the error 'seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.'" Puckett v. United States, 556 U.S. 129, 135 (2009) (quoting United States v. Olano, 507 U.S. 725, 736 (1993)).

III. Analysis

A. Gross Receipts Under Section 2B1.1(b)(16)(A)

Rodriguez argues that the district court erred by applying the two-level enhancement from Guidelines section 2B1.1(b)(16)(A), which applies if the "the defendant derived more than $1,000,000 in gross receipts from one or morefinancial institutions as a result of the offense," because the court only ordered $711,088.08 in restitution to the Bank. U.S. SENTENCING GUIDELINES MANUAL § 2B1.1(b)(16)(A) (U.S. SENTENCING COMM'N 2016).²

Rodriguez objected in the district court to the application of the section 2B1.1(b)(16)(A) enhancement on the grounds that there was insufficient evidence that Rodriguez obtained more than $1,000,000 in gross receipts. We review the sufficiency of the evidence supporting the enhancement for clear error. See Johnson, 619 F.3d at 472. The PSR applied the enhancement after determining that Rodriguez "appropriated a combined total of approximately $1,424,052.98 from numerous [Bank] account holders" and that her gross receipts from the Bank equaled that amount. The district court adopted the PSR's finding as "well supported by the record." Rodriguez failed to offer any rebuttal evidence, so the district court was free to adopt the PSR's factual finding of the amount of the gross receipts without further inquiry. See United States v. Mir, 919 F.2d 940, 943 (5th Cir. 1990).

Rodriguez also implicitly contends that the district court applied the wrong interpretation of "gross receipts" as used in section 2B1.1(b)(16)(A). Rodriguez did not raise this issue below, so we review it for plain error. See United States v. Lopez-Velasquez, 526 F.3d 804, 806 (5th Cir. 2008). We conclude that there is no error at all. The Guidelines application notes define the phrase "[g]ross receipts from the offense" as "all property, real or personal, tangible or intangible, which is obtained directly or indirectly as a result of such offense." U.S.S.G. § 2B1.1 cmt. n.12(B). Rodriguez contends that the gross receipts derived from the Bank for purposes of the section 2B1.1(b)(16)(A) enhancement should only be either the Bank's portion of the total loss asdetermined under section 2B1.1(b)(1) or the amount of restitution owed to the Bank. The total loss calculated under section 2B1.1(b)(1), however, is subject to various exclusions, credits, and special rules. See U.S.S.G. § 2B1.1 cmt. n.3. Similarly, while restitution is based on "the full amount of the victim's loss," U.S.S.G. § 5E1.1(a)(1), that term has been interpreted to mean net, not gross, loss. See United States v. Beydoun, 469 F.3d 102, 107-08 (5th Cir. 2006) (explaining that a victim should not receive more in restitution than is required to make him whole and that, in a commercial setting, a victim is entitled only to net lost profits).

On the other hand, "gross" is "routinely defined as an overall total exclusive of deductions," meaning that gross receipts "consist of the entire amount [received], less nothing." United States v. Gharbi, 510 F.3d 550, 555 (5th Cir. 2007) (internal quotation marks and citation omitted) (concluding that gross receipts include all fraudulently obtained funds, even the portion used to pay legitimate debts). The district court thus did not err in interpreting "gross receipts from one or more financial institutions" to mean the total amount of the funds that Rodriguez misappropriated from the Bank before any setoffs or reductions.³ Neither did the district court err in accepting the amount of those gross receipts as calculated in the PSR.

B. Vulnerable Victim Under Section 3A1.1(b)(1)

Rodriguez also argues that the district court erred in applying the two-level enhancement from section 3A1.1(b)(1), which applies if "the defendant knew or should have known that a victim of the offense was a vulnerable victim," because the court applied the enhancement based solely on the victims'advanced age. U.S.S.G. § 3A1.1(b)(1) (2016).⁴ Rodriguez objected in the district court to the application of the section 3A1.1(b)(1) enhancement on the grounds that there was insufficient evidence that Rodriguez knew or should have known that any victims were vulnerable. Therefore, "[w]e review the district court's interpretation of the guidelines de novo[, and] we review a finding of unusual vulnerability for clear error and to determine whether the district court's conclusion was 'plausible in light of the record as a whole.'" United States v. Robinson, 119 F.3d 1205, 1218 (5th Cir. 1997) (quoting United States v. Scurlock, 52 F.3d 531, 539 (5th Cir. 1995)).

The Guidelines application notes define a "vulnerable victim" as one "who is unusually vulnerable due to age, physical or mental condition, or who is otherwise particularly susceptible to the criminal conduct." U.S.S.G. § 3A1.1(b) cmt. n.2 (emphasis added). Rodriguez cites to a Tenth Circuit holding that the enhancement cannot be applied based on age alone, but rather requires "a nexus between the victim's vulnerability and the crime's ultimate success." United States v. Lee, 973 F.2d 832, 834 (10th Cir. 1992). We have not articulated the requirements of vulnerability precisely that way, but we have held that vulnerability is "not reducible to a calculation of the victim's age." United States v. Brown, 7 F.3d 1155, 1160 (5th Cir. 1993); but see United States v. Patel, 485 F. App'x 702, 719 (5th Cir. 2012) (unpublished) (citing advanced age of patient who suffered delayed surgery as evidence of vulnerability); United States v. Thomas, 384 F. App'x 394, 397 (5th Cir. 2010) (unpublished)(pointing to advanced age of carjacking victims alone to find vulnerability plausible on the record).

Here, however, the district court's finding of vulnerability was based on more than age alone and was plausible in light of the record as a whole. The court found that Rodriguez targeted elderly victims who, because they were elderly, had limited access to the...