Case: 13-14045   Date Filed: 08/19/2014   Page: 1 of 6


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                               No. 13-14045
                           Non-Argument Calendar
                         ________________________

                  D.C. Docket No. 1:12-cr-20570-RWG-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus

YESENIA POUPARINA,
a.k.a. Yesenia Campos,

                                                          Defendant-Appellant.

                         ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      ________________________

                             (August 19, 2014)

Before ED CARNES, Chief Judge, TJOFLAT and FAY, Circuit Judges.

PER CURIAM:
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       After making misrepresentations to secure a reverse mortgage loan insured

by the United States Department of Housing and Urban Development (HUD),

Yesenia Pouparina was convicted of wire fraud and mail fraud, in violation of 18

U.S.C. §§ 1341 and 1343. She was sentenced to 46 months imprisonment, the top

of her advisory sentence range, after the district court calculated a loss amount of

approximately $208,000. She appeals her sentence, contending that the district

court miscalculated the actual loss amount attributable to her crimes.

                                              I.

       In 2009 Pouparina applied for a $413,863.86 Home Equity Conversion

Mortgage (HECM) loan that was in her mother’s name but that was secured by a

reverse mortgage on her own home, which was valued at about $600,000 at the

time. Pouparina certified in the application that her mother lived on the property

and that the loan proceeds would be disbursed to her mother. Those statements

were false. 1 Pouparina’s mother had been living elsewhere for more than 15 years,

and when the loan was approved and disbursed Pouparina arranged to have the

funds deposited into her own bank account. She then used those funds to pay for

her personal and business expenses.



       1
         The misrepresentations were evidently made in order to meet the eligibility
requirements for an HECM loan. Among other things, an HECM borrower must be at least 62
years old and be the primary resident of the home for which the borrower is seeking the
mortgage. Pouparina was only 37 years old when she applied for the loan in her mother’s name.
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      In order to close the loan, Pouparina paid $115,000 to an unrelated lender

who had an existing mortgage on her property and she paid about $44,000 in

closing costs. About two years later, she learned that her loan was being

investigated by federal authorities, and that prompted her to approach the mortgage

lender, Generation Mortgage Company, about selling her property for a reduced

amount in a short sale. Her property was sold at a loss in 2012, with about

$216,000 in proceeds going to Generation Mortgage.

      Based on the false statements she made in the HECM loan application,

Pouparina was indicted on four counts of wire fraud and one count of mail fraud.

A jury convicted her on all five counts. At sentencing, the district court calculated

her advisory sentence and assigned her a base offense level of 7 under U.S.S.G.

§ 2B1.1(a)(1), a 12-level enhancement under § 2B1.1(b)(1)(G) based on an actual

loss amount of approximately $208,000, and a 2-level enhancement under § 3B1.3

because Pouparina had used a special skill to facilitate the crime. With no prior

criminal convictions, Pouparina fell within criminal history category I, and her

advisory sentence range was 37–46 months imprisonment. She was sentenced to a

prison term of 46 months and ordered to pay about $208,000 in restitution.

                                         II.

      Pouparina challenges the district court’s guidelines calculation, arguing that

it miscalculated the loss amount from her fraud and therefore wrongly applied a


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12-level enhancement under § 2B1.1(b)(1)(G). She claims that the district court

made three errors. First, she contends that the court violated Application Note

3(D)(i) of § 2B1.1 by not excluding from the actual loss the approximately $44,000

in closing costs associated with the HECM loan. Second, she contends that she

was entitled to a credit against loss for satisfying a $115,000 mortgage on her

property, which she claims increased the property’s value as collateral for the loan.

Third, she contends that the district court erred by concluding that the loss amount

was the same as the amount of restitution requested by the government.

      “We review a district court’s interpretation of the Sentencing Guidelines de

novo, and the determination of the amount of loss involved in the offense for clear

error.” United States v. Maxwell, 

, 1305 (11th Cir. 2009). “Clear

error will be found only if [we are] left with a definite and firm conviction that a

mistake has been committed.” 

omitted).

      With respect to Pouparina’s first contention, the district court correctly

concluded that Application Note 3(D)(i) of § 2B1.1 did not require it to exclude

from the actual loss approximately $44,000 in closing costs that Pouparina paid

when she secured the HECM loan in 2009. Application Note 3(D)(i) provides that

“[l]oss shall not include . . . [i]nterest of any kind, finance charges, late fees,

penalties, amounts based on an agreed-upon return or rate of return, or other

similar costs.” The purpose of that application note is to ensure that “the offense


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level for a financial crime is not increased if the prosecution is delayed, even

though the delay increases the cost of the crime.” United States v. Peel, 

, 772 (7th Cir. 2010). Closing costs are not explicitly mentioned in Application

Note 3(D)(i) and they do not qualify as “other similar costs” within the meaning of

that application note here because the closing costs were a fixed amount that was

incurred only when the loan was originally taken out. Those costs would not have

increased if the prosecution delayed bringing its case, so they do not fall within the

scope of Application Note 3(D)(i). See 

Pouparina’s second contention, the district court did not clearly err

when it refused to apply a credit against loss for the $115,000 payment that

Pouparina made, as a condition to obtaining the HECM loan, to satisfy an existing

mortgage on her property. Pouparina was entitled to (and received) a credit against

loss for the approximately $216,000 that her lender recovered when the property

was sold. See U.S.S.G. § 2B1.1 app. n.3(E)(ii) (providing that “[i]n a case

involving collateral pledged or otherwise provided by the defendant” the loss

amount shall be reduced by “the amount the victim has recovered at the time of

sentencing from disposition of the collateral”). Given that her home was

eventually sold in a short sale at a substantial loss, she has not shown that paying

off the existing mortgage, a step that the lender required her to take in order to




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receive the loan, diminished Generation Mortgage’s losses below the amount that

the district court found.

      Finally, the district court did not clearly err when it determined that the loss

amount would be the same as the amount of restitution that it was ordering. When

the § 2B1.1(b)(1) loss amount is calculated based on actual loss instead of intended

loss, as it was in this case, one would expect the amount of restitution and the loss

amount to be the same. See United States v. Huff, 

, 1247–48 (11th

Cir. 2010) (discussing how restitution matches “the actual losses suffered by the

victims”) (quotation marks omitted); see also 18 U.S.C. § 3663(b).

      In calculating the guidelines range, the district court was not required to

make a precise determination of the loss amount. United States v. Barrington, 

, 1197–98 (11th Cir. 2011). Instead, it had to make only a reasonable

estimate of the loss based on the information available. 

what it did in

this case when it found an actual loss amount of about $208,000, which was the

amount that Generation Mortgage sought from HUD as the insurer on the loan.

The district court did not commit clear error in determining the loss amount. See