JAMES O. BROWNING, District Judge.
This case involves V. Garcia's, David Garcia's, and Derek Barnhill's misappropriation of loan funds to pay for personal living expenses, personal property, and the purchase of a casino in the state of Washington. See Presentence Investigation Report
When the parties dispute the gross loss amount that a defendant's offense caused, for the purposes of sentencing the defendant under U.S.S.G. § 2B1.1, the government bears the burden of proving its estimation of gross loss by a preponderance of the evidence. See United States v. Kieffer, 681 F.3d 1143, 1168 (10th Cir. 2012) ("[T]he Government met its initial burden of proving relevant conduct, it then had to prove the amount of loss (or reasonable estimate thereof)). The Court has made a "reasonable estimate" of the value of disputed assets and collateral, based upon the information available to the Court. See U.S.S.G. § 2B1.1, cmt. n.3(C) ("The court need only make reasonable estimate of the loss.").
1. In 2005, V. Garcia and D. Garcia, V. Garcia's son, created Blue Dot Corporation, "a land development company in Albuquerque, New Mexico." PSR ¶ 13, at 14; id. ¶ 24, at 9.
2. Blue Dot was the general contractor for the development of the properties known as the Downtown Anasazi, LLC and Copper Square, LLC located in Albuquerque, and Lockhaven Estates, LLC located in Clovis, New Mexico. See PSR ¶ 13, at 4; V. Garcia Objections at 11.
3. D. Garcia was Blue Dot's vice president and employed as its General Contractor. See Plea Agreement ¶ 8(g), at 5, filed August 19, 2011 (Doc. 76); PSR ¶ 15, at 5; id. ¶ 24, at 9.
4. In exchange for his services as the general contractor, D. Garcia received from Blue Dot a salary and construction work on his personal residence. See PSR ¶ 24, at 9; id. ¶ 26, at 9.
5. Around 2005, V. Garcia took an ownership share in Lockhaven Estates. See PSR ¶ 31, at 13.
6. V. Garcia took ownership of Lockhaven Estates with Derek Barnhill, an associate who had done construction management and real estate development with V. Garcia in the past. See PSR ¶ 31, at 13.
7. V. Garcia took out a loan for $1,800,000.00 from Columbian Bank & Trust ("Columbian Bank") in 2006 to fund the development of Lockhaven Estates
8. The Lockhaven Estates loan's terms provided that V. Garcia and Barnhill could access the funds by submitting draw-down
9. In 2006, V. Garcia and D. Garcia obtained an $11,000,000.00 construction loan from Columbian Bank to finance the Downtown Anasazi project (the "Downtown Anasazi loan"), a "condominium development in downtown Albuquerque." PSR ¶ 13, at 4.
10. The Downtown Anasazi is a "development project," a property that is bought by an investor to be developed so as to generate income. Tr. at 90:18-92:16 (Bowles, Ilfeld).
11. V. Garcia guaranteed his loans with Columbian Bank with his personal property and assets. See PSR ¶ 60, at 23 ("According to the `Unconditional Guaranty' between ... Columbian ... and Vincent Garcia dated Aug. 4, 2006, ... Garcia pledged a lien upon and a right of setoff against all monies, securities, and other property of Guarantor or hereafter in the possession of or on deposit with the Lender...."); see Tr. at 108:22-109:11 (Bowles, Garcia) (Q: "[D]id you pledge collateral as against the loan [] on the Anasazi project?" A: "I did .... that says that the [guarantor] specifically []grants[] a security ...." Q: "[W]ho was the person receiving this guarantee?" A: "The security interest in the guarantee was received by the lender Columbian bank and trust.").
12. Over the years of 2006 and 2007, V. Garcia directed Barnhill to submit drawdown requests on the loans with Columbian Bank, and he knew that at least some of the funds obtained "would not be utilized directly in the construction" of the project on behalf of which the draw down was submitted. Plea Agreement ¶ 8(b), at 4; PSR ¶¶ 32-36, at 13-15 (explaining that, according to Barnhill, V. Garcia expressed that in 2006 he was in need of money to proceed with the Downtown Anasazi LLC, and directed Barnhill to submit draw-down requests on behalf of Lockhaven Estates for funds that would be used for the Downtown Anasazi and Blue Dot's expenses); V. Garcia Objections at 20 ("Mr. Garcia never instructed Mr. Barnhill to make fake invoices, but rather to get draws on the loan.").
13. V. Garcia suggested to Barnhill, "in substance," that Barnhill "should generate
14. Barnhill submitted a series of draw downs to Columbian Bank on behalf of Lockhaven Estates, the Downtown Anasazi, and Copper Square, which fraudulent invoices supported. See PSR ¶¶ 33-36, at 13-15; U.S. Objections at 3.
15. Barnhill created invoices using the names of businesses with whom V. Garcia and Barnhill had previously worked and by copying company logos from internet websites, which he placed on the invoices. See PSR ¶ 33, at 13-14.
16. V. Garcia intended to payback the funds that Barnhill obtained through the draw downs that did not go to the construction projects after the Downtown Anasazi became profitable. See Government Exhibit 4, at 5; PSR ¶ 32, at 13.
17. In 2007, V. Garcia increased his loan with Columbian Bank from $11,000,000.00 to $16,000,000.00. See PSR ¶¶ 19-21, at 7; Plea Agreement ¶ 8(b), at 4.
19. Columbian Bank informed V. Garcia that it would not lend him any more funds until he increased his liquidity. See PSR ¶ 19, at 7 ("In order to secure a larger loan, CBT advised Vincent he needed additional liquid assets...."); Plea Agreement ¶ 8(b), at 4 ("Based on a recommendation by the bank's correspondent broker and his statement that the bank was concerned about our liquidity," V. Garcia purchased the J & J Casino).
20. Columbian Bank also informed V. Garcia that it would not loan him any more funds until he moved Copper Square to another lender. See PSR ¶ 21, at 7 ("CBT advised Vincent Garcia they would not loan any further money until the loan securing the Copper Square building was moved to another lender.").
21. On February 13, 2007, V. Garcia directed Barnhill to submit a draw-down request to Columbian Bank in the amount of $365,677.00. See Plea Agreement ¶ 8(b), at 4.
22. V. Garcia was aware that Barnhill represented to Columbian Bank that the funds would be used for legitimate construction expenses, but V. Garcia planned to use the funds to purchase a casino. See Plea Agreement ¶ 8(b), at 4.
23. V. Garcia used the funds from the February 13, 2007, draw down to purchase the J & J Casino in Spokane, Washington. See Plea Agreement ¶ 8(b), at 4 (V. Garcia admitting that he used the funds from the February 13, 2007, draw down to purchase a casino in Spokane); PSR ¶ 19, at 7 (stating that V. Garcia purchased the J & J Casino in Spokane).
24. V. Garcia hoped that the proceeds he received from J & J Casino would increase his liquidity and help him fund his development projects. See Plea Agreement ¶¶ 8(b)-(c), at 4 (V. Garcia stating that he instructed Barnhill to draw down $365,677.00 from the Downtown Anasazi loan, which V. Garcia used to purchase the casino "with the intent to provide additional cash for the completion of the [Downtown Anasazi] building if the casino proved successful.").
25. V. Garcia obtained a $7,000,000.00 construction loan from First Financial in February, 2008 for the Copper Square
26. Upon closing of the Copper Square loan, approximately $4,000,000.00 was transferred to Columbian Bank, Columbian Bank did not take an additional $1,000,000.00 from the loan in exchange for receiving a fourteen-point-nine percent participation interest
27. First Financial did not receive any value from the creation of a participation interest in Copper Square. See Tr. at 51:16-17 (Bowles, Heyward) (Q: "Did your bank receive any value from that transaction?" A: "No.").
28. As with his loans with Columbian Bank, V. Garcia personally guaranteed the Copper Square loan. See Tr. at 166:15-24 (Court, Bowles, Gerson) (Bowles: "[T]he personal guarantees I for[]g[o]t to mention to the Court [are] as against both banks." Court: "Let me make sure I understand what you're saying. He gave personal guarantees on the say coin collection to both banks. Is that what you're saying?" Bowles: "All collateral as to both banks." ... Gerson: "I'll accept Mr. Bowles' representation.")
29. The Copper Square project was designed to generate cash through the sale of units in the building, the proceeds from which would be used to fund further development and pay down the principal on the Copper Square loan. See Tr. at 37:15-23 (Heyward) ("[T]he plan was ... to build
30. Shortly after the Copper Square loan was fully funded, a condominium was sold in the property for $500,000.00. See Tr. at 50:14-20 (Bowles, Heyward).
31. The proceeds from the condominium sale went to First Financial to reduce the Copper Square loan.
32. Between 2006 and 2008, the following line items were based upon fraudulent invoices in draw downs submitted to Columbian Bank and First Financial:
a. Draw down submitted to Columbian Bank on December 20, 2006: $42,323.00 based upon fraudulent Qwest invoice;
b. Draw down submitted to Columbian Bank on January 23, 2007: $38,419.00 based upon fraudulent Cox Communications invoice;
c. Draw down submitted to Columbian Bank on February 13, 2007: $365,677.00 based upon fraudulent sheet rock invoice from DevCorp;
d. Draw down submitted to Columbian Bank on July 30, 2007: $62,156.52 based upon invoices for construction performed at D. Garcia's personal residence;
e. Draw down submitted to Columbian Bank on August 15, 2007: $144,478.80 based upon fraudulent R&D Perfection Cleaning invoice;
f. Draw down submitted to Columbian Bank on October 8, 2007: $61,182.12 based upon invoices for construction performed at D. Garcia's personal residence;
g. Draw down submitted to First Financial on May 15, 2008: $128,471.25 based upon fraudulent Jay Lial A/C invoice;
See U.S. Objections at 3-4.
33. The total amount of fraudulent line items submitted in draw downs to Columbian Bank and First Financial, which the lending institutions funded, is $842,708.79. Cf. Plea Agreement ¶ 10(b), at 6 (listing the stipulated gross loss amount as $842,237.44); U.S. Objections at 4 (listing the total loss amount from fraudulent line items as $842,237.44); V. Garcia Objections at 2 (listing the total loss from fraudulent line items as $842,237.44).
35. As part of the downturn in the commercial real estate market, "demand for new space, and particularly in central business district nationally, came to a screeching halt." Defense Exhibit A at 2.
36. In Albuquerque, when the commercial real estate market deflated, "several major commercial occupants vacated Downtown for alternative locations, the City's Downtown desirability as a place to locate businesses, and consequently to develop new real estate projects, flagged." Defense Exhibit A at 2-3.
37. V. Garcia eventually defaulted on his Downtown Anasazi and Lockhaven Estates loans. See PSR ¶ 60, at 22 ("Mr. Garcia[] ... ultimately defaulted on both loans.").
38. Columbian Bank closed in August, 2008, and the Federal Deposit Insurance Corporation ("FDIC") was named Columbian Bank's receiver. See Tr. at 57:1-4 (Gerson, Meacham).
39. Columbian Bank failed because of it made bad loans and had poor management. See Tr. at 95:11-18 (Ilfeld) (explaining that, according to the FDIC, "at least a partial cause of Columbian Bank's failure was its "ba[d] loans that were made, and... mismanagement, ... in that [order.]") (citing Office of Inspector Gen., Fed. Deposit Ins. Corp., Report No. AUD-09-005, Material Loss Review of the Columbian Bank and Trust Company, Topeka, Kansas (Mar. 2009) at 2, filed August 6, 2012 (Doc. 103-3)).
40. After the FDIC became Columbian Bank's receiver, it sold Columbian Bank's participation interest in Copper Square to an investment group based in Dallas, Texas. See Tr. at 40:20-41:1 (Heyward) ("[W]hen Columbian bank was taken over by FDIC that asset became property of FDIC.... [T]hat participation interest ... they ... sold ... to this investment group out of Dallas who now owns that note or that participation interest."); id. at 51:18-22 (Bowles, Heyward).
41. The details of the sale of Columbian Bank's participation interest to a Dallas-based investment group are unknown. See Tr. at 51:23-52:8 (Bowles, Heyward) (Q: "[D]id FDIC receive any value that you're aware of from the sale of that note that participatory interest to this group in Dallas?" A: "I have no idea really.").
42. The current outstanding amount that V. Garcia owes to the FDIC for his Lockhaven Estates and Downtown Anasazi
43. The Lockhaven Estates loan has an outstanding balance of $2,998,866.00, which includes approximately $1,100,000.00 interest and fees: $672,000.00 in interest, $403,000.00 in default interest, and $12,000.00 in late fees. See Tr. at 76:16-25; id. at 77:5-8 (Bowles, Meacham).
44. The Downtown Anasazi, as a development project, is in the category of real estate that has "suffered the worst decline due to economic conditions." Tr. at 93:5-10 (Bowles, Ilfeld) ("Any kind of property that was slated for or in the process of being developed ... generally took the biggest hit").
45. The Downtown Anasazi was sixty-five percent complete when the FDIC took over Columbian Bank. See Tr. at 74:6-75:23 (Gerson, Meacham) ("The building was only 65 percent complete at best ...").
47. V. Garcia attempted to buy back the Downtown Anasazi mortgage note from the FDIC so that he could convert the property into a hotel. See Tr. at 81:7-83:7 (Bowles, Barela) (Walter Barela, a developer in Albuquerque, explaining that V. Garcia contacted him regarding converting the Downtown Anasazi into a hotel).
48. V. Garcia was unable to provide the FDIC with a firm offer, backed by a ten percent, non-refundable down payment for the Downtown Anasazi mortgage note. See Tr. at 68:15-69:18 (Bowles, Meacham) (Meacham stating that he knew V. Garcia discussed offers for purchasing the Downtown Anasazi mortgage note, but that the FDIC required a downpayment of "10 percent... nonrefund[]able, in writing" before it would go forward with any offer).
49. The FDIC did not provide V. Garcia with a firm price for which it would sell the Downtown Anasazi mortgage note to V. Garcia. See Tr. at 76:8-15 (Bowles, Meacham) (Q: "So you never provided Mr. Garcia with a written price you would accept for Anasazi?" A: "We just don't do that.").
50. The FDIC did not foreclose on the Downtown Anasazi, but sold the Downtown Anasazi mortgage note to First Southern National Bank for $555,000.00 on July 27, 2011. See Tr. at 59:4-12 (Gerson, Meacham, Bowles); id. at 68:7-10; 69:11-12 (Meacham, Bowles); PSR ¶ 48, at 19; id. at 48, at 19.
51. Lockhaven Estates is a development project—the type of commercial real estate that has suffered the most severe economic losses in the recent housing and mortgage downturn. See Tr. at 93:11-22 (Bowles, Ilfeld); Tr. at 93:5-10 (Bowles, Ilfeld).
52. As of November 2, 2011, Lockhaven Estates was appraised at $560,000.00. See Tr. at 62:10-23 (Gerson, Meacham) (reading from Government Exhibit 3
53. The FDIC is unlikely to receive the appraisal value of Lockhaven Estates in the current real estate market. See Tr. at 72:1-3 (Meacham, Bowles) ("In this market, we rarely ever get close to appraised value.").
54. The FDIC intends to sell Lockhaven Estates. See Tr. at 62:24-63:1 (Gerson, Meacham) (Q: "[I]s it the FDIC's intention ultimately to sell this land ... to defray some of the losses on the loan?" A: "That's right.").
55. V. Garcia defaulted on the Copper Square loan in June, 2008. See Tr. at 38:9-12 (Gerson, Heyward).
57. The Copper Square loan was the largest loan in First Financial's portfolio at the time, but V. Garcia's default did not threaten the credit union's ability to stay solvent. See Tr. at 38:20-25 (Heyward).
58. First Financial planned to immediately foreclose on Copper Square, but V. Garcia initially responded to the possible foreclosure with threats of a lawsuit alleging lender liability against First Financial. See Tr. at 39:9-14 (Heyward) ("[W]e would have to foreclose on the building, ... in order to recoup any damages .... Mr. Gar[cia] started telling us about events ... that would result in accusations and possibility a lawsuit of lender liability."); PSR ¶ 17, at 6 ("V. Garcia threatened to file for bankruptcy, claiming lender liability.").
59. First Financial agreed to a settlement with V. Garcia, around April, 2009, in which V. Garcia agreed to release all claims of lender liability against First Financial, and which allowed First Financial to foreclose on Copper Square. See Tr. at 39:19-40:2 (Heyward) ("We wanted to foreclose.... [What] we did was to negotiate a settlement with Mr. Garcia that did two things. One is hold us harmless in the future for any claim for lender liability and consent to judgment on the foreclosure."); id. at 47:1-5 (Bowles, Heyward) (Q: "[W]hat was the approximate dates of that settlement agreement?" A: "A[pril] of 2009 sounds right."); PSR ¶ 17, at 6.
60. First Financial paid $250,000.00 to V. Garcia in exchange for V. Garcia's release of any lender liability claims against First Financial. See Tr. at 53:23-54:2 (Gerson, Heyward) (Q: "[W]ould it be correct to characterize the $250,000 payment that your bank made to Mr. Garcia or to Co[p]per square as being for a release from a potential lender liability claim?" A: "Yes.").
61. First Financial foreclosed on Copper Square in May, 2010. See PSR ¶ 39, at 15.
62. The FDIC did not receive any value from Copper Square's foreclosure, because Columbian Bank was the second lien holder on the property. See Tr. at 60:14-21 (Gerson, Heyward) (Q: "[I]s that to say that the receiver on Columbian bank and trust did not receive any value?" A: "That's correct." Q: "Upon those foreclosures?" A: "No value.").
63. Copper Square was appraised at $5,675,000.00 in January, 2010. See Tr. at 42:21-43:9 (Gerson, Heyward) (reading from Government Exhibit 1
64. An August 4, 2011 Copper Square was appraised at $1,600,000.00. See Tr. at 41:12-23; id. at 43:8-44:3 (Gerson, Heyward) (reading from Government Exhibit 2
65. Market conditions have changed from the time First Financial had Copper Square appraised in January, 2010, and August 4, 2011, which contributed to the property's decrease in value. See Tr. at 49:10-50:4 (Bowles, Heyward) (Q: "[T]here was talk about this property dropping in value but that was due to market conditions correct?" A: "Yes.").
66. First Financial is asking $3,000,000.00 for Copper Square. See Tr.
67. First Financial estimates that, if Copper Square sold for $2,000,000.00, First Financial would have approximately $200,000.00 to $300,000.00 worth of expenses, including: "closing costs, environmental reports, appraisals, survey[s], [and] broker fees." Tr. at 44:17-21 (Heyward).
68. First Financials' expenses in closing on Copper Square will vary with the actual sale price. See Tr. at 45:1-6 (Gerson, Heyward) (Q: "[I]f the sale price were different your ultimately numbers would obviously be different as well ... ?" A: "Yes that's correct....").
69. V. Garcia appraised his personal residence at a value of $800,000.00 before it went into foreclosure. See Tr. at 127:19-24 (Bowles, Garcia); id. at 128:2-4 (Bowles, Garcia); PSR ¶ 60, at 23 (noting that V. Garcia's personal residence was appraised at $800,000.00 as of September 1, 2011).
70. V. Garcia's personal residence was sold in foreclosure in March, 2011 for $551,000.00, which was less than the value of the first mortgage on his home. See Tr. at 72:7-19 (Gerson, Meacham) (Q: "Was the house sold at auction, do you know?" A: "It was ... a[t] [a] sheriff[']s sale ... in March of 2011, and it was ... foreclosed and it was bid in by the ... mortgage holder. There [were] no competing bids." Q: "They bid $555,000?" A: "I think it was $551,000.").
71. The FDIC did not bid in the foreclosure on V. Garcia's personal residence; the FDIC holds the second mortgage, the first mortgage exceeded the appraised value of V. Garcia's personal residence, and the FDIC could not make a profit through bidding on the foreclosure. See Tr. at 73:23-25 (Meacham) ("[T]he first mortgage was far in excess of what we considered the appraised value, so it was ... it was not prudent to buy the first mortgage.").
72. V. Garcia believes that, at the time he pledged personal property and assets to Columbian Bank the value of that collateral was between $7,000,000.00 and $10,000,000.00. See Tr. at 110:18-23 (Garcia).
73. The current balance in V. Garcia's Wells Fargo personal checking account is approximately $100.00. See Tr. at 124:22-23 (Garcia). Cf. PSR ¶ 88, at 33 (listing value as $459.00 as of October, 2011).
74. The current value in V. Garcia's Wells Fargo commercial checking account is approximately $50.00. See Tr. at 124:23-25 (Garcia). Cf. ¶ PSR 88, at 33 (listing value as $258.00 as of October, 2011).
75. V. Garcia could not testify with certainty regarding the USPO's estimations in the PSR that he received approximately $16,500.00 from the sale of a Lexus and gold and silver coins. See Tr. at 124:24-125:1 (Garcia) ("I don't know. It says cash assets sold. I'm not sure what that refers to.") (citing PSR ¶ 88, at 33). Cf. PSR ¶ 88, at 33; id. ¶¶ 89-90, at 36 (listing $14,000.00 which V. Garcia acquired from the sale of a Lexus, and $12,500.00 which V. Garcia acquired from the sale of gold and silver coins).
76. V. Garcia's artwork and paintings are currently worth between $50,000.00 and $75,000.00. See Tr. at 125:3-6 (Garcia). Cf. PSR ¶ 88, at 33 (listing the value of approximately 50 to 60 pieces of artwork at $75,000.00).
77. V. Garcia's coin collection is currently worth approximately $20,000.00. See Tr. at 125:6-10 (Garcia, Bowles). See PSR ¶ 88, at 33 (listing the value of V. Garcia's coin collection as $20,000.00).
78. V. Garcia's jewelry is currently worth approximately $5,500.00. See Tr. at 125:11 (Garcia). See PSR ¶ 88, at 33 (listing
79. V. Garcia's furniture, fixtures, and equipment are worth approximately $5,000.00. See Tr. at 125:12-15 (Garcia, Bowles) (A: "Furniture[,] fixtures[,] and equipment, $22,500, I would say that that's gone down through the sale of some items to about $5,000.") (citing PSR ¶ 88, at 33). Cf. PSR ¶ 88, at 33 (listing the value of V. Garcia's furniture, fixtures, and equipment as $22,500.00).
80. V. Garcia's knife collection is worth approximately $8,500.00. See Tr. at 125:16 (Garcia). See PSR ¶ 88, at 33 (listing the value of V. Garcia's knife collection as $8,500.00).
81. V. Garcia's 1974 Mercedes Benz 450 SL is currently worth approximately $25,000.00. See Tr. at 125:16-22 (Garcia, Bowles). See PSR ¶ 88, at 33 (listing the value of V. Garcia's 1974 Mercedes Benz 450 SL as $25,000.00).
82. V. Garcia's 1994 Mercedes Benz 600 SL is worth approximately $5,000.00. See Tr. at 125:23-126:6 (Garcia, Bowles). Cf PSR ¶ 88, at 33 (listing the value of V. Garcia's 1994 Mercedes Benz 600 SL as $8,000.00).
83. The current value of V. Garcia's "Vehicle (unknown model/type)" is $7,000.00. PSR ¶ 88, at 33. See Tr. at 125:23-126:7 (Bowles, Garcia). Cf. PSR ¶ 92, at 36 (stating that V. Garcia possesses a vehicle of unknown model/type with an approximate fair market value between $7,000.00 and $10,000.00).
84. V. Garcia's Scottrade Brokerage Account currently contains approximately $250.00. See Tr. at 126:8-9 (Garcia) (A: "The next page Scott[]trade brokerage account is $250.") (citing PSR ¶ 88, at 34). Cf. PSR ¶ 88, at 34 (listing the value of V. Garcia's Scottrade Brokerage Account as $1,107.40).
85. V. Garcia's Oppenheimer Funds IRA currently contains approximately $2,200.00. See Tr. at 126:9 (Garcia) (A: "Oppenheimer funds IRA is $2, 20[0].") (citing PSR ¶ 88, at 34). Cf. PSR ¶ 88, at 34 (listing the value of V. Garcia's Oppenheimer Funds IRA as $3,219.08).
86. V. Garcia's interest in Biotech Partners LLC is currently worth approximately $31,550.00 or higher. See Tr. at 126:9-14 (Garcia, Bowles). Cf. PSR ¶ 88, at 34 (listing the value of V. Garcia's interest in Biotech Partners LLC as $31,550.00).
87. V. Garcia's interest in White Oak investments is currently worth approximately $150,000.00. See Tr. at 126:15-19 (Garcia). See PSR ¶ 88, at 34 (listing the value of V. Garcia's interest in White Oak investments as $150,000.00)
88. The current value of V. Garcia's current business endeavor, Wisdoms by Vincent, is approximately $50,000.00. See Tr. at 127:7-14 (Bowles, Garcia); PSR ¶ 88, at 34 (listing the value of Wisdoms by Vincent as $50,000.00).
89. The value of V. Garcia's American Life Settlements life insurance policies are approximately $324,000.00. See Tr. at
90. The FDIC has not yet received any value to off-set its losses on the Downtown Anasazi from V. Garcia's personal guarantees on his loan with Columbian Bank. See Tr. at 59:21-60:4 (Gerson, Meacham); id. at 60:22-61:1 (Gerson, Meacham).
91. Besides the $555,000.00 from the sale of the Downtown Anasazi mortgage note, the FDIC's losses in the Downtown Anasazi have not been offset by any other sources of value. See Tr. at 60:22-61:1 (Gerson, Meacham).
92. V. Garcia owes subcontractors approximately $1,550,000.00. See V. Garcia Objections at 13. Cf. PSR ¶ 56, at 20 (listing the amount that V. Garcia owes subcontractors as $2,520,302.61).
V. Garcia was indicted on nineteen counts, and has pled guilty to one—bank fraud in connection with the purchase of the J & J Casino. See Indictment, filed June 10, 2010 (Doc. 2); Plea Agreement, filed August 29, 2011 (Doc. 76). V. Garcia was charged with bank fraud, money laundering, and laundering of money instruments. His crime occurred in a time of economic tumult across the country, and the parties dispute how much pecuniary harm should be attributed to him.
On August 19, 2011, V. Garcia entered into a Plea Agreement. V. Garcia pled guilty to count three of the Indictment, the allegation that he committed Bank Fraud, in violation of 18 U.S.C. § 1344(2), through the devising and utilizing a "scheme and artifice to obtain moneys, funds, credits, assets, securities and other property owned by and under the control of ... Columbian Bank and Trust ... by means of false and fraudulent pretenses, representations and promises." Indictment ¶ 1, at 1. See Plea Agreement ¶ 3, at 2. V. Garcia admits that he "executed a plan to obtain funding from the Columbian Bank & Trust Co. by means of false representations," by directing his associate, Barnhill, to "submit a bank construction loan drawdown request containing a material false statement...." Plea Agreement ¶ 8(a), at 4. To address Columbian Bank's concerns about his liquidity, V. Garcia admits that he directed Barnhill to request a construction loan draw down in the amount of $365,677.00, which falsely informed Columbian Bank that the "funds were needed for `materials and price lock' for construction services to be provided by a company called DevCorp., Inc.," for the construction of the Downtown Anasazi project. Plea Agreement ¶¶ 8(b), 8(c) at 4. In reality, V. Garcia used the funds to "purchase an interest in a casino in the State of Washington." Plea Agreement ¶ 8(b), at 4. V. Garcia intended to provide additional funds to complete the Downtown Anasazi project if the casino were successful. See Plea
On February 3, 2012, the United States Probation Office disclosed its Presentence Investigation Report. The USPO determines that V. Garcia's base offense level is 7, pursuant U.S.S.G. § 2B1.1(a)(1), because his conviction of bank fraud under 18 U.S.C. § 1344(2) carries a maximum penalty of 30 years imprisonment. See PSR ¶ 59, at 21. The USPO applies an increase to V. Garcia's base offense level for specific offense characteristics, pursuant to U.S.S.G. § 2B1.1(b)(1). See PSR ¶ 60, at 21-22. The USPO determines that V. Garcia knew, or should have known, that his conduct would result in actual losses of $23,550,835.69. The USPO cases this determination on certain statements in the PSR from cooperating witnesses that indicate that V. Garcia was misusing Blue Dot's loan funding to pay for personal expenses. See PSR ¶¶ 13-15, at 4-5. The USPO also states that V. Garcia spent the down payments he received on Downtown Anasazi presales. See PSR ¶ 15, at 5. The USPO states that V. Garcia diverted a "significant portion" of the loan proceeds from Lockhaven Estates to purchase the J & J Casino, and that V. Garcia sent the furniture used in the Lockhaven Estates model homes to the J & J Casino. PSR ¶ 15, at 5. The USPO states that V. Garcia had no interest in completing the Downtown Anasazi. See PSR ¶ 15, at 5. The USPO states that V. Garcia took contractor profits in advance when the First Financial loan closed and took $450,000.00 "directly to his pocket." PSR ¶ 16 at 6. According to the USPO, before V. Garcia defaulted on the Copper Square loan, First Financial discovered that V. Garcia was submitting invoices for work that First Financial had already paid for separately. See PSR ¶ 16, at 6. The USPO states that First Financial wanted to purchase Copper Square after V. Garcia defaulted on his loan, but that it could not, because Columbian Bank held a $16,000,000.00 lien on the property. See PSR ¶ 17, at 6. The USPO indicates that V. Garcia used loan proceeds for personal gain. See PSR ¶ 29, at 10. The USPO states that no money from the Lockhaven Estates loan left the office without V. Garcia's personal knowledge and that V. Garcia directed Barnhill to create fraudulent invoices. See PSR ¶¶ 31-32, at 13. The USPO states that V. Garcia would transfer funds amongst banks to hide their origin. See PSR ¶ 36, at 15. The USPO also lists all liens filed against Blue Dot and the Downtown Anasazi by subcontractors for allegedly unpaid work as part of the actual losses V. Garcia's offense caused. See PSR ¶ 30, at 10-13; id. ¶¶ 55-56, at 20.
The USPO also determines that the following credits should be applied to the actual losses, pursuant to U.S.S.G. § 2B1.1 cmt. n.3(E): (i) $555,000.00 that the FDIC received from the acquisition of the Downtown Anasazi loan; (ii) $1,600,000.00—the market value of the Copper Square property as of August 4, 2011; (iii) $800,000.00—the market value of V. Garcia's personal residence as of September 1, 2011, which V. Garcia pledged as collateral to secure the $16,000,000.00 with Columbian Bank; and (iv) $500,000.00—the value of personal property and assets against
The USPO increases V. Garcia's base offense level 2 levels, pursuant to U.S.S.G. § 2B1.1(b)(2)(A), finding that the offense involved twenty-four identifiable victims: two financial institutions and twenty-two subcontractors. See PSR ¶ 61, at 24. The USPO increases V. Garcia's offense level to 12, pursuant to U.S.S.G. § 2B1.1(b)(10)(C), because V. Garcia used sophisticated means to commit bank fraud by falsifying the invoices upon which the draw downs were based. See PSR ¶ 62, at 24. The USPO does not increase V. Garcia's offense level pursuant to U.S.S.G. § 2B1.1(b)(15)(B), for having substantially jeopardized the safety and soundness of a financial institution, as may be evidenced by the financial institution becoming insolvent, because, although Columbian Bank closed on August 22, 2008, "it does not appear his conduct led to the Columbian Bank and Trust's [in]solvency.... Columbian [B]ank was experiencing deficiency in their management, asset quality, liquidity and supervision practices prior to Mr. Garcia['s] loan acquisition in 2006." PSR ¶ 63, at 26. The USPO also does not adjust V. Garcia's offense level based upon his role, pursuant to U.S.S.G. § 3B1.1, because, the USPO cannot determine whether V. Garcia fully directed Barnhill, given that both Barnhill and V. Garcia received a portion of the proceeds from the bank fraud. See PSR ¶ 65, at 26-28. The USPO thus calculates that V. Garcia's adjusted offense level is 12. See PSR ¶ 67, at 28. V. Garcia receives a 2-level reduction for acceptance of responsibility, pursuant to U.S.S.G. § 3E1.1. See PSR ¶ 68, at 28. According to the USPO, V. Garcia's total offense level is, therefore, 10. See PSR ¶ 69, at 28.
V. Garcia has no criminal history points; therefore, his criminal history category is I. See PSR ¶ 72, at 28. Based on an offense level of 10 and criminal history category of I, V. Garcia's guideline imprisonment range is 6 to 12 months. See PSR ¶ 105, at 38. V. Garcia is not eligible for probation, because he is convicted for a Class B felony, pursuant to 18 U.S.C. § 3561(a)(1), see U.S.S.G. § 5B1.1(b)(1). The USPO notes that, had the parties not stipulated to a gross loss amount of $842,237.44, V. Garcia's offense level would have been increased by 22-levels, making his total offense level 31. Were V. Garcia's offense level 31 and criminal history category I, his guideline imprisonment range would be 108 to 135 months. See PSR ¶ 106, at 39.
Pursuant to 18 U.S.C. § 1344(2) the guideline range for a fine for V. Garcia's offense is between $2,000.00 and $1,000,000.00. See PSR ¶¶ 111, 113 at 40. The USPO states that V. Garcia does not have the ability to pay any fines, given that his debts far outweigh his assets. The USPO notes, however, that the Mandatory Victims Restitution Act of 1996, 18 U.S.C.
The USPO states that an upward departure may be warranted in this case, because the gross loss amount to which the parties stipulated "substantially under-represents the actual harm caused." PSR ¶ 22, at 43. The USPO identifies that, pursuant to U.S.S.G. § 5K2.0(a)(3), a departure may be warranted "in an exceptional case, even though the circumstances that form[] the basis for the departure is taken into consideration in determining the guideline range," if the Court determines that the circumstance is in the offense "to a degree ... substantially in excess of []... that which ordinarily is involved in that kind of offense." PSR ¶ 121, at 43. The USPO states that the gross loss amount that V. Garcia's offense caused is $23,550,835.69, yet the parties stipulated to a gross loss amount of $842,237.44. The USPO further notes, that had V. Garcia's offense level been determined based upon the actual gross loss that it finds his offense caused, his guideline imprisonment range would be 108 to 135 months. The USPO thus states that the "Court could consider departing upward to a guideline imprisonment sentence no more than the maximum statutory penalty of 30 years." PSR ¶ 122, at 43.
The USPO also determines that a downward departure is not warranted in V. Garcia's case. The USPO notes that, pursuant to U.S.S.G. § 5K2.20, the Court may depart downward if V. Garcia had "committed a single criminal occurrence or single criminal transaction that (1) was committed without significant planning; (2) was of limited duration; and (3) represents a marked deviation by the defendant from an otherwise law-abiding life." PSR ¶ 123, at 43. See U.S.S.G. § 5K2.20. The USPO states that, although V. Garcia's involvement "could be considered a marked deviation from an otherwise law-abiding life," his offense was "not committed without significant planning nor was it for a limited duration," as V. Garcia's criminal activity began in December 2006, and continued through May, 2008. PSR ¶ 123, at 43. The USPO notes that it took significant planning to orchestrate the fraudulent invoices and to transfer funds from one lender to another. The USPO thus asserts that a downward departure is not warranted under U.S.S.G. § 5K2.20 for V. Garcia. See PSR ¶ 123, at 43.
The United States objects to the USPO's calculation of the gross loss amount in the PSR. The United States notes that the parties stipulated to a gross loss amount of $842,237.44 and that, pursuant to U.S.S.G. § 2B1.1, cmt. n.3 (E)(i), certain credits may be applied to reduce the gross loss amount. The United States states that the parties have not agreed
The United States contends that the gross loss amount based upon V. Garcia's relevant conduct is $842,237.44. The United States calculates the gross loss amount from the value of V. Garcia's draw down from Columbia in the amount of $365,677.00—the offense of conviction—and V. Garcia's total draw-down requests based upon fraudulent line items. The United States asserts that counts one, two, and four through seven of the Indictment are based upon drawdowns with fraudulent line items, and thus the total losses from those draw downs amounts to all "`harms that resulted from' the offense of conviction, together with all harms that resulted from acts that were `part of the same course of conduct or common scheme or plan as the offense of conviction.'" U.S. Objections at 2-3 (quoting U.S.S.G. § 1B1.3(a)(1), (2), (3)). The United States includes a chart that lists the portion of V. Garcia's draw-down requests alleged in counts one through seven that are based upon fraudulent line items:
Count Draw Request Fraudulent Line Item(s) 1 Lockhaven Estates Draw # 12, Fraudulent Qwest invoice for $42,323.00 submitted to CBT on 12/20/06, $110,926.28 2 Lockhaven Estates Draw # 13, Fraudulent Cox Communications invoice submitted to CBT on 1/23/07, $83,526.11 for $38,419.00 3 Anasazi LLC Draw # 13, submitted to Fraudulent DevCorp invoice for CBT on 2/13/07 $365,677.00 $365,677.00 (sole line item in draw request) (count of conviction) 4 Copper Square LLC Draw # 2 Various invoices for construction submitted to CBT on 7/30/07 $167,717.31 performed at home of defendant's son, David Garcia, totaling $62,156.52 5 Copper Square LLC Draw # 6 Fraudulent R&D Perfection Cleaning submitted to CBT on 8/15/07, invoice for $144,478.80 (sole line item in $144,478.80 draw request) 6 Copper Square LLC Draw # 5 Various invoices for construction submitted to CBT on 10/18/07, performed at home of defendant's son, $174,453.62 David Garcia, totaling $61,183.12 7 Copper Square LLC Draw # 2 Fraudulent Jay Lial A/C invoice for submitted to FFCU on 5/15/08, $128,471.25 $213,471.25
U.S. Objections at 4. The United States asserts that $842,237.44 is the total value of V. Garcia's fraudulent transactions in counts one, two, and four through seven, and thus that amount should be V. Garcia's gross loss amount based upon his relevant conduct. See U.S. Objections at 3-4. The United States contends that the USPO erred by not providing an explanation for the parties stipulated gross loss amount in the PSR, in that, without the explanation, the PSR "gives the unfortunate impression that the parties had no factual basis for the stipulated loss amount." U.S. Objections at 4.
The United States also asserts that the USPO should not have included the unpaid balances of V. Garcia's Columbian Bank and First Financial loans, or the contractors'
The United States also objects to the USPO's calculation of V. Garcia's credits as totaling $2,900,00.00. The United States contends that the USPO should not have accepted V. Garcia's information regarding the value of his assets. The United States further contends that the $1,600,000.00 applied as credits that is based upon the value of Lockhaven Estates is overstated, because Lockhaven is "an incompletely developed trailer park...." U.S. Objections at 5-6. The United States also asserts that the USPO overstated the value of Lockhaven Estates and V. Garcia's personal residence. The United States asserts that the actual value of these properties can only be determined through an evidentiary hearing. The United States requests an evidentiary hearing regarding the value of these properties. See United States Objections at 6.
The United States also objects to the USPO's calculation that the net loss in this case is $0.00, based upon the USPO's determination that V. Garcia's credits exceed the stipulated gross loss amount. The United States asserts that the USPO erred by not adjusting V. Garcia's offense level based upon the net loss in the case, pursuant to U.S.S.G. § 2B1.1, cmt. n.3(A)(i). The United States asserts that the Court should determine that the net loss in this case exceeds $400,000.00, but is less than $1,000,000.00, and that V. Garcia's offense level should accordingly be increased 14 levels pursuant to U.S.S.G. § 2B1.1(b)(1). The United States asserts that the parties stipulated to a non-binding methodology for calculating the net loss amount: "`The net loss amount in this case should be determined by the application of credits pursuant to U.S.S.G. § 2B1.1, cmt. n.3 (E)(i) and (ii) against the gross loss amount.'" U.S. Objections at 7 (quoting Plea Agreement ¶ 10(d), at 6).
The United States asserts that, pursuant to U.S.S.G. § 2B1.1, cmt. n.2(c), which requires a court to make only a reasonable estimate of the loss amount, the "reasonable way to allocate the credits in this case is to prorate them between relevant categories of losses." U.S. Objections at 7-8. The United States states that the total losses to banks and lienholders was $23,550,836.69. See U.S. Objections at 8 (citing PSR ¶ 60, at 22). The United States asserts that the $842,237.44 amount in gross loss arising from criminal activity, as the parties have stipulated, is approximately $0.036 per dollar lost. The United States argues, thus, $0.036 of each dollar in credit should apply towards the gross loss amount, not the entirety of the value of V. Garcia's credits. See U.S. Objections at 8.
The United States contends that the USPO's reduction of the gross loss amount by the entire value of V. Garcia's credits is an incorrect calculation. The United States argues that it is not reasonable to apply the full amount of V. Garcia's credits to his gross loss amount. The United States asserts that "a fair allocation of $2.9
The United States states that the USPO is not bound by any stipulation in the Plea Agreement regarding the calculation of the net loss amount. The United States asserts, however, that U.S.S.G. § 2B1.1, cmt. n.3(E)(i) and (ii) do not "mandate the PSR's approach to the calculation of net loss in this case." U.S. Objections at 10. The United States asserts, thus, that the USPO's calculation of the net loss amount based upon all of the loss incurred and all of the collateral pledged and property returned does not create a reasonable estimate of the net loss amount. See U.S. Objections at 10. The United States requests, thus, that the Court hold an evidentiary hearing regarding the value of V. Garcia's credits, and that the Court conclude that the net loss amount exceeds $400,000.00 but is less than $1,000,000.00. See U.S. Objections at 11.
V. Garcia objects to the PSR on a number of bases. He first objects to the USPO's calculation of gross losses as $23,550,835.69. V. Garcia contends that, "in addition to what the government stated in opposing the PSR's calculation," the USPO incorrectly failed to reduce the gross loss amount by the amounts accrued from interest, finance charges, late fees, penalties, and similar costs. See V. Garcia Objections at 1 (citing United States v. Dunn, 300 Fed.Appx. 336, 338-39 (6th Cir. 2008) (unpublished); United States v. Morgan, 376 F.3d 1002, 1014 (9th Cir.2004)).
V. Garcia also objects to the United States' approach to dividing his credits on a pro rata basis. V. Garcia contends that neither the guidelines nor case law provides a basis for a pro rata reduction of his credits. V. Garcia argues that, pursuant to U.S.S.G. § 2B1.1, cmt. n.3(E), his credits "`shall'" be credited towards the gross loss amount. V. Garcia Objections at 2 (quoting U.S.S.S.G. § 2B1.1, cmt. n.3(E)). V. Garcia agrees with the USPO's application of the entire value of his credits against the gross loss amount, although he contends that the USPO improperly calculates the gross loss amount as more than the stipulated gross loss amount. See V. Garcia Objections at 2-3. V. Garcia asserts that, under U.S.S.G. § 2B1.1, cmt. n.3(E)(i), the gross losses should be reduced by the money and property he and those acting with him returned, and that credits based upon pledged collateral should be determined by the fair market value of the collateral at the time of his sentencing. V. Garcia asserts that the intended loss should be reduced by the "value of real property used to collateralize the fraudulently obtained loan." V. Garcia Objections at 4 (citing United States v. Lane, 323 F.3d 568, 590 (7th Cir.2003); United States v. Downs, 123 F.3d 637, 643-44 (7th Cir. 1997)). V. Garcia contends that he provided documentation of the fair market value of all the pledge collateral, and he identified all of the money he returned, which the USPO accurately calculated in the PSR. V. Garcia argues that, thus, his offense level should not be increased by 14 levels, as the United States argues, because the net loss amount is $0.00 after the
V. Garcia also takes issue with the sentencing guidelines provision which allows a 14-level increase for net loss amounts over $400,000.00 but less than $1,000,000.00. V. Garcia contends that "[t]here is no basis in empirical data or national experience to increase the offense level by 14 levels for the supposed amount of loss, even assuming there was a net loss amount close to $400,000.00." V. Garcia Objections at 4. V. Garcia asserts that the increase "furthers no purpose of sentencing." V. Garcia Objections at 4. He further contends that the increase was implemented on the basis of outside pressure from former sentencing commission commissioners. See V. Garcia Objections at 4. V. Garcia requests the Court to sustain his and the United States' objections to the PSR regarding the gross loss amount, and to accept the stipulated gross loss amount of $842,237.44. V. Garcia further argues that the Court should sustain his objection of applying the total value of his credits to the gross loss amount, resulting in a net loss, as the USPO calculates. See V. Garcia Objections at 6.
V. Garcia also objects to the inclusion of reported losses from Mountain Shadows Construction, Grant & Associates, Mechanical, Inc., and Pace Iron Works, Inc. in the gross loss amount. See V. Garcia Objections at 6. These entities submitted victim impact statements to the USPO, asserting combined losses of $2,520,302.61, because of V. Garcia's criminal activities. See PSR ¶ 56, at 20. V. Garcia contends that the "then prevailing economic climate," not his actions, caused the losses that these entities sustained. V. Garcia Objections at 6. V. Garcia asserts that these entities' losses were not reasonably foreseeable pecuniary harm, as the USPO characterizes them, because "nobody reasonably could foresee the economic climate that was to come and the failure of developments across the country." V. Garcia Objections at 6. In support, V. Garcia asserts that, without any of his criminal activity, "the Anasazi Building would have dropped in value to the point of being upside down." V. Garcia Objections at 6. V. Garcia further asserts that his actions likely did not cause Columbian Bank's losses. V. Garcia contends that Columbian Bank suffered losses "because of market conditions and poor lending practices." V. Garcia Objections at 7. V. Garcia further asserts that he attempted to finish the Downtown Anasazi, and even offered to pay off the Columbian Bank loan, but the FDIC chose to sell V. Garcia's Columbian Bank loan to First Southern Bank instead. See V. Garcia Objections at 7.
V. Garcia also objects to the USPO's statement that an upward departure may be warranted given that he stipulated to a gross loss amount far lower than the total monetary loss that his actions caused. See V. Garcia Objections at 7 (citing PSR ¶ 122, at 43). V. Garcia asserts that he is not responsible for the total amount of losses alleged in this matter, because "[e]conomic conditions beyond his control which plagued the national market, contributed to the remaining losses above and beyond the $842,000 agreed to by the parties." V. Garcia Objections at 8. V. Garcia contends that theses additional losses should not be attributed to him as relevant conduct pursuant to U.S.S.G. § 1B1.3, because it "was not reasonably foreseeable to Mr. Garcia, or anyone, that the market would fail." V. Garcia Objections at 8.
V. Garcia further asserts that First Financial is not a victim, as the USPO categorizes it. V. Garcia contends that he entered into a settlement and confidentiality agreement with First Financial, and thus First Financial is not a victim. See V.
V. Garcia also objects to the 2-level increase that the USPO attaches pursuant to U.S.S.G. § 2B1.1(b)(2)(A), based upon the number of victims being more than ten. See V. Garcia Objections at 8 (citing PSR ¶ 61, at 24). V. Garcia contends that First Financial is not a victim, and that the PSR only lists four victims, separate from the subcontractors, which V. Garcia asserts are not victims of the crime to which V. Garcia pled guilty. V. Garcia contends that, under U.S.S.G. § 2B1.1, cmt. n.1, a victim is any person, entity, or corporation, that sustained any part of the "actual loss," and that "actual loss" refers to all "reasonably foreseeable pecuniary harm that resulted from the offense." V. Garcia Objections at 9 (emphasis in original) (secondary quotations omitted).
V. Garcia also objects to the USPO's increase of his offense level to 12, pursuant to U.S.S.G. § 2B1.1(b)(10)(C), for his use of "sophisticated means" to commit his offense. V. Garcia Objections at 9 (citing PSR ¶ 62, at 24). V. Garcia asserts that, as stated in the Plea Agreement, he was not aware of the content of the invoices which Barnhill submitted to secure the draw downs. See V. Garcia Objections at 9 (citing Plea Agreement ¶ 8(b), at 4). V. Garcia asserts that using "sophisticated means ... refers to an `especially complex or especially intricate offense conduct pertaining to the execution or concealment of an offense,'" which he did not do, because he did not execute or conceal bank fraud in a complex or intricate manner. V. Garcia Objections at 9-10 (quoting United States v. Snow, 663 F.3d 1156 (10th Cir.2011)).
V. Garcia objects to paragraphs 13-17, 23, 29-31, and 33-36 of the PSR on the basis that these paragraphs contain information obtained from "unidentified cooperating witnesses or otherwise constitute hearsay." V. Garcia Objections at 10 (citing PSR ¶¶ 13-17, 23, 29-31, 33-36, at 4-6, 8-15) (internal quotations omitted). V. Garcia contends that the statements, which constitute hearsay, are not based on fact or any other evidence, and are thus unreliable. V. Garcia asserts that explaining his relevant conduct does not authorize the USPO to rely upon hearsay that is not reliable. See V. Garcia Objections at 10 (citing United States v. Mays, 902 F.2d 1501, 1502-03 (10th Cir.1990)).
V. Garcia specifically objects to paragraph 13 of the PSR, at 4-5, because, he asserts, he never took loans to pay for personal expenses or personal property. V. Garcia asserts that Blue Dot received the funds from draw downs and used those funds to pay for operating expenses, including rent, salaries, telephones, and "certain general conditions." V. Garcia Objections at 11. He admits that his salary was paid from those operating expenses, but argues that there was nothing improper about that arrangement. He also asserts that Blue Dot did not own the Downtown Anasazi, Copper Square, or any other LLC, but that even if it did, there would be nothing unlawful about that arrangement. See V. Garcia Objections at 11. V. Garcia further contends that the Copper Square project was one-hundred percent complete when the market collapsed and that he approached First Financial to negotiate a confidential settlement agreement to resolve their disputes to demonstrate that the current value of the building, and thus any losses incurred in the Copper Square project were outside of his control. See V. Garcia Objections at 11. V. Garcia also contends that, to the extent funds were drawn to pay for the Lockhaven Estates project, the project was one-hundred percent completed to the extent the loan provided—V. Garcia asserts that the Lockhaven Estates loan that was fully funded was only intended to cover the beginning of the Lockhaven Estates
V. Garcia further objects to the USPO's calculation of the total amount owed to subcontractors based upon the liens filed against the Downtown Anasazi and Blue Dot. V. Garcia contends that, when Columbian Bank failed, he owed subcontractors $1,550,000.00. He contends that, when Columbian Bank failed Blue Dot had paid subcontractors for the majority of the work they performed. He asserts that the USPO used "duplicate amounts from suppliers to subcontractors, incorrect amounts, improper lien filings, and the lien of David Garcia for unrealized gain for the use of his contractor's license." V. Garcia Objections at 13. V. Garcia asserts that some subcontractors were paid in advance, but did not deliver any product, because the subcontractors later went out of business. V. Garcia asserts that he intended to pay subcontractors and attempted to increase his liquidity so as to finish the projects. See V. Garcia Objections at 13.
Garcia asserts that he "did not attempt to conceal diversion of funds for the purpose of not paying subcontractors by saying the bank had cut off financing," as the PSR indicates. V. Garcia Objections at 13. V. Garcia contends that he was in the process of negotiating a restructured loan with Columbian Bank before the bank closed, and, thus, "the amounts due to subcontractors were not paid because the bank did not restructure the loan, and as a result did not provide funding." V. Garcia Objections at 14. V. Garcia further asserts that his failure to pay certain subcontractors did not cause them to file bankruptcy, as he asserts the PSR indicates. V. Garcia asserts as an example that Mountain Shadows Construction was owed similar amounts from other unrelated construction projects when it filed bankruptcy. See V. Garcia Objections at 14.
Regarding the Copper Square project, V. Garcia similarly asserts that Blue Dot completed all of the work required by the terms of its loan with First Financial, and thus it is not true that the subcontractors were not paid for a majority of their work. See V. Garcia Objections at 15.
Regarding paragraph 14 of the PSR, V. Garcia first objects to the statement that his receptionist and bookkeeper facilitated the misuse of company funds. V. Garcia asserts that his wife received his paycheck and paid their personal bills from their personal account. V. Garcia also asserts that Blue Dot employed a certified public accountant—Palmer and Co.—for accounting
Regarding paragraph 15 of the PSR, V. Garcia asserts that the earnest money that buyers paid to pre-purchase condominiums in the Downtown Anasazi was not "`spent,'" as the PSR indicates, but rather was deposited into an escrow account with Fidelity National Title. V. Garcia Objections at 15 (quoting PSR ¶ 15, at 5). V. Garcia asserts that the pre-sale agreements provided that the buyers forfeited their earnest-money deposits after a certain date. V. Garcia also asserts that Blue Dot used the deposits only to pay for the development and completion of the Downtown Anasazi, and for commissions for the pre-sales. See V. Garcia Objections at 16.
V. Garcia objects to the statement in the PSR that "`a significant portion of the loan proceeds were diverted to enable Vincent to purchase the casino,'" because, he alleges, none of the Lockhaven Estates loan funds were used to purchase the J & J Casino. V. Garcia Objections at 16 (quoting PSR ¶ 15, at 5). V. Garcia also objects that it is untrue that he had, as the PSR indicates, no interest in completing the Downtown Anasazi. V. Garcia asserts that, rather than abandoning the project "like thousands of developers did across the country," he invested personal funds in the project and "exhausted virtually all of his liquid assets"—in addition to attempting to secure alternative financing for the project. V. Garcia Objections at 16. Regarding the statement that V. Garcia sent the furniture from Lockhaven Estates to the J & J Casino, V. Garcia asserts that Barnhill informed him the furniture was part of a free-loan program with a local furniture store, intended to be used for demonstrations and to promote the store's sales. V. Garcia asserts that he did not learn, until after Barnhill left the project, that there was an outstanding invoice for the furniture. V. Garcia states that he moved the furniture to the ground floor of the Downtown Anasazi so as to avoid vandalism and theft, and he believes that two pieces were used at the casino, but the rest remained at the Downtown Anasazi. See V. Garcia Objections at 17.
Regarding paragraph 16 of the PSR, V. Garcia asserts that he did not take the contractor profits in advance; rather, Blue Dot's expenses and profits "were line items in the approved loan and were initially drawn as approved." V. Garcia Objections at 17. V. Garcia asserts that Blue Dot's profits, which were portions of draw downs which it took as the contractor, were approved by First Financial. See V. Garcia Objections at 17. V. Garcia also objects to the statement that "`once the loan was approved, Mr. Garcia received $450,000.000 directly in his pocket,'" arguing that this did not occur. V. Garcia Objections at 17 (quoting PSR ¶ 16, at 6). V. Garcia asserts that payments were made for "legitimate reimbursements" to the contractor, and for other products and services performed on the Copper Square project before the First Financial loan closed. V. Garcia Objections at 17. V. Garcia objects to the statement that "`Garcia submitted an invoice to pay utilities after FFCU had already paid for those utilities directly," arguing that First Financial paid a utilities bill for the Copper Square project without informing V. Garcia or the staff at Blue Dot, and, thus, when Blue Dot submitted an invoice for a bill which First Financial had already paid, it was only out of ignorance that the account was paid. V. Garcia Objections at 18 (quoting PSR ¶ 16, at 6).
Regarding paragraph 23 of the PSR, V. Garcia objects to the statement that "`there was no justification of where the money was spent'" from the Lockhaven Estates loan. V. Garcia Objections at 18 (quoting PSR ¶ 23, at 8). V. Garcia asserts that the Lockhaven Estates project was completed as outlined in the loan agreement. V. Garcia asserts that, to the best of his knowledge, all subcontractors who provided labor and material to the Lockhaven Estates project were paid. V. Garcia contends that Barnhill arranged for Blue Dot to pay for landscaping by referring future Lockhaven Estates buyers to the landscaping company, but V. Garcia asserts that he was not aware of this arrangement. V. Garcia also objects to the statement that "`[a]ny loan proceeds contributed to any salaries of the corporation were unapproved.'" V. Garcia Objections at 19 (quoting PSR ¶ 23, at 8). V. Garcia asserts that the Lockhaven Estates loan agreement provided a "line item for developer's fees and profits," and that he disclosed that some developer's fees and profits would be used to pay for salaries, and that Columbian Bank approved the expense. V. Garcia Objections at 19. V. Garcia further asserts that, contrary to paragraph 23 of the PSR, he complained "on many occasions" to Columbian Bank and the Columbian Bank's broker regarding Blue Dot's loans, and he assert that he traveled to Overland Park, Kansas for the specific purpose of discussing a rebate on the fees and interests incurred on Blue Dot's loans. V. Garcia Objections at 19. V. Garcia also asserts that paragraphs 23 of the PSR falsely states that V. Garcia did not discuss acquiring additional funding with Columbian Bank; V. Garcia contends that he discussed an additional $2,000,000.00 in funding for the Downtown Anasazi with a Columbian Bank branch in Texas. See V. Garcia Objections at 19.
V. Garcia objects to the statement in paragraph 29 of the PSR that he "`utilized the funds for personal gain'" which were acquired to finance the construction projects. V. Garcia Objections at 19 (quoting PSR ¶ 29, at 10). V. Garcia asserts that he did not use the construction financing for personal gain, and points out that he pled guilty to using loan funds to purchase a casino, "with the intent to generate revenue for the project." V. Garcia Objections at 19.
V. Garcia objects to the subcontractors' liens that the USPO reports at paragraph 30 of the PSR. V. Garcia contends that these lien amounts are inaccurate, as some of the liens "do not apply directly to the property, or are incorrect." V. Garcia Objections at 20. V. Garcia further argues that some of the liens are for work which was scheduled, but which never commenced. He also asserts that some of the liens are from the subcontractor's underlying suppliers, and are, thus, duplicative of the subcontractors' liens. V. Garcia asserts that the "true total is closer to $1,550,000.00" that he owes to subcontractors. V. Garcia Objections at 20.
V. Garcia also objects to the USPO's statement that he "`would access funds by
Regarding paragraph 33 of the PSR, V. Garcia objects to the statement that he was aware of Barnhill's falsification of invoices purportedly from Statewide Homes and Qwest Communications. V. Garcia asserts that he "did not review nor sign this draw down request," and that he has "become aware only after reading the PSR, of certain activities of Mr. Barnhill." V. Garcia Objections at 20. V. Garcia asserts that he never instructed Barnhill to falsify invoices and that he instructed Barnhill only to "get draws on the loan." V. Garcia Objections at 20.
V. Garcia objects to the statement in paragraphs 34 of the PSR that he was aware that Barnhill submitted false invoices ostensibly from Statewide Homes and Cox Communications to support draw-down requests. V. Garcia contends that he did not review or sign any draw-down request based upon these false invoices. V. Garcia similarly asserts that he was unaware of these transactions until after he read the PSR. See V. Garcia Objections at 21.
V. Garcia objects to the statement in paragraph 35 of the PSR that "`Barnhill was instructed to use an old sheetrock bid... in order to get the money.'" V. Garcia Objections at 21 (quoting PSR ¶ 35, at 14). V. Garcia contends that using an old sheetrock bid from the DevCorp project was entirely Barnhill's idea, as Barnhill "dealt with Devcorp on a prior project and had access to the file and logos he used to create the invoice." V. Garcia Objections at 21.
V. Garcia objects to the statement in paragraph 36 of the PSR that he transferred funds from New Mexico Bank and Trust to a Compass Bank in Washington so as to "`hide the nature and source of the funds.'" V. Garcia Objections at 21 (quoting PSR ¶ 36, at 15). V. Garcia asserts that the "transaction was fully documented as to the source of funds to the Washington State Gaming commission" and that the gaming commission was aware that the funds originated from a construction loan. V. Garcia Objections at 21-22.
V. Garcia also objects to certain conduct included as part of his relevant conduct. V. Garcia contends that "[n]one of the conduct underlying the other counts in the superseding indictment occurred during the commission of the offense in Count 3" and thus does not constitute his relevant conduct. V. Garcia Objections at 22. V. Garcia points out that the Plea Agreement dismisses all counts against him except for count three. V. Garcia asserts that the conduct underlying count three was done for a different purpose and on a different date than all other conduct underlying the other counts in the Indictment. V. Garcia asserts that to hold him accountable for the conduct of others' crimes of which he was not convicted "would render the plea negotiation process ineffectual." V. Garcia Objections at 23 (citing Blakely v. Washington, 542 U.S. 296, 301-02, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004)).
On August, 14, 2012, the USPO released an Addendum to the Presentence Report. See Addendum to the Presentence Report, dated Aug. 14, 2012 ("Addendum"). Regarding the United States' objection that the gross loss amount should be the amount to which the parties stipulated in the Plea Agreement—$842,237.44—and not $23,550,835.69, as the USPO calculates the amount, the USPO states that it calculated the gross loss amount pursuant to U.S.S.G. § 6B1.2(a), which states that "a plea agreement that includes the dismissal of a charge ... shall not preclude the conduct underlying such charge from being considered under the provisions of § 1B1.3 (Relevant Conduct) in connection with the count(s) of which the defendant is convicted." Addendum at 1; U.S.S.G. § 6B1.2(a). The USPO notes that the United States' objections regarding the determination and application of credits against the gross loss amount may require an evidentiary hearing to be resolved, and further notes that the net loss amount cannot be addressed until after the Court determines the value of V. Garcia's credits and the methodology to be used for applying his credits against the gross loss amount. See Addendum at 1.
Turning to V. Garcia's objections, regarding V. Garcia's objection to the United States' proposed method of applying V. Garcia's credits to the gross loss amount on a pro rata basis, the USPO states that it correctly calculated the net loss amount in the PSR, pursuant to U.S.S.G. § 2B1.1, noting that documentation was provided for the fair market value of all of V. Garcia's pledged collateral. Regarding V. Garcia's objection to the statement in paragraph 13 of the PSR that V. Garcia used loan funds to pay for personal living expenses or personal property, the USPO states that it obtained the information in paragraph 13 from investigative reports that are discovery material in this case, and properly included that information in the PSR as part of V. Garcia's relevant conduct. See Addendum at 2. The USPO makes the same statement in response to V. Garcia's objections to the information in paragraphs 15, 16, 17, 23, 29-31, and 33-36 of the PSR. See Addendum at 3-5.
The USPO responds to V. Garcia's objection to the classification of First Financial as a "victim," by representing that the USPO spoke with Heyward, "who advised due to a signed disclosure agreement executed between Mr. Garcia and the financial institution, regarding an insurance payout, he was not at liberty to provide a victim impact statement." Addendum at 5. The USPO states, thus, that "it may be necessary to conduct an evidentiary hearing... to determine whether First Financial Credit Union is a `victim.'" Addendum at 5. Regarding V. Garcia's objections to the inclusion of other lending instructions as victims, in paragraphs 55-56 of the PSR, the USPO states that the lending institutions listed in paragraphs 55-56 should be considered victims, because they "sustained a loss based on `Reasonably Foreseeable Pecuniary Harm,'" as defined under U.S.S.G. § 2B1.1, cmt. n.3(iv). Addendum at 5. The USPO notes that V. Garcia objects to the inclusion of lending institutions as victims because of the general economic downturn which occurred concurrently with his criminal activity, but the USPO states that, nonetheless, V. Garcia "knew or, under the circumstances, reasonably should have known, his actions in misappropriating loan funds ... would result in pecuniary harm." Addendum at 5. The USPO also contends that the subcontractors listed in paragraph 61 of the PSR are victims, contrary to V. Garcia's objection, because V. Garcia should have known that the $365,677.00 which he fraudulently procured and did not use to pay subcontractors "was no longer available
The USPO also contends that it properly applied a 3-level enhancement for V. Garcia's use of sophisticated means to commit bank fraud in paragraph 62 of the PSR. The USPO asserts that, although V. Garcia objects to the enhancement, because he was not aware of Barnhill's specific actions in procuring the $365,677.00 and that transaction was not especially complex, "[t]he sophisticated means enhancement is not based solely on the conduct surrounding the $365,677 fraudulent draw request." Addendum at 6. The USPO notes that V. Garcia told Barnhill to generate false invoices to support the draw-down request for $365,677.00, and that V. Garcia transferred the draw down funds from the Downtown Anasazi account to a separate bank account with Compass Bank, held under a different name, and V. Garcia then used the second bank account to write a check for the purchase of J & J Casino. The USPO contends that these actions demonstrate the use of sophisticated means to "obtain, conceal, and transfer assets as part of the criminal conduct," and thus the USPO properly applied the 3-level enhancement. Addendum at 6-7.
Regarding V. Garcia's objection to the gross loss amount being beyond that to which the parties stipulated in the Plea Agreement, which the USPO includes in paragraph 122, the USPO states that it properly calculated the gross loss amount in the PSR, pursuant to U.S.S.G. § 1B1.3, for all of V. Garcia's conduct between December, 2006, and May, 2008. See Addendum at 7.
The USPO contends that it properly determined that V. Garcia is not eligible for a downward departure for aberrant behavior, pursuant to U.S.S.G. § 5K2.20. The USPO points out that V. Garcia's offense level was calculated upon the basis of his relevant conduct, which included criminal activity beyond the offense to which V. Garcia pled, and indicates that V. Garcia "participated in several criminal acts ... between December 2006 and May 2008." Addendum at 8-9. The USPO asserts that, because V. Garcia's relevant conduct throughout that period included submitting forged vendor invoices and transferring funds from one account to another, similar to his federal offense, the bank fraud to which V. Garcia pled cannot accurately be described as aberrant behavior. See Addendum at 9.
The Court held an evidentiary hearing on August 25, 2012. The Court made a few initial comments regarding the PSR. First, the Court noted that paragraph 23, at 9, should read "nothing could be done from the bank's point of view," rather than as written, "nothing could be done from the banks point of view." Tr. at 3:13-19 (Court). The parties agreed. See Tr. at 3:25-4:1 (Bowles). The Court also noted that paragraph 25, at 9, of the PSR, indicates that Canon Air Force Base in Clovis closed, but the Court stated that the Canon Base had not closed, and, rather that the operations at Canon changed. See Tr. at 4:2-6 (Court). V. Garcia stated that he understood a closure was threatened at Canon, and the Court suggested that the PSR be amended to indicate that a closure was threatened and the operations changed at Canon Air Force Base, and the parties agreed with this amendment. See Tr. at 4:13-22 (Bowles, Court, Gerson).
The United States began with its objection to the USPO's calculation of the gross loss amount. The United States stated that V. Garcia is convicted of bank fraud arising from a drawdown request that incorporated a false invoice, but that the United States is not contending and does
The United States Probation Officer for the case, David Wayne Mills then addressed the Court. See Tr. at 1:25-2:1; id. at 11:17-18 (Court). Mills stated that the USPO calculated the gross loss amount from not only the stipulated gross loss amount, but the total pecuniary harm that V. Garcia caused to Columbian Bank and First Financial. See Tr. at 11:19-20:5 (Mills). Mills stated that, "had he not submitted fraudulent documentation on these draw down requests we believe that this money would have been returned back to the bank or forwarded on to the contractors on which it was drawn for." Tr. at 12:6-10 (Mills). The United States contended that the USPO's calculation does not "fit within what we came into this case believing the course of conduct to be." Tr. at 12:13-15 (Gerson). The United States asserted that it could not prove causation for all of the pecuniary harm that the USPO includes in its calculation: "I don't think we can show that there were defaults o[n] the loans [] because of these false draw down requests." Tr. at 12:16-18 (Gerson). The United States asserted that it would have included the defaults on V. Garcia's loan, as the USPO does, if the United States had charged V. Garcia with false loan application, but, because V. Garcia was not charged with a false loan application, the pecuniary harm caused by his defaults should not be included in the gross loss amount. See Tr. at 12:22-13:4 (Gerson). The United States informed the Court that the first seven counts of the Indictment allege bank fraud arising from the use of false invoices, counts eight through twelve allege money laundering charges, and counts nine through twelve allege that V. Garcia laundered money instruments. See Tr. at 13:13-17 (Gerson). The United States noted that it has moved to dismiss all of the money-laundering counts and the remaining bank fraud counts upon sentencing, which benefits V. Garcia in sentencing because the money-laundering counts would have increased his base offense level. See Tr. at 13:18-23 (Gerson).
V. Garcia stated that he agrees with the United States' position regarding the gross loss amount. See Tr. at 14:7-8 (Bowles). V. Garcia asserted that the common plan or scheme constituting his relevant conduct is seen in the allegations contained in counts one through seven, not the remaining
The Court inquired whether it correctly understood V. Garcia's objections to be: (i) a legal objection that the USPO considers conduct that it should not as part of V. Garcia's relevant conduct—specifically V. Garcia's failure to pay subcontractors— and that only the conduct underlying counts one through seven constitute V. Garcia's relevant conduct; (ii) a factual objection that V. Garcia's conduct did not cause his default on both of the loans; and (iii) that V. Garcia's failure to pay subcontractors did not cause the losses alleged in the PSR. See Tr. at 19:14-22 (Court). V. Garcia stated that the Court's understanding is correct and reiterated that he agrees with the United States' calculation of the
Mills then stated that, although the USPO noted the stipulated gross loss amount, under U.S.S.G. § 6B1.2, the stipulation to an amount in the Plea Agreement does not preclude the USPO from "considering the conduct that was involved in the other counts 1 through 19." Tr. at 20:19-21:5 (Mills). Mills stated that, regarding Columbian Bank and First Financial's inclusion as victims, the USPO included the financial harm to those institutions as part of its gross loss amount, "because of the foresee[able] pecuniary harm that was caused to them, ... based upon Mr. Garcia's misappropriation] of the construction funds which were supposed to go to these contractors." Tr. at 22:1-6 (Probation Officer). The Court inquired of Mills he believes that V. Garcia would not have defaulted had he not used the fraudulent invoices to draw down on his loans, or whether the possibility is "rather speculative" based upon the record before the Court, and Mills stated that he is not sure. Tr. at 23:5-14 (Court, Mills). V. Garcia asserted that causation is an issue with the losses the USPO has included in the PSR. See Tr. at 24:11-17 (Bowles). V. Garcia asserted that the federal sentencing guidelines handbook indicates that reasonably foreseeable pecuniary harm is that for which his criminal activity was the but-for cause. See Tr. at 24:11-25:5 (Bowles). V. Garcia asserted that the United States included in the stipulated gross loss amount all the losses of which the United States believes it could prove V. Garcia's actions were the but-for cause. See Tr. at 25:5-8 (Bowles). V. Garcia argued that any losses beyond that to which the parties stipulated are troubled by too much speculation and other market factors for the United States to prove that V. Garcia's conduct was their but-for cause. See Tr. at 25:9-15 (Bowles). V. Garcia asserted that he could not have known or reasonably foreseen that the losses the USPO included in the PSR would occur, given that the losses occurred concurrent to substantial market turmoil. See Tr. at 25:16-22 (Bowles).
The Court stated that it is not certain how to define V. Garcia's relevant conduct, and was unsure whether V. Garcia's relevant conduct should be limited to the common scheme involving fraudulent invoices on which the parties agree. See Tr. at 26:5-8 (Court). The United States asserted that the Court may consider the harm that subcontractors suffered part of V. Garcia's relevant conduct for the purposes of any sentencing guideline that does not involve a loss calculation. See Tr. at 26:14-27:1 (Gerson). The United States stated that it agrees with V. Garcia that the subcontractors' harm does not factor into V. Garcia's base offense level. See Tr. at 27:12-16 (Gerson). The United States informed the Court that it is not in a position to prove that V. Garcia's fraudulent draw-down requests proximately caused more losses beyond those constituting the stipulated gross loss amount. See Tr. at 28:1-5 (Gerson). The United States asserted that V. Garcia's default on his loans "is something [that] can be attributed to Mr. Garcia in the cosmic sense, in the sense of he's the person who's ultimately responsible for not having paid his loans back," but that "cosmic sense" does not determine his relevant conduct for the purposes of his criminal case. Tr. at 28:16-29:3 (Gerson).
V. Garcia noted that, for the purposes of V. Garcia's relevant conduct, his offense was submitting false invoices for draw-down requests and "nothing more than that." Tr. at 29:6-21 (Bowles). V. Garcia asserted that to attribute any losses to him beyond the stipulated gross loss amount "doesn't fit within the legal bases for computing a sentence." Tr. at 29:18-22 (Bowles).
After the parties presented witness testimony, the United States requested the Court to disregard the valuations on of V. Garcia's credits on page 23 of the PSR and, rather, to determine the value of the credits from the testimony presented at the hearing. See Tr. at 100:11-21 (Gerson). The United States asserted that V. Garcia should not receive a credit for the value of his personal residence, because the FDIC testified that neither it nor Columbian Bank received any benefit from the sale of V. Garcia's personal residence. See Tr. at 101:9-14 (Gerson). The United States also asserted that V. Garcia should not receive a credit for the value of his personal property and assets, listed on page 23 of the PSR, with an estimated total value of $500,000.00, because the FDIC did not receive any funds from those items. See Tr. at 101:15-21 (Gerson).
The United States admitted that the value of the unsold properties—Lockhaven Estates and Copper Square—was uncertain, but asserted that the sentencing guidelines direct the Court "that if an item of collateral is not yet actually sold by the time of sentencing [the] Court should make use of appraised value," and that the Court has sufficient evidence of the appraised values of those properties from the witnesses' testimony. Tr. at 100:22-101:4 (Gerson). The United States asserted that the Court should adopt an estimated value somewhere within the range of appraisals given for the Lockhaven Estates and Copper Square properties. See Tr. at 101:22-102:2 (Gerson). The United States noted that the FDIC's losses on the Downtown Anasazi are known, because the FDIC sold the note, and thus the Court need only make a determination regarding the value of Lockhaven Estates and Copper Square. See Tr. at 102:18-25 (Gerson).
V. Garcia asserted that he made a payment of $4,200,000.00 to First Financial on February 20th, 2008, which is not reflected in the USPOS' calculation of his credits in the PSR. See Tr. at 103:4-12 (Bowles). Mills responded that the USPO could not
V. Garcia also asserted that the parties do not dispute the value of his personal property and assets that support the personal guarantee he provided Columbian Bank, and that the value of those items should be added to his credit. See Tr. at 105:2-9 (Bowles). The Court questioned V. Garcia regarding the value of his personal property and assets, because he has not provided any evidentiary documentation of those values to the Court. See Tr. at 105:10-12 (Court). The United States pointed out that it does not accept the value of those items as reported in the PSR and that it objects to that value being applied towards V. Garcia's credits. See Tr. at 105:15-20 (Gerson). V. Garcia asserted that, even if a creditor has not received his personal property and assets yet, "the point is under the guarantee that was pledged collateral and the guidelines... what was pledged as against the loan.... could have been seized" under the sentencing guidelines. Tr. at 106:1-7 (Bowles).
V. Garcia asserted that the Court should use the most recent appraisal from Copper Square in determining its value. See Tr. at 132:4-11 (Bowles). V. Garcia affirmed that he believes the Court should estimate the value of Lockhaven Estates as between the two appraisals. See Tr. at 132:12-14 (Bowles).
Mills informed the Court that the USPO did not include the $550,000.00 from the sale of the Downtown Anasazi mortgage note in V. Garcia's credits, because it applied that amount to reduce the outstanding balance of V. Garcia's Downtown Anasazi loan. See Tr. at 133:1-4 (Mills). Mills stated that V. Garcia should receive a credit only for any proceeds from the sale of his personal residence that the FDIC actually receives. See Tr. at 133:5-17 (Mills). Mills stated that the USPO cannot confirm the value of V. Garcia's reported personal property and assets, although he did visit V. Garcia's home and viewed some of the property listed in the PSR. See Tr. at 133:17-25 (Mills). Specifically, Mills viewed V. Garcia's artwork, vehicles, pottery and knife set. See Tr. at 134:1-6 (Court, Mills). Mills pointed out that he noted in the PSR where V. Garcia provided an estimate of the value of his personal property, and that he used an average approximate value of the items for which V. Garcia could not verify their value. See Tr. at 134:7-19 (Mills) (citing PSR ¶¶ 89-94, at 36). Mills stated that he believed the Court should use the most recent appraisal values from Copper Square and Lockhaven Estates, which may not be reflected in the PSR. See Tr. at 134:20-135:17 (Court, Mills).
The United States, in closing about the determination of V. Garcia's credits, asserted that V. Garcia should not receive
The United States then argued regarding the application of V. Garcia's credits against the gross loss amount. The United States asserted that there is no basis for the USPO to apply the total amount of credits from V. Garcia's bank loans "dollar [f]or dollar" against the stipulated gross loss amount, which only covered his fraudulent draw downs. Tr. at 141:1-7 (Gerson). The United States argued that only "[t]he credits for collateral should [be] applied against what they were collateral for." Tr. at 141:8-10 (Gerson). The United States suggested that V. Garcia's credits should be prorated, based upon the proportion of the fraudulent draw downs as compared with his overall bank loans, because his collateral was pledged for the entire value of his bank loans, and not just for the fraudulent draw downs. See Tr. at 141:8-21 (Gerson). The United States contended that U.S.S.G. § 2B1.1, cmt. n.3(E)(ii), when referring to a credit applied for collateral pledged, is "written ... from the point of view of collateral pledged against an under[]taking that resulted in a criminal loss." Tr. at 142:18-21 (Gerson). The United States asserted that the collateral that is listed in the PSR was pledged against bank loans, and, thus, "it's not a fair use of this application note to say that all of these credits should be applied on a dollar [f]or dollar basis against a fraction of the bank loans." Tr. at 142:22-143:1
The Court inquired of the United States why V. Garcia's bank loans are not irrelevant for the purposes of U.S.S.G. § 2B1.1, cmt. n.3(E)(ii), given that the application note discusses only collateral which was pledged by a defendant and not the purposes for which the collateral was pledged. See Tr. at 144:10-20 (Court). The United States asserted that it derives its proposed methodology from the term "collateral pledged" in the application note. Tr. at 144:21-25 (Gerson). The Court responded that the application note does not distinguish between collateral pledged against a loan and other collateral pledged, and suggested that the sentencing guideline is, thus, not concerned with any loan for which the collateral was pledged. See Tr. at 145:8-15 (Court, Gerson). The United States disagreed and asserted that the sentencing guidelines are concerned with "fashioning[] an[] appropriate punishment for criminal conduct," and that V. Garcia's criminal conduct was the fraudulent draw-down requests and the collateral pledged was not pledged for the draw-down requests specifically but for his loans generally. Tr. at 145:16-21 (Gerson). The United States asserted that, within the context of the rest of the application note, "collateral pledged" is not used generally. Tr. at 145:21-25 (Gerson). The United States asserted that collateral pledged in an entirely unrelated economic transaction would not be applied as a credit under the guideline, and, therefore, neither should the entire value of V. Garcia's collateral be used to swallow his criminal conduct. See Tr. at 146:1-12 (Gerson). The United States asserted that to allow V. Garcia to walk away from his criminal conduct with no net losses would be unjust. See Tr. at 146:13-17 (Gerson).
The United States asserted that U.S.S.G. § 2B1.1, cmt. n.3 (E)(ii)'s discussion of the "amount the victim has recovered" should be applied in the "context of the amount of criminal conduct relative to the overall amount of loan activity" here. Tr. at 147:1-14 (Gerson). The Court inquired where, in the sentencing guideline, the United States finds support for its proposition that the "Court ... prorate the [] recovery as between fraudulent drawdowns and the total loan amounts." Tr. at 148:10-14 (Gerson). The United States asserted that the general structure of the guideline supports that proposition, and asserted that the "use of the words `the victim has recovered' and the words `collateral pledged' because those have to be tied to the criminal conduct." Tr. at 148:17-22 (Gerson) (quoting U.S. S.G. § 2B1.1., cmt. n.3 (E)(ii)). The United States asserted that it would be an
Tr. at 149:1-7 (Gerson). The Court inquired how such a situation would be a windfall for V. Garcia, given that the parties stipulated to a gross loss amount that did not include the totality of the financial institutions' losses in the matter. See Tr. at 149:8-23 (Court, Gerson). The Court stated that it does not seem to make sense to disregard the losses on V. Garcia's loans for the gross loss amount, but then to allow those amounts to factor into his sentencing. See Tr. at 149:25-150:3 (Court). The Court pointed out that U.S.S.G. § 2B1.1, cmt. n.3 (E)(ii) refers to collateral
V. Garcia asserted that the Plea Agreement and the sentencing guidelines inform the Court's calculation of credits against losses for V. Garcia. See Tr. at 151:11-15 (Bowles). V. Garcia pointed out that, in paragraph 10(b)-(c) of the Plea Agreement, at page 6, the parties stipulated to a gross loss amount, and that U.S.S.G. § 2B1.1, cmt. n.3(E)(i) and (ii) should be used to determine the net losses. See Tr. at 152:1-7 (Bowles). The Court pointed out that the application note provides that it applies to "loss" under U.S.S.G. § 2B1.1(b)(1), and that the application note does not distinguish between actual loss and intended loss. Tr. at 152:17-22 (Bowles) (citing U.S.S.G. § 2B1.1, cmt. n.3). The Court also noted that it was unsure how the cases would differ where U.S.S.G. § 2B1.1, cmt. n.3 (E)(i) would apply as opposed to U.S.S.G. § 2B1.1, cmt. n.3(E)(ii). See Tr. at 153:12-14 (Court). V. Garcia asserted that cmt. n.3(E)(i) refers to the fair market value of property returned or services rendered, and contended that that application note does not state anywhere that the money should be prorated against the loan. See Tr. at 153:15-18 (Bowles). V. Garcia asserted that he has found no case law or guideline language which indicates that the Court should prorate his collateral pledged against the total loan amounts. See Tr. at 154:4-11 (Bowles). V. Garcia contended that, when reading all of the guidelines together, one can discern that Congress was attempting to punish defendants differently depending upon whether victims received more value through credits than they lost. See Tr. at 154:12-20 (Gerson). V. Garcia asserted that Congress never intended for a court to evaluate a defendant's credits based upon the loans for which collateral was pledged, but rather intended for credits to be applied against losses, as the guidelines define losses. See Tr. at 156:13-23 (Bowles).
Mills stated that he agrees with V. Garcia's understanding of the guidelines in this case. See Tr. at 157:25-158:2 (Mills). Mills further stated that he disagrees that the total value of V. Garcia's credits should be applied against the stipulated gross loss amount and asserted that V. Garcia's credits should be applied against the total losses, as listed in the PSR at approximately $23,000,000.00. See Tr. at 158:2-159:1 (Mills).
The Court inquired whether V. Garcia believes the credits and losses should be determined respective to each victim, rather than as a lump sum. See Tr. at 159:14-18 (Court). V. Garcia stated that he does. See Tr. at 159:19-22 (Bowles). V. Garcia stated that he agrees with the United States' chart on pages 3-4 of the U.S. Objections, which divides the fraudulent draw downs by the respective institutions. See Tr. at 159:23-160:3 (Court, Bowles). V. Garcia asserted that he does not believe First Financial is a victim of V. Garcia's offense, because of his settlement agreement with it, but the Court noted that First Financial's credits should be applied at sentencing because First Financial's losses are included in the stipulated gross loss amount, with which V. Garcia agreed. See Tr. at 160:10-20 (Bowles, Court). V. Garcia later asserted that he does not agree that the net loss amount should be
The Court inquired whether the United States agrees that V. Garcia did not return any money to the victims, and thus U.S.S.G. § 2B1.1, cmt. n.3(E)(ii), not cmt. n.3(E)(i) applies, and the United States stated that it agrees. See Tr. at 164:1-4 (Court, Gerson). The United States admitted that it has not seen any case where collateral pledged was reduced pro rata by the loan for which it was pledged. See Tr. at 164:18-23 (Court, Gerson). The United States asserted, nonetheless, that V. Garcia's situation is different, because the cases that have dealt with U.S.S.G. § 2B1.1, cmt. n.3(E)(ii) have discussed collateral pledged against a loan, which formed the basis of a defendant's criminal conduct, rather than collateral pledged against loans on which a defendant made fraudulent draw downs, as V. Garcia has done here. See Tr. at 165:1-21 (Gerson, Court). The United States asserted that the Court is not required to apply V. Garcia's collateral in a reasonable fashion against the losses, and the Court is not required to apply his credits dollar for dollar against his fraudulent draw downs. See Tr. at 165:21-166:1 (Gerson).
V. Garcia asserted that he pledged his personal property and assets as collateral for his loans with both Columbian Bank and First Financial. See Tr. at 166:11-12 (Bowles). The United States did not dispute that assertion. See Tr. at 166:22-23 (Court, Gerson). The United States asserted that the gross loss amount is not limited to V. Garcia's count of conviction— count three—but is rather based upon counts one through seven. See Tr. at 167:14-23 (Gerson).
The Court inquired of the parties if they agreed with the USPO's use of the most recent appraisals for the value of Lockhaven Estates and Copper Square. See Tr. at 168:22-169:3 (Court). V. Garcia stated that he believes that the guidelines use the value of an asset at the time of sentencing, and that the Court should estimate the value of the properties, and stated that he believes the most recent appraisals are "probably the more accurate" for determining the value of the properties. Tr. at 169:4-10 (Bowles). The United States stated that it believes the Court could either accept the most recent appraisals or attempt to determine the accuracy of the appraisals. See Tr. at 170:10-11 (Gerson). The United States stated that, for the appraisals which are separated by a period of years, rather than months, it would likely be more appropriate to use the most recent appraisals. See Tr. at 170:11-18 (Gerson).
Regarding V. Garcia's remaining objections, V. Garcia stated that he believes that, if the Court resolves the objections which were discussed at the hearing, the Court may not need to rule on his remaining objections, as they may be resolved by the Court's ruling. See Tr. at 171:7-25 (Court, Bowles). The parties agreed that, if the Court rules on the issues discussed at the hearing, the Court's ruling could potentially eliminate any remaining objections. See Tr. at 175:3-7 (Bowles). Regarding V. Garcia's objection to paragraph 62 of the PSR, which applies an enhancement for V. Garcia's use of sophisticated
In calculating an appropriate sentence, the guidelines consider a defendant's "offense of conviction and all relevant conduct under [U.S.S.G.] § 1B1.3 (Relevant Conduct) unless a different meaning is specified or is otherwise clear from the context." U.S.S.G. § 1B1.1, cmt. n.1(H). In United States v. Booker, the Supreme Court noted:
543 U.S. 220, 250-51, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005) (quoting 18 U.S.C. § 1951(a)) (emphasis in original). The Supreme Court's reasoning in United States v. Booker suggests that the consideration of real conduct is necessary to effectuate Congress' purpose in enacting the guidelines.
Section 1B1.3 provides that the base offense level under the guidelines "shall be determined" based on the following:
U.S.S.G. § 1B1.3(a)(1)-(4). The court may consider, as relevant conduct, actions that have not resulted in a conviction. Pursuant to the commentary to U.S.S.G. § 6A1.3, evidentiary standards lower than beyond a reasonable doubt are permitted to show relevant conduct. The court may rely upon reliable hearsay information, so long as there as the evidence meets the preponderance-of-the-evidence standard. See United States v. Vigil, 476 F.Supp.2d 1231, 1245 (D.N.M.2007) (Browning J.). Accord United States v. Schmidt, 353 Fed. Appx. 132, 135 (10th Cir.2009) (unpublished) ("The district court's determination of `relevant conduct' is a factual finding
In Witte v. United States, 515 U.S. 389, 115 S.Ct. 2199, 132 L.Ed.2d 351 (1995), the Supreme Court upheld the use of uncharged conduct at sentencing against a double jeopardy challenge. The defendant in Witte v. United States had been involved in an unsuccessful 1990 attempt to import marijuana and cocaine into the United States, and in a 1991 attempt to import marijuana. See 515 U.S. at 392-93, 115 S.Ct. 2199. In March 1991, a federal grand jury indicted the defendant for attempting to possess marijuana with intent to distribute in association with the defendant's latter attempt to import narcotics. See Witte v. United States, 515 U.S. at 392-93, 115 S.Ct. 2199. At sentencing, the district court concluded that, because the 1990 attempt was part of the continuing conspiracy, it was relevant conduct under U.S.S.G. § 1B1.3, and therefore calculated the defendant's base offense level based on the aggregate amount of drugs involved in both the 1990 and 1991 episodes. See Witte v. United States, 515 U.S. at 394, 115 S.Ct. 2199.
In September 1992, a second federal grand jury indicted the defendant for conspiring and attempting to import cocaine in association with the 1990 activities. See Witte v. United States, 515 U.S. at 392-93, 115 S.Ct. 2199. The defendant moved to dismiss the indictment, arguing that he had already been punished for the cocaine offenses, because the district court had considered those offenses relevant conduct at the sentencing for the 1991 marijuana offense. See Witte v. United States, 515 U.S. at 395, 115 S.Ct. 2199. The district court agreed and dismissed the indictment, holding that punishment for the cocaine offenses would violate the Double Jeopardy Clause's prohibition against multiple punishments. See 515 U.S. at 395, 115 S.Ct. 2199. The United States Court of Appeals for the Fifth Circuit reversed the district court and held that "the use of relevant conduct to increase the punishment of a charged offense does not punish the offender for the relevant conduct." United States v. Witte, 25 F.3d 250, 258 (5th Cir.1994). In reaching this holding, the Fifth Circuit acknowledged that its conclusion was contrary to other United States Circuit Courts of Appeals, including the United States Court of Appeals for the Tenth Circuit that had previously considered this question. See 25 F.3d at 255 n.
The Supreme Court granted certiorari to resolve the conflict between the circuits and affirmed the Fifth Circuit. See 515 U.S. at 395, 115 S.Ct. 2199. In finding that the district court's consideration of the defendant's relevant conduct did not punish the defendant for that conduct, the Supreme Court concluded that "consideration of information about the defendant's character and conduct at sentencing does not result in `punishment' for any offense other than the one of which the defendant was convicted." 515 U.S. at 401, 115 S.Ct. 2199. The Supreme Court reasoned that sentencing courts had always considered relevant conduct and "the fact that the sentencing process has become more transparent under the Guidelines ... does not mean that the defendant is now being punished for uncharged relevant conduct as though it were a distinct criminal offense." 515 U.S. at 402, 115 S.Ct. 2199. Sentencing enhancements do not punish a defendant for uncharged offenses; rather, they reflect Congress' policy judgment "that a particular offense should receive a more serious sentence within the authorized range if it was either accompanied by or preceded by additional criminal activity." 515 U.S. at 403, 115 S.Ct. 2199.
In United States v. Watts, 519 U.S. 148, 117 S.Ct. 633, 136 L.Ed.2d 554 (1997), the Supreme Court, in a per curiam opinion, relied upon Witte v. United States' holding and upheld, against a double jeopardy challenge, a sentencing judge's use of conduct for which the defendant had been acquitted. In reaching its result in United States v. Watts, the Supreme Court noted that its conclusion was in accord with every Circuit Court of Appeals—other than the United States Court of Appeals for the Ninth Circuit—and that each had previously held that a sentencing court may consider conduct for which the defendant had been acquitted, if the government establishes that conduct by a preponderance of the evidence. See 519 U.S. at 149, 117 S.Ct. 633 (citing, among other authorities, United States v. Coleman, 947 F.2d 1424, 1428-29 (10th Cir.1991)). The Supreme Court began its analysis in United States v. Watts with 18 U.S.C. § 3661: "No limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence." 18 U.S.C. § 3661. See United States v. Watts, 519 U.S. at 151, 117 S.Ct. 633. According to the Supreme Court, 18 U.S.C. § 3661 embodies the codification of "the longstanding principle that sentencing courts have broad discretion to consider various kinds of information" and that "the Guidelines did not alter this aspect of the sentencing court's discretion." United States v. Watts, 519 U.S. at 151-52, 117 S.Ct. 633.
Tenth Circuit case law adheres closely to the Supreme Court's results in Witte v. United States and United States v. Watts. See United States v. Andrews, 447 F.3d 806, 810 (10th Cir.2006) (applying Witte v. United States' holding to affirm that a career offender enhancement does not violate the Double Jeopardy Clause of the Fifth Amendment). In United States v. Banda, 168 Fed.Appx. 284 (10th Cir.2006) (unpublished), the Tenth Circuit rejected a defendant's argument that it was "structural error" for the a district court to find sentencing factors "by a preponderance of the evidence rather than the jury applying a beyond-a-reasonable-doubt standard." 168 Fed.Appx. at 290. The Tenth Circuit explained that "`It is now universally accepted that judge-found facts by themselves do not violate the Sixth Amendment.
In United States v. Coleman, the defendant, Troy Coleman, appealed the district court's enhancement of his sentence for firearms possession after he was convicted of conspiracy to possess and possession of a controlled substance with intent to distribute, but was acquitted of using or carrying a firearm during and in relation to a drug trafficking crime. See 947 F.2d at 1428. The Tenth Circuit acknowledged that courts had taken various positions whether a sentence may be enhanced for firearms possession despite a defendant's acquittal of firearms charges. See United States v. Coleman, 947 F.2d at 1428-29 (citing United States v. Duncan, 918 F.2d 647, 652 (6th Cir.1990) ("[A]n acquittal on a firearms carrying charge leaves ample room for a district court to find by the preponderance of the evidence that the weapon was possessed during the drug offense."); United States v. Rodriguez, 741 F.Supp. 12, 13-14 (D.D.C.1990) (refusing to apply 2-level enhancement for firearms possession, because "[t]o add at least 27 months to the sentence for a charge of which the defendant was found not guilty violates the constitutional principle of due process and the ban against double jeopardy")).
Without discussion related to the standard of proof a sentencing court should use to make factual findings, the Tenth Circuit held that the district court did not err in enhancing Coleman's sentence for possession of a firearm. See United States v. Coleman, 947 F.2d at 1429. The Tenth Circuit based its conclusion on evidence that: (i) two weapons had been located at the arrest scene; (ii) the weapons were handled at will by individuals who lived at the house; and (iii) the weapons were kept for the protection of conspiracy participants and the narcotics involved. See United States v. Coleman, 947 F.2d at 1429. The Tenth Circuit summarized that, in reviewing federal case law, it found "persuasive the decisions that have allowed a sentencing court to consider trial evidence that was applicable to a charge upon which the defendant was acquitted." United States v. Coleman, 947 F.2d at 1429.
In United States v. Washington, 11 F.3d 1510 (10th Cir.1993), the defendant, Patrick Washington, argued that the United States should prove drug quantities used as relevant conduct to establish a defendant's offense level by clear-and-convincing evidence rather than by a preponderance of the evidence. See 11 F.3d at 1512. The defendant objected to his sentencing, because the drug quantity that the district court considered as relevant conduct, and which the court found by a preponderance of the evidence, increased his guideline sentence range from 210 to 262 months, to life. The defendant argued "that because the additional drug quantities effectively resulted in a life sentence a higher standard of proof should be required." United States v. Washington, 11 F.3d at 1515. Although the Tenth Circuit in United States v. Washington "recognize[d] the strong arguments that relevant conduct causing a dramatic increase in sentence ought to be subject to a higher standard of proof," it held that "the Due Process Clause does not require sentencing facts in the ordinary case to be proved by more than a preponderance standard." 11 F.3d at 1516 (citing McMillan v. Pennsylvania, 477 U.S. 79, 84, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986)).
Section 2B1.1 of the United States Sentencing Guidelines guides a court when sentencing a defendant for "Larceny, Embezzlement, and other Forms of Theft; Offenses Involving Stolen Property; Property Damage or Destruction; Fraud and Deceit; Forgery; Offenses Involving Altered or Counterfeit Instruments Other than Counterfeit Bearer Obligations of the United States." U.S.S.G. § 2B1.1. Part of a court's duty when sentencing under U.S.S.G. § 2B1.1 is to determine whether a defendant's base offense level should be increased because of the amount of loss the offense caused. See U.S.S.G. § 2B1.1(b)(1) ("If the loss exceeded $5,000, increase the offense level as follows...."). "The court need only make reasonable estimate of the loss." U.S.S.G. § 2B1.1, cmt. n.3(C). The Sentencing Guidelines neither proscribe, nor prohibit, a methodology for a court to use when calculating the "reasonable estimate" of the loss a defendant's conduct caused. See United States v. Erpenbeck, 532 F.3d 423, 433 (6th Cir.), cert. denied, 555 U.S. 997, 129 S.Ct. 518, 172 L.Ed.2d 362 (2008) (rejecting a defendant's argument that the entire value of collateral that he pledged for a legitimate loan should be used to off-set his fraudulent transactions, and holding that the collateral should be reduced pro-rata based upon the ratio of the fraudulent transactions to the underlying, legitimate loan).
Loss is "the greater of actual or intended loss." U.S.S.G. § 2B1.1, cmt. n.3(A). "`Actual loss' means the reasonably foreseeable pecuniary harm that resulted from the offense." U.S.S.G. § 2B1.1, cmt. n.3(A)(i). "`Intended loss' ... means the pecuniary harm that was intended to result from the offense." U.S.S.G. § 2B1.1, cmt. n.3(A)(ii). "Offense" within the definition of either actual or intended loss refers to a defendant's relevant conduct, as determined by U.S.S.G § 1B1.3. See United States v. Holbert, 285 F.3d 1257, 1261, 1261 n. 3 (10th Cir.2002) (explaining that the Sentencing Guidelines explicitly differentiate between the terms "offense of conviction," which "encompasses only facts immediately related to the specific offense for which the defendant was convicted," and "offense," which "`means offense of
When the loss amount is disputed, the United States bears the burden of establishing its estimation of loss by a preponderance of the evidence. See Guidelines Handbook § 14, at 353. The Tenth Circuit has, accordingly, ruled that a district court cannot include losses in its calculation under § 2B1.1 until the "Government first... prove[s] by a preponderance of the evidence that the conduct giving rise to those losses (1) was a part of Defendant's ongoing scheme ... and (2) constituted a criminal offense under a federal or state statute." United States v. Kieffer, 681 F.3d at 1168. Next, the United States must "prove the amount of loss (or a reasonable estimate thereof) associated with that conduct by a preponderance of the evidence." United States v. Kieffer, 681 F.3d at 1168 (citing United States v. Peterson, 312 F.3d 1300, 1302 (10th Cir.2002)). For example, in United States v. Chapman, No. CR 11-0904 JB, 2012 WL 2574814 (D.N.M. June 22, 2012) (Browning, J.), the Court determined that an enhancement pursuant to U.S.S.G. § 2B1.1(b)(1) was unwarranted, because, although the United States contended that a New Mexico Corrections Department facilities manager awarded four million dollars worth of state government contracts to a developer in exchange for bribes, the United States submitted no evidence regarding the profit, if any, the developer received from the contracts. See 2012 WL 2574814, at *1, **9-10. The Court noted that, without "evidence regarding the value of the benefit Moya received under these government contracts, the United States cannot establish by a preponderance of the evidence that an ... enhancement is appropriate ...." under U.S.S.G. § 2B1.1(b)(1). 2012 WL 2574814, at *10.
The application notes to U.S.S.G. § 2B1.1 provide that a court shall reduce the loss by certain credits. First, the court shall reduce the loss by the "money returned, and the fair market value of the property returned and the services rendered by the defendant or other persons acting jointly with the defendant, to the victim before the offense was detected." U.S.S.G. § 2B1.1, cmt. n.3(E)(i). "[W]hen no actual sales price is available to calculate loss, the Guidelines permit a district court `to estimate loss based on available information.'" United States v. Snow, 663 F.3d at 1161 (quoting United States v. James, 592 F.3d 1109, 1116 (10th Cir.2010) (secondary quotations omitted)). See United States v. Merriman, 647 F.3d 1002 (10th Cir.2011) ("[T]he Guidelines permit a reduction for restoring victims' losses prior
Second, the court shall reduce the loss, in "a case involving collateral pledged or otherwise provided by the defendant, [by] 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 sentencing, "the fair market value of the collateral at the time of sentencing." U.S.S.G. § 2B1.1, cmt. n.3(E)(ii). As the Tenth Circuit has explained, "actual loss should be measured by the net value, not the gross value, of what was taken when the defendant pledged collateral to secure a fraudulent loan." United States v. Snow, 663 F.3d at 1161. "Where a lender has foreclosed and sold the collateral, the net loss should be determined by subtracting the sales price from the outstanding balance on the loan." United States v. Washington, 634 F.3d 1180, 1184 (10th Cir.2011) (citing United States v. James, 592 F.3d at 1114). Collateral may not be used to offset losses, however, if the defendant "`intended to permanently deprive the creditor of the collateral through concealment.'" United States v. Schild, 269 F.3d 1198, 1201-02 (10th Cir.2001) (quoting United States v. Nichols, 229 F.3d 975, 979 (10th Cir.2000) (holding that a defendant convicted of bank fraud may not receive an offset to the loss his offense incurred based on the cattle he pledged as collateral where he sold the cattle, and, thus, the bank could not levy thereon). Additionally, U.S.S.G. § 2B1.1, cmt. n.3(E)(ii) "cannot reasonably be interpreted as limiting credits to collateral for which the defendant is himself the pledger;" rather, collateral pledged reduces a victim's losses irrespective of which defendant, if there are multiple, pledged the collateral. Guidelines Handbook § 10, at 345 ("The bank suffered only one actual financial loss arising from the concerted action of the two defendants—a loss objectively measurable by subtracting the value of the collateral from the amount of the loan."). "A court may properly accept a variety of kinds of evidence about the value of the collateral pledged by the defendant, and it need not determine that value to the penny." Guidelines Handbook § 14, at 353.
U.S.S.G. § 2B1.1(b)(10)(C) provides that, "[i]f the offense involves sophisticated means, increase by 2 levels. If the resulting offense is less than level 12, increase to level 12." U.S.S.G. § 2B1.1(b)(10)(C). Application Note 8 provides, "[f]or the purposes of subsection (b)(2), `sophisticated means' means especially complex or especially intricate offense conduct pertaining to the execution or concealment of an offense.... Conduct such as hiding assets or transactions, or both, through the use of fictitious entities, corporate shells, or offshore financial accounts ordinarily indicates sophisticated means." U.S.S.G. § 2B1.1, cmt. n.8(B).
"The possession of false document-making implements may constitute sophisticated
The Tenth Circuit has upheld the application of a sophisticated-means enhancement to a defendant who conducted seminars on avoiding tax liability and "assisted in the preparation of tax returns that were false and fraudulent as to a material matter." United States v. Ambort, 405 F.3d 1109, 1113 (10th Cir.2005). In United States v. Ambort, the Tenth Circuit found that there was ample evidence in the record to support a sophisticated-means enhancement, because the defendant's program was designed to provide a basis that someone could later articulate as to why they were entitled to the tax status they advanced and included discussions about what information should not be included in tax forms to avoid traceability. See 405 F.3d at 1120.
In United States v. Snow, the Tenth Circuit held that a district court properly applied an enhancement for the use of sophisticated means under U.S.S.G. § 2B1.1, where the defendant "did not undertake to execute or conceal merely a single fraudulent transaction using false
Additionally, the United States Court of Appeals for the Sixth Circuit has upheld the imposition of a sophisticated-means enhancement where the defendant created and used fictitious trusts to hide assets from the Internal Revenue Service, even though the defendant was not a sophisticated businessman and no offshore trusts were involved. See United States v. Schwartz, 408 Fed.Appx. 868, 870 (6th Cir. 2010) (unpublished). The United States Court of Appeals for the Seventh Circuit, in United States v. Minneman, 143 F.3d 274 (7th Cir. 1998), held that the use of multiple corporate names and the placement of funds in a trust account both constitute complex efforts to hide income. See 143 F.3d at 283.
The Court overrules in part and sustains in part the parties' objections to the PSR. The Court agrees with the parties that the gross loss amount that V. Garcia's relevant conduct incurred is limited to the amount of fraudulent draw downs submitted to the lending institutions. The United States has not argued, and the Court has no evidence to conclude, that V. Garcia's default on over $20,000,000.00 of loans was a "reasonably foreseeable pecuniary harm that resulted from" V. Garcia's submission of less than $1,000,000.00 in fraudulent draw downs. U.S.S.G. § 2B1.1, cmt. n.3(A)(i). To the contrary, V. Garcia has submitted evidence which generally prevailing market factors that depressed the commercial real estate market caused him to default on his loans, and the United States does not argue otherwise. On the
Regarding V. Garcia's other objections to the PSR's sentencing enhancements, the Court will overrule the objections in part and sustain in part. The Court finds that V. Garcia did not use sophisticated means to commit bank fraud, and, thus, sustains V. Garcia's objection to a sentencing enhancement pursuant to U.S.S.G § 2B1.1(b)(10)(C). The Court agrees with V. Garcia that there were less than ten victims in this case, because the Court has no evidence that V. Garcia's fraudulent draw downs totaling less than $1,000,000.00 caused certain subcontractors' to not receive over $2,000,000.00 for their services. V. Garcia has submitted evidence, to which the United States does not object, that certain subcontractors were not paid because of the difficulty V. Garcia experienced with generally prevailing market factors that depressed the commercial real estate market. The United States does not argue that subcontractors were unpaid because of V. Garcia's bank fraud. The Court, therefore, has no evidence to conclude that certain subcontractors sustained pecuniary harm reasonably foreseeable to result from V. Garcia's fraudulent draw downs, and, without the subcontractors as victims, the only victims before the Court are First Financial and the FDIC, as Columbian Bank's receiver. The Court will, thus, sustain V. Garcia's objection to a sentencing enhancement pursuant to U.S.S.G. § 2B1.1(b)(2).
In the Plea Agreement, the parties stipulated to a gross loss amount of $842,237.44, but did not fully explain how they arrived at that figure. See Plea Agreement ¶ 10(b), at 6. The USPO determined that the actual loss and intended loss caused by V. Garcia's conduct was the same figure, and that total is $23,550,835.69, based upon the outstanding balance of V. Garcia's loans with First Financial and Columbian Bank, on which he defaulted, and the amount of the subcontractors' liens filed against V. Garcia's properties. See PSR ¶ 60, at 22. Both parties object to the USPO's calculation of the gross loss amount, because, they argue, V. Garcia's default and failure to pay certain subcontractors was not part of his relevant conduct. See U.S. Objections at 2-3; V. Garcia Objections at 1-2. The Court agrees with the parties that V. Garcia's default on his loans with First Financial and Columbian Bank and his failure to pay certain subcontractors, was not a harm that resulted from his bank fraud, nor were these harms part of the same course or scheme or endeavor to defraud the lending institutions, and thus, losses incurred beyond V. Garcia's fraudulent draw
For purposes of determining the loss an offense caused under U.S.S.G. § 2B1.1(b), a defendant's offense is the defendant's relevant conduct under U.S.S.G. § 1B1.3. See Guidelines Handbook § 5, at 335 (explaining that the Commission intended for the meaning of "the offense" for the purposes of determining loss to refer to a defendant's relevant conduct under U.S.S.G. § 1B1.3). V. Garcia's relevant conduct is all "acts and omissions [he] committed, aided, abetted, counseled, commanded, inducted, procured, or willfully caused," and "all reasonably foreseeable acts and omission of others in furtherance of the jointly undertaken criminal activity." U.S.S.G. § 1B1.3(a)(1)(A), (B). V. Garcia pled guilty to one of the nineteen counts charged in the Indictment-bank fraud through the submission of a draw-down request in the amount of $365,677.00 based upon a fraudulent invoice. See Plea Agreement ¶ 8(b), at 4; Indictment at 3. V. Garcia was charged with six other counts of bank fraud, all of which relate to the same "plan" or "scheme" he effectuated with Barnhill to obtain funds from First Financial and Columbian Bank to be used other than for the construction expenses represented to the lending institutions. See Indictment at 3-4; PSR ¶¶ 33-36, at 13-15; U.S. Objections at 3; V. Garcia Objections at 20. The Court concludes that it was reasonably foreseeable to V. Garcia that Barnhill would obtain the draw downs that V. Garcia directed through fraudulent means: V. Garcia admits that he directed Barnhill to request the draw downs, and he does not contest that the funds obtained were not used for legitimate construction expenses. See Plea Agreement ¶ 8(b), at 4, PSR ¶¶ 33-36, at 13-15; V. Garcia Objections at 20. The Court thus concludes that the losses the lending institutions incurred because of the fraudulent draw downs was a pecuniary harm which V. Garcia should have reasonably foreseen, given his admitted conduct of directing Barnhill to request fraudulent draw downs. See U.S.S.G. § 2B1.1, cmt. n.3(A)(i). The Court also agrees with the USPO that there is no evidence that V. Garcia intended to cause a pecuniary harm beyond that which resulted from the fraudulent draw downs. See PSR ¶ 60, at 22; U.S.S.G § 2B1.1, cmt. n.3(A)(ii); United States v. Small, 210 Fed.Appx. at 779 (upholding an actual loss calculation where there was no evidence that a defendant "intended a greater loss than the actual loss . . . ."). Rather, V. Garcia's purchase of the J & J Casino to increase his liquidity indicates that he intended to recoup the funds obtained through the draw downs, and more, in other business endeavors. See Plea Agreement ¶¶ 8(b)-(c), at 4 (V. Garcia states that he knew the $365,677.00 in the February 13, 2007, draw down would not be used for the Downtown Anasazi, as Barnhill represented to Columbian Bank, but that he also intended to "provide additional cash for the completion of the building if the casino proved successful," and that he purchased the casino in an attempt to increase his liquidity.).
On the other hand, the Court does not agree with the USPO's conclusion that V. Garcia's default on the Downtown Anasazi, Copper Square, and Lockhaven Estates loans, and his failure to pay certain subcontractors, are part of V. Garcia's relevant conduct in committing bank fraud. There is no evidence that V. Garcia willfully defaulted on his loans. See U.S.S.G. § 1B1.3(a)(1)(A) (defining relevant conduct as all acts a defendant "willfully caused").
Additionally, the amount of V. Garcia's fraudulent draw downs as compared to his underlying loans makes it difficult for the Court to believe that V. Garcia could have reasonably foreseen—as the Guidelines define that term—that the $842,708,79 which V. Garcia fraudulent drew-down would cause him to default on over $20,000,000.00 of loans. See U.S.S.G. § 2B1.1, cmt. n.3(A)(i) (defining actual loss as the "reasonably foreseeable pecuniary harm that resulted from the offense"). The same proportionate relationship renders the foreseeability of V. Garcia's inability to pay subcontractors unlikely: accepting either the $1,550,000.00 that V. Garcia estimates he owes subcontractors, see V. Garcia Objections at 20 or the $2,520,302.61 that the USPO reports in the PSR, see PSR ¶ 30, at 10-13; id. ¶¶ 55-56, at 20, V. Garcia's fraudulent draw downs amount to no more than half of the unpaid funds. At most, V. Garcia's fraudulent draw downs accounts for approximately half of the amount he owes to subcontractors, and it is unlikely that V. Garcia could have reasonably foreseen that fraudulently drawing-down over $842,708.79 from his loans would have made it impossible for him to pay twice that amount to subcontractors. "Where a district court finds that the defendant did not reasonably foresee losses would be sustained," the court cannot include those losses in a defendant's gross loss amount under U.S.S.G. § 2B1.1. United States v. Smith, 705 F.3d 1268, 1276 (10th Cir.2013). Conservatively, V. Garcia could have foreseen that using $842,708.79 for purposes other than the development projects would have caused him to default or not pay
The burden is on the United States to establish the loss resulting from V. Garcia's relevant conduct. See United States v. Kieffer, 681 F.3d at 1168 ("Assuming the Government met its initial burden of proving relevant conduct, it then had to prove the amount of loss (or a reasonable estimate thereof) associated with that conduct by a preponderance of the evidence."). V. Garcia has submitted evidence that the fraudulent draw downs did not cause his defaults and failure to pay subcontractors, and the United States not only does not object to that evidence, but does not argue that V. Garcia's default or failure to pay subcontractors is part of his relevant conduct. See U.S. Objections at 2 (referring to the defaults and subcontractors' liens and stating: "The government does not agree, however, that these losses are relevant conduct for the offense of conviction."). Although the Court may properly consider acts which did not result in conviction, see U.S.S.G. 1B1.3, and conduct for which V. Garcia was not charged, see Witte v. United States, 515 U.S. at 402-03, 115 S.Ct. 2199, the Court cannot conclude that V. Garcia's default on his loans and failure to pay subcontractors was part of the same "criminal plan, scheme, endeavor, or enterprise undertaken by" V. Garcia in concert with Barnhill in the absence of evidence to support that theory, and thus the Court will not consider the losses caused by the default and failure to pay subcontractors in the calculation of the gross loss amount. U.S.S.G. § 1B1.3, cmt. n.2. In the absence of evidence from the United States that V. Garcia's bank fraud caused greater pecuniary harm than $842,708.79, the Court cannot, over V. Garcia's objections and evidence to the contrary, conclude that V. Garcia's defaults and failure to pay subcontractors was a reasonably foreseeable pecuniary harm resulting from his offense. See United States v. Orr, 567 F.3d at 617-18 (finding that a district court erred in accepting the government's estimated gross loss where a defendant objected to the government's estimated loss amount, and the government "failed to present any evidence to substantiate the allegations at the time of sentencing"). The Court concludes, therefore, that the gross loss amount that V. Garcia's bank fraud caused is $842,708.79.
The Court cannot agree, however, with some of the testimony and arguments that no one predicted this recession and the burst in the real estate bubble. Clearly some did and made a lot of money as a result of correctly predicting the real estate and security markets. But the Sentencing Guidelines do not say that the "reasonable person" has to do better than the Chairman of the Federal Reserve, Benjamin Bernanke. See Paul Krugman, How did Economists Get It So Wrong?, N.Y. Times Magazine, Sept. 2, 2009, available at http://www.nytimes.com/2009/09/06/magazine/06Economic-t.html? pagewanted=all&_r=0 (explaining how the leading economists in the United States were surprised by the extent of recent years' economic downturn). And while anybody in the market has to realize that there are booms and busts, many investors keep on investing like this time is different. It may not be reasonable for people to keep on investing in hindsight, but they must be judged at the time. Moreover, the Sentencing Guidelines do not say a "reasonable real estate investor" or "reasonable stock broker"; it says person. And investing in real estate has been, over the country's history, a good way to make money. The Court is reluctant to say that someone is unreasonable simply because he took out a loan and tried to make a go of it.
The parties do not agree on a methodology for applying V. Garcia's credits to offset the gross loss amount. Although the parties stipulated that U.S.S.G. § 2B1.1, cmt. n.3(E)(i) and (ii) should apply to V. Garcia's credits, they disagree as to its meaning. The United States asserts that V. Garcia's credits, which are in the form of collateral he pledged to Columbian Bank and First Financial to support the loans, should be reduced pro rata by the ratio of V. Garcia's fraudulent draw downs to his underlying loans. See U.S. Objections at 8-9; Tr. at 165:1-21 (Gerson). The United States also contends that the Court should not accept V. Garcia's estimation of the value of his personal property pledged as collateral because he has provided no evidence to substantiate his estimates. See U.S. Objections at 6. V. Garcia asserts that, by the plain reading of U.S.S.G. § 2B1.1, cmt. n.3(E), the entire value of V. Garcia's collateral should be applied against the gross loss amount, resulting in a net loss of zero. See PSR ¶ 60, at 21-24; V. Garcia Objections at 3. He also asserts that he is competent to provide an estimate of the value of his personal property and that the Court should accept his estimates. See Tr. at 139:6-13 (Bowles). The USPO adopted V. Garcia's proposed application in the PSR and his estimate of the value of his personal property, but the USPO seems to disagree that the net losses should be zero. See PSR ¶ 60, at 21-24; Tr. at 158:2-159:1 (Mills) (Mills indicating that the he believes the gross loss amount should include the outstanding balances of V. Garcia's loans with First Financial and Columbian Bank, and the subcontractors' liens, and, thus, the net loss amount would still be approximately $19,000,000.00 after the total value of V. Garcia's credits is applied against the gross loss amount, as he believes U.S.S.G. § 2B1.1, cmt. n.3(E) requires). The Court "need only make a reasonable estimate of the loss," and the Court believes that the United States' proposed method for applying V. Garcia's credits to offset the gross loss amount is reasonable. U.S.S.G. § 2B1.1, cmt. n.3(B). The Court also believes that V. Garcia's estimate of the value of this personal property and assets is reasonably reliable, and the Court will adopt a conservative value of those items.
First, the Court will apply the credits on a victim by victim basis. V. Garcia's collateral will be applied according to which lending institution he pledged it and will reduce the losses specific to that lending institution that his offense caused. The United States asserts that the calculation of the net losses should be the same irrespective of whether V. Garcia's credits are applied victim by victim, or in a lump sum fashion. See Tr. at 147:21-148:1 (Court, Gerson). V. Garcia, however, asserts that the credits should be applied as a lump sum to offset the gross losses. See id. at 162:6-162:9 (Bowles, Court). The Court's method finds supports in the sentencing guidelines discussion of credits in the context
Second, the Court will reduce V. Garcia's credits proportionate to the ratio of the fraudulent draw downs to the outstanding balance of underlying loan. This approach is reasonable and supported by case law: the United States has neither charged nor argued that V. Garcia committed loan fraud or that the loans with First Financial and Columbian Bank were otherwise fraudulently obtained. Additionally, the Court finds by a preponderance of the evidence, that the gross loss incurred by V. Garcia's bank fraud is the amount of the fraudulent draw downs; there is insufficient evidence for the Court to conclude that V. Garcia's bank fraud was the but-for cause of his defaults on the loans. The gross loss amount reflects only a portion of the underlying loans for which the collateral was pledged. The cases that have applied the total value of collateral pledged for a loan to offset losses do so when the underlying loan itself was fraudulently obtained. As a general matter,
United States v. James, 592 F.3d at 1114. For example, in United States v. Nichols, the Tenth Circuit found that it was clear error for a district court to not offset the losses caused by a fraudulent loan application where a defendant secured the fraudulent loan with his home, which had been appraised at $95,000.00. See 229 F.3d at 979-80. Similarly, in United States v. Snow, the Tenth Circuit affirmed a district court's subtraction of the sales price and estimated fair market values of properties pledged to secure a fraudulently obtained loan to calculate the net loss the loan fraud caused. See 663 F.3d at 1157, 1161-62. In both of these cases, the full value of the collateral offset the victims' losses, because the loan itself was fraudulently obtained. Here, on the other hand, V. Garcia pledged collateral for a legitimate loan, and, as he asserts, most of the loan proceeds were used to fund the construction work for which the loan was obtained. See V. Garcia Objections at 11-13 (asserting that "the only loan that was fully funded was the Lockhaven loan, and that project was 100% complete," and that the majority of subcontractors' work "performed had been paid for"). To apply the total value of V. Garcia's collateral to offset the fraudulent draw downs would ignore the reality that V. Garcia's collateral was used to secure a legitimate loan, only a portion of which was fraudulently drawn-down. See Tr. at 141:8-21 (Gerson) ("The credits for collateral
Third, the Court will accept V. Garcia's estimates of the value of his personal property and assets pledged as collateral to Columbian Bank and First Financial. The parties do not dispute that both lending institutions may levy on V. Garcia's personal property and collateral. See Tr. at 166:11-23 (Bowles, Court, Gerson). V. Garcia has provided an estimated value of all his personal property and assets that he pledged as collateral to the lending institutions. Although the United States disputes the value of V. Garcia's personal property and assets, the United States has offered no evidence to contradict V. Garcia's asserted estimates, and it bears the burden of proof. See U.S. Objections at 6; United States v. Snow, 663 F.3d at 1161 (upholding the government's estimate of the fair market value of a defendant's pledged collateral, over the defendant's objection, where the defendant provided no alternative methodology for calculating the fair market value of the collateral). Were the Court structuring a restitution payment schedule for V. Garcia, the Court would be permitted, pursuant to 18 U.S.C. § 3664, to consider V. Garcia's statements made under oath "fully describing [his] financial resources . . . including a complete listing of all assets owned or controlled by the defendant as of the date on which the defendant was arrested." 18 U.S.C. § 3664(d)(3). Additionally, the Court would be permitted to adjust V. Garcia's payment schedule in accordance with changes to V. Garcia's economic circumstances over time and in light of "facts on the record." United States v. Overholt, 307 F.3d 1231, 1255-56 (10th Cir.2002) (citing 18 U.S.C. § 3664(f)(3) ("Of course, the defendant's economic circumstances may change significantly over time. . . . The court is to be notified of the change in circumstances and then may adjust the schedule accordingly." (citing 18 U.S.C.
The Court determines that V. Garcia is entitled credits as set forth below:
Columbian Bank
(FDIC as receiver) First Financial
Outstanding loan balance $15,430,533.0827 $5,600,000.00
12/20/06 Fraudulent draw down $42,323.00
1/23/07 Fraudulent draw down $38,419.00
2/13/07 Fraudulent draw down $365,677.00
7/30/07 Fraudulent draw down $62,156.52
8/15/07 Fraudulent draw down $144,478.80 10/8/07 Fraudulent draw down $61,183.12 5/15/08 Fraudulent draw down $128,471.24 Total fraudulent draw downs (gross loss) $714,237.44 $128,471.24 Fraudulent draw downs/outstanding loan 4.63% 2.29% balance Lockhaven Estates $560,000.00 Transfer of Participation interest in Copper $202,640.00 Square (14.9% of net proceeds from Copper Square)28 V. Garcia's Wells Fargo personal checking account $100.00 V. Garcia's Wells Fargo commercial checking $50.00 account V. Garcia's income from the sale of assets29 $16,500.00
V. Garcia's artwork 30 $50,000.00 V. Garcia's coin collection $20,000.00 V. Garcia's jewelry $5,500.00 V. Garcia's furniture, fixtures, and equipment $5,000.00 V. Garcia's knife collection $8,500.00 V. Garcia's 1974 Mercedes Benz 450 SL $25,000.00 V. Garcia's 1994 $5,000.00 Mercedes Benz 600 SL V. Garcia's vehicle of unknown make or model31 $7,000.00 V. Garcia's Scottrade brokerage account $250.00 V. Garcia's Oppenheimer IRA $2,200.00 V. Garcia's interest in Biotech Partners LLC $31,550.00 V. Garcia's interest in White Oak Investments $150,000.00 V. Garcia's interest in Wisdoms by Vincent $50,000.00Total value of V. Garcia's personal property $376,650.00 32 and assets Copper Square $1,397,360.0033 Total value of V. Garcia's credits $1,177,290.00 $1,397,360.00 Credits ×fraudulent draw downs/outstanding $54,509.00 $32,000.00 balance (rounded to nearest dollar) Net loss $659,728.44 $96,471.25
The Court determines, thus, that the net loss V. Garcia's bank fraud caused is $756,199.69. Accordingly, the net loss that V. Garcia's offense caused warrants a 14-level increase to his base offense level, pursuant to U.S.S.G. § 2B1.1(b)(1)(H).
V. Garcia objects to the USPO's enhancements pursuant to U.S.S.G § 2B1.1(b)(2)(A), for there being ten or more victims of his offense, and pursuant to U.S.S.G. § 2B1.1(b)(10)(C), for his use of sophisticated means in the commission of bank fraud. See V. Garcia Objections at 8-10. The Court determines that there are less than ten victims of V. Garcia's offense and that V. Garcia did not use sophisticated means to commit bank fraud.
According to the U.S.S.G. § 2B1.1, cmt. n.1, a "victim" is any person "who sustained any part of the actual loss determined under subsection (b)(1)." U.S.S.G. § 2B1.1, cmt. n.1. The Court has already determined that there is insufficient evidence to conclude that the subcontractors' pecuniary losses were caused by V. Garcia's relevant conduct. The Court, thus, agrees with V. Garcia that, because the subcontractors did not suffer the actual loss incurred in this case, the subcontractors are not victims within the meaning of U.S.S.G § 2B1.1(b)(2)(A). V. Garcia objects to the USPO's determination that the subcontractors are victims in this matter, and the United States has presented no evidence to controvert V. Garcia's assertion. In the absence of a preponderance of the evidence demonstrating that the subcontractors' pecuniary harm was reasonably foreseeable to V. Garcia, and that V. Garcia's bank fraud was the but-for cause thereof, the Court cannot find, soundly, over V. Garcia's objection, that the subcontractors are victims in this matter. See United States v. Orr, 567 F.3d at 617 (holding that a district court erred to rely on statements in the PSR regarding the number of victims of a defendant's fraud, where the defendant objected to the PSR's statements and the government did not provide any evidence to supports its assertion that the number of victims was at least seventy). The Court will, thus, sustain V. Garcia's objection to paragraph 61 of the PSR. The Court recognizes that the subcontractors feel that they are victims of V. Garcia's and that he caused them great loss. In the end, however, they did not get paid because the project failed, and not because he made fraudulent draw downs. The fraudulent draw downs did not help the situation, but they were not the but for and proximate cause of V. Garcia's failure to pay the subcontractors. The Court does not have evidence before it to contradict V. Garcia's evidence that the general downturn in the commercial real estate market caused him to be unable to pay the subcontractors. Additionally, had Columbian Bank not failed, V. Garcia may have been able to secure more funds to pay the subcontractors. The Court, therefore, will not include the number of subcontractors in the total number of victims of V. Garcia's offense.
V. Garcia asserts that "there was nothing Mr. Garcia did to execute or conceal the offense he pled to that was especially complex or intricate." V. Garcia Objections at 9-10. According to the application notes to U.S.S.G. § 2B1.1, sophisticated means refers to "especially complex or intricate offense conduct pertaining to the execution or concealment of an offense." U.S.S.G. § 2B1.1, cmt. n.8(B). V. Garcia admits that he directed Barnhill to withdraw funds from Columbian Bank to purchase the J & J Casino, fully aware that Barnhill would be required to represent to Columbian Bank that the funds were used for a legitimate purpose. See Plea Agreement ¶ 8(c), at 4. As the Court has previously explained, the "use" of sophisticated means does not require that the defendant actually create the sophisticated means employed. United States v. Tilga, 824
In conclusion, the Court adopts portions of the United States and V. Garcia's methodology for the calculation of the net loss V. Garcia's offense incurred. The Court accepts the parties' methodology for determining the gross loss amount, but the Court does not accept the stipulated gross loss amount in the Plea Agreement. The Court determines that the gross losses V. Garcia's offense caused is the sum total of the fraudulent draw downs: $842,708.65. The Court will apply V. Garcia's credits on a victim by victim basis, and reduce the credits by the ratio of V. Garcia's fraudulent draw downs to the outstanding balances on his loan. The Court determines, thus, that the net losses V. Garcia's offense caused is $756,199.69, and a 14-level enhancement to V. Garcia's base offense level, pursuant to U.S.S.G. § 2B1.1(b)(1)(H) is warranted. The Court finds that there were less than ten victims in this case, as the United States has presented evidence that the lending institutions alone suffered a pecuniary harm reasonably foreseeable to result from V. Garcia's bank fraud. V. Garcia, thus, will not receive a sentencing enhancement pursuant to U.S.S.G. § 2B1.1(b)(2) for the number of victims of his offense. Lastly, the Court finds that V. Garcia did not use sophisticated means to commit bank fraud, as his offense was not particularly difficult to detect and he did not use offshore accounts or other shell companies to hide his fraud, and, thus, the Court will sustain V. Garcia's objection to the USPO's increase in his base offense level pursuant to U.S.S.G. § 2B1.1(b)(10)(C). V. Garcia's base offense level is 7, pursuant to U.S.S.G. § 2B1.1(a)(1)(13) for the commission of bank fraud, under 18 U.S.C. § 1344, which carries a statutory maximum term of 30 years. See U.S.S.G. § 2B1.1(a)(1)(13) ("Base Offense Level: 7, if . . . (B) that offense of conviction has a statutory maximum
