APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO. Hon. Aida M. Delgado-Colón, U.S. District Judge.
Marlene Aponte, on brief for appellant.
John A. Matthews II, Assistant United States Attorney, Rosa Emilia Rodríguez-Vélez, United States Attorney, and Nelson Pérez-Sosa, Assistant United States Attorney, Chief, Appellate Division, on brief for appellee.
Before Lynch, Chief Judge, Torruella and Kayatta, Circuit Judges.
TORRUELLA, Circuit Judge.
Defendant-appellant Harry W. Maisonet-González (" Maisonet" ) pled guilty to conspiracy to commit bank fraud in violation of 18 U.S.C. § 1344. He was sentenced to a fifty-one-month term of imprisonment, at the top of his Guidelines imprisonment range. Maisonet now appeals, challenging the district court's calculation of loss and other aspects of the procedural and substantive reasonableness of his sentence. After careful consideration, we affirm.
Because Maisonet pled guilty, our discussion of the facts is drawn from the change-of-plea colloquy, the Presentence Report (" PSR" ), and the transcript of the sentencing hearing. See United States v. Cintrón-Echautegui, 604 F.3d 1, 2 (1st Cir. 2010).
Between August 2005 and February 2006, Maisonet, owner of Harry Maisonet Auto Sales and Harry Entertainment Group, conspired to devise a scheme to fraudulently obtain money from Pentagon Federal Credit Union (" Pentagon" ) by submitting fraudulent automobile and personal loan applications in the name of third parties, some of them deceased. Specifically, Maisonet opened accounts at Pentagon in the name of third parties and then provided these names to a co-defendant who had access to a database maintained by the Puerto Rico Department of Treasury. Maisonet's co-defendant provided personal information about these third parties to Maisonet, who, in turn, used this information to obtain loans on their behalf without their knowledge. As result of this scheme, Maisonet obtained a total of $445,000 from Pentagon. Maisonet deposited this money in the Harry Maisonet Auto Sales account at Doral Bank, for which he was the sole account holder.
Pentagon eventually detected the fraud and, in April 2006, filed a civil suit against Maisonet in the Puerto Rico Court of First Instance, San Juan Part, seeking reimbursement of the money he fraudulently obtained. An additional and related state civil suit was filed involving Pentagon, Doral Bank, and Maisonet. The parties eventually reached a private settlement agreement which put an end to these two state cases. Pursuant to the terms of the settlement agreement, executed on May 1, 2008, Maisonet paid restitution to Pentagon in the amount of $327,297.32.
Almost two years later, on March 10, 2010, a federal grand jury sitting in the District of Puerto Rico returned a twenty-five count indictment against Maisonet and one co-defendant. Pertinently, Count One charged Maisonet with conspiracy and attempt to defraud a financial institution in violation of 18 U.S.C. § 1344(1) and (2).
On June 3, 2011, Maisonet pled guilty to Count One of the Indictment, pursuant to
a plea agreement. In the plea agreement, the parties calculated a total offense level of fourteen, broken down as follows: a base offense level of seven pursuant to the United States Sentencing Guidelines (" U.S.S.G." ) § 2B1.1(a)(1); an eight-level increase pursuant to U.S.S.G. § 2B1.1(b)(1)(E) because the amount of loss was more than $70,000 but did not exceed $120,000; a two-level increase pursuant to U.S.S.G. § 2B1.1(b)(2)(A) because the offense involved between ten and forty-nine victims; and a three-level decrease pursuant to U.S.S.G. § 3E1.1(a) and (b) due to Maisonet's timely acceptance of responsibility. The parties, which did not stipulate to Maisonet's Criminal History Category, ultimately recommended a sentence of time served, six months of home detention, three years of supervised release, and two hundred hours of unpaid community service. For its part, the government agreed to request the dismissal of the remaining counts.
The PSR, which was disclosed to the parties on February 17, 2012, calculated a total offense level of twenty. The difference between the total offense level calculated in the PSR and the one calculated by the parties in their plea agreement stemmed from the U.S.S.G. § 2B1.1(b)(1) increase for the victim losses attributable to Maisonet's conduct. The PSR used Pentagon's total loss of $445,000 and, thus, applied a fourteen-level increase, as opposed to the parties' calculation which discounted from Pentagon's total loss the amount restituted by Maisonet pursuant to the settlement agreement reached in the state court civil litigation, resulting in only an eight-level increase. The probation officer stated in the PSR that the total loss amount should be used in determining the applicable level increase under U.S.S.G. § 2B1.1(b)(1) because Maisonet waited until after Pentagon (the victim) had learned of the fraud ...