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United States v. Jiménez

United States Court of Appeals, First Circuit

December 20, 2019

UNITED STATES OF AMERICA, Appellee,
v.
GREISY JIMÉNEZ, Defendant, Appellant.

          APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Mark L. Wolf, U.S. District Judge]

          Rosemary Curran Scapicchio for appellant.

          Sarah Miron Bloom, Assistant United States Attorney, with whom Andrew E. Lelling, United States Attorney, was on brief, for appellee.

          Before Torruella, Lipez, and Kayatta, Circuit Judges.

          KAYATTA, CIRCUIT JUDGE.

         For several years, Greisy Jiménez worked as a real estate broker at Coldwell Banker and simultaneously ran a so-called short-sale negotiation firm known as Foreclosure 911. In the wake of the financial crisis that began around 2007, the homes of a number of her family members, friends, and clients were no longer worth as much as the debts secured by mortgages on their respective homes. Jiménez assisted these homeowners and procured fees for herself by fraudulently inducing several banks to agree to short sales of the homes even though, unbeknownst to the banks, the conditions typically required for short sales were not met. The various homeowners (including Jiménez herself) thus managed to continue living in their homes while reducing their mortgages and avoiding any attempt by the banks to collect deficiencies on the loans.

         On this appeal following her guilty plea and conviction on charges of bank fraud and conspiracy to commit bank fraud, Jiménez challenges only the length of her sentence, largely to the extent that her Guidelines sentencing range (GSR) was inflated by what she claims was a flawed estimate of the losses caused by her offense. For the following reasons, we affirm her sentence.

         I.

         Typically, a prospective homeowner borrows a substantial portion of the cost of her new home from a bank. In return, the bank receives a promissory note obligating the borrower to repay the loan, plus interest. To secure the note, the bank also receives a mortgage on the home. Problems for all arise when the home value drops below the amount of the outstanding debt on the note, a circumstance often referred to as the property being "underwater."

         Sometimes, borrowers and lenders find it in their mutual interest to sell an underwater home for less than the borrower owes on the note. In such a transaction, known as a "short sale," the bank releases its mortgage, receives only the proceeds of the sale, and often forgoes pursuing the borrower for the deficiency on the note. Before agreeing to cut their losses in this way, banks often insist on certain conditions. Those conditions include, among other things, that the sale be at arm's length (that is, between strangers), with the selling homeowner surrendering residency. If the conditions are not met, a bank can refuse to approve the short sale and might well opt to see if the borrower's desire to avoid foreclosure and stay in the home causes the borrower to continue making payments.

         In this case, Jiménez convinced at least nine banks to approve short sales of twelve homes owned by Jiménez or her clients, with many of these homes being encumbered by more than one mortgage. But the sales were far from bona fide. Rather, Jiménez recruited straw buyers; used false aliases; and materially falsified on loan and sale documentation the purported buyers' incomes, the relationships of the purported buyers to the sellers, and the sources of the down payments -- all to dress up loan reductions as short sales. Eventually, the fraud was revealed, and Jiménez was indicted.

         Jiménez pled guilty to one count of conspiracy to commit bank fraud and two counts of bank fraud. The presentence investigation report (PSI Report) calculated a base offense level of seven, plus a 16-level enhancement for the amount of loss the scheme caused, see U.S.S.G. § 2B1.1(b)(1)(I), a 2-level enhancement because the scheme involved "sophisticated means," see U.S.S.G. § 2B1.1(b)(10)(C), and a 2-level reduction for acceptance of responsibility, see U.S.S.G. § 3E1.1(a), amounting to a total offense level of 23. Combining the offense level with a criminal history category of I, the PSI Report found a GSR of 46-57 months. The government objected to the PSI Report's failure to include a 4-level enhancement for Jiménez's leadership role in the offense. See U.S.S.G. § 3B1.1(a). For her part, Jiménez objected to, among other things, each enhancement and any contention that she led or organized the scheme.

         At sentencing in August 2018, the district court adopted the guidelines calculations in the PSI Report, as well as the leadership enhancement proposed by the government. The district court estimated the loss attributable to Jiménez's scheme according to the probation office's formula: by calculating the difference between the outstanding loan balances on those properties and their short-sale prices. In this manner, the court found that the scheme caused between $1, 500, 000 and $3, 500, 000 in loss, generating a 16-level enhancement. In the alternative, the district court estimated that the participants in the frauds collectively gained approximately the same amount. Based on those findings, Jiménez's total offense level came to 27. This offense level, in combination with a criminal history category of I, produced a GSR of 70-87 months.

         Varying downward, the district court sentenced Jiménez to thirty-six months of imprisonment and four years of supervised release, reasoning that letters from Jiménez's friends, family, clients, and colleagues "really d[id] consistently describe a person who ha[d] done very good things for other people," notwithstanding the seriousness of the offense. Jiménez now appeals that below-range sentence, arguing that it was procedurally unreasonable, primarily due to the district court's loss-calculation methodology. Jiménez also challenges the district court's findings that the scheme involved sophisticated means and that she was a leader or organizer of the conspiracy. Finally, Jiménez challenges the substantive ...


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