United States v. Eric Wendlandt

714 F.3d 388, 2013 WL 1694444, 2013 U.S. App. LEXIS 7847
CourtCourt of Appeals for the Sixth Circuit
DecidedApril 19, 2013
Docket11-2018
StatusPublished
Cited by48 cases

This text of 714 F.3d 388 (United States v. Eric Wendlandt) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Eric Wendlandt, 714 F.3d 388, 2013 WL 1694444, 2013 U.S. App. LEXIS 7847 (6th Cir. 2013).

Opinion

OPINION

GRIFFIN, Circuit Judge.

Defendant Eric Wendlandt appeals his above-Guidelines sentence of forty-two months of imprisonment imposed after he pled guilty to one count of conspiracy to defraud the United States in violation of 18 U.S.C. § 371. His conviction stems from a *391 mortgage fraud scheme that caused the U.S. Department of Housing and Urban Development (“HUD”) to insure loans for unqualified applicants based upon forged documents and false information provided by Wendlandt. The substantial financial losses to HUD that ensued were, of course, inevitable.

On appeal, Wendlandt contends that his sentence is both proeedurally and substantively unreasonable. Specifically, he challenges both the district court’s computation of financial loss for purposes of determining his offense level under U.S.S.G. § 2B1.1 (Nov. 1, 2010), and also the court’s decision to vary upward from the advisory Guidelines range of twenty-four to thirty months in prison. For the reasons that follow, we conclude that Wend-landt’s claims are without merit and therefore affirm his sentence.

I.

Eric Wendlandt devised a mortgage fraud scheme that began sometime prior to February 2008 and continued to March 2010, in Kent County, Michigan. HUD, through the Federal Housing Administration (“FHA”), administered a mortgage insurance program designed to ensure adequate housing for low-income individuals by providing mortgage insurance to lenders who made home loans to those individuals. In order to receive an FHA-insured loan, home buyers were required to establish that their income was sufficient to meet the mortgage payments. HUD required the lenders making the loans to verify the potential buyers’ employment and income, which could be accomplished by submitting a ‘Werification of Employment” form, pay stubs, and other documentation. HUD granted so-called Direct Endorsement Authority for FHA loans to certain lenders. Under this program, the lender determined whether the home buyer was eligible for an FHA-insured loan, and, if so, the lender submitted the' application and requisite documentation to HUD. Wendlandt’s mortgage brokerage company, Precise Mortgage, was never granted Direct Endorsement Authority.

Nonetheless, starting in February 2008, Wendlandt and codefendant Pleasz Daniels, who was employed by Precise Mortgage as a mortgage broker, initiated a scheme to defraud HUD by using forged and counterfeited documents, and false information, to secure FHA-insured loans for otherwise unqualified buyers who appeared to satisfy the agency’s requirements. Wendlandt fraudulently represented to HUD that the loans originated with Indigo Financial (“Indigo”), a mortgage company that did possess Direct Endorsement Authority. Wendlandt and the owner of Indigo were friends. As a result of Wendlandt’s scheme, unqualified buyers were approved for home loans insured by the FHA, and when the buyers defaulted on their mortgage payments, HUD was required to reimburse the lending institutions for losses incurred in foreclosure. Meanwhile, Wendlandt and Daniels enriched themselves by collecting commissions and fees charged for originating the fraudulent loans.

In March 2010, after auditing several suspicious Precise Mortgage files, HUD investigators interviewed Wendlandt regarding improprieties in the origination of numerous FHA-insured mortgages. Wendlandt admitted to Special Agent Jason Russell that Precise Mortgage had initiated approximately one hundred FHA mortgages that were then processed by Indigo. Wendlandt estimated that twenty percent of these mortgages were fraudulent.

In January 2011, the government charged Wendlandt with conspiracy to defraud the United States, 18 U.S.C. § 371. *392 One week later, he entered into a written plea agreement and pled guilty to the charge.

The district court sentenced Wendlandt on August 9, 2011. The central issue in dispute was the computation of the financial loss incurred by HUD for: sentencing purposes under U.S.S.G. § 2Bl.l(b)(l) (Nov. 1, 2010), which increases the base offense level proportionate to the loss associated with the crime. The loss calculation was derived from the three fraudulent mortgages underlying the felony information, for the following properties in Grand Rapids, Michigan: (1) 3015 Plainfield Avenue, NE; (2) 834 Sherman Avenue, SE; and (3) 7174 Martin Avenue, SE. 1

The government’s “best estimate” of the total pecuniary loss to HUD arising from these failed loans was $262,790.48, using a comparative market analysis (2010 and 2011 median sales prices) prepared by HUD appraiser Kathy Coon. With regard to the Martin Avenue and Sherman Avenue properties, the government’s loss estimation of $97,276.36 and $139,437.22, respectively, was based upon a formula that subtracted the fair market value of the properties from the outstanding loan balance or claim paid by HUD. The mortgage for the Plainfield Avenue property had been modified by the lender to allow the borrower to stay in the home and, because the post-modification loan was issued on the basis of legitimate credit and earnings information, default was unlikely. The government therefore asserted that the normal “loan balance minus fair market value” equation was irrelevant, and the proper measure of loss with respect to this property was the amount HUD reimbursed the lender for principal and interest foregone in the modification, $26,076.90. The government filed a motion for an upward variance, arguing that a sentence above the recommended Guidelines range was warranted because the financial loss to HUD did not adequately measure the seriousness of the crime or its collateral effects on individuals and the community at large.

Wendlandt opposed the government’s motion, contending that the circumstances of his crime did not justify a heightened sentence. In addition, Wendlandt filed a motion for a downward variance, in which he asserted that the factors under 18 U.S.C. § 3553(a) favored a lower sentence. Wendlandt submitted his own appraisals of the three properties in question, prepared by certified appraiser Karen Leppek using a sales-comparison approach. Wend-landt’s position was that in light of unforeseen market developments (the burst in the housing bubble) and the government’s purportedly deficient proofs regarding losses attributable to him, the amount of loss should be zero or no greater than an eight-level enhancement under U.S.S.G. § 2Bl.l(b)(E) (a loss greater than $70,000 but less than $120,000).

At the sentencing hearing, the parties’ appraisers testified as to their valuations of the three properties. Karen Leppek opined that the government’s appraisals were liquidation values not representative of the fair market value of the properties. Two of the mortgagors who fell victim to Wendlandt’s fraud testified about his deceptions and the enormous hidden fees, costs, and financial losses they incurred. Special Agent Russell testified about the details of HUD’s underlying investigation and his interview with Wendlandt.

*393

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
714 F.3d 388, 2013 WL 1694444, 2013 U.S. App. LEXIS 7847, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-eric-wendlandt-ca6-2013.