United States v. Mayendia-Blanco

905 F.3d 26
CourtCourt of Appeals for the First Circuit
DecidedSeptember 25, 2018
Docket17-1404P
StatusPublished
Cited by26 cases

This text of 905 F.3d 26 (United States v. Mayendia-Blanco) is published on Counsel Stack Legal Research, covering Court of Appeals for the First 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. Mayendia-Blanco, 905 F.3d 26 (1st Cir. 2018).

Opinions

THOMPSON, Circuit Judge.

*29What was true in nineteenth-century Russia is just as true in the twenty-first century First Circuit, "[h]appy families are all alike; every unhappy family is unhappy in its own way."1 In this instance, the love between parent and child spawned a three count indictment for making and conspiring to make false statements on a mortgage loan application in violation of 18 U.S.C. § 1014 and § 2. Appellant Alejandro Mayendía-Blanco ("Mayendía") pleaded guilty to one count, but appeals his sentence of twenty-one months, claiming that the district court made several errors in the calculation of his sentencing guideline range. We find no error suitable for vacating his sentence, and thus affirm.

I. Background

A. The Facts 2

While Mayendía's family story had definitely gone awry by the time it reached our doorstep, it wasn't always that way. For many years he earned a legitimate living buying real estate properties, refurbishing them, and selling them for a profit, colloquially known as "flipping."3 Over time, Mayendía flipped fifteen to twenty properties in both Puerto Rico and Miami. But Mayendía's livelihood became his liability. Mayendía's work flipping properties landed him in hot water when in a series of loan applications, he claimed to have received down payments on the sale of three properties, when those down payments had actually been reimbursed to purchasing family members. Here are the details.

Count One of Mayendía's indictment pertains to a loan application made on May 24, 2007. Mayendía sold real property in Puerto Rico to Nell N. Blanco-Casasnovas, his mother, and to finance that purchase, she applied for a loan in the amount of $1,320,000 from First Equity Mortgage Bankers, Inc. ("FEMBI"). The mortgage on that loan was eventually assigned, sold, and transferred to the First Bank of Puerto Rico ("FBPR"), a federally insured financial institution that falls within the purview of 18 U.S.C. § 1014. Part of the mortgage application process involved the completion of a joint buyer/seller United States Department of Housing and Urban Development (HUD) Settlement Statement Form which itemizes all closing costs imposed on both parties in the real estate transaction and which gets submitted to the bank along with the mortgage loan application. On that form Mayendía and his mother listed that she had given him $314,267.27 as a down payment. However, after the application was made, and without telling the bank, Mayendía gave the down payment money back to his mom.

*30In a similar bait and switch in Counts Two and Three, Mayendía sold two pieces of real estate to Orlando Mayendía-Díaz, his father. On October 3, 2008, Mayendía's father applied for one loan worth $140,000 and another loan worth $148,000, both also from FEMBI, and which also, down the road, were assigned, sold, and transferred to FBPR. Mayendía and his father stated on the HUD Settlement Statement Forms that Mayendía had received a down payment on the first sale of $46,481.60 and on the other, $48,381.10. However post application loan submissions, Mayendía returned the money to his dad.

Initially, despite the omission of this information from the HUD Settlement Statement Forms, all was well. At least with regard to the property in Count Two, Mayendía's dad made about fifty mortgage payments between 2008 and 2012, but when his business closed during the recession, he was unable to continue to make payments on the property and defaulted on the loan.4 In 2015 Mayendía (along with his parents) was indicted on three counts of making and conspiring to make false statements on a mortgage loan application to a federally insured bank, in violation of 18 U.S.C. § 1014 and § 2. In 2016 Mayendía pled guilty to Count Two of the indictment and, as part of a plea agreement, Counts One and Three were dismissed.

B. The Sentencing Hearing

With the procedural history put briefly in place, we proceed to Mayendía's sentencing because to paraphrase from Shakespeare, therein lies the rub.5 After Counts One and Three were dismissed, the parties agreed that Mayendía's total offense level under the Guidelines should be thirteen, considering only the loan Mayendía's father received from Count Two as the "loss" amount, the dollar amount used to reasonably estimate the harm from monetary crimes such as false statements in mortgage loan applications, and often the linchpin of the guidelines range in cases like this one. See U.S.S.G. § 2B1.1.

Probation and Pretrial Services filed a pre-sentence report ("PSR"), followed by two amended PSRs, each of which, in contrast to the parties' calculations, recommended a total offense level of sixteen based on a loss of $409,129.97 because "[a]ccording to the Indictment the total amount of loss as to Counts One, Two and Three" equaled that amount.6 From arithmetic we can infer that $409,129.97 is the sum of the three down payments related to Counts One, Two, and Three from the indictment. The PSR's recommendations result in a guidelines range of 21-27 months to serve, in contrast to the recommendation from Mayendía's plea agreement which was 12-18 months' incarceration. See U.S.S.G. Appx. G.

In his sentencing memoranda and written objections to the PSR, Mayendía made three claims of error to probation's loss recommendation. First, he argued that the PSR should not have recommended a loss figure higher than what Mayendía bargained for with the government in his plea agreement, which was a loss of no more than $140,000. Second, Mayendía objected to the PSR's use of the down payments from the two dismissed counts, because he *31argued they should not be bundled together with his offense of conviction, Count Two, as "relevant conduct." See U.S.S.G. § 1B1.3. Third, Mayendía argued that the substantive amounts of money related to Counts One and Three should not be considered because Mayendía had not pleaded guilty to them, and therefore, the amounts were not supported by any factual findings or evidence.

Mayendía repeated these arguments at his sentencing hearing in 2017,7 but the district court rejected them all. In doing so the court decided that the loss was more than $250,000 but less than $550,000; however, it did not explicate the basis for this decision. Ultimately, the district court sentenced Mayendía to twenty-one months in prison, the lower end of the guidelines range for a total offense level of 16.8

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905 F.3d 26, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-mayendia-blanco-ca1-2018.