United States v. Ricardo Amador Ballesteros-Garcia

• Court: Court of Appeals for the Eleventh Circuit
• Decided: March 10, 2023
• Docket: 16-11771
• Status: Unpublished

Opinion

USCA11 Case: 16-11741 Document: 170-1 Date Filed: 03/10/2023 Page: 1 of 14

[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit

____________________

No. 16-11741 Non-Argument Calendar ____________________

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus RICARDO AMADOR BALLESTEROS-GARCIA, a.k.a. Ricardo Amador Ballesteros, a.k.a. Ricardo Amador Ballester a.k.a. Alejandro Alvarez Abreu,

Defendant-Appellant.

____________________ USCA11 Case: 16-11741 Document: 170-1 Date Filed: 03/10/2023 Page: 2 of 14

2 Opinion of the Court 16-11741

Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 1:13-cr-20455-PAS-1 ____________________

No. 16-11770 Non-Argument Calendar ____________________

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus RICARDO AMADOR BALLESTEROS-GARCIA, a.k.a. Ricardo Amador Ballesteros, a.k.a. Ricardo Amador Ballester, a.k.a. Alejandro Alvarez Abreu,

Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 1:12-cr-20322-PAS-1 USCA11 Case: 16-11741 Document: 170-1 Date Filed: 03/10/2023 Page: 3 of 14

16-11741 Opinion of the Court 3

No. 16-11771 Non-Argument Calendar ____________________

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus RICARDO AMADOR BALLESTEROS-GARCIA, a.k.a. Ricardo Amador Ballesteros, a.k.a. Ricardo Amador Ballerter a.k.a. Alejandro Alvarez Abreu,

Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 1:12-cr-20400-PAS-1 ____________________

Before JORDAN, BRANCH, and MARCUS, Circuit Judges. USCA11 Case: 16-11741 Document: 170-1 Date Filed: 03/10/2023 Page: 4 of 14

4 Opinion of the Court 16-11741

PER CURIAM: In this consolidated appeal, Ricardo Ballesteros-Garcia, pro- ceeding through counsel after proceeding pro se in the district court, appeals his convictions and sentence. This case began as three separate indictments that were consolidated for trial and sen- tencing, and involved a variety of charges, including serving as a pilot without an airman’s certificate, conspiring to commit bank fraud, committing bank fraud, and making false statements to fi- nancial institutions. Ballesteros-Garcia told the district court he wanted to represent himself, and after the court conducted hear- ings pursuant to Faretta v. California, 422 U.S. 806 (1975), to con- firm that his waiver of the right to counsel was knowing and vol- untary, it allowed him to do so from arraignment through sentenc- ing, with the help of standby counsel. The jury found Ballesteros- Garcia guilty of the false statement charges and acquitted him of the other charges. The district court sentenced him to 87 months’ imprisonment and five years’ supervised release and ordered him to pay restitution in the amounts of $243,164 and $332,042. On appeal, Ballesteros-Garcia argues that: (1) the district court violated his Sixth Amendment rights by denying him the abil- ity to subpoena witnesses for trial, sentencing, and the restitution hearing, and refusing to appoint him an investigator or allow him access to a private investigator; (2) the court erred in calculating the loss and restitution amounts; and (3) the court erred in applying a 2-level role enhancement pursuant to U.S.S.G. § 3B1.1(c). After thorough review, we affirm. USCA11 Case: 16-11741 Document: 170-1 Date Filed: 03/10/2023 Page: 5 of 14

16-11741 Opinion of the Court 5

I.

We review constitutional questions de novo. United States v. Ward, 486 F.3d 1212, 1221 (11th Cir. 2007). We review a district court’s evidentiary rulings for abuse of discretion and review fac- tual findings underlying an evidentiary ruling for clear error. United States v. Lanzon, 639 F.3d 1293, 1300 (11th Cir. 2011). Sim- ilarly, we review a district court’s determination of the restitution amount for abuse of discretion and review factual findings under- lying the restitution order for clear error. United States v. Robert- son, 493 F.3d 1322, 1330 (11th Cir. 2007). We review a district court’s determination of loss amount for clear error. United States v. Cavallo, 790 F.3d 1202, 1232 (11th Cir. 2015). We also review the imposition of an aggravating role enhancement for clear error. United States v. Jimenez, 224 F.3d 1243, 1251 (11th Cir. 2000). A factual finding is clearly erroneous if we are left with a definite and firm conviction that a mistake has been committed. United States v. Rodriguez-Lopez, 363 F.3d 1134, 1137 (11th Cir. 2004). However, if a defendant fails to object to an issue in the dis- trict court, we review only for plain error and will not reverse un- less he shows (1) plain (2) error (3) affecting his substantial rights. Ward, 486 F.3d at 1221. If all three conditions are met, we may exercise our discretion to notice an error that seriously affects the fairness, integrity, or reputation of judicial proceedings. Id. In ad- dition, a party may not challenge an error he invited. United States v. Love, 449 F.3d 1154, 1157 (11th Cir. 2006). Finally, we deem an issue abandoned if it is not prominently raised on appeal in the USCA11 Case: 16-11741 Document: 170-1 Date Filed: 03/10/2023 Page: 6 of 14

6 Opinion of the Court 16-11741

initial brief or if it is raised without supporting arguments and au- thorities, but we can consider the issue sua sponte if a forfeiture exception applies and extraordinary circumstances warrant review. United States v. Smith, 967 F.3d 1196, 1204 n.5 (11th Cir. 2020); United States v. Thomas, 242 F.3d 1028, 1033 (11th Cir. 2001); United States v. Campbell, 26 F.4th 860, 873 (11th Cir.) (en banc), cert. denied, 143 S. Ct. 95 (2022). II. First, we are unpersuaded by Ballesteros-Garcia’s claim that the district court violated his Sixth Amendment rights. The Sixth Amendment guarantees a defendant the effective assistance of counsel for his defense. United States v. Bryant, 579 U.S. 140, 149 (2016). However, the Supreme Court has declined to decide what showing a defendant must make to be entitled to the appointment of an investigator. Caldwell v. Mississippi, 472 U.S. 320, 323 n.1 (1985). The Sixth Amendment also guarantees a defendant the right to compulsory process to obtain witnesses in his favor at trial and to present favorable evidence. United States v. Hurn, 368 F.3d 1359, 1362 (11th Cir. 2004). In evaluating alleged violations of this right, we examine whether the right was actually violated and, if so, ask whether the error was harmless beyond a reasonable doubt. Id. at 1362–63. Under Federal Rule of Criminal Procedure 17(b), a court must order the issuance of a subpoena for a named witness, on a defendant’s ex parte motion, if the defendant shows (1) his inability to pay the witness’s fees, and (2) “the necessity of the USCA11 Case: 16-11741 Document: 170-1 Date Filed: 03/10/2023 Page: 7 of 14

16-11741 Opinion of the Court 7

witness’s presence for an adequate defense.” A defendant’s right to compulsory process is not violated if he never asks the court to is- sue a subpoena. United States v. Capers, 708 F.3d 1286, 1304 (11th Cir. 2013). Further, a defendant does not have a due process right to call witnesses at sentencing; he must be afforded an opportunity to refute the information brought against him, but courts have dis- cretion to determine the kinds of information they will consider. United States v. Giltner, 889 F.2d 1004, 1008 (11th Cir. 1989). Here, Ballesteros-Garcia first argues that the district court should have appointed him an investigator. Notably, however, he did not request an investigator from the court nor did he object to the court’s decision to appoint him Spanish-speaking standby coun- sel rather than an investigator. Thus, we review this claim for plain error, and can find none. For starters, we’ve found no case from this Court or the Supreme Court requiring the appointment of an investigator sua sponte, or even upon a motion. Cf. Caldwell, 472 U.S. at 323 n.1. Nor can Ballesteros-Garcia show that his substan- tial rights were affected; he eventually hired a private investigator on his own and retained her during sentencing. Thus, to the extent that he faults the court for failing to appoint him an investigator at any point after he hired an investigator, he invited any error by rep- resenting that he already had one. See Love, 449 F.3d at 1157. And to the extent his compulsory process argument stems from the court’s failure to appoint an investigator, that argument fails for the reasons we’ve just detailed. USCA11 Case: 16-11741 Document: 170-1 Date Filed: 03/10/2023 Page: 8 of 14

8 Opinion of the Court 16-11741

We also conclude that the district court’s actions were suffi- cient to protect Ballesteros-Garcia’s compulsory process rights to obtain witnesses in his favor before and during his trial, even if he ultimately failed to secure any witnesses. As the record reflects, Ballesteros-Garcia, who chose to proceed pro se, said at a pretrial conference that he would bring all his witnesses except for the “mandatory witnesses” on the government’s side at his own ex- pense. Thus, he invited any error as to all the non-government witnesses, including those he says he wished to call, like Rafael Del Pino and Rafael Cardenas. See id. We find no error concerning the other potential witnesses either. As for Cardenas and another witness he mentions to us, Agent Rafael Quinquilla, Ballesteros-Garcia never placed either name on his witness list, nor did he file an amended witness list after the court instructed him to do so. The court even told him he could call Cardenas as a witness if he gave the court Cardenas’s address. It also observed that he had not requested subpoenas and that, normally, defendants prepared subpoenas and provided them to the court to issue. His standby counsel offered to prepare them, and the court granted him a four-week continuance. And when the court later denied Ballesteros-Garcia another continuance, he had not indicated that he needed the continuance to prepare sub- poenas. On this record, not only were Ballesteros-Garcia’s actions likely insufficient to preserve the witness issue for appeal, but they also do not show that the court failed to protect his right to com- pulsory process to obtain witnesses in his favor at trial. USCA11 Case: 16-11741 Document: 170-1 Date Filed: 03/10/2023 Page: 9 of 14

16-11741 Opinion of the Court 9

Nor do we conclude that the district court denied Balles- teros-Garcia compulsory process at sentencing. As for whether the district court erred by denying his motion to order the Bureau of Prisons to permit his investigator and others to visit him in prison, his motion did not explain why he needed to see those individuals in prison and he has not provided any supporting authorities for his request, either in district court or on appeal. As for whether the district court violated Ballesteros-Garcia’s compulsory process rights by denying his Rule 17(b) subpoenas, we’ve located no bind- ing precedent holding that he had a due process right to call wit- nesses at sentencing. See Giltner, 889 F.2d at 1008. Moreover, he did not re-raise his motions for Rule 17(b) subpoenas before the restitution hearing, and there is no authority to suggest that the court erred or plainly erred by not sua sponte re-raising and grant- ing those motions. We affirm as to his Sixth Amendment claims. 1 III.

1 Further, Ballesteros-Garcia has abandoned (1) any argument that the district court violated his compulsory process rights by declining to subpoena the ju- rors in his case, Rafael Cardenas, or Agent Rafael Quinquilla, and (2) any chal- lenge separate from his compulsory process argument to the district court’s denial of his motions to continue or for Fed. R. Crim. P. 17(b) subpoenas or to any of the court’s specific evidentiary rulings. These issues are abandoned be- cause his brief on appeal does not provide supporting arguments and authori- ties for them. See Smith, 967 F.3d at 1204 n.5. He also raises two arguments in his reply brief for the first time on appeal -- concerning the government’s concealment of evidence and his detention -- and those arguments are likewise abandoned. See Thomas, 242 F.3d at 1033. USCA11 Case: 16-11741 Document: 170-1 Date Filed: 03/10/2023 Page: 10 of 14

10 Opinion of the Court 16-11741

Next, we find no merit to Ballesteros-Garcia’s claim that the court erred in calculating the loss amount at sentencing. A defend- ant is subject to a 14-level enhancement if his offense results in a loss amount of more than $550,000 and less than $1,500,000. U.S.S.G. § 2B1.1(b)(1)(H). The court must make a reasonable estimate of the loss. Id. comment. (n.3(C)). Loss must not include interest of any kind and must be re- duced by the money returned by the defendant. Id. (n.3(D)(i), (E)(i)). Where a loss arises out of a fraudulent mortgage transac- tion, the actual loss is the amount of the loan minus the amount recovered from the collateral property’s sale. Cavallo, 790 F.3d at 1239. We’ve not addressed whether a principal amount increased by outstanding interest pursuant to the terms of the loan can be used to calculate loss. Ballesteros-Garcia first challenges the district court’s loss cal- culation for the 158th Street property, claiming that the district court should not have used a principal amount for the property that was increased by unpaid interest. But he did not make this specific argument in district court. And because a defendant does not pre- serve all possible challenges to a court’s loss calculation by raising any challenge to that calculation, we review this claim for plain er- ror and, once again, can find none. See United States v. Abovyan, 988 F.3d 1288, 1312 (11th Cir. 2021) (holding that defendant waived challenge to intended loss amount and its foreseeability because he solely objected to the use of intended loss rather than actual loss). Although § 2B1.1 broadly prohibits courts from including interest USCA11 Case: 16-11741 Document: 170-1 Date Filed: 03/10/2023 Page: 11 of 14

16-11741 Opinion of the Court 11

“of any kind” in loss, the unpaid interest here was made part of the principal pursuant to the terms of the loan.2 We’ve located no de- cision from this Court or the Supreme Court addressing whether a court can use a principal amount increased by unpaid interest pur- suant to the terms of the loan to calculate loss. Thus, the district court did not plainly err in its loss calculation for the 158th Street property. See Ward, 486 F.3d at 1221. As for the Ixora Way property, the court did not clearly err by concluding that the principal amount increased to $869,119 -- af- ter starting as a $805,000 loan -- because the government provided evidence that this was the principal amount due at the time that Ballesteros-Garcia entered into a loan modification agreement with JP Morgan Chase & Co. (“Chase”). Further, he does not indicate on appeal that the court included interest in the loss calculation. See Smith, 967 F.3d at 1204 n.5. The court’s ultimate calculation as to the Ixora Way property was based on the final outstanding principal at the time the loan was defaulted on, $612,043, minus the gross proceeds from the property’s sale, $530,000, plus the $250,000 Chase never recovered from the modification agreement -- result- ing in a loss amount of $332,043. Ballesteros-Garcia has abandoned any challenge to the inclusion of the $250,000 from the modification

2 The loan was described as containing a “negative amortization” feature, which is defined as “[a]n increase in a loan’s principal balance caused by monthly payments insufficient to pay accruing interest.” Black’s Law Diction- ary (11th ed. 2019) (defining “negative amortization”). USCA11 Case: 16-11741 Document: 170-1 Date Filed: 03/10/2023 Page: 12 of 14

12 Opinion of the Court 16-11741

agreement, see id., and regardless, we cannot say that the district court clearly erred by including this sum in the loss amount. Finally, the court did not clearly err by declining to reduce the loss amount stemming from either property by the payments that he made. As the record reflects, the government provided ev- idence that those payments went to “interest only” rather than prin- cipal. Further, to the extent that any of the payments were made towards the principal balances on the loans, they were incorporated into the loss calculation through those principal balances. And, as we’ve noted, the guideline provides that the loss calculation should not include any interest. See § 2B1.1(b)(1) comment. (n.3(D)(i), (E)(i)).3 IV.

Nor are we convinced that the district court miscalculated the restitution amount at sentencing. To calculate the restitution amount owed to a successor lender who purchased a fraudulently procured mortgage, a court generally should subtract the amount recovered from the sale of the property from the amount that the

3 The government concedes that the court made a calculation error and that the loss amount stemming from the 158th Street property was $50 lower. But because the 14-level enhancement applied to Ballesteros-Garcia if the loss amount was greater than $550,000, and the court found that the total loss amount for both properties was $599,833.76, any calculation error less than $49,833.76 was harmless. See § 2B1.1(b)(1)(H). USCA11 Case: 16-11741 Document: 170-1 Date Filed: 03/10/2023 Page: 13 of 14

16-11741 Opinion of the Court 13

lender paid to acquire the mortgage. United States v. Martin, 803 F.3d 581, 595–96 (11th Cir. 2015). Here, the district court did not abuse its discretion in calcu- lating the restitution amount or clearly err in any of its related fac- tual findings. To the extent the Ballesteros-Garcia challenges the language concerning restitution in the district court’s order in case number 1:12-cr-20400 (the case involving the 158th Street prop- erty), the court entered an amended judgment in that case reflect- ing the actual amount it found that he owed in restitution. In de- termining this amount, the court properly relied on the price that the successor lender paid for the 158th Street property mortgage rather than original amount of the loan. See id. As for the Ixora Way property, Ballesteros-Garcia aban- doned any challenge to the court’s restitution determination. Alt- hough he says in passing that the calculation should have been based on the principal due on the loan at the time of the loan mod- ification agreement, he does not provide any supporting argu- ments or authorities. See Smith, 967 F.3d at 1204 n.5. He also abandoned any argument that the amounts that the successor lend- ers paid for the mortgages were incorrect, or that the court incor- rectly identified the victims. See id. V.

Finally, we are unpersuaded by Ballesteros-Garcia’s argu- ment that the district court erred in applying a role enhancement at sentencing. A defendant is subject to a 2-level enhancement if USCA11 Case: 16-11741 Document: 170-1 Date Filed: 03/10/2023 Page: 14 of 14

14 Opinion of the Court 16-11741

he was an organizer, leader, manager, or supervisor in any criminal activity involving at least one other participant. U.S.S.G. § 3B1.1(c), comment. (n.2). In United States v. Mandhai, we held that the assertion of control or influence over one person is suffi- cient to support a § 3B1.1(c) enhancement. 375 F.3d 1243, 1248 (11th Cir. 2004). Once again, Ballesteros-Garcia has abandoned any challenge to the district court’s imposition of the § 3B1.1(c) enhancement by failing to provide supporting arguments and authorities in his brief on appeal. See Smith, 967 F.3d at 1204 n.5. He says that the evi- dence was insufficient to support the enhancement, but he does not explain how. Furthermore, he distinguishes a case that the dis- trict court relied on, Mandhai, by asserting that he was not con- victed of a conspiracy offense, but he does not explain why that is material to his enhancement. Regardless, even if he had not aban- doned or failed to preserve this issue, the court did not clearly err in imposing the enhancement because he created a false name for his codefendant, Ivan Pita Gonzalez, obtained a passport and birth certificate under that false name, and paid deposits and mortgage payments related to properties he provided to Gonzalez under that false name -- all of which is sufficient to support the role enhance- ment. See U.S.S.G. § 3B1.1(c). AFFIRMED.