United States Court of Appeals For the First Circuit

No. 18-1890

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]

Before

Torruella, Lipez, and Kayatta, Circuit Judges.

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.

December 20, 2019 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

- 2 - 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'

- 3 - 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

- 4 - 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 reasonableness of her

sentence, and she argues that the district court punished her for

failing to cooperate with the government, thereby impinging on her

Fifth Amendment right against self-incrimination.

- 5 - II.

We consider first Jiménez's claims that the district

court committed procedural errors in calculating her GSR and then

turn to her substantive-reasonableness claim. See United States

v. Matos-de-Jesús,

(1st Cir. 2017). We address

Jiménez's Fifth Amendment challenge last.

A.

Jiménez challenges each of the three enhancements the

district court applied in determining her offense level under the

Sentencing Guidelines. We address each in turn. In doing so, we

"afford de novo review to the sentencing court's interpretation of

and application of the sentencing guidelines, assay the court's

factfinding for clear error, and evaluate its judgment calls for

abuse of discretion." United States v. Ruiz-Huertas,

(1st Cir. 2015).

1.

The most significant issue in this case is whether the

district court appropriately held Jiménez responsible for a loss

to the lenders of over $1,500,000, a calculation that increased

her offense level by 16 under U.S.S.G. § 2B1.1(b)(1), stepping up

her total offense level from 11 to 27 and the corresponding GSR

from 8–14 months to 70–87 months.

A fraud defendant's total offense level is based in part

on the amount of pecuniary loss caused by her conduct. See

- 6 - U.S.S.G. § 2B1.1(b)(1); see also United States v. Mayendía-Blanco,

(1st Cir. 2018) (explaining the principles of loss

calculation under U.S.S.G. § 2B1.1(b)(1)). The appropriate loss

amount is the greater of actual loss or intended loss. U.S.S.G.

§ 2B1.1 cmt. n.3(A). Actual loss is "the reasonably foreseeable

pecuniary harm that resulted from the offense." Id. § 2B1.1

cmt. n.3(A)(i).

To calculate the loss amount in this case, the district

court took the remaining loan amount secured by each mortgage and

subtracted the lesser amounts received in the short sales.1 This

formula well fits most cases in which fraud induced the making of

the original loan. See, e.g., United States v. Appolon,

(1st Cir. 2012). In such a case, but for the fraud, no

loan would have been made.

at 66–67. Here, though, the

original loans were presumably bona fide, and they were under-

secured before the conspiracy was hatched through no fault of

Jiménez. So we need to subtly but materially restate the formula

by first estimating what the banks would have foreseeably realized

1 The district court adopted these calculations from the PSI Report. Although the Report stated that its loss calculations "represent[ed] the original mortgage amount minus the amount recovered by the bank in short sales," the probation officer confirmed at the sentencing hearing that that was an error and that the figures really represented the outstanding loan amount minus the amount recovered in the short sale.

- 7 - but for the fraud and then subtracting what they in fact received

as a result of the short sales.

Whether this restated formula would have produced a

different result from the one the district court used depends on

what one thinks would have happened but for the frauds. Note that

in Jiménez's scheme, while the mortgage lenders were misled on

many aspects of the transactions, there are no allegations that

the short sales were based on deflated home values. To the

contrary, Jiménez argues that the sales prices were based on

official appraisals approved by the original lenders. The

government for its part does not argue that any of the short sales

realized less than fair market value. We can therefore assume

that the original lending banks received roughly the full existing

value of their collateral in the short sales. So if, but for the

fraudulent short sales, there would have been either a series of

legitimate short sales or forced foreclosures for roughly the same

or lower prices, the scheme might well have caused no loss.

There was another foreseeable outcome, however: that,

but for the fraud, the borrowers, wanting to stay in their homes,

would have continued making loan payments such that the banks would

have eventually recouped either full repayment or higher sales

prices after the property values had rebounded.2 Jiménez's

2 In the district court, the government presented evidence that the house values eventually rebounded some.

- 8 - argument seems to be that this could not have happened because the

borrowers were not able to continue making payments in the first

place. But there is no substantial evidence either that any of

the homeowners had stopped making payments other than as a ploy in

the course of the fraud or that they could not continue making

payments going forward.3 Furthermore, the owners apparently wanted

to remain in their homes so much that they risked going to prison.

Absent any evidence to the contrary, the district court was thus

entitled to presume that the status quo ante (making payments)

would have foreseeably continued but for the fraud, certainly

enough so that the amount that would have been realized by the

banks but for the fraud was at least $1,500,000 more than what

they did realize. See United States v. Stone,

(4th Cir. 2017) ("[W]ithout any evidence to the contrary, the

district court could only speculate as to when (or if) any of these

homeowners would cease making mortgage payments."). And in that

event the difference between the pre-existing unpaid loan amounts

and the short-sale prices would have represented both a gain to

the homeowners and a loss to the banks.

Of course, the above only holds assuming that the

deficiencies on the original notes were forgiven and the banks did

3 The government points to interviews with two of Jiménez's co-conspirators, who both reported that she told clients to stop making their mortgage payments so that they would be eligible for short sales. Jiménez does not contest this point.

- 9 - not recover any amounts beyond the short-sale prices. Jiménez

argues that the banks did not formally give up their rights to go

after the homeowners for deficiencies on the notes, but the

evidence on that point leaves us largely in the dark. Jiménez's

objection to the PSI Report, as well as a Rule 28(j) letter she

sent after oral argument, tell us that, in the documentation for

at least one short sale, the bank reserved a claim for a

deficiency. The government contends that the short-sale agreement

Jiménez identifies was for the short sale of her own home. The

government's 28(j) letter in turn points to a different short-sale

agreement, which it says uses opposite language. As most of the

short-sale agreements are not in the record before us, we do not

know what the general pattern was.

The parties agreed, however, at oral argument that in

reality the banks pressed no such claims against any of the

conspirators. The time for doing so has now passed under

Massachusetts law.4 That means that none of the conspirators face

personal liability for the deficiencies. In fact, the entire

scheme seems to have been premised on the foreseeability that

events would unfold this way. It is hard to imagine that the

conspirators would have gone through with the scheme if they had

4The Massachusetts statute of limitations for deficiency judgments is two years, Mass. Gen. Laws ch. 244, § 17A, and the frauds took place between 2008 and 2010.

- 10 - anticipated confronting personal lawsuits for the deficiencies on

their notes. So the conspirators as a group seemingly received a

debt reduction (i.e., a gain) of $2,152,420 even though they stayed

in their homes.

That was precisely the formula that the district court

used to calculate the conspiracy's gain as an alternative to

calculating loss. Although calculating gain as a substitute for

loss is only appropriate in limited scenarios, see United States

v. Stoupis,

(1st Cir. 2008), Jiménez presses no

challenge to the use of gain as a measure of loss on this record

under U.S.S.G. § 2B1.1.5 Moreover, here the gain to the homeowners

serves as a good economic proxy for loss: what the owners did not

pay, the banks did not receive. All in all, and recognizing that

the loss estimate need only exceed $1,500,000 to sustain the 16-

level enhancement, we see neither clear nor legal error in the

district court's calculations of gain and loss, or in its resulting

decision to employ the enhancement.

2.

Jiménez next argues that the district court erred in

applying a 4-level enhancement for her role in the offense.

5 Her brief on appeal mentions the issue in passing but makes no serious argument on it. See United States v. Zannino,

(1st Cir. 1990) ("[I]ssues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived."). In any case, she clearly agreed to the use of gain as an alternative measurement at the sentencing hearing.

- 11 - Specifically, the district court found that she "was an organizer

or leader of a criminal activity that involved five or more

participants." U.S.S.G. § 3B1.1(a). The Guidelines provide seven

factors for evaluating whether a defendant is a leader or

organizer, including the defendant's decision-making authority,

the nature of the defendant's participation, whether she recruited

accomplices, her share of the "fruits of the crime," her

involvement in organizing the offense, "the nature and scope of

the illegal activity," and the degree of control she exercised

over her co-conspirators. Id. § 3B1.1 cmt. n.4. More than one

person can be a leader or organizer of a conspiracy. Id.

There was ample evidence on those factors here. Jiménez

conceived of the conspiracy, recruited key players who acted at

her direction, was the common actor involved in every one of the

fraudulent short sales, and received the largest share of the fees

generated by the scheme. The evidence on which the district court

relied included reports of interviews with Jiménez's co-

conspirators, as well as documentary evidence of the transactions.

The district court's decision to apply the enhancement was

eminently reasonable.

3.

Jiménez next argues that the district court erred in

applying a 2-level sophisticated-means adjustment under U.S.S.G.

§ 2B1.1(b)(10). The Guidelines require an upward adjustment of

- 12 - two offense levels if the offense involved "sophisticated means."

Id. § 2B1.1(b)(10)(C). Sophisticated means are "especially

complex or especially intricate offense conduct pertaining to the

execution or concealment of an offense." Id. § 2B1.1 cmt. n.9(B).

The conduct must involve some greater level of concealment than a

typical fraud of its kind. United States v. Pachecho-Martinez,

(1st Cir. 2015) (requiring "a greater level of

planning or concealment than a typical fraud" (quoting United

States v. Knox,

, 870–72 (7th Cir. 2010))).

The district court determined that Jiménez's conduct

went beyond the typical fraud of making misrepresentations on a

loan application form (which it characterized as "a conventional

way to defraud a bank"), and instead encompassed recruiting

individuals to act as straw buyers (which required them to pretend

that they were going to live in the short-sold homes), using

aliases, and advising mortgagors on whether to continue making

their mortgage payments. The evidence on which the district court

relied was solid, and the court thus reasonably found that the

planning and concealment in this scheme surpassed that required

for simple mortgage fraud.

B.

Jiménez also contests the substantive reasonableness of

her sentence, arguing that it produces unwarranted disparities on

two fronts. First, she argues, as she did in the district court,

- 13 - that the sentence creates unfair disparities between herself and

her co-conspirators. Second, she argues for the first time that

the sentence results in unfair disparities between herself and

other defendants nationally because the national average sentence

for fraud defendants is lower than thirty-six months.

Where a substantive-reasonableness challenge is

preserved, we review for an abuse of discretion. Matos-de-Jesús,

. The standard of review for unpreserved challenges

is "somewhat blurred," so here we avoid the issue and give the

benefit of the doubt to the defendant, applying an abuse-of-

discretion standard. United States v. Alejandro-Rosado,

(1st Cir. 2017) (citing United States v. Márquez-García,

(1st Cir. 2017)).

A reasonable sentence is one driven by a "plausible

sentencing rationale" with a "defensible result." United States

v. Martin,

(1st Cir. 2008). The standard affords

significant discretion to the district court, because "in most

cases there is not a single appropriate sentence, but rather a

universe of reasonable sentences." Alejandro-Rosado,

(quoting United States v. Rivera-González,

(1st Cir. 2015)).

Jiménez's challenge to the substantive reasonableness of

her sentence starts out with little prospect for success. The

thirty-six-month sentence is well below the guidelines range. See

- 14 - United States v. King,

(1st Cir. 2014) ("It is

a rare below-the-range sentence that will prove vulnerable to a

defendant's claim of substantive unreasonableness."); see also

United States v. Floyd,

, 39–40 (1st Cir. 2014)

("When . . . a district court essays a substantial downward

variance from a properly calculated guideline sentencing range, a

defendant's claim of substantive unreasonableness will generally

fail."). The argument that Jiménez's sentence should not

substantially exceed her co-conspirators' fares little better:

"Congress's concern [with unwarranted disparities] was mainly with

minimization of disparities among defendants nationally rather

than with disparities among codefendants engaged in a common

conspiracy." United States v. Vargas,

(1st. 2009).

In any event, the sentencing court reasonably concluded

that Jiménez was more culpable than her co-conspirators, in part

because she brought them into the scheme in the first place, and

also because they cooperated with the government while she did

not. Jiménez also has not offered evidence that would show that

her circumstances are sufficiently similar to the national median

fraud defendant to create a meaningful point of comparison. As a

result, she can point to no relevant disparity that might render

her sentence substantively unreasonable.

- 15 - C.

Finally, Jiménez argues that the district court's

explanation of her co-conspirators' lower sentences shows that it

punished Jiménez for not cooperating with the government and thus

both penalized her for exercising her Fifth Amendment rights and

violated the Sentencing Guidelines. See U.S.S.G. § 5K1.2

(prohibiting use of "refusal to assist authorities" as an

aggravating factor). These arguments were not raised below, and

Jiménez has provided no explanation for why they should not be

considered forfeited. While preserved claims of constitutional

sentencing error are reviewed de novo, United States v. Platte,

(1st Cir. 2009), most unpreserved claims are

reviewed for plain error, see United States v. Zarauskas,

, 514–15 (1st Cir. 2016) (reviewing an unpreserved Fifth

Amendment claim for plain error).

Either way, the claim has no merit. The district court

did not punish Jiménez for not cooperating; it simply explained to

her why her sentence was higher than those of her co-conspirators

who did cooperate. Our precedent is clear that sentencing courts

are permitted to hand down shorter sentences to those who cooperate

and show remorse. United States v. Cruzado-Laureano,

(1st Cir. 2008) (remorse); United States v. Miller,

(1st Cir. 1978) (cooperation).

- 16 - III. Conclusion

For the foregoing reasons, we affirm Jiménez's sentence.

- 17 -