United States v. GonzáLez-CalderóN
United States v. GonzáLez-CalderóN
Opinion of the Court
*85Xavier González-Calderón was charged with crimes arising from a conspiracy to steer telecommunications contracts with the House of Representatives of Puerto Rico (the "House") to a company controlled by a co-conspirator, 3 Comm Global, Inc. ("3 Comm"), through a rigged bidding process. He pleaded guilty and was ordered to pay mandatory restitution of $ 408,208.42 pursuant to the Mandatory Victims Restitution Act ("MVRA"), 18 U.S.C. § 3663A(a)(1), (c)(1)(A) & (B). On appeal, he asks us to vacate the restitution order and remand for a new calculation of restitution. We affirm.
González-Calderón did not object to the restitution amount at sentencing; hence, we review for plain error.
Generally, a restitution order pursuant to the MVRA is proper if it is "record-based and constitutes a fair appraisal of [the victim's] actual losses." United States v. Naphaeng,
González-Calderón contends that the district court erred by calculating the restitution amount based on the conspiracy's pecuniary gain, "the gross amount earned by the conspiracy (the full value of the property and services acquired)," rather than on the actual pecuniary loss sustained by the House, i.e., the victim. Although he does not dispute that "the gross amount earned by the conspiracy" as a result of the rigged bidding process -- that is, the total amount paid by the House for the installation and servicing of a new telecommunications system -- was $ 482,208.42, he argues that the payment amount is not equivalent to the victim's actual loss. To that end, he asserts that the rigged bidding system resulted in the delivery of *86a telecommunications system that the House continues to use, at a lower price than that offered by other bidders.
It is true that "restitution should not be ordered if the loss would have occurred regardless of the defendant's misconduct"; there must be a but-for connection between the defendant's fraud and the victim's pecuniary harm. Alphas,
Finally, we are unconvinced by González-Calderón's contention that his position draws support from United States v. Kilpatrick,
We therefore affirm the district court's award of $ 408,208.42 in restitution.
So ordered.
We assume without deciding, favorably to González-Calderón, that his conceded failure to object to the district court's restitution award constituted forfeiture rather than waiver. We therefore do not opine on whether the government's waiver argument, which focuses on his failure to object to the restitution recommendation in the Presentence Investigation Report, is correct.
We agree with González-Calderón's assumption that the district court calculated the restitution award based on the amount of the payments made by the House of Representatives -- $ 482,208.42 -- but inadvertently ordered payment of $ 408,208.42. There is nothing in the record that would otherwise explain the $ 74,000 discrepancy. The government has not challenged this "oversight," which benefits González-Calderón. In any event, whether the district court intended to award $ 482,208.42, or simply meant to use that amount as a starting point before slightly reducing the award, our analysis remains unchanged. The record supports an award of $ 482,208.42, and there is no reason to conclude that a slightly reduced award constitutes plain error prejudicing González-Calderón.
Reference
- Full Case Name
- United States v. Xavier GONZÁLEZ-CALDERÓN
- Cited By
- 4 cases
- Status
- Published