United States v. Rosa Enedia Pazos Cingari, et al. (11th Cir. March 2020)

The Federal Docket

March 18, 2020

Sentencing Guidelines – The sentencing court properly applied the harsher Guidelines under 2B1.1 than 2L2.1 where the defendants’ fraudulent conduct was “more aptly covered” by 2B1.1

The defendants were a married couple who defrauded undocumented immigrants into paying for falsified federal immigration forms. Upon conviction for falsifying immigration forms and mail fraud, the defendants challenged their sentences.

First, they argued that they should not be held jointly and severally liable for the forfeiture judgment of $740,000. The Court held that the district court did not plainly err in holding them jointly and severally liable, declining to apply the Supreme Court’s case in Honeycutt v. United States, where the justices held that you cannot hold a defendant jointly and severally liable under 21 U.S.C. § 853 for property he did not acquire. And either way, there was no evidence here that the couple split the proceeds, thereby failing to establish that they “did not mutually obtain, possess, and benefit from their criminal proceeds.”

The defendants also argued that they should have been sentenced under § 2L2.1 a as a falsifying immigration forms offense rather than § 2B1.1 as a fraud offense. Citing Eleventh Circuit precedent, the Court held that the district court did not err by sentencing the defendant’s under the harsher fraud Guidelines since that Guideline “more aptly fit the specifics of the crimes committed.” While falsifying immigration forms was indeed part of the offense and covered under 2L2.1, the “heart” of the defendants’ schemes was to enrich themselves by “cheating aliens out of several hundred thousand dollars.” And while 2B1.1 has commentary cross-referencing to other Guidelines if the offense of conviction is “specifically covered” by the other Guideline, the commentary also states that the cross reference only applies if the offense involves fraudulent conduct “that is more aptly covered” by the other Guideline.

Appeal from the Middle District of Florida

Opinion by Grant, joined by Jordan and Siler (by designation from 6th Cir.)

Click here to read the opinion.

Tom Church - Tom is a trial and appellate lawyer focusing on criminal defense and civil trials. Tom is the author of "The Federal Docket" and is a contributor to Mercer Law Review's Annual Survey in the areas of federal sentencing guidelines and criminal law. Tom graduated with honors from the University of Georgia Law School where he served as a research assistant to the faculty in the areas of constitutional law and civil rights litigation. Read Tom's reviews on AVVO. Follow Tom on Linkedin.

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