Professional Documents
Culture Documents
No. 12-4518
No. 13-4003
Appeals from the United States District Court for the Eastern
District of Virginia, at Alexandria.
Leonie M. Brinkema,
District Judge. (1:11-cr-00344-LMB-1)
Submitted:
Decided:
PER CURIAM:
I.
From
June
2008
to
September
2009,
Appellant
Howard
services
such
as
forestalling
foreclosures,
Shmuckler and
Virginia
bar,
approximately 4.5%.
and
TSGs
actual
success
rate
was
During
the
course
of
its
operation,
TSG
took
in
Three,
counts.
Shmuckler
Next,
pleaded
probation
guilty
officer
to
the
prepared
remaining
a
six
presentence
sentence
of
210
to
262
months.
The
probation
the
proposed
sentencing
two-level
hearing,
increase
Shmuckler
for
objected
sophisticated
to
the
means.
The
The district
court
agreed
with
the
government
and
imposed
two-level
document
It was complex.
manipulation.
However,
the
district
court
for
the
amount
eighteen-level
enhancements
recommended
Sentencing Guidelines.
of
ninety
months
loss
rather
enhancement.
that
sentencing
of
the
range
PSR
of
The
than
court
recommended,
135
to
168
the
PSRs
applied
leading
months
the
to
under
a
the
to
run
consecutively
with
Shmucklers
August
regarding
16,
2012,
restitution.
the
district
The
court
government
held
submitted
hearing
a
list
reflecting all of the TSG clients whose mortgages TSG had failed
to modify and the amounts they paid TSG, which it developed by
interviewing TSG clients and bank representatives.
This list
suggested
Shmuckler
restitution
amount
4
of
$1,848,279.
contended
that
the
restitution
amount
could
not
exceed
the
The
II.
First, Shmuckler argues that the district court erred in
applying
two-level
2B1.1(b)(10)(C)
because
sophisticated
means.
application
sentencing
of
enhancement
Shmucklers
In
under
fraud
evaluating
enhancements,
did
the
this
U.S.S.G.
not
utilize
district
courts
Court
review[s]
474
(4th
Cir.
2012)
in
original)
(quoting
United States v. Layton, 564 F.3d 330, 334 (4th Cir. 2009))
(internal quotation marks omitted).
(4th Cir. 2008) (quoting In re Mosko, 515 F.3d 319, 324 (4th
Cir. 2008)) (internal quotation marks omitted).
TSGs
behavior
resembles
the
scheme
at
play
in
United
In Noel, this
Court determined that the district court did not err in imposing
a sophisticated means enhancement when the defendant attracted
clients by telling them that he would safely invest their money
but then used the funds to start his own business.
Appx at 290.
502 Fed.
extensive,
intentional
concealment
is
the
kind
of
scheme
Id.; see
also United States v. Kontny, 238 F.3d 815, 820 (7th Cir. 2001)
(The more sophisticated the efforts that an offender employs to
conceal his offense, the less likely he is to be detected, and
so he should be given a heavier sentence to maintain the same
expected
confronts
punishment,
the
and
average
hence
the
offender.).
same
deterrence,
Shmuckler
that
similarly
the
district
court
did
not
clearly
err
in
finding
that
he
because
the
district
court
did
not
sufficiently
to
partially
impose
sentence
concurrently
with,
that
or
A district courts
runs
concurrently
consecutively
to
with,
prior
of
the
factors
[U.S.S.G.] 5G1.3(c).
mentioned
in
the
commentary
following:
(i) The factors set forth in 18
(referencing 18 U.S.C. [] 3553(a));
(ii)
The
type
indeterminate/parolable)
undischarged sentence;
and
(e.g.,
length
U.S.C.
of
[]
3584
determinate,
the prior
to
circumstance
relevant
an appropriate sentence
to
for
the
the
The
record
in
this
case
demonstrates
that
the
district
identifies.
3553(a)
factors.
Shmucklers
age,
First,
the
Specifically,
[his]
definitely
court
the
considered
court
the
considered
well-documented
health
from
the
District
of
Columbia.
The
court
also
out
to
other
people
in
the
financial
and
real
estate
18
these
reasons,
the
district
court
did
not
abuse
its
In support of this
to
order
restitution
in
8
wire
fraud
cases,
18
U.S.C.
the
restitution
award
be
based
on
the
amount
of
loss
United States v.
Dokich, 614 F.3d 314, 319 (7th Cir. 2010) (quoting United States
v.
Rhodes,
330
F.3d
949,
953
(7th
Cir.
2003))
(internal
U.S.S.G. 2B1.1
F.3d at 339.
Each party contends that the Seventh Circuits decision in
United States v. Dokich supports its position, and we find the
case instructive.
lower
sentencing
figure
restitution,
[p]erhaps
for
causing
the
the
district
purposes
circuit
court,
by
than
court
it
to
ordered
speculate
deliberately
basing
in
that
its
court
held
that
the
district
9
court
not
abuse
its
restitution
district
court
purposes.
Id.
explicitly
stated
In
that
the
it
case
was
at
hand,
the
giv[ing]
the
III.
For the foregoing reasons, we affirm the decision of the
district court.
AFFIRMED
10