USA v. Rene Horta

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
DECEMBER 8, 2011
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 11-11599
Non-Argument Calendar
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D.C. Docket No. 1:10-cr-20707-CMA-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RENE HORTA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(December 8, 2011)
Before HULL, PRYOR and ANDERSON, Circuit Judges.
PER CURIAM:
Rene Horta appeals his 70-month total sentence, imposed after he pleaded

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guilty to 1 count of conspiracy to commit bank fraud, in violation of 18 U.S.C.
§ 1349, and 88 counts of bank fraud, in violation of 18 U.S.C. § 1344(1). Horta
argues that the district court erred in calculating the intended loss under the
sentencing guidelines. We sua sponte raise the issue of a clerical error in Horta’s
judgment and commitment order.
I.
Horta argues that the district court erred in calculating the amount of
intended loss because the government presented no reliable or specific evidence at
the sentencing hearing, instead relying on information already presented to the
court and the government’s proffer.
Normally, “a district court’s determination regarding the amount of loss for
sentencing purposes is reviewed for clear error.” United States v. Medina, 485
F.3d 1291, 1303 (11th Cir. 2007) (quotation omitted). However, where a
defendant fails to clearly articulate the grounds for an objection or fails to raise a
specific sentencing argument in the district court, this Court applies the plain error
standard. See United States v. Massey, 443 F.3d 814, 818 (11th Cir. 2006)
(addressing the clarity of an objection to the guidelines calculation). To succeed
on this point, Horta must show (1) an error that (2) is plain, (3) affects substantial
rights, and (4) seriously affects the fairness, integrity, or public reputation of
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judicial proceedings. United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770,
1776, 123 L.Ed.2d 508 (1993). For an error to affect substantial rights, it
generally “must have been prejudicial: It must have affected the outcome of the
district court proceedings.” Id. at 734, 113 S.Ct. at 1778.
At sentencing, the government must prove by a preponderance of the
evidence any fact to be considered by the district court, United States v. Duncan,
400 F.3d 1297, 1304 (11th Cir. 2005), including the applicability of any guidelines
enhancements, United States v. Ndiaye, 434 F.3d 1270, 1300 (11th Cir. 2006).
When a defendant challenges a fact in the presentence report, the government’s
burden of proof is triggered. United States v. Lawrence, 47 F.3d 1559, 1566 (11th
Cir. 1995). The burden must be satisfied with “reliable and specific evidence.”
United States v. Sepulveda, 115 F.3d 882, 890 (11th Cir. 1997). “The findings of
fact of the sentencing court may be based on evidence heard during trial, facts
admitted by a defendant’s plea of guilty, undisputed statements in the presentence
report, or evidence presented at the sentencing hearing.” United States v. Wilson,
884 F.2d 1355, 1356 (11th Cir. 1989). Failure to object to an allegation in the
presentence report constitutes an admission for sentencing purposes, and failure to
object to a sentencing court’s findings of fact precludes the argument on appeal
that the findings were erroneous. United States v. Wade, 458 F.3d 1273, 1277
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(11th Cir. 2007).
Under U.S.S.G. § 2B1.1(b)(1)(L), the defendant’s offense level is enhanced
by 22 levels if the loss was between $20 million and $50 million. The amount is
either the actual loss or the intended loss, whichever is greater. U.S.S.G.
§ 2B1.1(b)(1), comment. (n.3(A)). “‘Actual loss’ means the reasonably
foreseeable pecuniary harm that resulted from the offense.” U.S.S.G. § 2B1.1,
comment. (n.3(A)(i)). On the other hand, “intended loss” is the monetary harm
“that was intended to result from the offense.” Id., comment. (n.3(A)(ii)). Overall,
the district court needs only to make a reasonable estimate of the loss amount.
U.S.S.G. § 2B1.1, comment. (n.3(A)(ii)).
Because he did not explicitly object to the reliability and specificity of the
evidence underlying the court’s findings, Horta’s challenge to the reliability and
specificity of the evidence at sentencing is reviewed for plain error. We conclude
that the district court’s findings were not plainly erroneous and its determination
of intended loss under U.S.S.G. § 2B1.1 was supported by a body of undisputed,
reliable, and specific evidence. The district court made clear that its consideration
of intended loss included Horta’s conduct and was not solely reliant on the face
value of the checks. Because Horta failed to present any countervailing evidence
as to intended loss, the district court was “especially justified in including the
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checks’ full face value in its intended loss calculation.” United States v. Grant,
431 F.3d 760, 765 (11th Cir. 2005). Therefore, the district court committed no
plain error in setting the amount of intended loss at $23,499,921.
II.
This Court may sua sponte raise the issue of clerical errors in the judgment
and remand with instructions that the district court correct the errors. See Massey,
443 F.3d at 822 (remanding with directions to the district court to correct the
clerical errors where the statute cited in the judgment and commitment order was
incorrect). Furthermore, “[i]t is fundamental error for a court to enter a judgment
of conviction against a defendant who has not been charged, tried, or found guilty
of the crime recited in the judgment.” United States v. Diaz, 190 F.3d 1247, 1252
(11th Cir. 1999).
The indictment and judgment reference a violation of 18 U.S.C. § 1349,
conspiracy to commit bank fraud, for Count 1. However, the indictment includes
88 counts of bank fraud, in violation of 18 U.S.C. § 1344, while the judgment
erroneously labels these 88 counts of bank fraud as additional conspiracy
violations. It is clear from the plea hearing that Horta pled to all counts listed in
the indictment and that, therefore, the reference to the 88 counts of conspiracy was
an error. Those 88 counts should be listed as bank fraud, under § 1344. Because
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the error in the judgment is clerical, we vacate and remand for the limited purpose
of correcting the error.
Upon review of the record and consideration of the parties’ briefs, we affirm
Horta’s sentence, but we vacate and remand to the district court with directions to
correct the clerical error contained in Horta’s judgment and commitment order.
AFFIRMED IN PART; VACATED AND REMANDED IN PART.1
Horta’s request for oral argument is DENIED.1
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