USA v. Bryan A. Pool

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-10715
Non-Argument Calendar
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D.C. Docket No. 3:11-cr-00034-LC-1
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllll llPlaintiff-Appellee,
versus
BRYAN A. POOL,
llllllllllllllllllllllllllllllllllllllll Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Florida
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(November 9, 2012)
Before CARNES, WILSON and BLACK, Circuit Judges.
PER CURIAM:
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Bryan A. Pool appeals the restitution portion of his total sentence. Pool
pled guilty to: (1) conspiring to fraudulently obtain mortgage loans from banks, in
violation of 18 U.S.C. § 1349; (2) engaging in substantive bank fraud over the
same period, in violation of 18 U.S.C. § 1344; and (3) conspiring to launder the
proceeds of his bank fraud scheme, in violation of 18 U.S.C. § 1956(h). He was
sentenced to a total of 57 months’ imprisonment and ordered to pay
$2,302,957.60 in restitution.
Pool’s offenses involved a total of six residential properties, two of which
are relevant in this appeal: (1) 87 Grande Pointe Drive in Santa Rosa Beach,
Florida; and (2) 1720 Morrill Street, Unit 1, Building #1 in Sarasota, Florida. The
Government, in support of its restitution estimate, presented documentary and
testimonial evidence that a victim bank loaned Pool $1.2 million to finance the
purchase of the Santa Rosa Beach property, foreclosed on that property in
September 2010, and resold it in July 2011 for $345,000. The Government also
presented evidence that a victim bank loaned Pool $239,270 to finance the
purchase of the Sarasota property, foreclosed on that property in December 2009,
and resold it in January 2010 for $27,001. Relying on the resale values as
evidence of the victim banks’ putative losses, the district court ordered Pool to
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make restitution of $855,000 with respect to the Santa Rosa Beach property, and
$212,269 with respect to the Sarasota property.
On appeal, Pool argues the district court erred in calculating his restitution
liability on the Santa Rosa Beach and Sarasota properties. Noting the Government
introduced no evidence concerning the fair market value of the properties on their
foreclosure dates, Pool asserts the gaps between the foreclosure dates and the
resale dates were too wide for any estimate of the fair market values to be
reasonable, “particularly given the legendary and precipitous slide in Florida
residential real estate values at that very point in time.”
The district court’s determination as to the specific amount of restitution is a
factual finding reviewed for clear error, while questions of law relating to
restitution are subject to de novo review. United States v. Futrell, 209 F.3d 1286,
1288-89 (11th Cir. 2000). The Government bears the burden to establish the
restitution amount by a preponderance of the evidence. Id. at 1290; 18 U.S.C.
§ 3664(e).
Under the Mandatory Victims Restitution Act, the district court is required
to order restitution “to each victim in the full amount of each victim’s losses.” 18
U.S.C. § 3664(f)(1)(A). This statutory mandate requires that a “restitution award
‘must be based on the amount of loss actually caused by the defendant’s
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conduct.’” United States v. Huff, 609 F.3d 1240, 1247 (11th Cir. 2010) (emphasis
in original). However, where difficulties arise in establishing the exact amount of
restitution, a district court may accept a reasonable estimate of the loss based on
the evidence presented. Futrell, 209 F.3d at 1292.
Here, the district court had adequate evidence upon which to base its
restitution determinations. The Government submitted documentary and
testimonial evidence to establish loss amounts for the value of the properties
following foreclosure. The district court made a specific finding that the actual
loss to the victim banks for restitution purposes was the difference between the
amount Pool borrowed and the amount the banks were able to obtain upon
reselling the properties. The district court did not err in relying on the resale
prices. See Huff, 609 F.3d at 1248 (holding that district courts, when making a
reasonable determination of the restitution amount, should “resolv[e] uncertainties
with a view toward achieving fairness to the victim”) (quotation omitted).
Moreover, absent any evidence relating to the time frame of a housing market
“crash” in Santa Rosa Beach and Sarasota—much less how such a crash affected
the values of the properties in question—the court would have been required to
engage in impermissible speculation to credit Pool’s restitution liability below the
amount established by the Government.
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AFFIRMED.
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