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United States Court of Appeals: For The First Circuit
United States Court of Appeals: For The First Circuit
United States Court of Appeals: For The First Circuit
No. 13-2003
UNITED STATES OF AMERICA,
Appellee,
v.
HARRY W. MAISONET-GONZLEZ,
Defendant, Appellant.
Before
Lynch, Chief Judge,
Torruella and Kayatta, Circuit Judges.
May 4, 2015
Defendant-appellant Harry W.
fifty-one-month
term
of
imprisonment,
He was sentenced to
at
the
top
of
his
After
Facts
See United
Credit
Union
("Pentagon")
by
submitting
fraudulent
names
to
co-defendant
who
had
access
to
database
Maisonet's
co-defendant
provided
personal
information
about
these
third
As result of this
civil suit was filed involving Pentagon, Doral Bank, and Maisonet.3
The parties eventually reached a private settlement agreement which
put an end to these two state cases.
On February 27, 2015, Doral Bank was closed by the Office of the
Commissioner of Financial Institutions of Puerto Rico, which
appointed the Federal Deposit Insurance Corporation as receiver.
See http://www.fdic.gov/news/news/press/2015/pr15024.html.
3
These civil actions were filed under Civil Nos. KDP2006-0508 and
KPE2006-1851.
-3-
PSR,
which
was
disclosed
to
the
parties
on
-4-
total
loss
of
$445,000
and,
thus,
applied
fourteen-level
The
probation officer stated in the PSR that the total loss amount
should be used in determining the applicable level increase under
U.S.S.G. 2B1.1(b)(1) because Maisonet waited until after Pentagon
(the victim) had learned of the fraud to make any restitution.
In
July
30,
2012,
Maisonet
filed
his
sentencing
Maisonet
restitution
calculation,
should
leaving
an
have
been
outstanding
deducted
from
loss
$117,703.
of
the
loss
The
-5-
He
also
encouraged
the
court
to
consider
non-
plea
contentions.
agreement.
It
first
noted
The
that
court
rejected
it
not
was
Maisonet's
bound
by
the
offense level of twenty, which broke down the same way as in the
PSR:
base
offense
level
of
seven
pursuant
to
U.S.S.G.
-6-
The total
considering
the
plea
agreement,
the
advisory
Guidelines, the sentencing factors in 18 U.S.C. 3553(a) -especially Maisonet's history and characteristics, the need to
promote adequate correctional treatment, deterrence, and respect
for
the
law
--
the
court
concluded
that
Maisonet's
blatant
disregard for the law and the seriousness of the offense warranted
This appeal
followed.6
II. Discussion
Maisonet challenges both the procedural and substantive
reasonableness of his sentence.
Maisonet
United States
v.
Battle, 637 F.3d 44, 50 (1st Cir. 2011) (quoting Gall v. United
States, 552 U.S. 38, 41 (2007)).
(or
improperly
calculating)
the
Guidelines
range,
(1st Cir. 2010) (quoting Gall, 552 U.S. at 51) (internal quotation
marks omitted).
-9-
We review factual
findings for clear error, arguments that the sentencing court erred
in interpreting or applying the guidelines de novo, and judgment
calls for abuse of discretion simpliciter."
United States v.
Trinidad-Acosta, 773 F.3d 298, 309 (1st Cir. 2014) (quoting United
States v. Serunjogi, 767 F.3d 132, 142 (1st Cir. 2014)) (internal
quotation marks omitted) (alterations omitted).
We then consider the substantive reasonableness of the
sentence imposed.
this
review,
we
into
account
"When conducting
the
totality
of
the
Trinidad-Acosta,
Rivera-Moreno,
613
reasonableness
of
F.3d
a
at
sentence
773
8).
F.3d
at
"Although
even
when
it
we
309
(quoting
evaluate
falls
within
the
the
Battle, 637
Cir.
2006)).
reasonableness
sentence
challenge
so
will
long
as
withstand
there
is
a
"a
substantive
plausible
United States v.
his
total
offense
level
and
its
resulting
Guidelines
range.
-10-
charge
on
and
arrest,
he
was
not
notice
of
any
criminal
discussed
above,
we
review
the
district
court's
See
Note
3(E)(i)
to
U.S.S.G.
2B1.1(b)(1)
or
the
government
detected
the
offense.
See
id.
found that Pentagon detected the offense and filed suit in state
-12-
It then
conclusion,
because
Maisonet
failed
to
begin
appropriate
pursuant
to
U.S.S.G.
2B1.1(b)(1)(H).
The
Double Counting
Maisonet's next procedural challenge -- that the district
3553(a)
sentencing
factors,
even
though
this
was
already
-13-
Cir. 2013).
Here, the district court did not use the same factor
527
F.3d
231,
236
(1st
Cir.
2008)
("The
court's
In fact, "Congress
factors
in
construing
the
-14-
guidelines
that
it
directed
inappropriately
engaged
in
double
counting.
However,
There, we
specifically
the
reasons
that
this
particular
Id. at 60 (emphasis
Guidelines
sentence.
The
court
merely
considered
his
prior
Instead, it
Id.
-15-
evidence [we are] left with the definite and firm conviction that
a mistake has been committed."
The
district court supported this finding with the fact that Maisonet
was the one responsible for devising and running the entire
fraudulent scheme; he was the main player, who recruited and paid
others to participate with him in the scheme; and he was the sole
holder of the bank account where the fraud proceeds were deposited.
Yet, Maisonet had tried to minimize his participation during his
allocution.
-16-
Based on
He,
We note that the district court was not bound by the parties'
plea agreement, and Maisonet was fully aware of this when he
decided to plead guilty. Specifically, through the provisions of
the plea agreement, and at the change of plea hearing, Maisonet was
warned that the plea agreement merely contained a recommended
-17-
Battle, 637
The district
III. Conclusion
The district court properly calculated the victim's loss
attributable to Maisonet for sentencing purposes.
After correctly
-19-