382 F.3d 617

382 F.3d 617

United States of America, Plaintiff - appellee,
V.
Kenneth Quigley, Defendant - Appellant.

In 2495-03.

In 1160-04.

United States Court of Appeals, Sixth Circuit.

Filed August 05, 2004.

The decision, filed August 30, 2004.

Hearing was denied on September 23, 2004.

Eastern District of Michigan, John C. O'Meara, appeals from U.S. District Court for the J.

Jennifer M. Gorland (Briefing), 2495-03 to plaintiffs - U.S. attorney's office for the appellee, Detroit, MI,, 1160 04.

Michael J. Rex (Briefing), Walter J. Piszczatowski (Briefing), Hertz, Saretzky and Schramm, between 2495-03 defendant - appellant, Bloomfield Hills for 1160-04, Michigan. Check out also first bank of delaware loan .

Before: KENNEDY, SUTTON, COOK, and judge of the circuit.

OPINION

KENNEDY, Circuit Judge.

One

His sentence under a plea bargain with the defendant's appeal line fraud. Defendant argues that erred in determining the amount of loss for a particular purpose of the guideline sentencing range the district court. We determined that the district court agree that while the error, we will be sure to keep the sentence imposed on defendant in the same range because the amount of the loss was still fixed.

Background

Two

This case through May 1998, resulting from the fraud scheme that occurred from about May 1997. See Also first choice loan services . The government described the scheme as follows.

Three

Through the defendant in the event of fraud, their mortgage company, First Financial, Ltd., for purposes other than closing the mortgage, the lender's warehouse, warehouse mortgage Pinnacle ("Pinnacle") is used borrowed from of funds. Sterling Bank and Trust Company ("Sterling") is the ultimate source of funds for the warehouse, was a victim for the purpose of the transformation and hence.

Four

First Financial Corporation (the "First Financial"), Bloomfield Hills, located in Michigan, was the company's principal place of business in Michigan. That Randall Sage separately charged for his actions, was established in 1993. See Also first cash financial services . From 1993 to about May 1998, the first financing to originate mortgage loans, engaged in the sale. See Also first national loan utah . In 1994, the defendant was the first financial investor. In the fall of 1996, he will work with partners and shareholders. At that point, the three major shareholders of First Financial Sage Randall, Robert Geissbuhler, and the defendant was. Voting agreement executed between the three, reflecting that the owner was a third of the company that holds 51% of the voting shares, each message is Randall. All three are first-mortgage financing and warehousing and pinnacles ("Agreement MWS") signed a contract with the surety and security agreements between.

Five

The first financing, process the loan application, by arranging for financing, directly address the consumer. Sterling, Pinnacle act as administrator for mortgage financing, the loan was funded through. Loan notes are and will be notified by the fiscal first be signed by the borrower's individual Pinnacle wired funds for lending to a trust account for payments from the account in New York has maintained the fiscal first . Finance the first mortgage closing will pay the money. Money is, firstly, was advanced under the terms of the contract to the Finance MWS. That agreement, First Financial, specifies that the funds were used for the purposes of the original loan it closed. The agreement also begins to return the funds to Pinnacle if the closing did not occur as scheduled, and financial need. Sterling is owned 98% of each loan was originated, the first budget. The first financing typically Advanta Mortgage, as well as when to sell loans to another company that eventually, as well as hair cuts, additional premium of 4 to 8% of the loan hoping to regain 2% other ("haircut") advanced.

Six

First, due to high volume of mortgage finance that has been closed, Pinnacle is a group (or cluster) to provide those funds. Some mortgage, closing time, some will be delayed, and some does not end at all. Check out also first time loan . In many cases, First Financial did not return the money for a mortgage does not close immediately. Check out also first bank of delaware thinkcash . Instead, the Pinnacle of money to close the mortgage had been paid into the trust account payments, especially the relationship between finance first, of course, frequently, in order to cover the settlement trust account its general operating considerations temporarily transfer money from the salary, benefits, general operating expenses, including payments and other expenses.

Seven

As part of the contract MWS, First Financial assigned to the pinnacle of all mortgages as security and proof of debt for each right, title, or interest in any insurance, first of all properties owned by Pinnacle Finance , and all causes of action, claims, demands to be acquired in relation to the first mortgage, or whether there were financial. Pinnacle, in turn, as part of the purchase agreement between the two participants, all rights of Stirling, title, and interest in participation agreement (which includes a first mortgage loans originated by financial security) is assigned. Therefore, Sterling, a security interest in each of the loans closed by First Finance (through Pinnacle) was. See Also first choice loan . In addition, debt, loans, holds a security interest in any assets belonging to the first case finance.

Eight

The first finance, business operations ceased in May 1998. At that point, Sterling performs its right under the purchase agreement that participation was secured through a contract MWS cross between Pinnacle and First Finance immediately get a loan first of all finance. It sold its interest in these loans later.

Nine

On 4 December 2001, the government filed the information charging Defendant Kenneth Quigley and one count of wire fraud in violation of 18 USC 1343. See Also first cash pawn penitas tx . On 4 February 2002, Defendant signed a formal waiver of indictment appeared before a judge of the court, and was arraigned on the information. June 13, 2002, Defendant appeared before the district court entered a plea of guilty to charge. See Also first national loan . After extensive negotiations, except for the petition is USSG, Rule 11 plea agreement was a factor in sentencing guidelines for all parties (the "Contract Agreement") 2F1.1 based on the input (B ) (8) (B) (relating to the defendant, the crime will derive gross income of $ 1,000,000 or more) USSG 2F.1.1 and (B) (1) (N) (related to the amount of loss) . The previous ruling, the government, 2F1.1 (B) (8) (B) is accordingly incorporated in the calculation of the guidelines it was concluded that this case did not apply. Agreement, based on substantial government assistance, submit a motion for downward departure, and no more than 41 months in prison with the understanding that the recommended sentence range of 18 to 24 months consensus decision, "or, if the court includes a similar decrease in the ratio, determines are appropriate under the scope of these guidelines. Check out also first finance loan ." The agreement also, the district court entered an order for restitution in the amount provides that "the amount of $ 2,353,151.00 less or recovered by the Sterling Bank & Trust Pinnacle Mortgage Warehouse, up."

Ten

Following the appeal of the defendant, probation office, the level of assault that the defendant ( 2F1.1 for (B) (1) (N) determined the age of 21, including 12 levels of adjustment under the presentence investigation report (the "PSI") lost more than $ 1. See Also first choice cash/danville,va/ .5 million available.) Sterling and $ 2,353,151 for the purpose of sentencing, PSI has been described total loss. Defendant, in the figure, claiming not reflect the sterling of the profits from the sale of loan collateral acquired when you stop financial operations first, including an objection to the amount of loss, the significance of many of the PSI raised. Probation Department, the problem "is determined by the court" and that, that report remains unchanged, "provided by government agents and the amount of cases," responded saying. Prior to the ruling, is to address issues such as the number of digits in losses, he filed a sentencing memorandum. Memorandum, Stirling, explained how they are protected by MWS Agreement between Pinnacle and First Finance of the Pinnacle Purchase Agreement and its participants. The MOU, the Sterling when exercising its rights under the agreement the two cross-collateralized, it showed that it has received a claim in excess of $ 20 million. This amount not only in sterling principal amount of the loan that is funded, a premium of 8% to 6% range also represented the recovery of plus 2% "a haircut" amount will initially finance the first fund. Sterling was also seized by the dollar value of loans 5806510 finance first originated, thereby eliminating the involvement of Pinnacle to ensure recovery of their loans overall premiums, directly funded was. Check out also first finance loan . In addition, the MOU is in addition to its premium finance was going first, reflecting the payment of principal Sterling Sterling is the number of mortgage loan to determine the number of direct remittances from Advanta Mortgage, which was not a discontinued operation.

11

The government has submitted a brief downward departure motion and complex conditions for a USSG 5K1.1 did not respond to defendant's sentencing memorandum. Citing a range of guidelines that are calculated for the Probation 24-30 months accused the government, courts face down in the term of between 12 to 15 months for aid substantially rendered by the defendant, the statement We recommend that you leave the defendant.

12

On 24 October 2003, defendant appeared for sentencing. Counsel, the defendant's objection to the loss, tried to address the objections that are stored in the plea bargain, especially Rule 11. The court's decision problem occurs in sage Randall already had been resolved the day before the verdict, defense counsel did not allow you to check its arguments. Defendant's counsel Quigley politics, especially his co-defendants did not have to, because the issue had been preserved, told the court that there was a significant difference between the two defendants. The court of first instance, the figure of damages determined by the hearing later, admitted to be significantly smaller than the number of losses, but it is not what was shown will happen to it before something different indicates that it was the intention, that is, granting motion for downward departure.

13

If you want to add what it is, the trial court, when asked for the government, the government loss of $ 2.3 million figure is claimed that the defendant intended to represent a loss. The government also figure of loss, defendants cite the case of a false loan application in support of his position should be partially offset by reclaimed by the security or pledge, a relationship issue argued that there was no. Court of first instance, because the motion was granted a downward departure it intend to do something different again emphasized that no. The court imposed a sentence of imprisonment of 12 months and one day in prison storage management station. Check out also first star loan . In addition, the court ordered the return of the amount determined by a later hearing.

14

For purposes of determining the number of damages, the government has started a $ 2,413,788.50 loss figures. This amount had been wired to the settlement trust account, representing the 46 different mortgage money was never closed. The government, however, this number is originated by financing first, and 2% premium of 4% because it sold mortgage Advanta then "haircut" Sterling for the loan had been achieved was , received (1) but admitted that the payment should be offset by Sterling, First Finance ($ 373,768.28), paid directly to, and (2) Amounts are cross collateral agreements ($ 803,409.90) The The first seizure of the financial realization-based loan. Defendants also additional $ 5806510 per cent of the loans that had been listed in the six figures restoration "Sterling Advantage Line," he added, or should be offset by $ 384,390. Check out also first time loan no credit . On May 20, 2004, the parties, they are $ 907,251. Check out also first cash .84 to $ 2,413,788.50 ($ 1,506,536.66 or offset), which appeared in the hearing of the defendant's liability shall reduce the number of offset credits from damages. The court will consider the distribution of return between the parties, the defendant 50% of the total restitution ordered to be held responsible for, or $ 453,625.92.

Analysis

15

We are under the guidelines under the clearly erroneous standard, please review the district court's findings. Clay vs. the United States, 346 F.3d 173,178 (Cir.2003 sixth). Application guidelines for fact-finding is a matter of law subject to review de novo. Finkley for the United States, 324 F.3d 401,403 (Cir.2003 sixth).

16

The defendant, when it failed to make the necessary findings of fact concerning the amount of losses that are used in the Sentencing Guidelines range is reached, it argues that the district court erred in this appeal is . The government refers to two separate arguments for affirming the decision of the defendant. Reasons discussed below, we reject those arguments.

17

First, the government has the final decision is not affected, the district court and argue that it is not necessary to resolve the dispute on the facts concerning the amount of losses from fraud of the defendant. According to the government, the defendant will receive a management station to receive a prison sentence of more than 12 months in prison, "good conduct time" for the unit, making his credentials, was sentenced to 12 months and one day. 28 CFR 523.20 (providing that an inmate credit for each year "good conduct time" of 54 days to earn). The government, therefore, the defendant argued in fact serve 312 days under his current sentence. Court of First Instance, while if you accept the defendant's claim in the amount of losses, the government was obliged to recommend a sentence in the range 10 to 13 months. The government relies on the fact that death penalty defendants a day and 12-month court when the recommended sentence between 15 months and 12 government, the district court, if it is accepted the claim of the defendant, the defendant at least 10 months would argue that the death penalty, or 315 days, longer than three days, or his current sentence. As pointed out by the defendant, the court may have sentenced a number of options available that affect either the duration and conditions of the sentence, so we reject this claim. Check out also first bank delaware loan . We can not reject such a possibility can not be determined. See Also first assured loans .

18

Second, the government, the District Court of $ 2,413,788. See Also first national bank small loan .50 for the purposes of sentencing in the proper "intended loss" that claim to use the money. A very short absence of a formal opinion of the court and government, in this case to complicate our review. However, as explained below, we can see that when determining the amount of erroneous the district court clearly lost. Check out also first national payday loan .

19

"To challenge the court's loss calculation, the appeal] was the only inaccuracy in the evaluation of losses, must carry the burden of persuading this court was allowed outside the scope of calculation." U.S. vs. Jackson, 25 F is, .3 D 327,330 (Cir.1994 sixth). I was able to use collateral to offset losses of other banks that the victim, the defendant is before the court, it must have been reduced to the amount of damages the amount of loss argued before this Court. As support for his argument, Defendant cites the case studies of bad loans could satisfy at least part of the debt by the bank foreclosed on the collateral. , For example, V. U.S. light, please refer to the 60 F.3d 240,241 (6 Cir.1995) (it should be offset by collateral to secure loans for the amount of loss). Government such cases, the defendant ("fraud in this case, using the funds for purposes other than purchase of collateral or other assets. See Also first national loan services .") Where for Br the appellee is not relevant he said. At 13 (USSG 2F1.1, Application Note 8 (b) quoted) (obtained through fraudulent applications to reduce the amount of loss by "committed to ensuring all asset financing"). We have cases of incorrect application of the loan shall agree to differ technically from the case at hand. However, we highly relevant to the issue of evaluation of the intended loss to find them (and the application, that are related to them). While providing security for some loans, in both types of cases, the defendants illegally to get the loan. See Also first advance payday loan . Lenders use this as collateral, you can offset some of his losses. See Also first source loan . Guidelines, in the case of a false loan application, the District Court has defined the need to reduce the amount of loss by the amount recovered. We have no reason, because of collateral agreements cross district court in this case also, to reduce loss of $ 2,413,788.50 the amount recovered as a reason why, provided we have at any one government or the district court The.

20

The district court losses by reducing the amount of $ 2,413,778.50, so we erred in concluding that no, this time, de novo analysis of what should have been offset. I admitted all the facts relating to the legal issues presented by the defendant, we will do so. It is sterling when you exercise your rights under the contract collateral cross, you get the three categories of assets: represent the interests of loans originated by financing the first (1) Cash, funds fully Advanta and after ($ 373,768.28) sell, (2) its first loan, originated by the finance and, it was fully funded, were not yet sold to Advanta. Not yet sold to Advanta (3) originated by First Finance loan is not funded yet, and therefore. Of the three categories, we can see that decisions related to offset only the first one. Check out also first advance trust .

21

That financial first it when it was known, to ensure that absolutely can not be said to intend to deprive the British of 2. Check out also first money direct.uk .4 million total dollars, we have $ 373,768.28 in cash used to offset the loss gross You agree that the defendant should be, Sterling is a pledge of the amount the sale of the underlying loans had in full force.

22

Situation, however, classification (2) and (3) For different. Category (2), the Sterling is obtained in the amount of $ 13 million loan was originated, the first budget, fully funded, and was about to be sold to Advanta. The defendant, his first financial, it Advanta ($ 803,409.90) be entitled to claim equal and offsetting gains that had been made to allow the loans to sell. We do not agree. Category (1) cash, unlike the sale of loans, life was simple. The first budget was a guaranteed income for Advanta contractual relationship with the real reasons, the sale is not a guarantee or to take place to achieve that amount was not as expected. This is because several events, thereby depriving the sterling money, may have intervened to prevent the financing to make a profit from the first. Category (3), the Sterling, $ 5.8M First Finance originated approximately ($ 5.8 million) in the amount of financing obtained. Sterling will provide funds to loan them $ 384,390 to finance the first "lost profits" Advanta sold them to get. Category (2), as well as we, that the defendant, it will fund the loan, if you sell them, not qualified to find the offset that represents the interests acquired First Financial.

23

Since we have found to be suitable only for $ 373,768.28 to offset losses appropriate for the purpose of sentencing is about $ 2 million. This amount is the amount of loss that the district court used to establish the defendant's sentence under the guidelines ($ 2.4 million) and the same range ($ 250 million USD 1.5 million) less. Therefore, you do not have to remand for resentencing.

Conclusion

24

For these reasons, we uphold a decision of the defendants in this case.

Leave a Reply

Your email address will not be published

*
*