Submitted: November 12, 2018
Appeals from United States District Court for the Northern
District of Iowa - Dubuque
BENTON, BEAM, and ERICKSON, Circuit Judges.
Rodriguez and Michael Marcov appeal the sentences and
restitutional requirements imposed by the district
court following their guilty pleas to wire
fraud. Rodriguez and Marcov, and many others, participated in
a scheme to obtain money from generally elderly victims in
the Dubuque, Iowa, area and elsewhere by calling and telling
them that relatives in the Dominican Republic had been jailed
and that the relatives needed to wire money to get them out.
Victims wired money to a person at a location provided by the
callers. The criminal organization employed "crew
leaders" and "runners" in the United States.
The crew leaders communicated with people in the Dominican
Republic, while runners picked up money, returned it to crew
leaders, who then deposited it in United States bank accounts
for subsequent transfer to the Dominican Republic, or
directly transferred money to the Dominican Republic.
in 2015, Rodriguez was both a runner and a crew leader and he
was in direct contact with members of the organization in the
Dominican Republic to give them names of possible runners.
Rodriguez also recruited runners and crew leaders in the
United States and directly supervised at least twenty-three
runners at various times during the conspiracy. In December
2015, one of those recruits, co-defendant Marcov, joined the
scheme. Marcov quickly immersed himself in the program,
advancing from runner to crew leader within a few months. As
a crew leader, Marcov had direct contact with Dominican
Republic organization members and recruited and ultimately
supervised at least nine runners. In May 2017, Rodriguez and
Marcov each pleaded guilty to one count of wire fraud.
Rodriguez's sentencing, the district court found that
Rodriguez was jointly and severally liable with certain other
members of the conspiracy for payment of restitution in the
amount of $774, 584.97. Rodriguez agreed at sentencing that
this number was the correct amount of loss involved in the
total scheme (but challenged that he should be personally
liable for that amount of restitution). The court departed
upward four levels under United States Sentencing Guidelines
Manual § 5K2.0(a)(3), finding that the Guidelines did
not adequately take into consideration the number of victims.
Alternatively, the district court stated that if a four-level
U.S.S.G. § 5K2 upward departure was not legally
appropriate, it would have exercised its discretion to vary
upwards under the factors set forth in 18 U.S.C. §
3553(a). As noted in the government's brief, the district
court made an additional downward adjustment "for
reasons unrelated to this appeal" and Rodriguez's
resulting sentence was 79 months in prison.
Marcov's sentencing, a Dubuque, Iowa, police officer who
had investigated the criminal venture testified regarding
Marcov's role in the overall scheme. He testified that
Marcov was recruited by Rodriguez to be a runner; that Marcov
began recruiting other individuals to work with him picking
up wire transfers for Rodriguez; and stated that eventually
Marcov became a crew leader. With regard to the amount of
loss attributable to Marcov, the officer testified that he
interviewed several runners working for both Marcov and
Rodriguez, and testified about the financial documents he
examined that were attributable to either Marcov or the
runners working for Marcov during the time frame when Marcov
was involved in the crimes. Based upon this testimony and
extensive documentation, the district court found that the
loss attributable to Marcov was roughly $298, 000, which
equaled the total amount of loss from the wire fraud portion
of the conspiracy. The district court also correctly found
that Marcov was a manager or supervisor in the scheme. As
with Rodriguez's sentencing, the district court departed
upward in Marcov's case based upon the number of victims
not adequately taken into account by the Guidelines. The
court set restitution for Marcov at $298, 314.42, to be
shared jointly and severally with Rodriguez. The district
court's final sentence was 120 months, the bottom of the
120-150 month Guidelines range.
appeal, Rodriguez first challenges the district court's
upward departure based upon the number of victims. But, as
previously noted, the district court stated alternatively
that it would vary upwards to the sentence it arrived at
under its discretion authorized by 18 U.S.C. § 3553(a).
Thus, it is unnecessary to review the Guidelines challenge if
the upward variance "is sufficient to justify the
sentence imposed." United States v. Hentges,
817 F.3d 1067, 1068 (8th Cir. 2016). We give "due
deference to the district court's decision that the
§ 3553(a) factors, on a whole, justify the extent of the
variance." United States v. Espinoza, 831 F.3d
1096, 1098 (8th Cir. 2016) (quoting United States v.
Moralez, 808 F.3d 362, 368 (8th Cir. 2015)). We find the
district court did not abuse its discretion in sentencing
Rodriguez to 79 months in prison.
and Marcov both challenge the amount of restitution ordered.
The Mandatory Victims Restitution Act (MVRA) states that a
district court must order restitution in a case, such as
this, prosecuted under Title 18 of the United States Code if
the offense involved fraud or deceit. 18 U.S.C. §
3663A(c)(1)(A)(ii). The government must prove the amount of
restitution by a preponderance of the evidence and we review
the resulting restitution order for an abuse of discretion.
United States v. Hoskins, 876 F.3d 942, 945 (8th
Cir. 2017), cert. denied, 138 S.Ct. 2589 (2018).
When multiple defendants are involved in the loss, the
district court has discretion to order restitution for the
full amount of loss, to be shared jointly and severally by
defendants. 18 U.S.C. § 3664(h). Restitution includes
amounts that were reasonably foreseeable as losses to the
victims. United States v. Alexander, 679 F.3d 721,
731 (8th Cir. 2012).
argues that because there were periods of time when he was
not active in the criminal enterprise, he should not be
jointly liable for the full $774, 584.97 amount of
restitution. Specifically, Rodriguez argues he was inactive
from February to April 2016, that the amount lost during that
time was not reasonably foreseeable to him, and the
restitution order should be reduced accordingly. The district
court found that Rodriguez should be held responsible for the
entire amount of the loss, even the amount that accrued
during his alleged "inactive" time, because during
that time, Marcov and his crew were active and Marcov was
recruited by Rodriguez. Accordingly, the district court did
not err in finding that this loss, caused by a crew leader
(Marcov) who had been recruited by Rodriguez, was reasonably
foreseeable to Rodriguez because he knew the crew was active
during the time frame he challenges. Id. Thus, the
government met its burden of proving that the correct amount
of restitution was awarded, and the district court did not
abuse its discretion in electing to make the entire amount
jointly and severally attributable to Rodriguez.
challenge to the restitution awarded is equally unavailing.
As we understand Marcov's argument, he argues that he did
not cause the entire loss attributed to him, and because he
did not personally gain much from the scheme, the amount
should be much less. Since he gained so little, Marcov
argues, it was not reasonably foreseeable to him that the
loss to victims would be nearly $300, 000. Like Rodriguez,
Marcov does not challenge that $298, 314.42 was lost, he
simply argues this total amount is not
"attributable" to him, and instead the amount of
restitution should be less than $6, 500. At sentencing, the
officer's testimony indicated that Marcov was intimately
involved in each transaction ...