                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-15-2007

USA v. Anderson
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-3744




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                                                               NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                                __________

                                    No. 05-3744
                                    __________

                         UNITED STATES OF AMERICA

                                         v.

                              DELROY ANDERSON,

                                                  Appellant
                                    __________

                   On Appeal from the United States District Court
                            for the District of New Jersey
                          (D.C. Criminal No. 00-cr-00683)
                    District Judge: Honorable William H. Walls
                                     __________

                     Submitted Under Third Circuit LAR 34.1(a)
                                on January 9, 2007

                Before: SLOVITER and RENDELL, Circuit Judges,
                           and RUFE,* District Judge.

                              (Filed February 15, 2007)
                                     __________

                            OPINION OF THE COURT
                                  __________


__________________

   * Honorable Cynthia M. Rufe, Judge of the United States District Court for the
     Eastern District of Pennsylvania, sitting by designation.
RENDELL, Circuit Judge.

       Delroy Anderson appeals from a sentence entered against him, following a guilty

plea, for his role in obtaining fraudulent mortgage loans. Anderson claims that the

District Court failed to adequately consider the factors enumerated under 18 U.S.C.

§ 3553(a) and erred in calculating the loss for which Anderson is responsible. We will

affirm the order of the District Court.

                                              I.

       On May 17, 2001 Anderson pleaded guilty to charges of conspiracy to commit

wire fraud and wire fraud, under 18 U.S.C. §§ 371 & 1343. Anderson’s plea stemmed

from a scheme employed between approximately January and December of 1995, in

which Anderson and several co-conspirators fabricated credit documents and property

appraisals to obtain, and quickly default on, mortgage loans far in excess of the

underlying properties’ true value. In total, Anderson and his accomplices secured nearly

60 mortgages totaling nearly $9,000,000 from the sole lender they targeted, Parkway

Mortgage, Inc. (“Parkway”). Out of these proceeds, Anderson himself received

approximately $900,000.

       Though his sentencing hearing was scheduled for October 15, 2002, Anderson fled

the jurisdiction in violation of the conditions of his pretrial release and evaded law

enforcement officials until his capture on April 27, 2004. At Anderson’s July 2005

sentencing hearing, held over four years after his guilty plea, the District Court heard

evidence regarding Parkway’s suffered loss. After hearing testimony from the officer of

                                              2
the Federal Bureau of Investigations (“F.B.I.”) who was responsible for Anderson’s case,

and after reviewing the findings of the Presentence Investigation Report (“PSR”), the

District Court concluded that Anderson was responsible for a loss of $2,599,409, which,

under the Federal Sentencing Guidelines, triggered a 13-level enhancement above

Anderson’s base offense level of six.1 Additionally, the District Court found that

Anderson was subject to a two-level enhancement because his offense involved more than

minimal planning, another two-level enhancement because Anderson acted in a

supervisory role, and a third two-level enhancement for obstruction of justice. After these

enhancements, Anderson’s total offense level stood at 25 which, combined with a

Category I Criminal History, called for a sentencing range of between 57 and 71 months.

The District Court chose the upper boundary of this range, sentencing Anderson to

71 months – 11 months for wire fraud and, to run consecutively, an additional 60 months

for conspiracy.2




  1
   As the Government indicates in its brief, the District Court’s reference at sentencing to
the “1993 Sentencing Guidelines” was most likely a slip of the tongue. Anderson
committed his crime in 1995 and the PSR correctly employed the 1995 Guidelines in
calculating Anderson’s sentence. Therefore, it is clear that the 1995 edition of the
Guidelines Manual controls this case.
  2
   8 U.S.C. § 371 carries a statutory maximum of five years, while 8 U.S.C. § 1343
carries a statutory maximum of 20 years or, in the event that the fraud affects a financial
institution, 30 years. Therefore, the sentence crafted by the District Court was far below
the upper limit of its statutory authority.

                                             3
       Anderson now appeals this sentence, arguing first that the District Court failed to

adequately consider the factors listed under § 3553(a) in crafting his sentence and,

second, that the District Court erred in calculating the loss by failing to adequately value

the properties secured by the mortgages.3

                                             II.

       As for Anderson’s first argument, we note at the outset that the sentencing hearing

fell within the thirteen-month window between the Supreme Court’s decision in United

States v. Booker, 543 U.S. 220 (2005), and this Court’s en banc decision in United States

v. Cooper, 437 F.3d 324 (3d Cir. 2006), which outlined how, and the extent to which,

District Courts are to consider the factors listed under § 3553(a) in crafting criminal

sentences. In Cooper we said:

              The record must demonstrate the trial court gave meaningful
              consideration to the § 3553(a) factors. The court need not
              discuss every argument made by a litigant if an argument is
              clearly without merit. Nor must a court discuss and make
              findings as to each of the § 3553(a) facts if the record makes
              clear the court took the factors into account in sentencing.
              Nor will we require district judges to routinely state by rote
              that they have read the Booker decision or that they know the
              sentencing guidelines are now advisory.

              On the other hand, a rote statement of the § 3553(a) factors


  3
   In his reply brief, Anderson argues that the District Court also erred in adding to the
loss total those costs that Parkway incurred in foreclosing on the mortgaged properties.
However, “the courts of appeals will not consider arguments raised on appeal for the first
time in a reply brief.” Hoxworth v. Blinder, Robinson & Co., Inc., 903 F.2d 186, 204-05
n.29 (3d Cir. 1990). We see no “exceptional circumstances” in this case to justify
deviating from this rule. Id.

                                              4
              should not suffice if at sentencing either the defendant or the
              prosecution properly raises “a ground of recognized legal
              merit (provided it has a factual basis)” and the court fails to
              address it. As the Court of Appeals for the Seventh Circuit
              explained, “we have to satisfy ourselves, before we can
              conclude that the judge did not abuse his discretion, that he
              exercised his discretion, that is, that he considered the factors
              relevant to that exercise.”

Cooper, 437 F.3d at 329 (citations omitted).

       Anderson was sentenced before our decision in Cooper and, therefore, the District

Court had only the guidance set forth in Booker, where the Supreme Court stated that:

              Without the “mandatory” provision, the Act nonetheless
              requires judges to take account of the Guidelines together
              with other sentencing goals. The Act nonetheless requires
              judges to consider the Guidelines “sentencing range
              established for . . . the applicable category of offense
              committed by the applicable category of defendant,” the
              pertinent Sentencing Commission policy statements, the need
              to avoid unwarranted sentencing disparities, and the need to
              provide restitution to victims. And the Act nonetheless
              requires judges to impose sentences that reflect the
              seriousness of the offense, promote respect for the law,
              provide just punishment, afford adequate deterrence, protect
              the public, and effectively provide the defendant with needed
              educational or vocational training and medical care.

Booker, 543 U.S. at 259-60 (citing to § 3553(a) factors) (citations omitted).

       Under either standard, however, it is clear that the District Court more than

adequately took the § 3553(a) factors into account. First, the Court explicitly noted, on

more than one occasion, that it looked upon the Guidelines as non-binding, advisory, and

as a mere reference point in crafting Anderson’s sentence. Second, the District Court

listened to and considered defense counsel’s arguments regarding Anderson’s efforts at

                                               5
restitution, previous military service, and lack of criminal record. Indeed, Anderson’s

true argument seems to be not that the District Court failed to consider these arguments,

but that it failed to credit them. However, Booker and Cooper mandate only that District

Courts consider the factors listed under § 3553(a), not that they give them certain weight.

In this case, the District Court considered the factors set forth in § 3553(a) and found that,

despite the presence of certain mitigating facts, Anderson deserved a sentence of 71

months. This judgment reflects exactly the sort of reasoned exercise of sentencing

discretion that we will not disturb.

                                             III.

       Anderson’s second argument is that the District Court erred in calculating loss

because it “failed to adequately consider the fair market value of the properties secured by

the loans.”4 “A District Court’s finding of intended loss is one of fact, and will not be

disturbed unless clearly erroneous.” United States v. Himler, 355 F.3d 735, 740 (3d Cir.

2004). Anderson’s argument fails to meet this heavy burden.

       The District Court arrived at its $2,559,409 loss determination by adopting the



  4
    Anderson’s brief seems to suggest that the District Court erred by choosing to
calculate Parkway’s actual loss rather than Anderson’s intended loss. However, this
argument is meritless. “In general, the loss from fraud is the financial loss actually
suffered by the victim, or the loss that the criminal intended the victim to suffer if that is
greater.” United States v. Nathan, 188 F.3d 190, 209 (3d Cir. 1999). The District Court’s
$2,599,409 loss determination reflects the actual loss suffered by Parkway. If this figure
represents a loss greater than that which Anderson intended, the District Court relied upon
it appropriately. If this figure represents a loss less than that which Anderson intended, it
was to Anderson’s benefit.

                                              6
methodology and financial data outlined in the PSR, which was itself initially developed

by F.B.I. Special Agent Scott Marino in his investigation of Anderson’s case. At

sentencing, Marino testified to his methodology, which was to start with the principal of

each loan; subtract any amount Parkway was able to recover through foreclosure sales or

refinancing; subtract any origination fees earned by Parkway; add any costs associated

with foreclosure; and add any loss of bargained-for interest. By applying this

methodology to the underlying financial information provided by Parkway, Marino

determined that Anderson was responsible for a loss of $2,599,409.5

       In arguing that the District Court failed to adequately take into account the fair

market value of the properties on which Parkway foreclosed, Anderson does not really

attack the methodology used by the District Court, but rather the accuracy of the

underlying data and, in doing so, revives the flawed argument he raised at sentencing: that

the District Court should not have relied on the amounts Parkway recovered from

foreclosure sales because Parkway, in its haste to minimize its losses, sold the relevant

properties for less than market value. Anderson has not offered any evidence as to the

purported actual market value of the properties or otherwise offered proof that Parkway

sold even one of the properties for less than it otherwise could or should have. Finally, it

defies logic to suggest that Parkway would do anything less than its utmost to recoup its



  5
   We should note that the District Court, Special Agent Marino, and the PSR left out of
these calculations several loan transactions of which Anderson claimed to have no
knowledge.

                                              7
losses, especially when it had no other means of doing so.6

       We are therefore satisfied that the District Court did not commit clear error in

determining that Anderson was responsible for $2,599,409 in loss.

                                             IV.

       For these reasons, we will AFFIRM the Judgment and Commitment Order of the

District Court.

__________________




  6
  In addition to handing down a custodial sentence, the District Court also ordered
Anderson to pay $104,436 in restitution, a sum clearly falling far short of the total loss.

                                              8
