     10-2202-cr
     USA v. Gonzalez


 1                               UNITED STATES COURT OF APPEALS

 2                                     FOR THE SECOND CIRCUIT

 3                                                    ------

 4                                             August Term, 2010

 5   (Argued: April 11, 2011                                                      Decided: July 22, 2011)

 6                                           Docket No. 10-2202-cr

 7   _________________________________________________________

 8   UNITED STATES OF AMERICA,
 9                                                         Appellee,

10                                           - v. -
11   EFRAIN GONZALEZ, JR.,


12                                             Defendant-Appellant.
13   _________________________________________________________

14   Before: KEARSE, MINER, and CHIN, Circuit Judges.

15                  Appeal from a judgment of the United States District Court for the Southern District

16   of New York, William H. Pauley III, Judge, convicting defendant, following his plea of guilty, of mail

17   fraud, 18 U.S.C. § 1341, and conspiracy to commit mail fraud, federal-program fraud, and wire fraud,

18   18 U.S.C. § 371; sentencing him principally to 84 months' imprisonment; and ordering him to pay

19   $122,775 in restitution.

20                  Conviction and custodial sentence affirmed; restitution order vacated and remanded

21   for further proceedings as to amount.
1                   MICHAEL A. LEVY, Assistant United States Attorney, New York, New York
2                   (Preet Bharara, United States Attorney for the Southern District of New York,
3                   Pablo Quiñones, Assistant United States Attorney, New York, New York, on
4                   the brief), for Appellee.
5
6                   LANCE CROFFOOT-SUEDE, PATRICK C. ASHBY, New York, New York
7                   (Linklaters, New York, New York, on the brief), for Defendant-Appellant.



 8   KEARSE, Circuit Judge:

 9                  Defendant Efrain Gonzalez, Jr. ("Gonzalez"), a former Senator in the New York State

10   Legislature, appeals from a judgment entered in the United States District Court for the Southern

11   District of New York following his plea of guilty before William H. Pauley III, Judge, convicting him

12   on two counts of mail fraud, in violation of 18 U.S.C. § 1341 (Counts 6 and 8 of the superseding

13   indictment), one count of conspiracy to commit mail fraud and federal-program fraud, in violation of

14   18 U.S.C. § 371 (Count 2), and one count of conspiracy to commit mail fraud, federal-program fraud,

15   and wire fraud, in violation of 18 U.S.C. § 371 (Count 3). Gonzalez was sentenced principally to 84

16   months' imprisonment, to be followed by a two-year term of supervised release, and was ordered to

17   pay $122,775 in restitution. On appeal, he contends principally that the district court (1) abused its

18   discretion in denying his motion to withdraw his guilty plea, (2) erred in calculating the imprisonment

19   range recommended by the advisory Sentencing Guidelines ("Guidelines"), and (3) erred in ordering

20   restitution without proof that the persons characterized by the government as victims were directly

21   harmed by his offense conduct. For the reasons that follow, we vacate and remand with respect to the

22   amount of the restitution order; in all other respects, we affirm.




                                                        2
 1                                              I. BACKGROUND



 2                   The following description of the conduct underlying the present prosecution is drawn

 3   largely from the sentencing findings of the district court, adopting the facts described in the

 4   presentence report ("PSR"), to which there was no objection by Gonzalez, and from Gonzalez's

 5   statements under oath in pleading guilty to the above offenses.



 6   A. The Mail Fraud and Conspiracy Offenses

 7                   Gonzalez was a member of the New York State Senate from 1990 through 2008,

 8   representing a district in the Bronx. During all or part of that period, the New York State ("State")

 9   Legislature ("Legislature") annually allocated $200 million to certain groups or projects for the public

10   benefit ("public benefit funds"); of that annual total, elected members of the Senate were allowed to

11   designate the recipients of $85 million.

12                   Pathways for Youth, Inc. ("Pathways"), was a not-for-profit corporation founded with

13   the stated purpose of helping to improve the lives of young people. From October 1999 through

14   January 2005, Gonzalez caused the Legislature to provide more than $400,000 in public benefit funds

15   to Pathways. Pathways also received funding from a number of federal agencies, including the United

16   States Departments of Health and Human Services, Labor, Education, and Justice; between October

17   1999 and July 2004, the total amount of federal funding to Pathways exceeded $4 million.

18                   West Bronx Neighborhood Association, Inc. ("West Bronx" or "WBNA"), was a not-

19   for-profit corporation whose bylaws stated that it was organized to foster an interest in, inter alia, civic

20   and community affairs and welfare, and to promote, inter alia, social and civic responsibility in the


                                                          3
1    community. Gonzalez, having procured State funds for Pathways, caused Pathways to provide

2    funding to West Bronx between 1999 and 2004.

3                   The United Latin American Foundation, Inc. ("ULAF"), was a not-for-profit

4    corporation whose certificate of incorporation stated that it was organized to, inter alia, raise funds

5    for the benefit of residents of the Dominican Republic. Gonzalez caused Pathways to enter into

6    consulting agreements with ULAF on ways to strengthen the quality of life for residents of the Bronx

7    and northern Manhattan, with respect to, inter alia, housing and drug problems. ULAF too was a

8    recipient of funds from Pathways.



 9          1. Moneys From Pathways to West Bronx to Gonzalez

10                  West Bronx, despite the corporate purposes set out in its bylaws, did not engage in any

11   substantial amount of not-for-profit activity. Instead, WBNA funds were used to pay personal

12   expenses of Gonzalez. Gonzalez was an honorary member of WBNA's board; WBNA's office

13   adjoined Gonzalez's District Office in the Bronx; the two offices shared a common door; and

14   Gonzalez placed members of his Senate staff in key operating positions at WBNA.

15                  From October 1999 through January 2005, Gonzalez had the Legislature provide

16   Pathways with $423,000 in funding. From October 1999 through July 2004, Gonzalez caused

17   Pathways to make payments to WBNA totaling $462,500. From about March 1999 through about

18   May 2006, WBNA funds were used to pay more than $400,000 of Gonzalez's personal bills, funding,

19   inter alia, his membership in a vacation club in the Dominican Republic, his rental of a luxury

20   apartment in the Dominican Republic for his wife, his rental of a summer residence in Monroe, New

21   York, college tuition for his daughter, and his purchases of jewelry, apparel, and premium New York

22   Yankees baseball tickets.


                                                       4
 1           2. Moneys From Pathways to ULAF to Gonzalez

 2                   ULAF, having entered into consulting agreements with Pathways, proceeded to send

 3   Pathways reports describing work purportedly done by ULAF personnel on behalf of Pathways.

 4   Pathways in 2003 paid ULAF a total of $152,500 for the services described. In fact, ULAF had not

 5   performed any substantial work in connection with the contracts; it used funds it received from

 6   Pathways to pay personal expenses of Gonzalez and others.

 7                   Miguel Castanos, a former Gonzalez Senate staff employee and an indicted

 8   coconspirator in the present case, was installed as ULAF's president; ULAF's business address was

 9   Castanos's home address. Other coconspirators became signatories on ULAF's checking account and

10   made payments to Castanos, to creditors of Gonzalez, and to creditors of one of Gonzalez's

11   companies.



12           3. The Superseding Indictment and Proceedings Toward Trial

13                   Gonzalez was arrested in August 2006. A 10-count superseding indictment filed in

14   December 2006 named him in nine counts. He was charged with substantive counts of federal-

15   program fraud and mail fraud with regard to West Bronx (Counts 5 and 6) and substantive counts of

16   federal-program fraud, mail fraud, and wire fraud with regard to ULAF (Counts 7-9); Gonzalez and

17   various codefendants were charged with conspiracy to commit mail and federal-program fraud with

18   respect to West Bronx (Count 2) and conspiracy to commit mail, wire, and federal-program fraud with

19   respect to ULAF (Count 3). Gonzalez was also charged with defrauding New York citizens of his

20   honest services (Count 1), and money laundering conspiracy (Count 4). Each of the defendants

21   initially pleaded not guilty.




                                                     5
1                   Extensive discovery followed, and, principally for that reason, there were repeated

2    adjournments of the date for trial. Eventually, trial was scheduled for May 4, 2009. In mid-April

3    2009, Gonzalez's attorney, Murray Richman, asked the district court to, inter alia, postpone the start

 4   of trial for one week and to allow Gonzalez to change attorneys. At the ensuing conference with the

 5   court, Richman stated as follows:

 6                  I know it is late in the game and I hesitate even making this application, but I
 7                  believe that Mr. Gonzalez is entitled to a trial that he feels he is entitled to. I
 8                  have been involved in this case from the very beginning. There has been a
 9                  complete divergence of views on how to handle this case in terms of what the
10                  evidence shows, what it doesn't show, how to handle the case. . . .

11                          . . . . [A]fter his . . . non-election . . . communications seemed to break
12                  down.

13                          . . . . We have met two times in the last couple of months in order to
14                  try to prepare for this case in order to get ready, and we have a different view
15                  as to what this evidence is, what the case shows, what counsel can do.

16                           I am in no way impugning my client's integrity. I think it is just an
17                  honest breakdown in how a case can be handled. He is of the opinion that
18                  there is one course of conduct that can be taken and that establishes his non-
19                  guilt. And I am of the opinion that, frankly speaking, that it does not. So we
20                  are at a divergence. We can't communicate and we have not communicated
21                  and it is difficult to defend him personally under those circumstances.

22                          My concern is that I don't want to throw the weight on him. It is easy
23                  to do that and it would not be fair, but we are just not getting this thing done.

24                          I recognize, your Honor, this case is an old case and, at this stage, it
25                  should have been tried months ago, years ago or whatever. But I am at that
26                  position where, if I go forward, I believe that I am involved in an ethical
27                  problem.

28   (Conference Transcript, April 24, 2009 ("Apr. 24, 2009 Conf. Tr."), at 2-4.)

29                  The court rejected the suggestion that the disagreements Richman described between

30   himself and Gonzalez constituted a sufficient basis for a change of attorneys so shortly before trial.

31   (See id. at 5 ("Mr. Richman, you are a highly experienced and well qualified lawyer. I am sure that


                                                        6
1    there are any number of clients with whom you have had a disagreement over the years about how

2    to approach a case.").) Noting that the May 4, 2009 trial date had been set on October 15, 2008, "after

3    many, many extended adjournments," the court said, "You cannot wait until the eve of trial to report

4    to the Court that you are having a difficulty with your client, especially when you know exactly what

5    the landscape of this case is." (Id.) The court stated:

6                    We are going to go to trial, and I am not going to relieve you as counsel in the
7                    case.

8                           ....

 9                           If Mr. Gonzalez wants a trial, he will have one. I will endeavor to make
10                   sure that it is as fair a trial as possible, but I am not going to relieve you as
11                   counsel in this case because we are going to trial, and there is absolutely
12                   nothing to indicate that any other lawyer is going to do anything differently
13                   than what you have done up to this point in time.

14   (Id.)

15                   The court also addressed Gonzalez directly:

16                          Mr. Gonzalez, are you able to work with your lawyer?

17                          DEFENDANT GONZALEZ: At this time, no, your Honor.

18                          THE COURT: Well, when did that happen?

19                          DEFENDANT GONZALEZ: It happened a couple of months.

20                           THE COURT: Well, I will tell you what. You better start visiting his
21                   office and getting ready for trial because this appears to be nothing more than
22                   an effort to once again delay this trial for months. I can't be any clearer. Do
23                   you understand?

24                          Mr. Gonzalez, the reporter cannot take the nod of a head.

25                          DEFENDANT GONZALEZ: Yes, I understand, your Honor.

26   (Id. at 5-6.)




                                                        7
 1                  Richman had also asked the court to move the start of trial from May 4 to May 11.

 2   Richman and the government concurred that the trial would be shorter than had originally been

 3   anticipated because there would be two fewer defendants (see id. at 7-8)--a reference to the fact that

 4   less than a month earlier two of Gonzalez's codefendants, Castanos and the executive director of

 5   Pathways, had entered guilty pleas. The court granted the adjournment request; and, after discussing

 6   its planned daily schedule for trial, the court asked Gonzalez whether he would work with Richman;

 7   Gonzalez answered, "Yes, your Honor" (id. at 10).



 8   B. Gonzalez's Plea of Guilty

 9                  On May 7, 2009, the government sent Gonzalez an advisory letter in accordance with

10   the suggestion in United States v. Pimentel, 932 F.2d 1029, 1034 (2d Cir. 1991) ("Pimentel letter"),

11   stating the government's view of the likely advisory Guidelines sentencing range for Gonzalez on

12   Counts 2, 3, 6, and 8 of the superseding indictment if Gonzalez were to plead guilty to, and give an

13   appropriate allocution on, those counts. The letter stated that, on the basis of the information then

14   available to the government, the Guidelines-recommended range of imprisonment would be 87-108

15   months.

16                  On May 8, Gonzalez, "pursuant to [the] Pimentel letter" (Plea Hearing Transcript, May

17   8, 2009 ("May 2009 Plea Tr."), at 2), moved to withdraw his plea of not guilty and to plead guilty to

18   Counts 2, 3, 6, and 8. Under oath, Gonzalez stated his desire to plead guilty and stated that he was

19   satisfied with Richman's representation of him:

20                          THE COURT: Now, Mr. Gonzalez, your attorney has informed me
21                  that you wish to enter a plea of guilty. Do you wish to enter a plea of guilty?

22                          THE DEFENDANT: Yes, your Honor.

23                          THE COURT: Have you had a full opportunity to discuss your case

                                                       8
 1                  with your attorney and to discuss the consequences of entering a plea of
 2                  guilty?

 3                          THE DEFENDANT: Yes, your Honor.

 4                          THE COURT: Are you satisfied with your attorney, Mr. Richman, and
 5                  his representation of you in connection with this matter?

 6                          THE DEFENDANT: Yes, your Honor.

 7   (May 2009 Plea Tr. 5-6.)

 8                  The court found: "On the basis of Mr. Gonzalez's responses to my questions and my

 9   observations of his demeanor here in my courtroom this afternoon, . . . he's fully competent to enter

10   an informed plea at this time." (Id. at 6.) The court then told Gonzalez that it would describe the

11   constitutional and other rights he would give up by pleading guilty and that the court would ask him

12   questions that were designed to satisfy the court "that you wish to plead guilty because you are guilty

13   and that you fully understand the consequences of your plea"; Gonzalez said he understood. (Id.

14   at 6-7.) After hearing the explanations of those rights, the elements of counts 2, 3, 6, and 8, the

15   maximum possible penalty for each of those counts, and the fact that the sentence to be imposed on

16   him could not yet be determined, Gonzalez said he understood. (See id. at 7-15.) Gonzalez also

17   stated that he understood that he was free to stand trial and not plead guilty:

18                          THE COURT: If there were a trial, you would have the right to testify
19                  if you wanted to, but no one could force you to testify if you did not want to.

20                          Further, no inference or suggestion of guilt could be drawn if you chose
21                  not to testify at a trial. Do you understand that, sir?

22                          THE DEFENDANT: Yes, your Honor.

23                         THE COURT: Do you understand that by entering a plea of guilty
24                  today, you're giving up each and every one of the rights that I've described,
25                  that you're waiving those rights, and that you'll have no trial?

26                          THE DEFENDANT: Yes, your Honor.


                                                       9
 1                             THE COURT: Do you understand, sir, that you can change your mind
 2                     right now and refuse to enter a plea of guilty?

 3                            THE DEFENDANT: Yes, your Honor.

 4                             THE COURT: You do not have to enter this plea if you do not want
 5                     to for any reason. Do you understand this fully, Mr. Gonzalez?

 6                            THE DEFENDANT: Yes, your Honor.

 7   (Id. at 8-9.)

 8                           THE COURT: Now, has anyone, Mr. Gonzalez, offered you any
 9                     inducements or threatened you or forced you to plead guilty?

10                            THE DEFENDANT: No, your Honor.

11                             THE COURT: Are you pleading guilty voluntarily and of your own
12                     free will?

13                            THE DEFENDANT: Yes, your Honor.

14   (Id. at 15-16.)

15                     After both Richman and the government expressed the view that there was an adequate

16   factual basis to support Gonzalez's proposed plea of guilty, the court asked Gonzalez to state what he

17   had done in connection with the crimes to which he sought to plead guilty. Gonzalez responded as

18   follows:

19                     From in or about March 1999 through in or about May 2006, I and others were
20                     involved in an operation where we conspired to pay my personal expenses
21                     using funds of the West Bronx Neighborhood Association. I caused one of my
22                     coconspirators to mail West Bronx checks to credit card companies, vendors
23                     to pay my personal expenses.

24                             From in or about 2002 through in or about September 2004, I and
25                     others were involved in an operation where we conspired to pay my personal
26                     expenses using funds of the United Latin American Foundation, Incorporated.
27                     I caused one of my coconspirators to mail United Latin American Foundation,
28                     Incorporated check[s] to credit card companies and vendors to pay my
29                     personal expenses.

30   (Id. at 17.) Gonzalez stated that those entities had paid "200,000 or more" towards his personal

                                                       10
 1   expenses (id.), in that he had caused West Bronx to pay "[a]bout 125,000, 126,000, that I recall" and

 2   had caused ULAF to pay $40,000 to $75,000 (id. at 17-18). Gonzalez said that when he caused a

 3   coconspirator to send such checks, he had understood that the mails would be used (see id. at 20-21)

 4   and had known that his actions were "wrong and illegal" (id. at 18).

 5                   The Assistant United States Attorney ("AUSA"), at the court's request, summarized

 6   the evidence that the government would present if Gonzalez were to proceed to trial. The AUSA

 7   stated that the government would prove, through exhibits and "the testimony of several cooperating

 8   witnesses," that Gonzalez had "created [WBNA] as a not-for-profit entity"; that "West Bronx raised

 9   funds from numerous individuals and entities by, among other things, holding annual fund raising

10   gallas [sic] to support West Bronx's supposed community operations"; that West Bronx received

11   approximately $462,000 from Pathways--tens of thousands of dollars at a time--in payment of

12   invoices submitted by West Bronx to Pathways, "often at the Senator's express direction, that said

13   simply, quote, for consultant services rendered, and stated an amount," but that "[i]n fact West Bronx

14   did not provide . . . services"; and that "West Bronx primarily functioned to pay the personal expenses

15   of Senator Gonzalez and at least one of his coconspirators," paying some "$440,000 towards the

16   balances of" Gonzalez's personal credit cards and paying "more than $100,000 directly to numerous

17   vendors to support a variety of aspects of Senator Gonzalez's personal life." (Id. at 18-20.) The

18   government indicated that its proof with respect to Gonzalez's use of ULAF would be similar,

19   showing that Gonzalez caused Pathways to "pay[] ULAF approximately $150,000 for work that

20   ULAF largely did not perform," and that "Gonzalez and his coconspirators spent ULAF's money for

21   their personal benefit . . . ." (Id. at 20.)

22                   The court accepted Gonzalez's formal pleas of guilty to counts 2, 3, 6, and 8:

23                   Mr. Gonzalez, because you acknowledge that you're guilty as charged in
24                   counts two, three, six, and eight of the indictment, and because I find you

                                                       11
 1                     know your rights and are waiving them knowingly and voluntarily, and
 2                     because I find your plea is entered knowingly and voluntarily, and is supported
 3                     by an independent basis in fact containing each of the essential elements of the
 4                     offenses, I accept your guilty plea and adjudge you guilty of each of the
 5                     offenses to which you have just pleaded.

 6   (Id. at 22-23.)

 7                     The court initially scheduled sentencing for August 7, 2009, but adjourned it to mid-

 8   October at Gonzalez's request. A supplementary plea hearing was held on September 24, 2009, in

 9   order to conduct a further allocution because the court had "failed to question [Gonzalez] about the

10   forfeiture allegations in the indictment." (Plea Hearing Transcript, September 24, 2009 ("Sept. 2009

11   Plea Tr."), at 2.) The court placed Gonzalez under oath and asked him, inter alia, whether he recalled

12   pleading guilty in May; he said he did. The court asked whether Gonzalez remembered the court's

13   discussion of the possible penalties for his offenses; Gonzalez said he did. The court asked whether

14   Gonzalez now understood that, if he were convicted, the court could order him to forfeit assets;

15   Gonzalez said he understood. The court then asked, "Knowing now as you do that a forfeiture could

16   be imposed by this Court do you, nevertheless, reaffirm to this Court your plea of guilty to each of

17   the four counts that you pled guilty to back on May 8, 2009?" Gonzalez responded, "Yes, your

18   Honor." (Sept. 2009 Plea Tr. 4-5).

19                     Sentencing was rescheduled for November 13, 2009. In the meantime, the court

20   received an October 14, 2009 letter from Gonzalez's son Carlos, who claimed to have found among

21   the materials produced by the government a document that would clearly exonerate his father. Carlos

22   Gonzalez also complained that Richman's representation of Gonzalez had been deficient. Richman

23   took issue with Carlos Gonzalez's letter, stating that he had spent many hours speaking with Gonzalez,

24   preparing for trial, and preparing for sentencing, but that he had reviewed the letter with Gonzalez and

25   that Gonzalez apparently shared many of his son's negative views about Richman's representation.


                                                         12
 1   Richman requested a hearing, in light of the seemingly irreparable rift in the attorney-client

 2   relationship. At the requested hearing, held on November 9, Richman stated that the relationship

 3   between himself and Gonzalez appeared to be completely out of control, and he urged that a new

 4   attorney be appointed for Gonzalez. (See Hearing Transcript, November 9, 2009 ("Nov. 9, 2009 Tr."),

 5   at 2-4.)

 6                  Gonzalez himself stated that the problem was simply that he and Richman did not

 7   agree on "the numbers." (Id. at 4.) The court pointed out that, Gonzalez having already pleaded

 8   guilty, the disagreement could only be on a question with regard to sentencing, and it asked for a

 9   further explanation. Gonzalez responded:

10                  Your Honor, I made some new--some mistakes, clerical mistakes. And I
11                  humbly take responsibility for that. But, however, there is a numerical
12                  problem with those particular, in terms--mistakes. An analysis on those
13                  numbers has to be made and put forth and be argued.

14   (Id. at 5.) The government stated that it appeared that Gonzalez wished to challenge Guidelines loss

15   amounts for purposes of sentencing and that if he felt he was not being ably represented, the

16   government had no objection to his receiving a new attorney. (Id. at 6.)

17                  The district court agreed to appoint a new attorney for Gonzalez, and it scheduled the

18   next conference for November 20. The court also warned that if, at a Fatico hearing on the sentencing

19   issue, Gonzalez testified in a way that undercut his sworn statements in his plea allocution, he risked

20   losing Guidelines credit for acceptance of responsibility. (See id. at 7-9.)

21                   At the November 20 conference, Gonzalez's new attorney stated that he needed a

22   month or so to review the discovery materials relating to "the amount of moneys that allegedly were

23   diverted for Mr. Gonzalez's benefit." (Hearing Transcript, November 20, 2009 ("Nov. 20 Tr."),

24   at 3-4.) Counsel also solicited advice

25                  as to how the Court would want to approach the situation where Mr. Gonzalez

                                                       13
1                    needed to proceed in a manner in which we would advocate to the Court that
2                    the amount of moneys that he allocuted to having misused when he pled guilty
3                    was incorrect.

 4                           ....

 5                          . . . . I'm letting the Court know that I think there is a high probability
 6                   that Mr. Gonzalez's allocution regarding having misused approximately
 7                   $200,000 will be the subject of an evidentiary hearing. The premise of that is
 8                   that Mr. Gonzalez was incorrect when he spoke and allocuted and pled guilty.

 9   (Id. at 4-5.) Counsel declined to say that he was considering making an application to withdraw

10   Gonzalez's plea. (See id. at 5.)



11   C. Gonzalez's Motion To Withdraw His Guilty Plea

12                   At the next court conference, held on January 15, 2010, Gonzalez's attorney stated:

13                             I have been instructed by my client after much discussion that he would
14                   like . . . to move this court to withdraw his guilty plea. . . .

15   (Hearing Transcript, January 15, 2010 ("Jan. 2010 Tr."), at 2.)

16                   In response to the court's inquiry as to the basis for the planned motion, Gonzalez's

17   attorney stated that

18                   one of the arguments in the motion will be that given the fact that about six
19                   weeks before his guilty plea, Mr. Gonzalez not only requested a new lawyer,
20                   but his own lawyer at the time told the court that he had an ethical problem
21                   with proceeding to trial, that upon the court's instruction, that Mr. Gonzalez
22                   would remain the client of Mr. Richman.

23                           Over the ensuing four to six weeks, Mr. Gonzalez was not actually in
24                   a position to receive adequate counsel regarding whether or not to plead or to
25                   proceed to trial. As such, under the analysis, we would submit that his guilty
26                   plea was, in fact, not voluntary.

27                          In addition to that, your Honor, we would argue that there was no
28                   prejudice to the government if the guilty plea is withdrawn and this case were
29                   to proceed to trial.

30   (Id. at 2-3.) The district court stated that it found it

                                                         14
1                   rather stunning for Mr. Gonzalez to take this position. I thoroughly questioned
2                   him during his allocution, and he could not have been more knowing and
3                   voluntary and he acknowledged that he had discussed the matter at length with
4                   his lawyer.

5                           So if he is going to be telling me as part of his motion that he was not
6                   being truthful with the court at the time that he was sworn to be truthful with
7                   the court, I'll be considering that in connection with the case, too, but it is his
8                   decision.

 9   (Id. at 3.)

10                  In February 2010, Gonzalez submitted a written motion and affidavit in support of his

11   request. His affidavit stated that Richman had been a longtime friend who was representing him for

12   free, and it continued in relevant part as follows:

13                         2. From the beginning, I insisted upon taking my case to trial.
14                  However, it quickly became evident to me that Mr. Richman did not wish to
15                  proceed to trial.

16                          3. Because it was clear to me that Mr. Richman and I disagreed on
17                  how my case should proceed, I sensed that he was not adequately preparing for
18                  trial during 2007 and 2008. I believe this negatively impacted how Mr.
19                  Richman conducted discovery and examined evidence. Furthermore, although
20                  Mr. Richman interviewed four minor witnesses in preparation for trial in this
21                  matter, I do not think he adequately pursued key defense witnesses, including
22                  those whom I specifically identified.

23                           4. From the fall of 2008 through the spring of 2009, Mr. Richman and
24                  I did not communicate effectively and rarely discussed my case, despite the
25                  fact that, on October 14 [sic], 2008, a definite trial date was set for May 4,
26                  2009. Rather than improving as the trial date approached, I sensed that my
27                  relationship with Mr. Richman was becoming increasingly contentious and
28                  strained. I did not have confidence in Mr. Richman's preparedness, did not
29                  believe he was able or willing to address key issues for my defense, or trust
30                  that we could agree on a trial strategy if he even would take my case to trial.
31                  However, since Mr. Richman was a close personal friend, was conducting his
32                  representation for free, and because I could not afford a different attorney, I
33                  felt powerless to demand that Mr. Richman devote more time and resources to
34                  my defense. Although I never wavered in my desire to prove my legal
35                  innocence, it was obvious to me that Mr. Richman seemed wholly uninterested
36                  in trial preparation, wanted me to plead guilty, and was pressuring me to
37                  produce this outcome. As a result, I began to feel that I needed new counsel
38                  around January 2009.

                                                        15
 1          5. On April 13, 2009, Mr. Richman filed an ex parte letter to the Court
 2   requesting to withdraw from the case.

 3           6. At the April 24, 2009 conference in which the Court heard Mr.
 4   Richman's motion to withdraw, I informed the Court that I could not work with
 5   Mr. Richman. Mr. Richman informed the Court that he would face an ethical
 6   problem if he represented me at trial. The government suggested that the
 7   Court inquire further into whether a new lawyer would be able to represent me
 8   in the manner that I was requesting. However, the Court instructed me to
 9   listen to Mr. Richman and to take his advice. The Court then denied Mr.
10   Richman's request to withdraw. Once the Court instructed me to retain Mr.
11   Richman as my counsel, even after Mr. Richman said that he had an ethical
12   problem representing me at trial, I did not believe that there was any way that
13   I could obtain new counsel to represent me.

14            7. After the Court denied Mr. Richman's motion to withdraw, I was,
15   in fact, forced to maintain Mr. Richman as my counsel and to heed his advice.

16           8. On May 7, 2009, I had a meeting at Mr. Richman's office to discuss
17   case issues. When I left that meeting, I still wanted to proceed to trial and had
18   not decided to plead guilty.

19           9. Before and up to the May 8, 2009 hearing, I did not wish to plead
20   guilty. Upon arriving at the courthouse on May 8, Mr. Richman and I
21   convened in the cafeteria to discuss my case, and I still did not want to plead
22   guilty. But, Mr. Richman continued to exert tremendous pressure upon me to
23   change my plea. Understanding that Mr. Richman did not want to go to trial,
24   and with the Court refusing to allow me alternative counsel, it began to appear
25   that pleading guilty was my only option. I succumbed to these pressures and
26   decided to plead guilty moments before the hearing began. Given the last-
27   minute nature of my plea, I did not have sufficient time to prepare. The
28   majority of my allocution was read from a script. I did not fully understand the
29   import of my words. When questioned by the Court, I felt pressured to keep
30   repeating "yes," and answered questions based upon what the government said
31   I had done. I thought I was supposed to respond in this manner.

32           10. Having never desired to plead guilty, I regretted and wished to
33   retract my plea almost immediately. So I informed Mr. Richman that I had
34   made a mistake and imparted the same sentiment to my family and friends.
35   However, because I felt that Mr. Richman's presence as counsel had forced me
36   into pleading guilty and that the breakdown in our communication was
37   irreparable, I did not know what I could do for as long as Mr. Richman
38   continued to serve as my lawyer.

39         11. For those reasons, I affirmed my guilty plea at the September 24,
40   2009 hearing with Mr. Richman still as my counsel. When I did so, I was

                                        16
 1                  under the same pressure to plead guilty as I was before and during the May 8,
 2                  2009 hearing.

 3                         12. Over time I became increasingly frustrated and was unsure how to
 4                  get information before this Court about my situation. I approached my
 5                  probation officer, but she offered little advice beyond the suggestion that I talk
 6                  to my lawyer, which was not a tenable solution under the circumstances.

 7                          13. Eventually, my son Carlos submitted his letter, dated October 14,
 8                  2009, to the Court, which detailed my troubles and once again stressed my
 9                  desire for new counsel. This letter led to the November 9, 2009 conference at
10                  which I was granted alternative counsel. Now that Mr. Richman no longer
11                  represents me, I finally see withdrawing my guilty plea as a viable possibility,
12                  one that will allow me to prove my legal innocence.

13   (Affidavit of Efrain Gonzalez, Jr., dated February 4, 2010 ("Gonzalez Aff."), ¶¶ 2-13.) Thus,

14   Gonzalez argued principally that his guilty plea was involuntary, the product of mental coercion.

15                  In a written submission and in oral argument, the government opposed the motion. It

16   argued principally (1) that in light of Gonzalez's sworn allocution at his plea hearing and his

17   reaffirmation of his plea of guilty some four months thereafter, his statements in his affidavit were

18   entirely unworthy of belief; and (2) that the motion did not come close to meeting the standards set

19   by the Second Circuit for the granting of such motions.

20                  In a Memorandum & Order dated April 8, 2010, reported at 2010 WL 1640186, the

21   district court denied Gonzalez's motion. The court painstakingly described the protracted pretrial

22   proceedings and the repeated need for adjournments of the trial date from November 26, 2007--the

23   date that had first been set on May 11, 2007--to April 28, 2008, then to October 6, 2008, then to May

24   4, 2009, and finally to May 11, 2009, two years after the initial trial date had been set. See 2010 WL

25   1640186, at *1-*2. The court also noted the request by Richman, just three weeks before the May 4,

26   2009 scheduled start of trial (in a case whose proceedings had spanned nearly three years), to allow

27   Gonzalez to change attorneys. The court noted that at the hearing on that motion Gonzalez had

28   "confirmed that he would work with Richman as trial approached." Id. at *2.

                                                       17
 1                  The court quoted the explicit statements by Gonzalez, made in support of his motion

 2   to change his not-guilty plea to a plea of guilty, describing the criminal conduct in which he had

 3   engaged, see 2010 WL 1640186, at *1. And it quoted the plea hearing colloquy in which Gonzalez,

 4   when asked whether anyone had offered him any inducements or threatened him or forced him to

 5   plead guilty, responded that no one had; when asked whether he had had a full opportunity to discuss

 6   the case with Richman and to discuss the consequences of pleading guilty, said he had; when asked

 7   whether he was satisfied with Richman and Richman's representation, said he was; and when asked

 8   whether he was pleading guilty voluntarily and of his own free will, said he was. See id. at *2. The

 9   court noted that at the plea hearing it had questioned and observed Gonzalez and had found that he

10   was "fully competent to enter an informed plea" and that Gonzalez had "entered his plea 'knowingly

11   and voluntarily.'" Id. (quoting May 8 Plea Tr. 6, 22).

12                  The court also noted that the voluntariness of Gonzalez's plea was consistent with his

13   statements both before and after his plea hearing. "Prior to pleading guilty, Gonzalez [had] executed

14   an 'Advice of Rights Form' in which he confirmed that his decision to plead guilty was 'freely and

15   voluntarily made' and that he was 'satisfied with how [his] attorney represented [him],'" and

16   "confirmed that he '[had] not been induced to plead guilty by any force, coercion, pressure or fear.'"

17   Id. (quoting Court Exhibit 1, see May 2009 Plea Tr. 3). And thereafter, "[o]n September 24, 2009,

18   at a conference to advise Gonzalez on the possibility of a forfeiture penalty as a result of his guilty

19   plea, he reaffirmed his guilt on all four counts of the Superseding Indictment to which he had pled

20   four months earlier." 2010 WL 1640186, at *3.

21                  Pointing out that a court is allowed, before sentencing, to permit a defendant to

22   withdraw his plea of guilty if he shows "a fair and just reason for requesting the withdrawal," Fed. R.

23   Crim. P. 11(d)(2)(B), and citing cases such as United States v. Rosen, 409 F.3d 535, 546 (2d Cir.


                                                       18
 1   2005) ("Rosen"); United States v. Hirsch, 239 F.3d 221, 225 (2d Cir. 2001) ("Hirsch"); United States

 2   v. Sweeney, 878 F.2d 68, 70 (2d Cir. 1989); United States v. Torres, 129 F.3d 710, 715 (2d Cir. 1997)

 3   ("Torres"); and United States v. [José] Gonzalez, 970 F.2d 1095, 1100 (2d Cir. 1992) ("[José]

 4   Gonzalez"), see, e.g., 2010 WL 1640186, at *4-*5, the court noted that society has a strong interest

 5   in the finality of guilty pleas and that such pleas carry a strong presumption of accuracy. Among the

 6   considerations pertinent to the decision on a motion to withdraw a plea of guilty are whether the

 7   defendant has asserted his legal innocence and has done so with reference to evidence to support that

 8   assertion, whether the motion has been timely or belated, and, if the defendant asserts that his plea

 9   was not voluntary, whether he has made a sufficient showing to raise a significant question as to

10   voluntariness, see 2010 WL 1640186, at *4; id. at *5 ("a defendant cannot rely on 'bald statements

11   that simply contradict what he said at his plea allocution'" (quoting Torres, 129 F.3d at 715)).

12                  The court concluded that Gonzalez had not met his burden of proof under that standard:

13   "Submitting only a personal affidavit and transcripts of prior hearings before this Court, Gonzalez'

14   application is bereft of any new facts that call into question his plea." 2010 WL 1640186, at *4.

15                           Gonzalez's application to withdraw his plea presents the paradigm of
16                  the defendant who attempts to undermine the integrity of the judicial process.
17                  See United States v. Woosley, 440 F.2d 1280, 1281 (8th Cir.1971) ("the plea
18                  of guilty is a solemn act not to be disregarded because of belated misgivings
19                  about the wisdom of the same"). The notion that the free will of a long-time
20                  New York State senator was overridden by the imminence of trial, coercion by
21                  his attorney, or pressure from this Court is preposterous. The protracted pre-
22                  trial proceedings afforded Gonzalez many opportunities to pursue the trial he
23                  now desires. Gonzalez's suggestion that he "succumbed to . . . pressures and
24                  decided to plead guilty moments before the hearing began" and that he "did not
25                  fully understand the import of [his] words" is contradicted by the record
26                  leading to his plea and all of his actions after the plea, including his
27                  reaffirmation of his guilt four months later and his assertion two weeks before
28                  sentencing that his dispute with Richman concerned the loss amount. Even
29                  after this Court appointed new counsel for Gonzalez on November 9 because
30                  of his differences with Richman over sentencing, Gonzalez raised no issue
31                  regarding his plea. Indeed, at a subsequent conference on November 20,
32                  Gonzalez's new attorney, in line with Gonzalez's objection to the loss amount,

                                                      19
 1                  noted that he needed time "to analyze the discovery in order to address the[se]
 2                  concerns." Although Gonzalez claims that . . . he has doubted the
 3                  voluntariness and wisdom [of] his plea since May 2009, he waited to raise
 4                  those concerns with his attorney.

 5                          The remainder of his self-serving affidavit is also insufficient to
 6                  establish a fair or just reason that permits withdrawal--rather than referencing
 7                  evidence that casts doubt on his plea, Gonzalez offers only a perfunctory
 8                  statement that withdrawal will "allow me to prove my legal innocence." A
 9                  reference to corroborating facts--as opposed to a "bald statement" of
10                  innocence--is essential if a court is to credit a defendant's present claims of
11                  innocence--sworn under oath--over his prior (and now contradicted)
12                  admissions of guilt under oath. See Torres, 129 F.3d at 715. Conclusory
13                  claims of innocence that leave a court guessing when a defendant is being
14                  truthful are inadequate to support withdrawal. See United States v. Hirsch,
15                  239 F.3d 221, 225 (2d Cir.2001); see also [United States v.] Hyde, 520 U.S.
16                  670, 677, 117 S.Ct. 1630, 137 L.Ed.2d 935 (1997) (noting that the withdrawal
17                  of a plea without sufficient cause "would degrade the otherwise serious act of
18                  pleading guilty into something akin to a move in a game of chess").

19                          The statements Gonzalez now proffers are contradicted by the facts.
20                  Gonzalez characterizes his plea as "last-minute" and claims he "did not have
21                  sufficient time to prepare . . . [and] . . . read from a script." Yet he fails to
22                  explain how his decision could have been "last minute" given that his attorney
23                  scheduled the plea the prior day and that Gonzalez read and signed the
24                  "Advice of Rights Form" prior to his allocution and stated under oath that no
25                  one had pressured him to plead guilty. Moreover, Gonzalez reaffirmed his
26                  guilt under oath in another proceeding almost five months later.

27   2010 WL 1640186, at *5-*6 (second "under oath" emphasized in original; other emphases added).

28                  The court also found that "[t]he seven[sic]-month delay in Gonzalez's request to

29   withdraw his plea also weighs heavily against him," id. at *6, contributing to the court's doubt as to

30   the veracity of Gonzalez's affidavit:

31                  The substantial delay undercuts the sincerity of Gonzalez's epiphany. Over the
32                  last three years, Gonzalez had many opportunities to go to trial, as he now
33                  claims he desires. His eleventh-hour decision to plead guilty came only when
34                  it was clear that the May 2009 trial date would not be adjourned. Gonzalez's
35                  effort to undermine his calculated decision to plea on the cusp of trial cannot
36                  succeed given the "strong interest" society has in the final resolution of a
37                  criminal case.

38   Id. (emphasis added). The court noted in addition that, although the government was not required to

                                                       20
1    show prejudice, given Gonzalez's failure to show sufficient grounds for plea withdrawal, the late

2    withdrawal would cause various types of unfairness to the government. See id. at *7. The court

3    concluded:

4                           After twice knowingly and voluntarily pleading guilty, the time has
5                    come for Gonzalez to face the consequences for his serious criminal conduct.

 6   Id.



 7   D. Sentencing

 8                   Gonzalez's sentencing took place on May 25, 2010. As discussed in greater detail in

 9   Part II.B. below, the district court, over Gonzalez's objection, calculated his Guidelines offense level

10   by, in part, applying a four-step enhancement on the ground that Gonzalez's offenses involved 50 or

11   more victims. The advisory-Guidelines-recommended range of imprisonment, as calculated by the

12   court, was 108 to 135 months. After considering the factors set out in 18 U.S.C. § 3553(a), the court

13   imposed a non-Guidelines sentence, sentencing Gonzalez principally to a total of 84 months'

14   imprisonment, to be followed by a two-year term of supervised release. The five counts to which

15   Gonzalez did not plead guilty were dismissed on motion of the government.



16                   A decision on restitution was postponed pending the district court's receipt of

17   appropriate information with respect to a claim by the City of New York for restitution in place of

18   Pathways, to which it had provided funding but which by then had ceased to exist. In an order dated

19   August 23, 2010, the court rejected the claim of the City but, over Gonzalez's objection, ordered

20   Gonzalez to pay $122,775 in restitution to contributors to WBNA. (See Part II.C. below.)

21                   This appeal followed.



                                                       21
 1                                             II. DISCUSSION



2                   On appeal, Gonzalez principally challenges the denial of his motion to withdraw his

3    guilty plea.   He also challenges the district court's calculations informing the Guidelines-

4    recommended range of imprisonment and the order requiring him to pay restitution. For the reasons

5    that follow, we find potential merit only in one aspect of his challenge to the order of restitution.



 6   A. The Denial of Gonzalez's Motion To Withdraw His Guilty Plea

 7                  Gonzalez contends that the denial of his motion to withdraw his plea of guilty

 8   constituted an abuse of discretion because the district court improperly "concern[ed] itself more with

 9   protecting the trial date than with protecting Mr. Gonzalez from incapable, unwilling, and unprepared

10   counsel" (Gonzalez brief on appeal at 33). He argues principally (1) that the court erred because it

11   "paid no more than perfunctory attention to Mr. Gonzalez's subjective state of mind, and dismissed

12   out of hand as 'preposterous' that a 'New York State senator was overridden' by any confluence of

13   events and circumstances" (id. at 31); (2) that it was "nonsensical" for the court to require him to make

14   a showing of legal innocence in support of his plea (id. at 45); (3) that he made a sufficient

15   demonstration of innocence by showing that his attorney was "incapable, unwilling, and unprepared"

16   to go to trial (e.g., id. at 44), and (4) that his withdrawal motion was timely because it was made

17   shortly after he obtained new counsel. These contentions are meritless.

18                  Rule 11 of the Federal Rules of Criminal Procedure provides that after a defendant has

19   pleaded guilty but before he has been sentenced, the court may allow him to withdraw his plea of

20   guilty "if . . . the defendant can show a fair and just reason for requesting the withdrawal." Fed. R.

21   Crim. P. 11(d)(2)(B); see generally Rosen, 409 F.3d at 545-46 (discussing Rule 11(d)(2)(B) and its


                                                        22
 1   antecedents, Fed. R. Crim. P. 32(d) (1983-1994) and 32(e) (1994-2002), and noting that "cases

 2   interpreting the former versions of Rule 32 are authority for the proper interpretation of the current

 3   Rule 11(d)(2)(B)"). The defendant has the burden of demonstrating valid grounds for withdrawal.

 4   See, e.g., Torres, 129 F.3d at 715 (discussing Rule 32(e)); Maher, 108 F.3d at 1529 (same);

 5   [José] Gonzalez, 970 F.2d at 1100 (discussing Rule 32(d)). The decision whether to allow the

 6   requested withdrawal is committed to the sound discretion of the district court, see, e.g., Rosen, 409

 7   F.3d at 546; "[a] defendant has no absolute right to withdraw his guilty plea," Torres, 129 F.3d at 715

 8   (internal quotation marks omitted).

 9                   "In general, to determine whether the defendant has shown a 'fair and just
10                   reason' to justify withdrawal, a district court considers, inter alia: (1) whether
11                   the defendant has asserted his or her legal innocence in the motion to withdraw
12                   the guilty plea; (2) the amount of time that has elapsed between the plea and
13                   the motion (the longer the elapsed time, the less likely withdrawal would be
14                   fair and just); and (3) whether the government would be prejudiced by a
15                   withdrawal of the plea."

16   Rosen, 409 F.3d at 546 (quoting United States v. Schmidt, 373 F.3d 100, 102-03 (2d Cir. 2004)

17   ("Schmidt") (discussing Rule 11(d)(2)(B))). There is no burden on the government to show that it

18   would be prejudiced by the withdrawal of the guilty plea unless the defendant has shown sufficient

19   grounds to justify withdrawal. See, e.g., Rosen, 409 F.3d at 546; Torres, 129 F.3d at 715; Maher, 108

20   F.3d at 1529; [José] Gonzalez, 970 F.2d at 1100.

21                   When the defendant has moved to withdraw his plea on the ground that it was not

22   entered voluntarily, "a fortiori the court must focus on voluntariness." Rosen, 409 F.3d at 548. "The

23   voluntariness of [a] plea can be determined only by considering all of the relevant circumstances

24   surrounding it." Brady v. United States, 397 U.S. 742, 749 (1970). Given that "[s]olemn declarations

25   in open court carry a strong presumption of verity," Blackledge v. Allison, 431 U.S. 63, 74 (1977),

26   and given "the strong societal interest in the finality of guilty pleas," Rosen, 409 F.3d at 546; see, e.g.,


                                                         23
 1   Blackledge, 431 U.S. at 71; Schmidt, 373 F.3d at 103; Maher, 108 F.3d at 1529, a "'defendant's bald

 2   statements that simply contradict what he said at his plea allocution are not sufficient grounds to

 3   withdraw [his] guilty plea,'" United States v. Hirsch, 239 F.3d 221, 225 (2d Cir. 2001) ("Hirsch")

 4   (discussing Rule 32(e)) (quoting Torres, 129 F.3d at 715).

 5                   Whatever the basis for the motion, "'[t]he standard for withdrawing a guilty plea is

 6   stringent,'" Rosen, 409 F.3d at 546 (quoting Schmidt, 373 F.3d at 103). And "[n]o hearing need be

 7   granted when the allegations on a motion to withdraw a guilty plea before sentencing merely

 8   contradict the record, are inherently incredible, or are simply conclusory." [José] Gonzalez, 970 F.2d

 9   at 1100.

10                   Determinations as to credibility and the resolution of conflicting evidence are primarily

11   entrusted to the judge who hears the evidence. See, e.g., United States v. Hughes, 325 F.2d 789, 792

12   (2d Cir. 1964). A court's decision on a motion for plea withdrawal is reviewable only for abuse of

13   discretion. See, e.g., Rosen, 409 F.3d at 546; Hirsch, 239 F.3d at 225; Torres, 129 F.3d at 715;

14   Maher, 108 F.3d at 1529. A district court abuses its discretion when its decision rests on an error of

15   law or a clearly erroneous factual finding, or when its decision, though not necessarily the product

16   of legal error or a clearly erroneous finding of fact, cannot be located within the range of permissible

17   decisions. See, e.g., United States v. Figueroa, 548 F.3d 222, 226 (2d Cir. 2008); Zervos v. Verizon

18   New York, Inc., 252 F.3d 163, 169 (2d Cir. 2001).

19                   We see no abuse of discretion here. First, it is clear that the district court made its

20   decision within the legal framework we have just discussed. The court expressly took account of each

21   of the factors that appropriately inform the balancing of, inter alia, the societal interest in the finality

22   of guilty pleas and the presumption that sworn statements made in open court are true, against

23   Gonzalez's proffered reasons for seeking to recant those statements and undo his plea.


                                                         24
 1                   Nor do we see any clearly erroneous finding of fact or any basis for concluding that

 2   the court's refusal to set aside Gonzalez's guilty plea was beyond the realm of permissible decisions.

 3   Gonzalez's assertion that the district court sacrificed his rights because it was in a hurry to get the case

 4   tried (see Gonzalez brief on appeal at 33 (asserting that the court "concern[ed] itself more with

 5   protecting the trial date than with protecting Mr. Gonzalez from incapable, unwilling, and unprepared

 6   counsel")) is belied by the record. It is indisputable that the court had granted adjournment after

 7   adjournment, leaving the final trial date only a few months short of the third anniversary of the case's

 8   inception. Any suggestion that the district court was attempting to pressure Gonzalez to plead guilty

 9   (e.g., Memorandum of Law in Support of Motion by Efrain Gonzalez, Jr. To Withdraw His Guilty

10   Plea ("Gonzalez Withdrawal Motion Memorandum") at 4 (referring to Gonzalez's perception of "the

11   Court's pressure that he plead guilty")) is not supported by any evidence and is entirely contradicted

12   by the record. For example, at the April 24, 2009 conference, the court said, inter alia, "we are going

13   to trial"; "[w]e are going to go to trial"; "[i]f Mr. Gonzalez wants a trial, he will have one." (Apr. 24,

14   2009 Conf. Tr. 5). At the next conference, held on April 30, the court reaffirmed, "We are going to

15   select a jury and try this case starting on May 11" (Conference Transcript, April 30, 2009 ("Apr. 30,

16   2009 Conf. Tr."), at 21), and discussed, inter alia, the number of peremptory challenges that Gonzalez

17   and his remaining codefendant would have at trial and the manner in which those peremptories would

18   be exercised (see id. at 21-22).

19                   Further, while Gonzalez argues that the district court erred "[b]y ignoring [his]

20   subjective state of mind" (Gonzalez brief on appeal at 31), that argument is meritless. The court was

21   not required to accept the belated assertions of mental state made in Gonzalez's affidavit; rather, the

22   court was required to fathom Gonzalez's subjective state of mind at the time he entered his plea of

23   guilty. And it was required to explore that matter in light of the representations made by Gonzalez


                                                         25
 1   himself under oath in open court at the time of the plea and in light of "all of the relevant

 2   circumstances surrounding it," Brady, 397 U.S. at 749. And the court clearly proceeded to consider

 3   those relevant circumstances.

 4                  Although Gonzalez asserted that he had pleaded guilty only because he was under

 5   pressure to do so (Gonzalez Aff. ¶ 9), the only pressure he pointed to was the then-imminence of trial

 6   and his lack of confidence that Richman was "prepared[], . . . able or willing to address key issues for

 7   my defense" and lack of "trust that we could agree on a trial strategy" (id. ¶ 4). Although Gonzalez's

 8   affidavit asserted that Richman had not interviewed witnesses suggested by Gonzalez, that assertion

 9   was entirely conclusory. The assertion that Richman was "incapable, unwilling, and unprepared" to

10   proceed to trial is a recurring theme in Gonzalez's brief on appeal. (E.g., Gonzalez brief on appeal

11   at 18, 24, 32-33 (with emphasis), 33, 36, 44.) But his assertions are not supported by the record. For

12   example, as to Richman's ability, we note that at the April 24, 2009 hearing the district court remarked

13   that Richman was a "highly experienced and well qualified lawyer" (Apr. 24, 2009 Conf. Tr. 5). As

14   to Richman's willingness and preparedness, we note that at that hearing, which took place two weeks

15   before the then-scheduled start of trial, Richman (because of a recent death in the family) asked for

16   an adjournment of just one week (see id. at 7-8). And although Gonzalez seeks to support his

17   assertion that Richman was unprepared by (a) pointing out that Richman asked the court at the April

18   30, 2009 conference to award him Criminal Justice Act ("CJA") fees for trial and indicated that he

19   had not expected the case to go to trial, (b) claiming that Richman "explained to the District Court that

20   he was caught unprepared," and (c) stating that the district court gave Richman an "adjournment of

21   the trial to May 11, 2009, providing Mr. Richman with less than two weeks to prepare for what was

22   estimated to be a three week trial" (Gonzalez brief on appeal at 16), these assertions mischaracterize

23   the record. While Richman did make a request for such CJA fees and indicated that he had not


                                                        26
1    expected the case to go to trial, he in no way indicated that he was not prepared for trial. The May

2    11 trial date had been set at the previous conference, and the record shows that before the April 30

 3   conference Richman had, inter alia, already submitted to the court his proposed questions for voir

 4   dire.

 5                  Further, although Gonzalez repeatedly argues that he was under unfair pressure

 6   because Richman had an "ethical" problem in representing him--making a virtual mantra of the single

 7   word "ethical" in Richman's statement to the court at the April 24 conference (Gonzalez brief on

 8   appeal at 24, 32, 33, 38, 44)--the transcript of Richman's remarks makes clear that the conflict

 9   between Gonzalez and Richman centered simply on Gonzalez's view that he was innocent and

10   Richman's view that he would be proven guilty, and that Richman would refuse to proceed in a

11   manner that was unethical. Richman said:

12                           I am in no way impugning my client's integrity. I think it is just an
13                  honest breakdown in how a case can be handled. He is of the opinion that
14                  there is one course of conduct that can be taken and that establishes his non-
15                  guilt. And I am of the opinion that, frankly speaking, that it does not. So we
16                  are at a divergence. We can't communicate and we have not communicated
17                  and it is difficult to defend him personally under those circumstances.

18                          My concern is that I don't want to throw the weight on him. It is easy
19                  to do that and it would not be fair, but we are just not getting this thing done.

20                          I recognize, your Honor, this case is an old case and, at this stage, it
21                  should have been tried months ago, years ago or whatever. But I am at that
22                  position where, if I go forward, I believe that I am involved in an ethical
23                  problem.

24   (Apr. 24, 2009 Conf. Tr. 3-4.)

25                  We see no abuse of discretion in the district court's conclusion that Richman's

26   description of that "divergence" of views provided neither a basis for an eleventh-hour change of

27   counsel or for the withdrawal of Gonzalez's subsequent plea of guilty. As noted in McKee v. Harris,

28   649 F.2d 927 (2d Cir. 1981), cited by the district court, see 2010 WL 1640186, at *6, "[a] lawyer has

                                                       27
 1   a duty to give the accused an honest appraisal of his case," McKee v. Harris, 649 F.2d at 932 (internal

 2   quotation marks omitted). The fact that counsel "provided a pessimistic forecast[ ]does not rise to the

 3   level of good cause for substitution of counsel." Id. "The starting point for effective representation

 4   is a realistic assessment of the prospects of success in light of the risks of failure. It is precisely this

 5   balancing process which leads many defense lawyers to advise their clients to enter plea negotiations."

 6   Id. "Counsel has a duty to be candid; he has no duty to be optimistic when the facts do not warrant

 7   optimism." Id. (internal quotation marks omitted).

 8                   Although when Gonzalez was first asked at the April 24 conference whether he was

 9   able to work with Richman he said, "At this time, no, your Honor," he indicated that that had been so

10   for only "a couple of months" (Apr. 24, 2009 Conf. Tr. 5-6). When the court asked later in that

11   conference whether Gonzalez would work with Richman, Gonzalez did not reiterate that he could not,

12   and he did not urge the court to grant him new counsel; he told the court he would work with

13   Richman. (See id. at 10.) And, as the district court found, Gonzalez's alleged "dispute with his

14   attorney, if true, in no way bears upon the explicit representations Gonzalez made to this Court when

15   it inquired if anyone had 'offered [Gonzalez] any inducements or threatened [him] or forced [him] to

16   plead guilty.'" 2010 WL 1640186, at *6 (quoting May 2009 Plea Tr. 15; see also id. at 16 (Gonzalez

17   was "pleading guilty voluntarily and of [his] own free will")).

18                   Factors considered by the court that were relevant to Gonzalez's decision to plead

19   guilty included the fact that on May 7, Gonzalez had received from the government a Pimentel letter

20   outlining the government's views as to what Gonzalez's advisory Guidelines range of imprisonment

21   would be if Gonzalez pleaded guilty to counts 2, 3, 6, and 8, thereby indicating that the government

22   would drop the honest-services and other counts against Gonzalez. The court also considered the fact

23   that two of Gonzalez's codefendants had pleaded guilty little more than a month before Gonzalez


                                                         28
 1   decided to plead guilty and had become available to testify for the government. We note that although

 2   the memorandum of law submitted in support of Gonzalez's withdrawal motion mentioned only two

 3   individuals, "Victor Morisete and Ulina Barinas," as "the government's cooperating witnesses"

 4   (Gonzalez Withdrawal Motion Memorandum at 11), the government at the plea hearing had referred

 5   to evidence it would present through "the testimony of several cooperating witnesses" (May 8 Plea

 6   Tr. 18 (emphasis added)), and the record shows that two of Gonzalez's codefendants--Castanos and

 7   Neil Berger, the executive director of Pathways--had then recently entered guilty pleas. The district

 8   court found, as it was entitled to do, that Gonzalez's assertions were not more "plausible [than the]

 9   explanations offered by the Government," i.e., that Gonzalez had pleaded guilty to obtain the

10   advantages offered by the Pimentel letter and to avoid having those two codefendants testify against

11   him. The fact that coparties have just pleaded guilty and have become available to testify against the

12   defendant does not constitute compulsion of the sort that would make the defendant's decision to plead

13   guilty involuntary. See, e.g., Brady, 397 U.S. at 749-55.

14                  Nor can we conclude that Gonzalez's other assertions carried his burden of showing

15   that there was justification for the withdrawal of his plea of guilty. Although Gonzalez asserted in

16   his affidavit that he wished to prove his "legal innocence" (Gonzalez Aff. ¶ 13) and that he had "never

17   wavered in [his] desire to prove [his] legal innocence" (id. ¶ 4), his affidavit--and he submitted

18   nothing else--did not refer to anything that would corroborate a claim of innocence. The district court

19   rejected Gonzalez's terse statements as "perfunctory" and made no error in finding them insufficient

20   and "[c]onclusory," 2010 WL 1640186, at *5.

21                  Although Gonzalez asserted that he "decided to plead guilty [only] moments before

22   the hearing began" (Gonzalez Aff. ¶ 9), the court was entitled to discredit that assertion given, inter

23   alia, that the scheduling of the hearing on Gonzalez's desire to plead guilty had occurred the day

24   before the hearing.

                                                       29
 1                   Although Gonzalez asserted in his affidavit, "I did not fully understand the import of

 2   my words" at the plea hearing (id.), the district court was entitled to reject that assertion as inherently

 3   incredible. The principal statements by Gonzalez under oath in his own words were that during

 4   specified periods as to West Bronx and ULAF respectively, "I and others were involved in an

 5   operation where we conspired to pay my personal expenses using funds of the" first, "West Bronx

 6   Neighborhood Association," and second, "the United Latin American Foundation, Incorporated."

 7   (May 2009 Plea Tr. 17.) With respect to each of those organizations Gonzalez stated, "I caused one

 8   of my coconspirators to mail" the organization's checks "to credit card companies," and to "vendors

 9   to pay my personal expenses." (Id.) The court was entitled to reject out of hand the assertion that

10   Gonzalez, a lawmaker for nearly two decades, did not understand the import of those words.

11                   Although Gonzalez's affidavit appears to attribute his claimed lack of understanding

12   of the import of his words to his assertion that "[t]he majority of my allocution was read from a script"

13   (Gonzalez Aff. ¶ 9), it is clear from the face of the transcript that he was not reading from a script

14   when he answered the court's questions as to "how much money was involved with these two

15   conspiracies" (May 2009 Plea Tr. 17). Gonzalez responded "200,000 or more" in toto, "[a]bout

16   125,000, 126,000, that I recall" as to West Bronx, and "40,000 or more," "40 to 75" with respect to

17   ULAF. (Id.)

18                   Although Gonzalez asserted in his affidavit that, at the plea hearing, "[w]hen

19   questioned by the Court, I felt pressured to keep repeating 'yes'" (Gonzalez Aff. ¶ 9), it is noteworthy

20   that when the court asked him if anyone had threatened or forced him, Gonzalez in fact answered "No,

21   your Honor." In addition, the court noted that in the Advice of Rights Form signed by Gonzalez prior

22   to the entry of his plea of guilty, Gonzalez stated that he "'[had] not been induced to plead guilty by

23   any force, coercion, pressure or fear.'" 2010 WL 1640186, at *2 (quoting Court Exhibit 1).



                                                         30
 1                   And although Gonzalez asserted that he "almost immediately" "regretted" his May 8

 2   plea of guilty and "wished to retract" it (Gonzalez Aff. ¶ 10), the district court was entitled to discredit

 3   that assertion, given that Gonzalez, again under oath, explicitly reaffirmed his plea of guilty on

 4   September 24 (see Sept. 2009 Plea Tr. 4-5), and given that even on November 9, at the conference

 5   at which Richman was finally relieved as Gonzalez's attorney, Gonzalez gave no indication that he

 6   wanted to withdraw his plea of guilty.

 7                   In sum, the district court found that Gonzalez's presentation in support of his motion

 8   to withdraw his plea of guilty was "bereft of any new facts that call into question his plea," 2010 WL

 9   1640186, at *4, that "Gonzalez made a strategic decision based on an offer by the Government that

10   inured to his benefit, and [that] nothing in the record shows his choice was involuntary." 2010 WL

11   1640186, at *6. Nothing in the record indicates to us that this finding is erroneous.



12   B. The 50-Victim Sentencing Enhancement

13                   The advisory Guidelines require that a defendant's offense level be enhanced if his

14   offense involved at least 10 victims. See Guidelines § 2B1.1(b)(2). "If the offense . . . involved 50

15   or more victims," the offense level is to be "increase[d] by 4 levels." Id. § 2B1.1(b)(2)(B). "'Victim,'"

16   as used in § 2B1.1(b)(2), is defined to mean "any person [including individuals, corporations, and

17   companies] who sustained any part of the actual loss determined under subsection (b)(1)." Guidelines

18   § 2B1.1 Application Note 1.

19                   The PSR, whose factual findings were not objected to by Gonzalez and were expressly

20   adopted by the district court (see Sentencing Transcript, May 25, 2011 ("S.Tr."), at 34), found that

21   the losses that resulted from Gonzalez's offenses totaled more than $400,000 but not more than $1

22   million, and that Gonzalez's Guidelines base offense level of 7 should thus be increased by 14 steps

23   pursuant to § 2B1.1(b)(1)(H) (loss table). The PSR recommended, inter alia, an additional four-step

                                                         31
1    increase pursuant to § 2B1.1(b)(2)(B) on the ground that Gonzalez's offenses involved more than 50

2    victims. In support of the 50-victim enhancement, the government, with respect to the relevant

3    period, submitted to the court, inter alia, Gonzalez's bills and credit card statements showing a total

4    of some $590,000 in personal expenses; copies of West Bronx checks in payment of those expenses;

5    copies of checks from Pathways to West Bronx totaling $462,500; and exhibits listing more than 50

6    individuals and corporate entities, whose donations to West Bronx by check totaled $122,775.

7                   Gonzalez objected to the 50-victim enhancement on the ground that the government

8    had not "'account[ed] for each dollar diverted,' [by] tracing it back to any specific donor" (Sentencing

9    Memorandum on Behalf of Efrain Gonzalez, Jr. ("Gonzalez Sentencing Memorandum"), at 10

10   (quoting United States v. Arnaout, 431 F.3d 994, 999 (7th Cir. 2005))). He contended that "it's not

11   sufficient just to say that there were more than 50 contributors" (S.Tr. 17), arguing that

12   § 2B1.1(b)(2)(B) was inapplicable because the government had presented "no proof that [donors to

13   West Bronx] submitted donations based on the understanding that the money would be used for a

14   particular charitable purpose, and no proof that any particular dollar given by a donor to West

15   Bronx was used for an inappropriate purpose" (Gonzalez Sentencing Memorandum at 10

16   (emphasis in original)).

17                  At the sentencing hearing, the district court rejected Gonzalez's contention that

18   § 2B1.1(b)(2) includes such a tracing requirement, having noted in colloquy with defense counsel (a)

19   that "money is fungible" (S.Tr. 15); (b) that Gonzalez had "acknowledged . . . misappropriating

20   moneys for his own personal gain"; and (c) that "[t]herefore, those moneys could not be used by the

21   charities to help the people in need" (id. at 16-17). The court found that

22                  the government's submissions clearly demonstrate that more than 50 people
23                  made charitable donations to West Bronx and the United Latin American
24                  Foundation. The record before this Court also reveals that these charities made
25                  hundreds of thousands of dollars in payments toward Mr. Gonzalez's personal
26                  expenses, including rent on a luxury apartment in the Dominican Republic and

                                                       32
 1                  a summer home in Monroe, New York. Gonzalez treated the bank accounts
 2                  of these charities as if they belonged to him. Undoubtedly, when people made
 3                  charitable contributions, it was reasonable for them to expect that their
 4                  contributions would be used to help the communities in the west Bronx and the
 5                  Dominican Republic. By paying his personal bills, the contributions could not
 6                  be used for their intended purpose. Accordingly, in this Court's view, a four-
 7                  level increase is warranted.

 8   (S.Tr. 35-36 (emphases added).)

 9                  On appeal, although conceding that "WBNA enjoyed the support of more than 50

10   donors" (Gonzalez brief on appeal at 51), Gonzalez argues that the district court erred in applying

11   § 2B1.1(b)(2)(B), because "it did so without requiring the government to provide evidence

12   demonstrating that there were actually 50 individual victims" (Gonzalez brief on appeal at 47-48).

13   Citing United States v. Arnaout, 431 F.3d at 999, he argues that "[m]any Circuits across the country

14   require a district court to trace illegitimate expenditures back to individual victims before applying

15   a number-of-victims sentencing enhancement." (Gonzalez brief on appeal at 51). He argues that for

16   a 50-victim enhancement to be permissible, the government must "identify with specificity allegedly

17   misdirected funds, and then trace those funds back to 50 individual victims." (Gonzalez brief on

18   appeal at 48.) We reject his contentions.

19                  The question of whether a given individual is a victim within the meaning of

20   § 2B1.1(b)(2)--a question of Guidelines interpretation--is an issue of law. See, e.g., United States v.

21   Skys, 637 F.3d 146, 153 (2d Cir. 2011) ("Skys"); United States v. Abiodun, 536 F.3d 162, 169 (2d

22   Cir. 2008). We review rulings of law de novo. See, e.g., Skys, 637 F.3d at 152; United States v.

23   Vasquez, 389 F.3d 65, 75 (2d Cir. 2004). "The number of persons or entities who are victims within

24   the meaning of Guidelines § 2B1.1(b)(2) is . . . a question of fact." Skys, 637 F.3d at 152-53. A

25   district court's factual findings at sentencing need be supported only by a preponderance of the

26   evidence, see, e.g., United States v. Cossey, 632 F.3d 82, 86 (2d Cir. 2011); United States v. Gaskin,

27   364 F.3d 438, 464 (2d Cir. 2004), and such findings may be overturned only if they are clearly



                                                       33
 1   erroneous, see, e.g., Skys, 637 F.3d at 152.

 2                   We see no error in either the district court's ruling as to the proper interpretation of

 3   § 2B1.1(b)(2) or its finding that subsection (B) of that section is applicable to Gonzalez. The court

 4   properly rejected Gonzalez's contention that, before a person who has made a charitable contribution

 5   can be considered a victim within the meaning of § 2B1.1(b)(2), his donation must be traced to a

 6   particular misallocation by the defendant. A "victim" for purposes of § 2B1.1(b) is "any person

 7   [including individuals, corporations, and companies] who sustained any part of the actual loss

 8   determined under subsection (b)(1)," Guidelines § 2B1.1 Application Note 1 (emphasis added). A

 9   donor whose charitable contribution was included in the district court's finding of actual loss under

10   § 2B1.1(b)(1) is thus, by definition, a victim within the meaning of § 2B1.1(b)(2). There is no

11   suggestion in this definition or any other part of the Guidelines that the victim must be linked with

12   a specific part of the loss.

13                   Nor do we deem the cases cited by Gonzalez to require such a view. Although

14   Gonzalez states that "[m]any Circuits across the country" impose a tracing requirement (Gonzalez

15   brief on appeal at 51), he cites cases from only two Circuits, the Seventh and the Eleventh; and the

16   Eleventh Circuit cases--only one of which is a published decision--simply represent application of the

17   Guidelines definition of "victim" as one whose loss was part of the actual loss determined by the court

18   under Guidelines § 2B1.1(b)(1). See, e.g., United States v. Foley, 508 F.3d 627, 633 (11th Cir. 2007)

19   ("The district court erred when it adopted the number of responses received by the probation office

20   as the number of victims for sentencing purposes. As explained earlier, the district court did not make

21   an independent finding on the amount of loss, and the number of victims is defined in relation to the

22   loss calculation."); United States v. Hernandez, 356 F. App'x 279, 284 (11th Cir. 2009) (government

23   conceded that the district court had "failed to connect the victims to the actual losses they sustained");

24   United States v. Anderson, 286 F. App'x 654, 658 (11th Cir. 2008) (noting both the Guidelines



                                                        34
 1   definition of victim as one whose loss was part of the court's calculation of actual loss and circuit

 2   precedent that "a district court err[s] in counting as victims, pursuant to U.S.S.G. § 2B1.1(b)(2),

 3   individuals who did not suffer any part of the actual loss").

 4                  The only case Gonzalez cites--and the only case we have seen--that even arguably

 5   imposes a tracing requirement such as that advocated by Gonzalez is United States v. Arnaout. In that

 6   case, although the Seventh Circuit stated that it "agree[d]" with the defendant's contention that the

 7   district court had "erred when it failed to account for each dollar diverted and did not trace each

 8   diverted dollar back to a specific donor," 431 F.3d at 999, there were charitable contributions by some

 9   17,000 donors totaling more than $17,000,000, but an actual loss amount of only some $300,000. In

10   its discussion, the court concluded that "[t]here [wa]s insufficient evidence in the record to support

11   a calculation of the number of donors that contributed the approximate $300,000," and that the court

12   did not see "proof by a preponderance of the evidence in the record that at least fifty donors

13   contributed the amount attributable to Arnaout." Id. We are thus inclined to interpret the Seventh

14   Circuit's reversal of the 50-victim enhancement in that case as resting simply on problems in

15   determining how many donors contributed to the actual loss amount. In any event, to the extent that

16   the court meant to adopt a requirement that particular misused funds be traced back to specific donors,

17   that decision is not binding on this Court and we decline to follow it.

18                  As Guidelines commentary observes elsewhere, "defendants who exploit victims'

19   charitable impulses or trust in government create particular social harm." Guidelines § 2B1.1

20   Application Note 19(D). We see no intent in the multiple-victim-enhancement provision of the

21   Guidelines to exacerbate societal harm by rewarding a defendant who simply commingles

22   fraudulently obtained charitable contributions before spending them.

23                  Finally, we see no error, much less any clear error, in the district court's finding that

24   the number of persons within the Guidelines definition of victim exceeded 50. The district court



                                                       35
 1   found that the actual loss caused by Gonzalez's offenses totaled more than $400,000 but not more than

 2   $1 million. The government's submissions showed that West Bronx funds used to pay Gonzalez's

 3   personal expenses totaled some $590,000; that West Bronx had received a total of some $585,275,

 4   including $462,500 from Pathways, and $122,775 in small contributions from others; and that West

 5   Bronx's lists of the latter group of contributions showed that they came from more than 50 donors.

 6   These submissions by the government were ample to permit the district court to find by a

 7   preponderance of the evidence that Gonzalez's offenses involved more than 50 victims. Ordinarily,

 8   a not-for-profit corporation formed for charitable purposes, rather than the corporation's charitable

 9   donors, is the victim of any theft from the organization's coffers. Here, however, the preponderance

10   of the evidence demonstrates that WBNA and ULAF were sham organizations established specifically

11   for the purpose of channeling donor and grant funds to Gonzalez for his personal use. The donors

12   relied on misrepresentations as to the intended uses of those funds and therefore were Gonzalez's

13   victims.



14   C. The Restitution Order

15                  In its August 23, 2010 restitution order, entered under the Mandatory Victims

16   Restitution Act ("MVRA"), which is codified largely at 18 U.S.C. §§ 3663A and 3664, the district

17   court ordered Gonzalez to pay a total of $122,775 to the WBNA contributors listed in the

18   government's submissions discussed in Part II.B. above. The MVRA provides, in part, that in

19   sentencing a defendant convicted of a felony committed by fraud or deceit, the court "shall order, in

20   addition to . . . any other penalty authorized by law, that the defendant make restitution to the victim

21   of the offense." 18 U.S.C. §§ 3663A(a)(1) and (c)(1)(A)(ii). The MVRA defines "victim" in relevant

22   part to mean "a person directly and proximately harmed as a result of the commission of an offense

23   for which restitution may be ordered." 18 U.S.C. § 3663A(a)(2). Procedures to be followed in



                                                       36
 1   connection with restitution orders are set out in 18 U.S.C. § 3664. Gonzalez makes two challenges

 2   to the restitution order, one procedural and the other substantive. We find potential merit only in one

 3   aspect of his substantive challenge.

 4                  As a matter of procedure, Gonzalez contends that the restitution order should be

 5   canceled because the government failed to comply with the MVRA requirements that it, inter alia,

 6   consult with all identified victims prior to Gonzalez's sentencing and provide the Probation

 7   Department with a list of victims and their losses in time for that department to give notice to the

 8   victims and receive information from them as to their losses, see 18 U.S.C. § 3664(d). Even if

 9   Gonzalez's factual contentions on this point are accurate, the MVRA itself does not specify the

10   consequences for such failures, and we cannot conclude that restitution should be canceled on that

11   account. The Supreme Court has recently ruled that because the MVRA, for the specified types of

12   offenses, makes restitution mandatory, places heavy emphasis on the full compensation of victims,

13   and does not specify consequences for failing to meet an MVRA deadline, noncompliance with a

14   deadline "does not deprive the court of the power to order restitution," Dolan v. United States, 130

15   S. Ct. 2533, 2539 (2010). In light of Dolan, we conclude that cancellation of the district court's

16   August 23, 2010 restitution order would be an inappropriate remedy for the government's

17   noncompliance with procedures that were plainly designed to benefit the crime victims.

18                  As a matter of substance, Gonzalez principally makes two types of argument: that the

19   West Bronx donor lists submitted by the government were (a) insufficient to identify the donors as

20   victims and (b) insufficient to quantify their losses. In support of his identification contention,

21   Gonzalez makes the same tracing argument he advanced in opposition to the Guidelines 50-victim

22   enhancement, see Part II.B. above, contending that the government was required to "specifically

23   identify[] diverted funds used for illegitimate purposes[ and] trac[e] those funds back to direct

24   individual victims" (Gonzalez brief on appeal at 58). Given the MVRA definition of victim, i.e., "a



                                                       37
 1   person directly and proximately harmed as a result of the commission of an offense for which

 2   restitution may be ordered," 18 U.S.C. § 3663A(a)(2), we find no greater merit in the tracing

 3   contention in this context than in the context of the 50-victim Guidelines enhancement.

 4                  Gonzalez also states that "it is unclear whether any of the [persons whose names are

 5   on the West Bronx donor ledgers] even consider themselves to be victims" (Gonzalez brief on appeal

 6   at 57). This argument is wide of the mark, for the matter of whether a person is a "victim" within the

 7   meaning of the MVRA is an issue of law. See, e.g., United States v. Holthaus, 486 F.3d 451, 457 (8th

 8   Cir. 2007). West Bronx, in soliciting contributions in connection with its galas, held itself out to be

 9   a civic organization whose "net earnings" would be "devoted exclusively to charitable, educational,

10   or recreational purposes," "exclusively for the promotion of social welfare," 26 U.S.C. § 501(c)(4).

11   (See, e.g., Government Exhibit 526 (a "Fiesta González Gala Birthday Party" solicitation stating,

12   "Please make checks payable to: West Bronx Neighborhood Association, Inc.[,] A Not For Profit

13   Organization §501(c)(4)" (emphasis in original))). We see no error in the district court's ruling that

14   persons who made charitable contributions to a § 501(c)(4) organization whose funds were

15   fraudulently diverted to pay the personal expenses of Gonzalez were victims of that fraud within the

16   meaning of the MVRA.

17                  We have greater difficulty, however, with the district court's acceptance of the West

18   Bronx donor lists submitted by the government as adequate to quantify the donors' losses. Gonzalez

19   contends that although the checks shown for the various West Bronx galas total $122,775, that amount

20   overstates the donors' losses because some donors received value in return for their donations. The

21   MVRA provides that

22                  "[i]n each order of restitution, the court shall order restitution to each victim
23                  in the full amount of each victim's losses as determined by the court . . . . Id.
24                  § 3664(f)(1)(A).

25                          The purpose of restitution is to compensate victims for their losses.
26                  See, e.g., Hughey v. United States, 495 U.S. 411, 416 . . . (1990), superseded

                                                       38
 1                  by statute, Crime Control Act of 1990, Pub. L. No. 101-647 § 2509, 104 Stat.
 2                  4789, 4863 (codified at 18 U.S.C. § 3663(a)(3)); United States v. Boccagna,
 3                  450 F.3d 107, 115 (2d Cir.2006) ("Boccagna"); United States v. Reifler, 446
 4                  F.3d 65, 137 (2d Cir.2006) ("Reifler"); United States v. Nucci, 364 F.3d 419,
 5                  423-24 (2d Cir.2004) ("Nucci").

 6                                   In determining the appropriate measure of value for property
 7                          relevant to restitution, a district court must consider that the purpose
 8                          of restitution is essentially compensatory: to restore a victim, to the
 9                          extent money can do so, to the position he occupied before sustaining
10                          injury. See Hughey v. United States, 495 U.S. 411, 416, 110 S.Ct.
11                          1979, 109 L.Ed.2d 408 (1990) (observing that the "meaning of
12                          'restitution' is restoring someone to a position he occupied before a
13                          particular event"); United States v. Coriaty, 300 F.3d 244, 253 (2d
14                          Cir.2002) (holding that "statutory focus" of the MVRA is "upon
15                          making victims whole"). Because the MVRA mandates that restitution
16                          be ordered to crime victims for the "full amount" of losses caused by
17                          a defendant's criminal conduct, see 18 U.S.C. § 3664(f)(1)(A); United
18                          States v. Reifler, 446 F.3d at 134 . . . , it can fairly be said that the
19                          "primary and overarching" purpose of the MVRA "is to make victims
20                          of crime whole, to fully compensate these victims for their losses and
21                          to restore these victims to their original state of well-being." United
22                          States v. Simmonds, 235 F.3d [826, 831 (3d Cir.2000)].

23                  Boccagna, 450 F.3d at 115.

24   United States v. Pescatore, 637 F.3d 128, 138-39 (2d Cir. 2011) (emphases ours). "Section 3663A

25   does not," however, "authorize the court to order restitution to victims in excess of their losses." Id.

26   at 139 (emphasis added); see, e.g., Reifler, 446 F.3d at 122-35; Boccagna, 450 F.3d at 109; Nucci, 364

27   F.3d at 423-24.

28                  Gonzalez has argued that an order granting persons on the West Bronx donor lists

29   restitution in the full amount of the checks they sent in connection with a gala birthday party may well

30   grant them restitution in excess of their losses. The lists themselves indicate that some of the checks

31   were sent in connection with advertisements to appear in the event programs. And we note that in

32   Government Exhibit 526, West Bronx offered gala tickets for up to $1,000 (a "Benefactor" ticket) and

33   promised, inter alia, a "Buffet Supper" and an "Open Bar." Some of the checks bear notations

34   indicating that they were for dinners.



                                                       39
1                    It may well be that some of the listed donors made contributions and received nothing

2    in return. In the course of discussing who could properly be considered a victim within the Guidelines

3    definition governing the 50-victim enhancement, both the government and the district court suggested

 4   that the West Bronx donors believed "100 percent of their money" would be used for charity (see

 5   S.Tr. 24, 17); but that seems unlikely or unrealistic for those who attended a West Bronx gala. And

 6   to the extent that donors received food and drink, or to the extent that businesses purchased

 7   advertisements in the gala printed program, it would appear that they received some value for their

 8   contributions. Indeed, the federal tax laws disallow a charitable deduction for so much of a

 9   contribution as is attributable to a benefit to the donor; and donees are required to provide donors with

10   estimates of the fair market value of the consideration that donors receive for their contributions. See

11   26 C.F.R. § 1.170A-1(h) (2010).

12                   Although the court's suggestion that a donor expected 100 percent of his contribution

13   to be used for charitable purposes did not mar the determination of whether donors were victims, it

14   does, in light of the record, raise questions with respect to the accuracy of its quantification of the

15   donors' losses. As the court's restitution order accepted the premise in all instances that the amount

16   donated constituted the amount of the donor's loss, we vacate that order and remand for further

17   proceedings to determine to what extent donors suffered losses and for the entry of a restitution order

18   that awards a donor restitution in the full amount of, but not in excess of, his, her, or its loss.



19                                               CONCLUSION

20                           We have considered all of the parties' contentions in support of their respective

21   positions and, except as indicted above, have found them to be without merit. We vacate the August

22   23, 2010 order and remand for further proceedings with respect to the amount of restitution to be

23   ordered. The judgment of conviction and all other aspects of Gonzalez's sentence are affirmed.



                                                        40
