                                                    [DO NOT PUBLISH]



           IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT           FILED
                    ________________________ U.S. COURT OF APPEALS
                                                      ELEVENTH CIRCUIT
                                                       JANUARY 11, 2012
                          No. 11-11075
                      Non-Argument Calendar               JOHN LEY
                                                           CLERK
                    ________________________

             D.C. Docket No. 2:09-cr-00083-JES-DNF-1



UNITED STATES OF AMERICA,

                                                            Plaintiff-Appellee,

                               versus

MARIA CONTRERAS,

                                                    l Defendant-Appellant.

                    ________________________

             Appeal from the United States District Court
                 for the Middle District of Florida
                   ________________________

                         (January 11, 2012)
Before BARKETT, HULL and ANDERSON, Circuit Judges.

PER CURIAM:

      Without a plea agreement, Maria Contreras pled guilty to one count of loan

and credit application fraud, in violation of 18 U.S.C. § 1014. Contreras appeals

her sentence of 18 months’ imprisonment on the ground that the district court did

not properly calculate the financial loss caused by Contreras’s fraud.

      After review of the record, we affirm Contreras’s 18-month sentence.

                               I. BACKGROUND

      At the relevant times, Defendant Contreras was an employee of Atlantic

Pacific Mortgage Company (“APMC”), a mortgage intermediary between the

borrowers and various lenders. Contreras helped borrowers fill out applications

for home loans, which were then forwarded to the lenders and the Federal Housing

Administration (“FHA”).

      A single-count information charged Contreras with loan and credit

application fraud, in violation of 18 U.S.C. § 1014. The information alleged that

Contreras had knowingly “stated and represented, and caused to be stated and

represented” that the monthly income of “R.A.,” the recipient of a loan insured by

the FHA, was substantially more than R.A.’s actual income.

      Defendant Contreras’s Presentence Investigation Report (“PSI”) found that

                                         2
Contreras had arranged false employment information and other false

documentation in connection with six FHA-insured loans.1 Each of the six loan

recipients for which Contreras provided false information defaulted on his loan.

For five of these loans, the default triggered an insurance payment from the FHA

to the lender bank. In part to calculate the loss amount, the PSI documented the

history of these six loans as follows.2

A. Borrower “R.A.”3

       On or about March 28, 2006, Defendant Contreras and R.A. completed a

hand-written home mortgage loan application. R.A. had also signed a separate,

blank mortgage loan application. Contreras then forwarded both documents to

APMC’s home office. Thereafter, APMC’s home office returned to Contreras

R.A.’s signed application but with inflated values substituted for R.A.’s actual

monthly income. Contreras knew that the information in R.A.’s final loan

application was false and that the mortgage lender would rely upon the false


       1
         In January 2010, Juan Gonzalez, the owner of APMC, pled guilty to two counts of loan
and credit application fraud.
       2
         Contreras did not object to the PSI’s recitation of facts setting forth her offense conduct
in paragraphs 5 to 45 of the PSI.
       3
        The full names of the six borrowers connected to Contreras’s fraud appear only in the
PSI, which is under seal. We refer to them by initials.



                                                 3
information.

      R.A.’s FHA loan file also contained a letter from R.A.’s cousin, Gladys

Lobelo. The letter stated that Lobelo had given R.A. $7,000. R.A. later told

investigators that he never heard of Gladys Lobelo and never received a gift from

Lobelo.

      Through APMC as the intermediary, R.A. obtained an FHA-insured

mortgage loan from US Bank N.A. in the amount of $339,669. After R.A.

defaulted on this loan, the FHA, as insurer, paid US Bank N.A. for an insurance

claim in the amount of $382,227.93. On or about April 19, 2009, R.A.’s property

was sold for $64,161.08, resulting in a net loss of $321,986.16 to the FHA.

B. Borrower “M.M.”

      On or about June 9, 2006, M.M. signed a blank home mortgage loan

application and gave the application to Defendant Contreras. Contreras signed the

application in the “To Be Completed by Interviewer” section. M.M. told

investigators that M.M. provided Contreras with M.M.’s actual employment

information.

      However, the signed mortgage loan application actually submitted to the

FHA stated that M.M. had been employed by Dalia Building Company for two

years and three months as a warehouse manager and during that time earned a

                                         4
monthly salary of $6,424.77. In fact, M.M. never worked for Dalia Building

Company, and M.M.’s monthly income was substantially less than $6,424.77.

M.M. denied providing the false information represented in the FHA loan

application.

      Through APMC as the intermediary, M.M. obtained an FHA-insured loan

from Chase Home Finance LLC in the amount of $243,041. After M.M. defaulted

on this loan, the FHA paid Chase Home Finance LLC for an insurance claim in the

amount of $273,631.86. On or about April 19, 2009, M.M.’s property was sold for

$51,663.86, resulting in a net loss to the FHA of $221,968.

C. Borrower “D.O.”

      On or about September 29, 2006, D.O. signed a home mortgage loan

application. Defendant Contreras signed D.O.’s application in the “To Be

Completed by Interviewer” section.

      The application actually submitted to the FHA stated that D.O. had been

employed by Venamaica for three years at a salary of $4,445 per month. In fact,

D.O.’s monthly salary was substantially less. Further, the application stated that

D.O. intended to occupy the mortgaged property as his primary residence. In fact,

D.O. purchased the property as an investment and did not intend to live on the

property. Contreras knew that the information in D.O.’s loan application was false

                                         5
and that the mortgage lender would rely on the information.

      Through APMC as the intermediary, D.O. obtained an FHA-insured loan

from US Bank N.A. in the amount of $157,528. After D.O. defaulted on this loan,

the FHA paid US Bank N.A. an insurance claim in the amount of $169,321.33.

On or about April 19, 2009, D.O.’s property was sold for $27,479.96, resulting in

a net loss of $141,841.37 to the FHA.

D. Borrower “C.J.”

      Defendant Contreras completed a hand-written home mortgage loan

application with C.J.. The application submitted to the FHA and signed by C.J.

represented C.J.’s monthly income as $8,618.18. In fact, C.J.’s monthly income

was substantially less. C.J.’s application stated that C.J. had worked for West

Coast Business Solutions. Luis Diaz, the President of West Coast Business

Solutions, told investigators that he did not know who C.J. was and that the

signature represented as Diaz’s signature on C.J.’s application was forged.

Contreras knew that the information in C.J.’s loan application was false and that

the mortgage lender would rely on the information.

      Through APMC as the intermediary, C.J. obtained an FHA-insured loan

from US Bank N.A. in the amount of $305,210. After C.J. defaulted on this loan,

the FHA paid US Bank N.A. an insurance claim in the amount of $325,592.13.

                                         6
On or about April 19, 2009, C.J.’s property was sold for $110,500.00, resulting in

a net loss of $215,092.13 to the FHA.

E. Borrower “M.B.”

      Defendant Contreras completed a hand-written home mortgage loan

application with M.B. The application submitted to the FHA stated that M.B’s

monthly income was $7,390.85. In fact, M.B.’s monthly income was substantially

less. Contreras knew that the information in M.B.’s loan application was false and

that the mortgage lender would rely on the information.

      Through APMC as the intermediary, M.B. obtained an FHA-insured loan

from US Bank N.A. in the amount of $240,555. After M.B. defaulted on this loan,

the FHA paid US Bank N.A. an insurance claim in the amount of $275,643.60.

M.B.’s property was sold for $148,000.00, resulting in a net loss of $127,643.60 to

the FHA.

F. Borrower “J.M.”

      On or about June 6, 2006, J.M. signed a blank home mortgage application

and gave the application to Defendant Contreras. Contreras signed J.M.’s

application in the “To Be Completed by Interviewer” section.

      The loan application, submitted to the FHA and signed by J.M., stated that

J.M. had been employed by West Coast Business Solutions for two years and was

                                         7
paid a monthly salary of $6,945.81 during that time. Although J.M. had worked

for West Coast Business Solutions, his monthly salary was substantially less than

$6,945.81.

       J.M. obtained an FHA-insured loan from US Bank N.A. in the amount of

$266,437. J.M. later defaulted on this loan. According to the Lee County, Florida

Property Appraiser’s Office, J.M.’s property’s value at the time the PSI was

prepared was $72,522.4 As a result, the estimated loss to US Bank N.A. for J.M.’s

loan was approximately $193,915.

                                    II. SENTENCING

A. PSI Calculations5

       The PSI assigned Contreras a base offense level of 7. The PSI determined

that U.S.S.G. § 2B1.1 was the applicable sentencing guideline for a violation of 18

U.S.C. § 1014. Under U.S.S.G. § 2B1.1, if the statutory maximum term of

imprisonment is 20 years or more, then the defendant’s base offense level is 7.

Because the maximum term of imprisonment for a violation of § 1014 is 30 years,

the PSI assigned Contreras a base offense level of 7.


       4
         The PSI indicated that the FHA insurance claim for the J.M. property had not yet been
filed and the property had not been sold.
       5
       The PSI calculations were properly based on the guidelines manual that went into effect
on November 1, 2010, and applied at the time of Contreras’s sentencing.

                                               8
      The PSI applied a 16-level increase to Defendant Contreras’s base offense

level because the amount of financial losses due to Contreras’s relevant conduct

was more than $1 million but less than $2.5 million. See U.S.S.G.

§ 2B1.1(b)(1)(I). To calculate the financial losses, the PSI added the FHA

insurance claim amounts less the subsequent sale price of the properties; these five

loss amounts together totaled $1,028,531.26.6 Because the FHA insurance claim

for the J.M. property was not yet filed and the property not yet sold, the PSI

calculated the loss for the J.M. property as $193,915, which represented the loan

amount less the property’s current value. The PSI calculated the total loss as

$1,222,446.26. This 16-level increase raised Contreras’s offense level to 23.

      Pursuant to U.S.S.G. § 3E1.1(a) and (b), the PSI reduced Defendant

Contreras’s offense level by three levels for her acceptance of responsibility,

yielding a total adjusted offense level of 20.

      Contreras had no criminal history points. Accordingly, her criminal history

category was I. Contreras’s resulting guidelines range was 33 to 41 months’

imprisonment.

      6
       This $1,028,531.26 calculation included these loss amounts:
      R.A.: $382,227.93 – $64,161.08 = $321,986.16
      M.M.: $273,631.86 – $51,663.86 = $221,968.00
      D.O.: $169,321.33 – $27,479.96 = $141,841.37
      C.J.: $325,592.13 – $110,500.00 = $215,092.13
      M.B.: $275,643.60 – $148,000.00 = $127,643.60.

                                             9
B. Objections and Stipulation

       Prior to sentencing, Defendant Contreras objected to the 16-level increase

under U.S.S.G. § 2B1.1(b)(1)(I) for causing a loss of more than $1 million but less

than $2.5 million.7 In her written objections to the PSI, Contreras argued that the

loss calculation in the PSI should not have been based on the lender banks’

insurance claims against the FHA because those claims included fees and costs

that were not cognizable losses under the sentencing guidelines. Contreras

claimed that, at most, she should receive (1) a 12-level increase, which reflects

losses of $200,000 to $400,000, or (2) a 14-level increase, which reflects losses of

$400,000 to $1 million. See U.S.S.G. § 2B1.1(b)(1)(G), (H).

       An Addendum to the PSI explained that, in the event the district court

agreed with Defendant Contreras’s objection and subtracted the fees and costs

from the loss amount, the revised loss amount would be $1,078,113.10.8

Accordingly, the offense level increase would remain 16 levels because the loss

amount would still be $1 million to $2.5 million. See U.S.S.G. § 2B1.1(b)(1)(I).

       At the sentencing hearing on February 7, 2011, Defendant Contreras


       7
          Beside the loss calculation, Contreras objected only to the PSI’s calculation of
restitution.
       8
         This calculation reflected the total loan amount of the properties, rather than the
insurance claim amount, less the amount the first five properties were sold for and the current
value of the J.M. property.

                                                 10
maintained her objection to the 16-level increase based on the PSI’s loss

calculations. Her counsel argued that the figures for the post-default sale amount

of the properties were net sale-proceed figures, which did not include certain fees

and costs that were subtracted from the sale amount. If added back to the sale

value, this would have led to a loss calculation lower than $1 million. Her counsel

explained the problem in light of the revised loss amount’s proximity to the

$1 million threshold necessary for a 16-level increase:

      Quite honestly, if the amount were substantially over $1 million, I would not
      be presenting this argument to the Court; but since it’s so close to the $1
      million figure, I’m concerned that, if we were to look at the fees that are rolled
      – or subtracted from the sold amount in arriving at those numbers, that I’m
      concerned that it would not meet the $1 million threshold.

After conferring privately with the prosecutor, Contreras’s counsel asked the court

“to consider allowing the representation that the government’s made that [the loss

level] be . . . just below $1 million, as opposed to over it.” Contreras’s counsel

continued, “we would ask the Court to consider that as the range. And that would

reduce [the offense level increase by] two levels.” After further discussion, the

prosecutor stated that he “would have no objection to the departure to the next

level down just to cure” any possible miscalculation of the loss level.

      The district court then asked Contreras’s counsel whether agreeing to a loss

level of below $1 million is “what you and your client wish to do.” Contreras’s


                                          11
counsel, who had conferred with Contreras after discussing the loss amount with

the prosecutor, confirmed that Contreras would stipulate to a loss amount of more

than $400,000 but less than $1 million.

       As a result of the loss stipulation, the district court found that Defendant

Contreras was subject to an offense level increase of 14, rather than 16, pursuant

to U.S.S.G. § 2B1.1(b)(1)(H). This modification resulted in a total adjusted

offense level of 18, yielding an advisory guidelines range of 27 to 33 months’

imprisonment.9

       Contreras requested a sentence of probation or home detention. The district

court concluded that in light of Contreras’s lack of criminal history, a downward

variance was appropriate. However, the district court noted Contreras’s repetitive

fraudulent conduct and sentenced her to 18 months’ imprisonment, a variance of

nine months below the advisory guidelines range. Contreras objected to the

sentence as excessive.10

                                      III. DISCUSSION

       Defendant Contreras appeals her 18-month sentence. For the first time on



       9
         The PSI was modified to reflect the loss-amount stipulation and resulting change to the
guidelines calculation.
       10
           Following a later hearing, the district court further ordered Defendant Contreras to pay
restitution in the amount of $271,910.52. Contreras does not appeal this order.

                                                12
appeal, Contreras claims that the district court erroneously calculated the loss

amount used to determine her guidelines range. Under the guidelines, loss equals

the greater of actual loss or intended loss. U.S.S.G. § 2B1.1, cmt. (n 3(A)). Under

the commentary to U.S.S.G. § 2B1.1, actual loss is the “reasonably foreseeable

pecuniary harm that resulted from the offense.” Id., cmt. (n. 3(A)(i)). Contreras

claims that because she intended no loss and the actual loss was attributable to an

unforeseeable decline in the real estate market, her offense level should not have

been increased at all under § 2B1.1. Contreras also argues that the district court

did not apply the restrictive definition of “actual” loss under U.S.S.G. § 2B1.1,

which requires the loss to be reasonably foreseeable.

       We reject Contreras’s arguments for several reasons. First, Contreras

invited any alleged error in the district court and thus may not challenge it.11 The

record shows that Defendant Contreras urged the district court to adopt the loss

level and the resulting guidelines calculation she now appeals. Contreras’s



       11
          If a defendant fails to object to a sentencing error before the district court, we review
only for plain error. See United States v. Castro, 455 F.3d 1249, 1251 (11th Cir. 2006).
However, a party may not challenge as error a ruling if such error was invited by that party.
United States v. Baker, 432 F.3d 1189, 1216 (11th Cir. 2005). We have explained that where a
party “induce[s] the court to rely on a particular erroneous proposition of law or fact, a party in
the normal case may not at a later stage of the case use the error to set aside the immediate
consequences of the error.” In re Carbon Dioxide Industry Antitrust Litigation, 229 F.3d 1321,
1326 (11th Cir. 2000) (quotation mark omitted). “Where invited error exists, it precludes a court
from invoking the plain error rule and reversing.” Baker, 432 F.3d at 1216.

                                                13
counsel asked the district court “to consider allowing the representation that the

government’s made that [the loss level] be . . . just below $1 million, as opposed to

over it.” Contreras’s counsel continued, “we would ask the Court to consider [less

than $1 million] as the range. And that would reduce [the offense level increase

by] two levels.” Contreras even stipulated to this loss range and the resultant

offense-level increase of 14 rather than 16. Contreras’s counsel verbally

confirmed this stipulation and its effect on Contreras’s offense level to the district

court. Finally, the district court relied on Contreras and the government’s

stipulation and adjusted Contreras’s offense level to 18. In sum, Contreras invited

the court to rely on the loss calculation and guidelines calculation she now

appeals. Accordingly, we are precluded from reviewing the purported error.

        Even assuming, arguendo, that Defendant Contreras did not invite the

district court to rely on the stipulated loss amount, we conclude the district court

did not plainly err by finding that the appropriate loss amount was $400,000 to

$1 million.12 Contreras claims that because she could not have reasonably

foreseen the market factors that caused the actual loss, her offense level should not


        12
           To establish plain error, a defendant must show that there was “(1) error, (2) that is
plain and (3) that affects substantial rights. If all three conditions are met, an appellate court may
then exercise its discretion to notice a forfeited error, but only if (4) the error seriously affects the
fairness, integrity, or public reputation of judicial proceedings.” United States v. Turner, 474
F.3d 1265, 1276 (11th Cir. 2007) (quotation marks omitted).

                                                   14
have been increased under U.S.S.G. § 2B1.1(b)(1).

       Defendant Contreras has not demonstrated that the district court plainly

erred in calculating the actual loss. First, nothing in the record suggests that the

district court did not adhere to the applicable guidelines or further guidance in the

commentary. There is also no evidence that the losses here were occasioned

entirely by market factors outside Contreras’s control. In any event, Contreras

cites no controlling precedent in criminal cases in this circuit or the Supreme

Court that required the district court to conclude that a decline in real estate prices

renders losses on fraudulent loans not foreseeable. See United States v. Lejarde-

Rada, 319 F.3d 1288, 1291 (11th Cir. 2003) (“[W]here the explicit language of a

statute or rule does not specifically resolve an issue, there can be no plain error

where there is no precedent from the Supreme Court or this Court directly

resolving it.”). There is certainly no such precedent under U.S.S.G. § 2B1.1.

                                III. CONCLUSION

      For the foregoing reasons, we AFFIRM Contreras’s sentence of 18 months’

imprisonment.

AFFIRMED




                                          15
