                                                             [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT           FILED
                     ________________________ U.S. COURT OF APPEALS
                                                              ELEVENTH CIRCUIT
                                                               FEBRUARY 9, 2012
                            No. 11-11039
                        Non-Argument Calendar                     JOHN LEY
                                                                   CLERK
                      ________________________

                  D.C. Docket No. 1:10-cr-20438-DMM-3



UNITED STATES OF AMERICA,

                               llllllllllllllllllllllllllllllllllllllllPlaintiff-Appellee,

                                  versus

ARGELIS LICONA,

                            llllllllllllllllllllllllllllllllllllllllDefendant-Appellant.

                      ________________________

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

                           (February 9, 2012)

Before TJOFLAT, EDMONDSON and PRYOR, Circuit Judges.

PER CURIAM:
      Argelis Licona appeals her convictions and sentence of 144 months of

imprisonment for committing wire fraud, 18 U.S.C. § 1343, and conspiring to

commit wire fraud, id. § 1349, while defrauding mortgage institutions. Licona

argues that the district court plainly erred by allowing the government to ask

Licona if other witnesses were lying and to accuse Licona of disclosing a secret

grand jury subpoena. Licona also challenges the findings of the district court that

she obstructed justice, held a leadership role in the fraud, and caused a loss

between $7 and $20 million. We affirm.

      Licona argues that the district court plainly erred when it allowed the

government, without objection, to cross-examine Licona about whether its

witnesses were lying, United States v. Schmidt, 634 F.3d 1247, 1268 (11th Cir.

2001), and to suggest that Licona was prohibited from “disclos[ing] the existence

of a secret grand jury subpoena,” see 18 U.S.C. § 3322, but the errors did not

affect Licona’s substantial rights especially in the light of the overwhelming

evidence of her guilt, see United States v. Phaknikone, 605 F.3d 1099, 1109 (11th

Cir. 2010). Licona’s coconspirators, Zudhi Abud and Oscar Ramos, testified that

Licona recruited Abud and other persons to serve as straw buyers in real estate

transactions executed by Ramos through his company, Alliance Mortgage

Investment; received commissions for recruiting those straw buyers; and made

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false representations to mortgage companies that straw buyers held positions with

and received salaries from Licona’s company, Miaferchill. Lewis Sellars, an

investigator for the United States Attorney’s Office, testified that Licona deposited

checks made payable to her from Alliance and another of Ramos’s businesses,

Alternative Renovation, into a corporate account for Edcar Repairs and

Remodeling; served as a mortgage broker on fraudulent loan applications; and

issued three checks between $5,000 and $20,000 from Edcar to pay three straw

buyers for using their identities on four fraudulent loan applications. Licona

admitted that she received a commission for referring Abud to Ramos; that Abud

said he was being paid $10,000 by Ramos; and that she “went directly” to

coconspirator Theresa Gonzalez about a secret grand jury subpoena related to the

mortgage fraud. Licona also made other inconsistent statements that the jury

could consider as substantive evidence of her guilt, United States v. Brown, 53

F.3d 312, 314 (11th Cir. 1995), including testifying that she received a $5,000

commission for referring Martha Dieguez to Gonzalez allegedly for tailoring

services, but later testifying that she cashed the $5,000 check for Gonzalez to pay

Dieguez. Although the government in closing argument returned to the theme of

its improper cross-examination of Licona about its witnesses allegedly lying,

Licona argued at length that the witnesses for the government were indeed lying.

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The government did not argue in closing that Licona had disclosed a grand jury

subpoena. And Licona did not request a jury instruction about either issue.

      The district court did not clearly err by enhancing Licona’s sentence for

obstructing justice, organizing or leading the mortgage fraud, and causing a loss

between $7 and $20 million. Licona obstructed justice by warning Gonzalez that

their conspiracy was under investigation and providing incredible testimony in

which she disclaimed any involvement in the mortgage fraud. See United States

Sentencing Guidelines Manual § 3C1.1 & cmt. n.4 (Nov. 2010). Licona

challenges the finding that she committed perjury based on Abud’s testimony after

being acquitted of charges involving him, but “a sentencing court may consider

conduct of which a defendant has been acquitted.” United States v. Watts, 519

U.S. 148, 154, 117 S. Ct. 633, 636 (1997). Licona also acted as a leader or

organizer of the mortgage fraud by recruiting and paying straw buyers,

misrepresenting to mortgage companies that straw buyers were employed by

Miaferchill, and processing fraudulent transactions through Edcar. See U.S.S.G. §

3B1.1(a) & cmt. n.4. Because Licona “admittedly recruited buyers” for a

“conspiracy [that she knew] had already been organized by Oscar Ramos,” she

likewise was responsible for the losses stemming from the reasonably foreseeable

acts of her coconspirators and the fraud she committed independently through

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Edcar. See id. § 2B1.1(b)(1)(K); United States v. McCrimmon, 362 F.3d 725,

731–32 (11th Cir. 2004).

      We AFFIRM Licona’s convictions and sentence.




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