14-4537-cr
United States v. Maxo Jean


                              UNITED STATES COURT OF APPEALS
                                  FOR THE SECOND CIRCUIT
                                        SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

       At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 22nd day of April, two thousand sixteen.
PRESENT: PIERRE N. LEVAL,
                 CHRISTOPHER F. DRONEY,
                                 Circuit Judges,
                 PAUL A. ENGELMAYER,*
                                 Judge. 1
----------------------------------------------------------------------
UNITED STATES OF AMERICA,
                                 Appellee,

                             v.                                                     No. 14-4537-cr

MAXO JEAN, AKA MAX, AKA SEALED DEFENDANT 1,
                                  Defendant-Appellant.
----------------------------------------------------------------------

    FOR DEFENDANT-APPELLANT:                               NEIL B. CHECKMAN, New York, NY.

    FOR APPELLEE:                                          ALEXANDER J. WILSON (Karl Metzner,
                                                           on the brief), for Preet Bharara, United
                                                           States Attorney for the Southern District
                                                           of New York.




*
  The Honorable Paul A. Engelmayer, of the United States District Court for the Southern District of New York,
sitting by designation.

                                                      1
        Appeal from a December 4, 2014 judgment of the United States District Court for

the Southern District of New York (Chin, J.).

        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment of the district court is AFFIRMED.

        Defendant Maxo Jean appeals his conviction and sentence of 120-months‘

imprisonment followed by three years‘ supervised release. The sentence was imposed

following a jury trial on a charge that he conspired to commit mail fraud, wire fraud, and

health care fraud, in violation of 18 U.S.C. § 1349. This charge was in connection with a

scheme to deliberately cause car accidents and defraud insurance companies. We assume

the parties‘ familiarity with the facts and procedural history of the case.

   1.      Sentencing

        We review a district court‘s sentence under an abuse of discretion standard. See

Gall v. United States, 552 U.S. 38, 46 (2007). Such review has two components:

procedural and substantive review. United States v. Cavera, 550 F.3d 180, 189 (2d Cir.

2008) (en banc). A district court commits procedural error where it fails to calculate the

Guidelines range (unless omission of the calculation is justified), makes a mistake in its

Guidelines calculation, treats the Guidelines as mandatory, does not consider the §

3553(a) factors, rests its sentence on a clearly erroneous finding of fact, or fails to

adequately explain its chosen sentence. Id. at 190.

              a. Intended Loss

        The defendant claims that the district court committed procedural error by

computing his offense level using an intended loss that was based on the total amount of

                                              2
fraudulent claims submitted. However, ―[t]he the district court may presume that the

defendant intended the victims to lose the entire face value of the [claim].‖ United States

v. Confredo, 528 F.3d 143, 152 (2d Cir. 2008). The defendant may rebut this presumption

by producing evidence that he actually intended to cause a lesser loss. Id. (quoting United

States v. Geevers, 226 F.3d 186, 193–94 (3d Cir. 2000)). The defendant did not provide

any such evidence at sentencing—despite having the opportunity to do so at the

sentencing hearing—and therefore the district court did not abuse its discretion in

calculating intended loss based on the total amount of claims submitted. See United

States v. Ravelo, 370 F.3d 266, 273 (2d Cir. 2004) (rejecting defendant‘s intended-loss

argument where the defendant ―offered no direct evidence at the hearing or elsewhere as

to . . . his intent to constrain the amount of loss‖ despite having ―ample opportunity to do

so‖). Moreover, to the extent that the defendant argues that his intended loss was lower

than the full amount because insurance companies were unlikely to pay the full claims,

the Sentencing Guidelines define ―intended loss‖ to include harm ―that would have been

impossible or unlikely to occur (e.g., as in a government sting operation, or an insurance

fraud in which the claim exceeded the insured value).‖ U.S.S.G. § 2B1.1 cmt. n.3(A)(ii);

see also Ravelo, 370 F.3d at 271 (―The definition of ‗intended loss‘ now makes clear . . .

that a loss may be intended irrespective of whether it could actually occur.‖). The district

court did not err in its intended loss calculation.

              b. Conscious or Reckless Risk of Death or Serious Bodily Injury

       The defendant also argues that the district court erred in applying the two-level

―conscious or reckless risk of death or serious bodily injury‖ adjustment under U.S.S.G. §

                                               3
2B1.1(b)(15). The defendant fails to distinguish this case from United States v. Lucien,

347 F.3d 45 (2d Cir. 2003). In Lucien, the defendant participated in a fraudulent scheme

in which she staged car accidents and fabricated personal-injury claims. Id. at 49. No one

was hurt in any of the collisions and the defendant sought medical benefits for

nonexistent injuries. Id. at 50. On appeal, we agreed with the district court‘s observation

that ―the risk of bodily injury inheres in any deliberately caused accident.‖ Id. at 56–57

(internal quotation marks omitted). Indeed, we found that the defendant was subject to

the offense level enhancement ―because it is beyond cavil that her conduct was reckless.‖

Id. at 57. This case does not warrant a different result, especially given that trial

testimony indicated that one of the victims was bleeding after an accident and that the

cars in another accident ended up careening onto the sidewalk. Thus, the district court did

not err in applying the § 2B1.1(b)(15) adjustment.

              c. U.S.S.G. § 5D1.1(c)

       On appeal, Jean raises for the first time an argument that the district court‘s

imposition of a three-year supervised release term violated U.S.S.G. § 5D1.1(c). Plain

error review applies to this claim, because the defendant failed to object below. United

States v. Verkhoglyad, 516 F.3d 122, 128 (2d Cir. 2008). Section 5D1.1(c) states that a

court ―ordinarily should not impose a term of supervised release in a case in which

supervised release is not required by statute and the defendant is a deportable alien who

likely will be deported after imprisonment.‖ The Sentencing Guidelines further note that

―[t]he court should, however, consider imposing a term of supervised release on such a

defendant if the court determines it would provide an added measure of deterrence and

                                            4
protection based on the facts and circumstances of a particular case.‖ Id. at cmt. n.5. As

such, if the district court makes a finding that an added measure of deterrence and

protection is appropriate, then imposing supervised release on an alien who likely will be

deported after imprisonment does not constitute a departure from the Guidelines. United

States v. Alvarado, 720 F.3d 153, 158 (2d Cir. 2013).

       While we have encouraged district courts to explicitly link a finding that added

deterrence is needed to its decision to impose such a term of supervised release, district

courts are not required to specifically draw that connection or to explicitly discuss §

5D1.1(c). Id. at 158–59. We have upheld a district court‘s imposition of supervised

release where ―it is clear that the District Court (1) was aware of the amended version of

Section 5D1.1(c), (2) considered [the defendant‘s] specific circumstances and the Section

3553(a) factors, and (3) was convinced that additional deterrence was needed.‖ Id. at 159.

In Alvarado, the first prong was satisfied because the Pre-Sentence Report (―PSR‖)

referred to the amended version of § 5D1.1(c) and the district court adopted its factual

findings. Id. at 159 n.5. Here, the district court did not adopt the PSR‘s factual findings

because it contained certain unrelated errors, but it is clear that the court read and

considered the PSR, which specifically included references to § 5D1.1(c). Moreover, as

in Alvarado, the district court satisfied the second prong by mentioning that it was taking

the § 3553(a) factors into account and discussing the defendant‘s special circumstances—

namely, his ―callousness‖ and ―complete lack of remorse,‖ and the dangerous nature of

the scheme. A-111. The district court fulfilled the third prong by specifically mentioning

the defendant‘s lack of remorse, noting that ―there have been a bunch of other cases,‖ and

                                            5
concluding that ―[d]eterrence is an importance consideration.‖ Id. Thus, we are satisfied

that the district court did not plainly err in sentencing Jean to a three-year term of

supervised release.

2.     Ineffective Assistance of Counsel

       In order to demonstrate ineffective assistance of counsel, a defendant ―must (1)

demonstrate that his counsel‘s performance fell below an objective standard of

reasonableness in light of prevailing professional norms; and (2) affirmatively prove

prejudice arising from counsel‘s allegedly deficient representation.‖ Cornell v.

Kirkpatrick, 665 F.3d 369, 375 (2d Cir. 2011) (internal quotation marks and citation

omitted). This court reviews ineffective assistance of counsel claims de novo. United

States v. Kaid, 502 F.3d 43, 45 (2d Cir. 2007).

       Jean claims that his counsel at trial provided ineffective advice regarding whether

he should plead guilty. But, as Jean‘s counsel acknowledges, the issue was not raised

before the district court and no factual record has been made. Therefore, the issue is not a

proper subject of appeal. We reject Jean‘s contention.

       In his supplemental pro se brief, Jean also appeals the district court‘s denial of his

Rule 33 motion for a new trial based on ineffective assistance of counsel, primarily on the

ground that trial counsel failed to adequately consult with him. The defendant has not

proven prejudice, because he fails to establish that trial counsel‘s alleged deficiencies

might have affected the outcome of the case given the ―overwhelming evidence‖ of

defendant‘s guilt.



                                             6
      We have considered Jean‘s remaining arguments and find them to be without

merit. Accordingly, we AFFIRM the judgment of the district court.



                                FOR THE COURT:

                                Catherine O‘Hagan Wolfe, Clerk of Court




                                          7
