         Case: 12-10874   Document: 00512724449        Page: 1    Date Filed: 08/06/2014




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                        No. 12-10874                            FILED
                                                                           August 6, 2014
                                                                           Lyle W. Cayce
UNITED STATES OF AMERICA,                                                       Clerk

                 Plaintiff - Appellee

v.

JERMAINE FREDERICK FRAZIER,

                 Defendant – Appellant


                    Appeal from the United States District Court
                         for the Northern District of Texas
                             USDC No. 3:09-CR-247-10


Before SMITH, BENAVIDES, and CLEMENT, Circuit Judges.
PER CURIAM:*
          Jermaine Frazier challenges the district court’s restitution order under
the Mandatory Victim Restitution Act (“MVRA”). For the following reasons,
we VACATE the restitution order and REMAND for resentencing.


                                             I.
          Together with ten others, Frazier was charged with various financial
crimes in a vast mortgage fraud case involving a conspiracy to defraud



     Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be
     *

published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                        No. 12-10874
residential mortgage lenders.           The defendants’ scheme involved recruiting
false borrowers (“straw borrowers”) with acceptable consumer credit standings
to act as investors in residential properties. The defendants would fabricate
these straw borrowers’ financial information in order to obtain loans. On the
other side of the transaction, they negotiated sales prices with sellers of
distressed and pre-foreclosure properties. By inflating the homes’ sales prices,
they were able to generate surplus loan proceeds.
        In July 2010, Frazier entered into a plea agreement, pleading guilty to
conspiracy to commit wire fraud in violation of 18 U.S.C. § 1349. In exchange
for the dismissal of his remaining counts, he was to provide financial evidence
and testimony as needed. The agreement also contained an appeal waiver
waiving his rights to direct or collateral appeals, except as to issues involving
calculation of the maximum punishment, arithmetic error, the voluntariness
of the agreement, and ineffective assistance of counsel. 1 Frazier testified at
trial, where the remaining defendants (except for one, Suzette Switzer Hinds)
were convicted on all counts.
        Frazier’s sentencing took place on August 8, 2012. The court sentenced
him to 46 months confinement and held him jointly and severally liable for
$2,044,950.      It based its restitution calculation on Frazier’s presentence
investigation report (“PSR”), which listed twenty-one fraudulent real estate
transactions in which he participated. Frazier did not object to the restitution
award at his sentencing. He filed his notice of appeal on August 22, 2012, and
challenges the district court’s restitution order. 2


   1 The parties agree that Frazier’s appellate waiver does not bar this appeal because
Frazier’s argument is that his restitution award exceeds the statutory maximum. See United
States v. Sharma, 703 F.3d 318, 321 n.1 (5th Cir. 2012).
   2 Frazier also appeals what he identifies as two clerical errors in the district court’s final
judgment: 1. that he agreed in his plea deal to a specific restitution amount, and 2. that he
was liable for bank fraud when he only pled guilty to wire fraud. The government does not
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                                       No. 12-10874
       Frazier’s appeal relies substantially on information discovered during
his co-defendants’ hearings months later, where his co-defendants established
that at least some of the loans at issue were sold on the secondary market, and
that the government often did not have information on who purchased the
loans, when, or for how much.               Frazier claims that the district court’s
restitution order violated the MVRA because the court calculated the amounts
based solely on outstanding principal balances, and failed to account for
transactions in secondary markets or other offsets to lenders’ losses. As a
result, Frazier claims that the restitution order resulted in awards to financial
institutions that did not sustain actual losses, and awards in excess to the
losses he actually caused.


                                             II.
       “This court reviews the legality of a restitution order de novo and the
amount of the restitution order for an abuse of discretion.” United States v.
Arledge, 553 F.3d 881, 897 (5th Cir. 2008). But when a defendant fails to object
to the restitution order either in the PSR or at sentencing, we review for plain
error. United States v. Maturin, 488 F.3d 657, 559–60 (5th Cir. 2007). “Under
plain error review, we will reverse only where there was (1) an error, (2) that
was clear and obvious, (3) that affected the defendant’s substantial rights, and
(4) that, if not corrected, would seriously affect the fairness, integrity, or public
reputation of the judicial proceedings.” United States v. Jefferson, 751 F.3d
314, 322 (5th Cir. 2014) (internal quotation marks omitted); see also Puckett v.
United States, 556 U.S. 129, 135 (2009).




oppose deleting “bank fraud” from the judgment, but opposes the challenged language with
respect to restitution. Because we vacate his restitution order, Frazier may raise these issues
before the district court on remand.
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                                  No. 12-10874
                                       III.
      The MVRA delimits a district court’s ability to impose restitution
awards.
      [T]he court shall order the probation officer to obtain and include
      in its presentence report, or in a separate report . . . information
      sufficient for the court to exercise its discretion in fashioning a
      restitution order.    The report shall include, to the extent
      practicable, a complete accounting of the losses to each victim . . . .
      If the number or identity of victims cannot be reasonably
      ascertained, or other circumstances exist that make this
      requirement clearly impracticable, the probation officer shall so
      inform the court.
18 U.S.C. § 3664(a). “The MVRA does not permit restitution awards to exceed
a victim’s loss,” United States v. Beydoun, 469 F.3d 102, 107 (5th Cir. 2006),
and “[t]he burden of demonstrating the amount of the loss sustained by a
victim as a result of the offense shall be on the attorney for the Government”
who must establish losses “by the preponderance of the evidence,” 18 U.S.C.
§ 3664(e).

      Frazier argues that the district court’s method for calculating restitution
constituted error. We agree. The court adopted without question or discussion
the amounts included in Frazier’s PSR. But these amounts represented the
differences between the properties’ original mortgage prices and their
foreclosure prices, and at no point did the PSR or the district court at
sentencing account for whether the mortgages were resold.
      Although this court has never ruled on this specific issue, other courts
have vacated restitution orders that did not account for secondary mortgage
markets. In United States v. Yeung, the Ninth Circuit vacated in part a district
court’s restitution order. 672 F.3d 594 (9th Cir. 2012), abrogated on other
grounds by Robers v. United States, 134 S. Ct. 1854 (2014). The Yeung court
held that calculating lenders’ losses “require[s] some adjustment when a victim

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                                       No. 12-10874
purchased a loan in the secondary market, that is, where the victim is the loan
purchaser as opposed to the loan originator.” Id. at 601–02. It reasoned:
           Because the value of that loan is not necessarily its unpaid
           principal balance, but may vary with the value of the collateral,
           the credit rating of the borrower, market conditions, or other
           factors, the loan purchaser may have purchased the loan for less
           than its unpaid principal balance. To calculate a victim’s
           restitution award using the outstanding principal balance of the
           loan, if the victim only paid a fraction of that amount to obtain the
           loan on the secondary market, would cause the victim to receive an
           amount exceeding its actual losses. Awarding such an amount
           would constitute plain error.
Id. at 602 (internal citations omitted). Similarly, in United States v. Chaika,
the Eighth Circuit held that where “the trial evidence suggest[s] that many
fraudulently-induced mortgages were sold by the initial lender in a secondary
mortgage market, . . . this greatly alters the determination of the victims’
actual loss.” 695 F.3d 741, 748 (8th Cir. 2012). This is so because
           [t]he ultimate foreclosure sale price is irrelevant to an initial
           lender who sold the loan, while the purchasing secondary lender
           may not be a victim, and if it is, actual loss will turn on its purchase
           price in the secondary market, whether it remained on the loan all
           the way to foreclosure, and perhaps other factors.
Id.
           Here, the method the district court used to calculate the restitution order
cannot establish actual losses unless the government demonstrated by a
preponderance of the evidence that the mortgages were never resold or, if they
were, that their resale prices were the same as their face amounts. But the
government concedes that the mortgages were sold for at least three of
Frazier’s properties, and “likely” sold in seven others. 3 And the government



     Frazier’s PSR identifies seven banks as “victims” for twenty of the properties. Because
      3

the straw borrower for one property was able to make the mortgage payments and keep the
property, no loss was attributed to that bank for that transaction. In its brief, the government
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                                       No. 12-10874
provides no evidence of the prices at which these mortgages were resold. This
is because, as the government’s case agent stated, “the records aren’t very
good” due to the age of the transactions.
        The government thus concedes that it could not show what the resale
prices were, but asks us to affirm the district court’s order because it was based
on the best information available. 4 As an initial matter, we are skeptical that
the records for these properties are irretrievably lost. But even assuming no
information can be gathered, this argument fails because the government has
the burden of establishing losses under the MVRA, which requires proof
through a preponderance of the evidence. 18 U.S.C. § 3664(e).
        We hold that the district court erred because its method for calculating
restitution does not establish actual losses suffered by the victims identified.


                                             IV.
        Having concluded that the district court’s restitution order was error, we
must still determine whether it was plain error. For the district court’s order
to be plain error, the error must have been clear and obvious, affect Frazier’s
“substantial rights,” and “seriously affect the fairness, integrity, or public
reputation of the judicial proceedings.” Jefferson, 751 F.3d at 322. We hold
that Frazier’s restitution order meets the remaining three prongs of the plain
error test.
        “An error is considered plain, or obvious, for purposes of this court’s plain
error inquiry only if the error is clear under existing law.” Maturin, 488 F.3d



identifies the properties for which the mortgages were sold or likely sold, based on its review
of the co-defendants’ restitution hearings.
   4 The government acknowledges that “the amount the secondary lienholder paid for the
mortgage, minus the amount that lienholder recovered after its sale of the property, is the
best measure of the restitution owed to that lienholder.” Appellee’s Br. 19.
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                                     No. 12-10874
at 663. As described above, the MVRA requires “a complete accounting of the
losses to each victim,” and the government to demonstrate the amount of loss
by a preponderance of the evidence. 18 U.S.C. § 3664(a), (e). Our precedents
make clear that “the purpose of the MVRA is to compensate a victim for its
losses” and that a “court may not award the victim a windfall.” Beydoun, 469
F.3d at 107–08; see also United States v. De Leon, 728 F.3d 500, 506 (5th Cir.
2013) (“[T]he MVRA does not permit a court to award a windfall greater than
the victim’s actual loss.”). And while this circuit has not ruled on the specific
issue of secondary mortgage markets in restitution calculations, the district
court could have looked to the Ninth Circuit’s discussion in Yeung, which found
plain error under similar facts, for guidance. 672 F.3d at 602 (“Awarding such
an amount would constitute plain error.”). 5
        Instead,   the    district    court       accepted   the     PSR’s    restitution
recommendation without requiring the government to prove that any of the
“victims” suffered losses in the amounts listed. Frazier only discovered after
his sentencing that some of the mortgages were resold. But that does not
change our conclusion that the district court should have considered that
possibility in the first instance, and insisted the government prove that the
PSR’s figures accurately reflected losses suffered by the banks receiving
restitution. We hold that its failure to do so was clear and obvious error.
        We also hold that the error affected Frazier’s substantial rights. As an
initial matter, the government conceded this prong in its briefing.                    See
Appellee’s Br. 26 (stating that “a higher restitution amount than is legal under
the MVRA would affect his substantial rights” and arguing instead that
Frazier “has not met the first, second, and fourth prongs of plain error”). But



   5 See United States v. Hope, 545 F.3d 293, 297 (5th Cir. 2008) (finding plain error when
the Fifth Circuit had not addressed the issue but other circuits had).
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                                  No. 12-10874
even without the government’s concession, we hold that a restitution amount
greater than what the MVRA authorizes affects Frazier’s substantial rights
under prong three of the plain error test.
      In Maturin, this court held that “[a]n error affects the defendant’s
substantial rights if ‘it affected the outcome of the trial court proceedings.’”
Maturin, 488 F.3d at 663 (quoting United States v. Alarcon, 261 F.3d 416, 423
(5th Cir. 2001)). Where a district court erroneously ordered $164,988.98 in
restitution when it could not have ordered more than $54,384.43, the Maturin
court “easily conclude[d] that the error . . . affected the outcome of the district
court proceedings and Maturin’s substantial rights.” Id. This court held the
same in United States v. Inman, finding plain error where a district court
ordered restitution in the amount of $135,283.11 when, under the MVRA,
restitution could not have exceeded $64,501.97. 411 F.3d 591, 595 (5th Cir.
2005) (“The restitution order affected Inman’s substantial rights because the
outcome of the district court proceedings would have been different if the error
had not occurred.”). Consistent with our holdings in these cases, we hold that
the district court’s error affected Frazier’s substantial rights.
      Finally, we hold that the district court’s error “seriously affect[s] the
fairness, integrity or public reputation of judicial proceedings.” Puckett, 556
U.S. at 135 (alteration in original) (internal quotation marks omitted). “When
a defendant is ordered to pay restitution in an amount greater than the loss
caused, the error affects substantial rights as well as the fairness and integrity
of the judicial proceeding.” United States v. Austin, 479 F.3d 363, 373 (5th Cir.
2007) (emphasis added). Without information on the secondary mortgage
market, we cannot be sure that the district court’s order awarded restitution
to the right parties in the correct amounts. In light of the revelation that at
least some of the properties’ mortgages were resold, it is entirely possible that
the “victims” identified in the PSR did not suffer losses, and instead received a
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                                  No. 12-10874
windfall. It is also possible that other, actual victims of Frazier’s crimes have
not been compensated.      Such results would certainly affect “the fairness,
integrity, or public reputation of judicial proceedings.”


                                       V.
      For the foregoing reasons, we VACATE the district court’s restitution
order and REMAND for resentencing.




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                                   No. 12-10874
JERRY E. SMITH, Circuit Judge, dissenting.
      By granting relief on plain-error review, the majority attributes to U.S.
District Judge Jorge Solis a sentence that, in the majority’s view, is unfair,
lacks integrity, and undermines the reputation of the judicial system. Because
that criticism is unwarranted under the facts and governing law, I respectfully
dissent.
      Without even reaching the merits, we should summarily affirm because
the only issue―restitution―is inadequately briefed. Federal Rule of Appellate
Procedure 28(a)(8) states that the appellant’s brief “must contain (A) appel-
lant’s contentions and the reasons for them, with citations to the authorities
and parts of the record . . . .” Inadequately briefed issues are deemed waived.
Carl E. Woodward, L.L.C. v. Acceptance Indem. Ins. Co., 743 F.3d 91, 96 (5th
Cir. 2014).     This court routinely applies such a waiver even without the
waiver’s being noticed by the opposing party. “Indeed, in many different types
of cases, we have repeatedly declined to consider issues . . . that were not ade-
quately briefed or argued . . . .” Goudeau v. E. Baton Rouge Parish Sch. Bd.,
540 F. App’x 429, 437 (5th Cir. 2013) (citing a long list of Fifth Circuit cases
and criticizing, as fatal, the “[f]ailure to provide any legal or factual analysis of
an issue on appeal”).
      Frazier’s counsel candidly admits that the restitution issue was not
raised in the district court and that the plain-error standard of review there-
fore applies.    Frazier’s brief incants the plain-error standard but fails to
explain how any of its prongs is satisfied. In his brief, he claims that the
“restitution order confirms the plain error committed by the district court,
which affected his substantial rights, and the fairness, integrity, and public
reputation of judicial proceedings.” At most, the pages that follow could be
understood to address the first prong―that there was error―but nowhere does
Frazier point out how, in his view, the error was plain, or how it affected his
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                                  No. 12-10874
substantial rights, or in what respect it seriously affects fairness, integrity, or
reputation.
      It should never be enough for an appellant merely to state the standard
of review and then just say “therefore we win” without explaining how that is
so. For example, if the standard of review were abuse of discretion, we would
not credit a brief that showed only that there was error without specifically
pointing out in what respect the error was so damaging that it amounted to an
abuse of the district court’s wide discretion.   To the same effect here, the very
point of plain-error review of alleged mistakes not brought to the attention of
the district court is that to stand any chance of reversal, the appellant must
show much more than mere error. And under Rule 28(a)(8), that work must
be done in the opening brief. It is not the job of this court to fashion appellant’s
arguments for him (as the majority does here) by coming up with an analysis
of how each of the four prongs of plain-error review is satisfied.
      Even if Frazier had adequately briefed the plain-error test, he does not
satisfy each of its prongs. As I have said, he can be deemed only to have briefed
the first prong, which the majority addresses by stating, “Frazier argues that
the district court’s method for calculating restitution constituted error. We
agree.”
      Any error, however, was not “plain” under the second prong. There was
nothing obvious for the district court to use to announce a sentence that might
not be deemed error. Frazier failed to contest the presentence report or to
object to the manner of calculation. He introduced no evidence or argument
regarding which mortgages were resold, which would have afforded the court
the chance to decide whether it should calculate restitution differently. Thus,
the district court never had the opportunity to make findings of fact on this
issue. See, e.g., United States v. Garcia, 447 F. App’x 587, 589 (5th Cir. 2011)
(“Garcia presented no evidence . . . to rebut the [restitution] amounts provided
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                                  No. 12-10874
by the [presentence report]. . . . In any event, these are factual issues that
were capable of resolution in the district court and, thus, never capable of
constituting plain (clear or obvious) error.”).
      Regarding the third prong―substantial rights―Frazier’s claim fails as
well. Where, as here, the district court explicitly declined to impose a fine in
light of the amount of the restitution, the defendant cannot show that his sub-
stantial rights were affected. See, e.g., United States v. Miller, 406 F.3d 323,
330−31 (5th Cir. 2005) (Smith, J.); United States v. Dwyer, 275 F. App’x 269,
272−73 (5th Cir. 2008) (Smith, J.).
      The majority also errs in finding the fourth prong satisfied. Its most
flagrant mistake is in saying that that prong is automatic. In United States v.
Escalante-Reyes, 689 F.3d 415, 425 (5th Cir. 2012) (en banc), this court
emphasized that relief under the fourth prong is not “automatic” and that we
must focus on “the particular facts of [the] case” in deciding whether to exercise
our discretion to grant the exceptional relief that is inherent in plain-error
review. The majority, however, treats fourth-prong relief as following natur-
ally and as a matter of course because “[w]ithout information on the secondary
mortgage market, we cannot be sure that the district court’s order awarded
restitution to the right parties in the correct amounts.” Even if old Fifth Cir-
cuit caselaw said that excess restitution calls for fourth-prong relief, such a
holding is superseded by the en banc pronouncement in Escalante-Reyes.
      Finally, the majority overlooks that plain-error reversals should be rare
and exceptional.     See id. at 431−41 (Smith, J., dissenting); see generally
Edward Goolsby, Why So Serious? Taking the Word “Seriously” More Seriously
in Plain Error Review of Federal Sentencing Appeals, 51 HOUSTON L. REV. 1449
(2014). The majority’s conclusional assertion that the sentence here “would
certainly affect” fairness, integrity, and reputation includes no explanation of
how this case is indeed exceptional. Because it is not, I respectfully dissent.
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