         Case: 10-12065    Date Filed: 05/15/2014   Page: 1 of 35


                                                                    [PUBLISH]



          IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                           No. 10-12065
                     ________________________

                D.C. Docket No. 1:09-cr-20628-DLG-3



UNITED STATES OF AMERICA,

                    Plaintiff-Appellee,
versus

NELIDA RODRIGUEZ,

                    Defendant-Appellant.

                     ________________________

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

                             (May 15, 2014)
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Before MARCUS, Circuit Judge, and COOGLER * and BOWEN, ** District Judges.

COOGLER, District Judge:

   I.        Introduction

   This appeal presents several issues arising from the seventy-month prison

sentence of Defendant Nelida Rodriguez (“Rodriguez”) following her guilty plea

to conspiracy to commit mail and wire fraud, 18 U.S.C. § 1349; mail fraud, 18

U.S.C. §§ 1341 and 2; and wire fraud, 18 U.S.C. §§ 1343 and 2. She argues, first,

that her guilty plea violated her constitutional rights and was not knowing and

voluntary. Her basis for this argument is that she told the district judge she

suffered from a mental illness, consulted with her attorney multiple times, and did

not receive the full protections of Federal Rule of Criminal Procedure 11 (“Rule

11”). She argues, second, that we should vacate and remand for re-sentencing

because the district court applied unsupported sentencing enhancements and

applied the incorrect legal standard when denying a minor role reduction. Finally,

she contends that the district court’s restitution award lacked evidentiary support,

and that the delay of two years between her sentencing and the amended judgment



        *
       Honorable L. Scott Coogler, United States District Judge for the Northern District of
Alabama, sitting by designation.

        **
         Honorable Dudley H. Bowen, Jr., United States District Judge for the Southern District
of Georgia, sitting by designation.


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ordering restitution removed jurisdiction from the district court to order restitution

and violated her due process rights.

   After careful review of the record and the briefs of the parties, and having the

benefit of oral argument, we affirm Rodriguez’s guilty plea, sentence, and the

restitution order.

   II.       Background

             a. Facts 1

         A mortgage fraud scheme was operated from June 2005 through March 2007

involving Rodriguez and other defendants. As part of the scheme, numerous

fraudulent loan applications were submitted to lenders across the United States in

order to obtain loans on properties in Miami-Dade County and Broward County,

Florida. As a result of the scheme, several lenders were caused to lose significant

sums of money.

         Magile Cruz (“Cruz”), the leader and organizer of the scheme, owned and

operated Star Lending Mortgage, State Mortgage Lending, Sherley Title Services,

Doral Title Services, and Professional Title Express. Cruz would identify

residential properties for sale through her mortgage brokerage and mortgage

lending businesses. She and others would then prepare on behalf of “straw buyers”

         1
          The facts contained herein are gleaned from the portions of the Presentence
Investigation Report (“PSI”) to which Rodriguez did not object. “It is the law of this circuit that
a failure to object to allegations of fact in a PSI admits those facts for sentencing purposes.”
United States v. Wade, 458 F.3d 1273, 1277 (11th Cir. 2006).
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fraudulent mortgage loan applications. The applications included false

employment verifications, pay stubs, income and funds on deposit verifications,

and Internal Revenue Service forms. In addition, some of the co-conspirators

would recruit and pay individuals to pose as buyers and to ostensibly participate in

the purchase of the selected properties. These straw buyers had no intention of

residing in the purchased properties but made contrary representations to the

lenders. Cruz and her co-conspirators paid the straw buyers $5,000 for every

property on which their credit was used. In addition, as part of the fraudulent loan

documentation submitted to the lenders, Cruz and the co-conspirators would

represent themselves to be agents for title insurance companies and falsely claim

the subject property to be covered by title insurance.

      Lenders, after clearing the loans for closing, would forward the funds via

wire, from outside the state of Florida, to companies owned and controlled by Cruz

and her co-conspirators located in Florida. The lenders would then send various

mortgage documents which included the Good Faith Estimate, Servicing

Agreement, and RESPA Compliance documentation to the straw buyers via the

United States Postal Service.

      Finally, as part of the scheme to defraud, Cruz and her co-conspirators filed

change of address forms with the United States Postal Service on behalf of the

straw buyers. The forms changed the straw buyers’ addresses from the loan


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properties to a P.O. Box under the control of Cruz and her co-conspirators. By

submitting the change of address forms on behalf of the straw buyers, Cruz and her

co-conspirators concealed from the individuals actually living at the addresses that

their properties had been fraudulently sold.

      Cruz and her co-conspirators then made payments on the fraudulently

obtained mortgages via checks and money orders in order to keep the mortgage

loans afloat until the properties could be “resold,” often to another straw buyer.

Ultimately Cruz ceased making payments on the properties, causing them to go

into default and some into foreclosure.

      Rodriguez, a friend of Cruz, worked for her at one of her companies and was

listed as President of Professional Title Express, another of Cruz’s companies. At

Cruz’s request, Rodriguez opened two P.O. Boxes in Doral, Florida, to which

mortgage-related documents were redirected via change of address forms in order

to avoid detection of the fraud. Rodriguez also made monthly mortgage payments

on mortgages in straw buyers’ names to lenders by checks drawn on her own

account at Union Planters Bank. One straw buyer identified Rodriguez as the

person who delivered her check as payment for the use of her credit, while another

straw buyer identified Rodriguez as the person who went to the bank and returned

with money to pay him for his participation in the scheme.




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       Rodriguez, herself, acted as a straw buyer for the “purchase” of a property

located at 10224 Northwest 130 Street, Hialeah Gardens, Florida, receiving

$12,000 for the use of her credit. Rodriguez was also the purported seller of

property in a fraudulent transaction involving her husband, co-defendant Pedro

Huezo.

           b. Procedural History

       On July 23, 2009, a Southern District of Florida grand jury returned a

twenty-count indictment, charging Rodriguez and eighteen co-defendants with

participating in the above-described mortgage fraud scheme. On January 9, 2010,

Rodriguez pled guilty to Count One, conspiracy to commit mail and wire fraud, 18

U.S.C. § 1349; Count Two, mail fraud, 18 U.S.C. §§ 1341 and 2; and Count

Twelve, wire fraud, 18 U.S.C. §§ 1343 and 2. There was no oral or written plea

agreement.

       According to her PSI, Rodriguez’s base offense level was seven.2 The PSI

asserted that the fraudulent transactions resulted in over $19 million being lost by

at least twenty-three lenders. As such, the PSI increased the base offense level by

twenty levels, pursuant to U.S.S.G. § 2B1.1(b)(1)(K), based upon a loss of more

than $7 million and less than $20 million. The offense level was further increased

by two levels, pursuant to section 2B1.1(b)(2)(A)(i), because the offense involved

       2
        Rodriguez’s PSI relied upon section 2B1.1 of the 2009 U.S. Sentencing Guidelines
Manual (“U.S.S.G.”), which applies to offenses involving fraud.
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ten or more victims, and another two levels, pursuant to section 2B1.1(b)(10)(C),

because the offense involved the use of sophisticated means. Finally, it was

increased by three levels, pursuant to section 3B1.1(b), because of Rodriguez’s

role in the offense as a manager or supervisor, but then decreased by three levels,

pursuant to section 3E1.1(a) and (b), for acceptance of responsibility. As a result,

Rodriguez was assigned a total offense level of thirty-one, which when combined

with a criminal history category of I, resulted in a guideline sentencing range of

108 to 135 months’ imprisonment.

      Rodriguez objected to the PSI on several grounds. She argued that she was

not paid $60,000 for a transaction involving her husband, that the loss amount

attributed to her was overstated, and that she was not a supervisor but instead

played a minor role in the scheme.

      The district court conducted Rodriguez’s sentencing hearing over the course

of two days, at which time Rodriguez made only two objections: one based upon

the enhancement for her role in the offense and the other based upon the

enhancement for the loss amount attributable to her. Along with her objection to

the supervisory role enhancement, Rodriguez also moved for a two-level minor

role reduction pursuant to U.S.S.G. § 3B1.2(b). At sentencing, the government

argued that the loss amount applicable to Rodriguez was $12,024,168.03, deriving

this figure by assigning a loss-value to each of the properties connected to her.


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After weighing the extensive evidence including hours of testimony and argument,

the district court sustained Rodriguez’s objection to the supervisory role

enhancement but denied her request for a two-level minor role reduction, and

determined that the loss attributable to Rodriguez was over $12 million. The court

recalculated the total offense level at twenty-eight, rather than thirty-one, resulting

in a sentencing range of seventy-eight to ninety-seven months’ imprisonment.

However, the court determined that a sentence below the guideline range was

appropriate to prevent a disparity in sentencing among other co-conspirators as

well as Cruz. The court noted that Cruz, who had been indicted in a separate case,

had been held responsible for less than $7 million. Rodriguez was ultimately

sentenced to seventy months’ imprisonment as to each count with each count to

run concurrently, and a three year term of supervised release following her

imprisonment.

      At the conclusion of the sentencing hearing, the court stated that “mandatory

restitution is appropriate,” but noted that the victims’ losses were not yet

ascertainable and informed the parties that it would set a date for the final

determination of restitution “not to exceed ninety days after sentencing.” (District

Court Docket Entry (“D.E.”) 734 at 87:13-22.) When the court entered its

judgment on April 30, 2010, it noted that “the determination of restitution is

deferred until July 28, 2010” at which time an amended judgment would be


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entered. (D.E. 714 at 5.) Rodriguez filed a notice of appeal when the April 30,

2010 judgment was entered.

       On July 27, 2010, the government moved to continue the restitution hearing,

citing Dolan v. United States, 560 U.S. 605, 130 S.Ct. 2533, 177 L.Ed.2d 108

(2010).3 The district court granted the motion but did not immediately reset the

hearing.

       Meanwhile, this Court questioned its jurisdiction over Rodriguez’s appeal

due to the incomplete judgment and ordered the parties to provide supplemental

briefing on the issue of whether Rodriguez’s sentence was final even though the

restitution amount remained outstanding, citing 28 U.S.C. § 1291 and Dolan. The

parties filed a joint response, insisting that this Court had jurisdiction over the

appeal, but requesting a stay of the appeal until the issue of restitution was

resolved. The motion to stay was granted.

       On June 30, 2011, Rodriguez filed a pleading in the district court captioned,

“Motion for Re-sentencing in Order to Set Restitution,” in which she argued that

the district court should vacate its prior judgment and conduct an entirely new

sentencing hearing so that her restitution proceeding could be conducted within the



       3
         Dolan, which had been decided by the Supreme Court the prior month, held that a
sentencing court that missed the ninety-day deadline in which to order restitution as set out in 18
U.S.C. § 3664(d)(5) nonetheless retains the power to order restitution as long as the sentencing
court made clear prior to the deadline’s expiration that it would order restitution, leaving open
only the amount. 560 U.S. at 611, 130 S.Ct. at 2539.
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ninety-day period provided for in 18 U.S.C. § 3664(d)(5). She also filed a

pleading in this Court entitled, “Motion for Summary Remand to the District

Court,” in which she essentially made the same argument. The government filed a

response that we construed as a motion to dismiss Rodriguez’s appeal as

premature. This Court denied both motions, stayed the appeal until the conclusion

of the district court’s restitution proceedings, and ordered the Clerk to consolidate

this appeal with any appeal that Rodriguez might file from the district court’s

restitution order.

      On January 30, 2012, the government submitted a request in the district

court to schedule a restitution hearing “as soon as is reasonably possible.” In

response, a magistrate judge, to which the restitution issue had been referred,

scheduled a restitution hearing for March 29, 2012. Rodriguez then moved to

reschedule that hearing in order to give her more time to prepare. The hearing was

rescheduled for April 17, 2012. On the day before the rescheduled hearing,

Rodriguez again moved to postpone it, and the magistrate judge rescheduled it for

June 11, 2012. After hearing testimony on that date, the magistrate judge

recommended that the district court deny Rodriguez’s motion for re-sentencing and

impose restitution in the amount of $7,941,854.42. The district court considered

de novo the report and recommendation, as well as the objections Rodriguez filed

thereto, and adopted the report and recommendation. The district court thus


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entered an amended judgment setting restitution in the amount of $7,941,854.42,

for which Rodriguez was jointly and severally liable with her co-defendants in this

case and with Cruz.

          Rodriguez appealed the amended judgment, and this Court removed the stay

and ordered briefing of the appeal to resume.

   III.       Discussion4

              a. Guilty Plea

          Rodriguez argues for the first time on appeal that the guilty plea proceedings

violated her constitutional rights and failed to comport with the core components

of Rule 11. She contends that she was not competent to plead guilty due to mental

illness, that her guilty plea was not knowing and voluntary because the district

court did not adequately explain her rights or the charges against her, and that there

was an insufficient factual basis for her plea.

          We review for plain error when a defendant, as with Rodriguez, fails to

object in the district court to a claimed Rule 11 violation, including a claim that

there was an insufficient factual basis for a guilty plea. See United States v. Vonn,

535 U.S. 55, 58-59, 122 S.Ct. 1043, 1046, 152 L.Ed.2d 90 (2002); United States v.


          4
          Before reaching the merits of Rodriguez’s appeal, we take a moment to satisfy
ourselves that we have jurisdiction. See United States v. Lopez, 562 F.3d 1309, 1311 (11th Cir.
2009) (this Court is required to examine its jurisdiction sua sponte). Section 3664(o), Title 18,
United States Code, provides that a “sentence that imposes an order of restitution,” such as the
amended judgment here, “is a final judgment.” There is thus no question that we now have
jurisdiction pursuant to 28 U.S.C. § 1291.
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Franklin, 323 F.3d 1298, 1299 n.1 (11th Cir. 2003). We also find that we should

review for plain error when a defendant fails to object to the district court’s

determination that she is competent to plead guilty. See United States v. Bennett,

518 F. App’x 660, 663 (11th Cir. 2013) (unpublished) (holding that the district

court did not commit plain error when it found that the defendant was competent to

enter his guilty plea, where the defendant asserted for the first time on appeal that

he did not understand the consequences of his guilty plea due to limited mental

capacity and paranoia) (citing United States v. Rodriguez, 398 F.3d 1291, 1298

(11th Cir. 2005), for the general rule that errors not raised in the district court are

reviewed for plain error).5 “To establish plain error, a defendant must show there

is (1) error, (2) that is plain, and (3) that affects substantial rights.” United States

v. Moriarty, 429 F.3d 1012, 1019 (11th Cir. 2005) (citing United States v. Olano,

507 U.S. 725, 732, 113 S.Ct. 1770, 1776, 123 L.Ed.2d 508 (1993)). In the Rule 11

context, a defendant who seeks to establish plain error “must show a reasonable

probability that, but for the error, [s]he would not have entered the plea.” United

States v. Dominguez Benitez, 542 U.S. 74, 83, 124 S.Ct. 2333, 2340, 159 L.Ed.2d

157 (2004).

              i. Competence

       5
         In this Circuit, “[u]npublished opinions are not considered binding precedent, but they
may be cited as persuasive authority.” See 11th Cir. R. 36-2. We find the rationale in Bennett
persuasive. See Bonilla v. Baker Concrete Const., Inc., 487 F.3d 1340, 1345 n.7 (11th Cir. 2007)
(“Unpublished opinions are . . . persuasive only insofar as their legal analysis warrants.”).
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       “The due process clause prohibits the trial or guilty plea conviction of a

person who is mentally incompetent.” Sheley v. Singletary, 955 F.2d 1434, 1437

(11th Cir. 1992). Further, the standard of “competence” required to plead guilty is

the same standard used by courts to determine whether an individual is competent

to stand trial, that is, “‘whether the defendant has sufficient present ability to

consult with his lawyer with a reasonable degree of rational understanding’ and has

‘a rational as well as factual understanding of the proceedings against him.’”

Godinez v. Moran, 509 U.S. 389, 396-98, 113 S.Ct. 2680, 2685-86, 125 L.Ed.2d

321 (1993) (quoting Dusky v. United States, 362 U.S. 402, 402, 80 S.Ct. 788, 788-

89, 4 L.Ed.2d 824 (1960) (per curiam)). As such, an allegation of mental illness or

other mental disability does not invalidate a guilty plea if the defendant was still

competent to enter that plea. See Bolius v. Wainwright, 597 F.2d 986, 990 (5th Cir.

1979) (“The mental illness or disability must have been so debilitating that [the

defendant] was unable to consult with [her] lawyer and did not have a rational and

factual understanding of the proceedings.”) (citing Dusky, 362 U.S. at 402, 80 S.Ct.

at 788-89); 6 see also Pardo v. Sec’y, Fla. Dept. of Corr., 587 F.3d 1093, 1101

(11th Cir. 2009) (absent evidence of an inability to assist counsel, the defendant’s



       6
         In Bonner v. City of Pritchard, Ala., 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc),
this Court adopted as binding precedent all decisions of the former Fifth Circuit rendered prior to
October 1, 1981.


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“low intelligence, mental deficiency, bizarre, volatile, or irrational behavior, or the

use of anti-psychotic drugs is not sufficient to show incompetence”). 7

       The district judge conducted a thorough and comprehensive discussion with

Rodriguez at her change of plea hearing, inquiring in numerous ways about her

mental health. In response to his questions, Rodriguez indicated that she had been

undergoing treatment for mental illness for the past year, beginning with her arrest

in this case; that she was under the care of a psychologist and a doctor; and that she

was taking three types of medication prescribed for depression and to help her

sleep, although she could only remember the name of one medication—

Clonazepam. She further indicated that she had taken “her pill” the day of the

hearing. The district judge then took great care to ascertain whether Rodriguez

was capable of understanding the proceeding and was able to communicate with

counsel. Rodriguez testified that, notwithstanding her medication, she could

understand the conversations she had had with her attorney. Although she initially

testified that she was not able to understand the conversations she’d had with other

individuals, she then clarified that her inability to understand was not due to the

       7
         The standard of competence to enter a plea of guilty or to stand trial is the same whether
the criminal proceeding is in state or federal court. Although all of the aforementioned cases,
with the exception of Dusky, were 28 U.S.C. § 2254 habeas corpus challenges to guilty pleas or
convictions in state courts, in Malinauskas v. United States, this Court held that the Dusky test of
mental competency also applies to entering a guilty plea in a federal criminal case. 505 F.2d
649, 654 (5th Cir. 1974); see also Bolius, 597 F.2d at 988 n.3 (noting that the Dusky standard of
competence to stand trial or to enter a plea of guilty applies in both state and federal criminal
proceedings).


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medication she was taking. 8 Rodriguez’s counsel then stated that he had had no

difficulty communicating with his client or having her understand fairly complex

legal issues. Counsel for the government likewise stated that during his interview

       8
           More specifically, the following colloquy transpired:

                 COURT: Have you been able to understand the conversations
                 you’ve had with other individuals?

                 DEFENDANT: No.

                 COURT: And could you discuss that in a little more detail?

                 DEFENDANT: What I meant to say is that I recently had an
                 interview with the U.S. Attorney – the Assistant U.S. Attorney and
                 also with Mr. Salinas and they showed me some papers and the
                 papers say things that I never said.

                 COURT: Are you referring to transcripts or other documents?

                 DEFENDANT: Could you explain your question, please?

                 COURT: You said the papers show things that you are not familiar
                 with. Are you referring to transcripts of conversations or other
                 types of documents?

                 DEFENDANT: The documents from the interviews that he had
                 with me.

                 COURT: Well is your understanding of what’s on the documents
                 affected by the medication you are taking or some other reason?

                 DEFENDANT: How was that question?

                 COURT: You indicated that you, based upon certain medication,
                 have had trouble understanding certain issues. Is that correct? Is it
                 because of the medication or is it because of some other reason that
                 you’re not understanding certain items?

                 DEFENDANT: No, it’s not because of the medication. There are
                 just other matters that I have not understood.

(D.E. 532 at 5:13-25; 6: 1-17.)
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with Rodriguez he had no trouble communicating with her or having her

understand him. The district judge then questioned Rodriguez again with regard to

whether she had any problems understanding or communicating with others as a

result of her medication, to which she responded that she had not.

      During the course of the change of plea hearing, Rodriguez periodically

paused to consult with her attorney before responding to a question by the court.

After each of these brief discussions with her attorney, Rodriguez confirmed that

she understood the question posed by the court. Her attorney also confirmed that

Rodriguez understood the questions posed. At one point Rodriguez’s daughter

interrupted the hearing to state that she was not sure that Rodriguez understood

what was going on and asked to speak with her mother privately. The district

judge allowed Rodriguez to confer with her attorney and her daughter, after which

he again confirmed that Rodriguez understood the questions as well as the plea she

was about to enter:

            COURT: All right. You obviously had some discussions
            with your daughter and your lawyer. As a result of those
            discussions or any other reason, do you have any
            questions about any matter that has been raised during
            the plea colloquy?

            DEFENDANT: No.

(D.E. 532 at 23:12-17). Simply put, there is no evidence or indication that

Rodriguez was unable to consult with her attorney or understand the advice offered


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to her. As such, no error, plain or otherwise, was committed by the district judge

in determining that Rodriguez was competent to enter a plea of guilty.

             ii.    Knowing and Voluntary Plea

      Of course, a finding that a defendant is competent to plead guilty is not all

that is required. Because “a guilty plea involves the waiver of a number of a

defendant’s constitutional rights,” the district court must also ensure that the guilty

plea is made “knowingly and voluntarily to satisfy the requirements of due

process.” Moriarty, 429 F.3d at 1019. In accepting a defendant’s guilty plea, the

district court must specifically address the three “core principles” of Rule 11 by

“ensuring that a defendant: (1) enters [her] guilty plea free from coercion; (2)

understands the nature of the charges, and (3) understands the consequences of

[her] plea.” Id. To ensure compliance with the third core concern, Rule 11(b)(1)

provides a list of rights and other relevant matters about which the court must

inform the defendant and assure itself that the defendant understands prior to

accepting a guilty plea. See Fed. R. Crim. P. 11(b)(1).

      The district judge ensured that Rodriguez was not threatened or forced into

pleading guilty, satisfying the first core concern. See Fed. R. Crim. P. 11(b)(2).

The district judge also satisfied the second core principle by detailing the charges

of conspiracy, mail fraud, and wire fraud against Rodriguez, explaining in detail

the allegations and elements of each charge. Following the explanation, Rodriguez


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confirmed she understood the allegations and elements of the charges against her.

      Rodriguez quarrels with the manner in which the court addressed the third

core principle, specifically the matters set forth in Rule 11(b)(1)(D), (G), and (K).

However, the district judge explained Rodriguez’s rights to her in detail, including

her right to plead not guilty, her right to counsel, and the consequences if she chose

to plead guilty, specifically including the rights she would waive as a result. After

each explanation, the judge asked Rodriguez if she understood, and each time she

answered affirmatively. Rodriguez also acknowledged that she understood the

maximum punishment authorized for her offenses—twenty years of imprisonment

plus supervised release—and that the court would order restitution for the losses

caused by the offenses.

      Regardless, Rodriguez insists that the manner in which the district judge

informed her of her right to counsel constituted an error because the judge’s

language did not precisely track the language of Rule 11(b)(1)(D). To the

contrary, when the judge asked Rodriguez if she understood that she had “the right

to the assistance of an attorney,” he satisfied Rule 11(b)(1)(D). (D.E. 532 at 9:5-

6.) In assessing whether a colloquy satisfies the provisions of Rule 11, “matters of

substance, not form, are controlling.” United States v. Monroe, 353 F.3d 1346,

1351 (11th Cir. 2003).




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      Similarly, there is no merit to Rodriguez’s argument that the court failed to

inform her of the court’s authority to order restitution. When the court asked the

government to inform Rodriguez of the punishment authorized, and the

government stated that “the Court shall order restitution for all losses caused by the

offenses,” the district court clearly satisfied Rule 11(b)(1)(K). (D.E. 532 at 11:6-

7.) See United States v. Hernandez-Fraire, 208 F.3d 945, 950 (11th Cir. 2000)

(“Rule 11 [] does not say that a court’s only means of compliance is to read the

specified items in haec verba. Instead, any variations or deviations from the

procedures mandated by Rule 11 that do not affect a defendant’s substantial rights

constitute harmless error.”) (internal citation omitted).

      Finally, Rodriguez’s contention that plain error occurred because the court

did not explain to her the meaning of “interstate commerce” is misplaced. Nothing

in the text of Rule 11 imposes such an obligation, and no question was raised as to

the term’s meaning during the change of plea hearing. Rodriguez has failed to

demonstrate any error, much less error that is plain or obvious, with respect to the

district court’s compliance with Rule 11.

             iii.   Factual Basis for Plea

       Rodriguez’s assertion that there was an insufficient factual basis to accept

her guilty plea is also belied by the record. “Before entering judgment on a guilty

plea, the court must determine that there is a factual basis for the plea.” Fed. R.


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Crim. P. 11(b)(3). A “factual basis for the plea” simply means that “there must be

evidence from which a court could reasonably find that the defendant was guilty,”

and “uncontroverted evidence of guilt” is not required. United States v. Owen, 858

F.2d 1514, 1516-17 (11th Cir. 1988). At the hearing, Rodriguez confirmed that

she understood the government’s proffer of the factual basis for the charges against

her, asserting reservations to only three facts: (1) that she was paid $60,000 for a

transaction involving her husband, (2) that the amount of the loss was between $7

million and $20 million, and (3) that she had paid two straw buyers for the use of

their credit. With those reservations, Rodriguez confirmed that she had committed

the offenses in the indictment. Rodriguez, her attorney, the government, and the

court all agreed that there was a sufficient factual basis for Rodriguez’s guilty plea.

Indeed, the portions of the factual basis not objected to—including mailing

fraudulent mortgage loan applications, faxing requests for release of funds on

fraudulent loans, paying money owed on fraudulent mortgages, participating in the

fraud as a straw buyer, and opening P.O. Boxes to reroute mail and conceal the

fraud—establish that Rodriguez knowingly participated in a scheme or artifice to

defraud by using the mail and wires. Based on these statements, the court was

justified in concluding that Rodriguez’s plea was supported by a sufficient factual

basis.




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      Accordingly, the district court did not plainly err in accepting Rodriguez’s

guilty plea.

          b. Sentencing Issues

               i.   Twenty-Level Enhancement for Losses over $7 Million

      Rodriguez contends that the district court erred in finding her responsible for

over $12 million in losses and thus imposing a twenty-level guideline enhancement

to her offense level. As Rodriguez objected to the loss amount in the PSI and

during the sentencing hearing, we review this issue for clear error. United States v.

Manoocher Nosrati-Shamloo, 255 F.3d 1290, 1291 (11th Cir. 2001) (“A district

court’s determination regarding the amount of loss for sentencing purposes is

reviewed for clear error.”). There is “no clear error in cases in which the record

supports the district court’s findings.” United States v. Petrie, 302 F.3d 1280,

1290 (11th Cir. 2002).

      Section 2B1.1(b)(1) of the sentencing guidelines instructs courts to increase

a defendant’s offense level based on the loss attributable to that defendant.

U.S.S.G. § 2B1.1(b)(1). Further, “[t]he government must prove the attributable

loss by a preponderance of the evidence.” United States v. Dabbs, 134 F.3d 1071,

1081 (11th Cir. 1998). The guidelines define “loss” as “the greater of actual loss

or intended loss.” U.S.S.G. § 2B1.1 cmt. n.3(A). Actual loss is the “reasonably

foreseeable pecuniary harm that resulted from the offense.” Id. § 2B1.1 cmt.


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n.3(A)(i). Intended loss is the “pecuniary harm that was intended to result from the

offense,” even if the harm was “impossible or unlikely to occur.” Id. § 2B1.1 cmt.

n.3(A)(ii). Pecuniary harm is a harm that is “monetary or that otherwise is readily

measurable in money” and does not include things such as emotional distress and

harm to reputation. Id. § 2B1.1 cmt. n.3(A)(iii). A reasonably foreseeable

pecuniary harm is one that the defendant “knew or, under the circumstances,

reasonably should have known, was a potential result of the offense.” Id. § 2B1.1

cmt. n.3(A)(iv).

      In addition, proper calculation of the guidelines requires consideration of

“all relevant conduct,” not merely charged conduct. United States v. Hamaker,

455 F.3d 1316, 1336 (11th Cir. 2006). Relevant conduct includes “all acts and

omissions . . . that were part of the same course of conduct or common scheme or

plan as the offense of conviction.” U.S.S.G. § 1B1.3(a)(2). A participant in a

conspiracy may thus be held “responsible for the losses resulting from the

reasonably foreseeable acts of co-conspirators in furtherance of the conspiracy.”

United States v. Mateos, 623 F.3d 1350, 1370 (11th Cir. 2010).

      The district court did not clearly err in finding as fact that the loss

attributable to Rodriguez was over $12 million. Although the PSI cited a loss of

over $19 million, at sentencing the government introduced as an exhibit a

spreadsheet demonstrating that the total loss amount attributable to Rodriguez was


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actually $12,024,168.03. The government explained that it derived this number by

adding together the amount of the loss on the property for which Rodriguez acted

as a straw buyer, the amount of the loss on the property for which her husband

acted as a straw buyer, and the amount of the losses on the properties for which she

redirected fraudulent loan documents through the use of her P.O. Boxes. The court

then asked the government to explain the evidence with regard to Rodriguez and

the change of address forms, to which the government responded that Rodriguez

opened and controlled P.O. Boxes Nos. 227005 and 226834, and change of address

forms filed by her co-conspirators directed fraudulent loan documents to those P.O.

Boxes. By rerouting the mail, the conspirators concealed from the individuals who

actually lived at the addresses that their properties had been fraudulently sold, and

in many cases, to more than one straw buyer. The government carried its burden

and proved the attributable losses with sufficient indicia of reliability. 9

       At sentencing, Rodriguez argued that she should not be held responsible for

the losses on the properties associated with her P.O. Boxes because her connection

to those losses was too tenuous and because she did not work for Cruz for the

       9
         We reject as untenable the position Rodriguez’s counsel took at oral argument that the
government’s spreadsheet was never introduced into evidence at the sentencing hearing. It is
clear from the transcript of the sentencing hearing that the government handed the spreadsheet to
the judge, that the judge marked it as Exhibit I, and that the judge and counsel discussed the
calculations on the spreadsheet in detail in the context of the loss amount attributable to
Rodriguez. Rodriguez’s counsel admitted at oral argument that the spreadsheet was referred to,
marked, and used by the court. In addition, Rodriguez’s trial counsel made no contemporaneous
objection to the spreadsheet’s use during the hearing.


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entire length of the conspiracy. These arguments are without merit, as explained

above. Rodriguez participated in the conspiracy and did not withdraw from it, thus

she is responsible for the losses resulting from the reasonably foreseeable acts of

co-conspirators in furtherance of the conspiracy. See U.S.S.G. § 1B1.3(a)(1)(B),

(a)(3); Dabbs, 134 F.3d at 1082 (“[T]he district court may hold all participants in a

conspiracy responsible for the losses resulting from the reasonably foreseeable acts

of co-conspirators in furtherance of the conspiracy.”). Indeed, Rodriguez’s action

in controlling the P.O. Boxes was “relevant conduct” in accordance with U.S.S.G.

§ 1B1.3 because rerouting the mail was essential to the success of the fraudulent

scheme as it helped the conspirators avoid detection. We uphold the district

court’s determination of the loss amount as it applied to Rodriguez. 10

               ii.     Two-Level Enhancements for Use of Sophisticated Means and
                       Multiple Victims



       10
           We wish to make clear that Rodriguez never objected to the accuracy of the $12
million loss amount or the method by which the government calculated that total. At sentencing,
her counsel’s arguments were always that the attribution of that amount to Rodriguez was
unwarranted because the losses were unforeseeable to her as a low-level member of the
conspiracy. On appeal, however, Rodriguez appears to also take issue with the methodology the
government used in calculating the figures on the spreadsheet, arguing that the government’s
formula distorted the loss figures on several properties and that the district court erred in merely
adopting the government’s proffer of a means of loss calculation. (Appellant’s Brief at 14, 17.)
Rodriguez asserts that “the government’s mere argument and proffer of evidence is insufficient
to carry the government’s evidentiary burden as to a disputed sentencing fact,” (Appellant’s
Brief at 17), but she ignores the fact that the method by which the government calculated the
amount was never in dispute, something her counsel admitted at oral argument. If Rodriguez is
now arguing that the district court should have more thoroughly investigated or otherwise
challenged the government’s calculation formula, despite no objection being made to it, our
review would be for plain error, and we find none. See Rodriguez, 398 F.3d at 1298.
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       Rodriguez also argues for the first time on appeal that the district court erred

in imposing two-level enhancements each for multiple victims and use of

sophisticated means. As previously stated, we review objections to sentencing

issues that were not raised in the district court for plain error and can only make

corrections if there is plain error that affects substantial rights. Rodriguez, 398

F.3d at 1298. If these conditions are met, we may exercise our discretion to notice

a forfeited error, but only if the error “seriously affects the fairness, integrity, or

public reputation of judicial proceedings.” Id. (quotation marks omitted).

       The sentencing guidelines call for a two-level increase in the defendant’s

offense level if the offense involved ten or more victims. U.S.S.G. §

2B1.1(b)(2)(A)(i). A “victim” for sentencing enhancement purposes is any

person—including “individuals, corporations, companies, associations, firms,

partnerships, societies, and joint stock companies”—who “sustained any part of the

actual loss . . .” Id. § 2B1.1(b)(2) cmt. n.1. Rodriguez’s PSI concluded that the

fraudulent transactions were funded by at least twenty-three lenders. Since

Rodriguez never objected to that fact, she effectively admitted that there were

twenty-three lender victims. See United States v. Shelton, 400 F.3d 1325, 1330

(11th Cir. 2005) (failure to object to PSI’s factual statements constitutes admission

of those facts). Without an objection, there was no call for the government to put

on specific evidence of the victims at sentencing. See United States v. Lawrence,


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47 F.3d 1559, 1566 (11th Cir. 1995) (explaining that the PSI “serves a role similar

to a pretrial stipulation in a civil case by identifying factual and legal issues that

remain in dispute,” and only when the defendant challenges one of the factual

bases of his sentence does the government have to establish that disputed fact by a

preponderance of the evidence). In any event, the government’s spreadsheet

introduced without objection as evidence at the sentencing hearing shows that

more than ten lenders, servicers, or loan holders were involved in the fraudulent

loans attributed to Rodriguez. Nonetheless, Rodriguez asserts that the number of

victims is limited to the number of victims to which restitution was eventually

ordered—seven. However, her position is contrary to law. See United States v.

Foley, 508 F.3d 627, 633-34 (11th Cir. 2007) (holding that the district court erred

in finding the number of victims for purposes of the multiple-victim sentencing

enhancement by using the number of individuals who had responded to letter from

probation office about restitution). The district court did not plainly err in

enhancing Rodriguez’s sentence for an offense involving more than ten victims

under section 2B1.1(b)(2)(A)(i).

      Similarly, the sophisticated means enhancement was not plainly erroneous.

“Sophisticated means” connotes “especially complex or especially intricate offense

conduct pertaining to the execution or concealment of an offense” and can include

such conduct as “hiding assets or transactions, or both, through the use of fictitious


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entities [and] corporate shells.” U.S.S.G. § 2B1.1 cmt. n.9. The sentencing

guidelines provide for a two-level enhancement when the offense involves the use

of sophisticated means. Id. § 2B1.1(b)(10). The non-objected-to facts in the PSI

clearly indicate that Rodriguez participated in a scheme that utilized straw buyers,

fraudulent mortgage documents, fake title corporations, as well as the improper

diversion of the U.S. mail. We uphold the district court’s enhancement for

sophisticated means.

             iii.   Minor Role Reduction

      Rodriguez argues that she deserves a minor-role reduction based upon her

self-described status as a mere personal assistant to Cruz. We review for clear

error the district court’s determination of Rodriguez’s role in the offense as a

finding of fact. United States v. Rodriguez De Varon, 175 F.3d 930, 937 (11th Cir.

1999) (en banc).

      A two-level reduction in the offense level is appropriate when a defendant

functions as a minor participant in the criminal activity. U.S.S.G. § 3B1.2(b). A

minor participant is one that is “less culpable than most other participants, but

whose role could not be described as minimal.” Id. § 3B1.2(b) cmt. n.5. The

defendant bears the burden of proving, by a preponderance of the evidence, that

she is entitled to the reduction. Rodriguez De Varon, 175 F.3d at 939. In

determining whether a mitigating role is warranted, a district court must consider


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two principles: 1) the defendant’s role measured against the relevant conduct for

which she has been held accountable at sentencing; and 2) her role as compared to

other participants in that relevant conduct. Id. at 940.

      On the record before us, we find no error in the district court’s determination

that Rodriguez did not deserve a minor role reduction. The court, the government,

and Rodriguez’s attorney questioned Rodriguez extensively concerning her role as

it related to the aggravating role enhancement in the PSI and Rodriguez’s request

for a minor role reduction. The court also heard evidence of Rodriguez’s role as

compared to other co-conspirators such as Cruz and Nelson Bermudez. The

evidence demonstrated that Rodriguez performed an essential role in the mortgage

fraud scheme. The fact that the court found that Rodriguez was not a manager or

supervisor in the scheme, so as not to warrant an aggravating role enhancement,

does not automatically mean that Rodriguez is entitled to a minor role adjustment.

See id. at 944 (“[A] defendant is not automatically entitled to a minor role

adjustment merely because she was somewhat less culpable than the other

discernible participants.”).

      Rodriguez also argues for the first time on appeal that the district judge

improperly applied a categorical rule barring minor role reductions for defendants

in large-scale fraud prosecutions when he stated at her sentencing:

             Counsel, let me explain to you why I don’t think a minor
             role is appropriate. This is a case that involved the theft
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              of millions of dollars. It was a sophisticated scheme. It
              involved many, many victims.            And persons who
              participate in this type of criminal activity, in the Court’s
              opinion, are not entitled to a minor role reduction. Their
              acts resulted in substantial harm to the public and the
              treasury, if you will, and so a minor reduction would be
              inappropriate in this Court’s mind. So your request for
              minor role is denied.

(D.E. 734 at 80:1-10.) Rodriguez contends that this statement is inconsistent with

this Court’s decision in Rodriguez de Varon, in which this Court held that it was

improper for a district court to base a minor role reduction solely on a defendant’s

status without assessing her factual role in the scheme. See 175 F.3d at 942-43

(“[A] defendant’s status as a drug courier does not alter the principle that the

district court must assess the defendant’s role in light of the relevant conduct

attributable to her.”).

       Contrary to Rodriguez’s argument, when viewed in context, the judge’s

statement that a minor role reduction was inappropriate “for this type of criminal

activity” is not an application of a categorical preclusion, but is rather a

determination that a minor role reduction was inappropriate in this case due to

Rodriguez’s active role in the conspiracy. As described above, the district judge

had just finished hearing over an hour’s worth of testimony and argument and

viewing multiple exhibits solely concerning Rodriguez’s role in the scheme,

including a comparison of her role to other co-conspirators. In a case where a

defendant made a similar argument, also for the first time on appeal, concerning a
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statement the district judge made at sentencing arguably implying that he was

applying a “per se rule” excluding drug “brokers” from being eligible for

mitigating role adjustments, this Court emphasized:

               We cannot accept that a district judge’s extemporaneous
               spoken words of explanation are to be read by appellate
               judges as if we were reading a statute. . . . We look at the
               context and at the judge’s acts. And we do not assume
               that the district judges do not know the law: their
               ambiguous oral statements, if possible, are interpreted to
               be consistent (and not inconsistent with) the law. The
               last principle applies with particular force when the
               district judge never had presented to him an objection
               aimed specially at his choice of words: the kind of
               objection that would have allowed him the chance to
               clarify his statements.

United States v. Cataldo, 171 F.3d 1316, 1319 n.6 (11th Cir. 1999). The district

judge properly analyzed Rodriguez’s role in the manner contemplated by section

3B1.2 by making an individualized determination, and it is not due to be

overturned. 11


       11
           We note that we reach this conclusion based on a clear error standard of review.
Because Rodriguez contended that the judge improperly applied a categorical rule that large-
scale, sophisticated fraud cases are incompatible with defendants being eligible for minor role
reductions, she urged us to review the judge’s minor role determination de novo, rather than for
clear error, because, she argued, it amounted to a legal interpretation of the sentencing guidelines
rather than a factual determination. It is true that we review a district court’s application and
legal interpretation of the sentencing guidelines less deferentially than its factual findings. See
United States v. Zaldivar, 615 F.3d 1346, 1350 (11th Cir. 2010). However, as we have
determined that the district judge did not apply a categorical bar, but rather made an
individualized fact finding as he was required to do by the guidelines, clear error review is
appropriate. See Rodriguez De Varon, 175 F.3d at 938 (“[T]he ultimate determination of role in
the offense is [] a fundamentally factual determination entitled to due deference and not a legal
conclusion subject to de novo review.”); United States v. Williams, 340 F.3d 1231, 1239 (11th
Cir. 2003) (explaining that clear error review is appropriate when the ruling involves “the
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           c. Restitution

       Rodriguez’s final argument is that the district court erred by amending the

existing judgment to include the restitution amount, as more than two years elapsed

from the date of her sentencing and original judgment to the date of her restitution

hearing and amended judgment. She contends that this delay prejudiced her

constitutional rights to a speedy sentencing and speedy appeal. She also argues

that the district court’s restitution calculation lacked evidentiary support.

       We review the legality of a restitution order de novo and the factual findings

underlying a restitution order for clear error. United States v. Valladares, 544 F.3d

1257, 1269 (11th Cir. 2008). Whether an action taken by a district court amounts

to a constitutional violation is a question of law subject to de novo review. See

United States v. Van De Walker, 141 F.3d 1451, 1452 (11th Cir. 1998).

       The district court was required to order restitution in this case under the

Mandatory Victims Restitution Act of 1996, 18 U.S.C. § 3663A (2006). Under

this Act, a person convicted of any crime against property, including any offense

committed by fraud or deceit, is required to make restitution to the identifiable

victim or victims of the offense. 18 U.S.C. § 3663A(c)(1)(A)(ii), (c)(1)(B).

application of a clearly-established, well-understood legal principle to a detailed fact pattern”
because “‘the fact-bound nature of the decision limits the value of appellate court precedent’”)
(quoting Buford v. United States, 532 U.S. 59, 65-66, 121 S.Ct. 1276, 1281, 149 L.Ed.2d 197
(2001)).



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Pursuant to 18 U.S.C. § 3664(d)(5), a district court may postpone the

determination of the amount of restitution for a period not to exceed ninety days,

provided the restitution amount is not ascertainable at the time of sentencing. As

noted, the Supreme Court recently held that a sentencing court’s failure to impose

an order of restitution within the ninety-day limitations period does not deprive the

court of the power to order restitution at some later date, at least where the

sentencing court made it clear prior to the deadline’s expiration that it would order

restitution, leaving open only the amount. Dolan, 560 U.S. at 605, 130 S.Ct. at

2533.

        The district court made its intent to order restitution clear, stating during the

sentencing hearing that “mandatory restitution is appropriate” and that the sole

reason for not imposing the amount of restitution at that time was because the

victims’ losses were not yet ascertainable. (D.E. 734 at 87:13-22.) Further, the

written judgment entered on April 30, 2010, specifically stated that the

“determination of restitution is deferred until July 28, 2010.” (D.E. 714 at 5.)

Dolan thus forecloses any argument that the district court lacked jurisdiction or

authority to impose an order of restitution more than ninety days after Rodriguez’s

sentence was imposed.

        We are also not persuaded that Rodriguez’s due process rights were violated

as a result of her delayed restitution hearing and appeal. In Dolan, the Supreme


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Court found no due process violation resulting from the eight-month delay in

ordering restitution because the defendant never requested a timely restitution

hearing—nor sought mandamus to compel the sentencing court to hold the

hearing—and could not demonstrate prejudice. 560 U.S. at 616-17, 130 S.Ct. at

2542. The Court went on to note that “[e]ven in the unlikely instances where that

delay does cause the defendant prejudice,” the defendant “remains free to ask the

court to take that fact into account upon review,” and the court may consider the

prejudice from the delay, the reason for the delay, and the party responsible for its

cause. Id. at 617, 130 S.Ct. at 2542; see also Rheuark v. Shaw, 628 F.2d 297, 303

(5th Cir. 1980) (cautioning that “not every delay in the appeal of a case, even an

inordinate one, violates due process” and instructing courts to consider on a case

by case basis the “‘[l]ength of delay, the reason for the delay, the defendant’s

assertion of his right, and prejudice to the defendant’”) (quoting Barker v. Wingo,

407 U.S. 514, 530, 92 S.Ct. 2182, 2191, 33 L.Ed.2d 101 (1972)).

      As an initial matter, although she originally asked the court to schedule the

restitution hearing, Rodriguez herself sought and received continuances of the

hearing on two occasions. Thus, it cannot be said that the government is wholly to

blame for the delay. Moreover, Rodriguez has not demonstrated prejudice from

the albeit lengthy delay. Importantly, Rodriguez actually benefitted from the delay

in that the amount of restitution calculated at the later date was less than it would


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have been at the time of sentencing, because in the meantime, some of the lenders

recouped much of their losses.

      Finally, as with the district court’s calculation of loss at the time of

sentencing, we conclude the district court did not clearly err in determining the

amount of restitution. To the extent there is “any dispute as to the proper amount

or type of restitution,” it shall be “resolved by the court by the preponderance of

the evidence,” with the government bearing the burden of proof. 18 U.S.C. §

3664(e). The district court, in determining the appropriate amount of restitution,

may consider hearsay evidence that bears “minimal indicia of reliability” so long

as the defendant is given the opportunity to refute that evidence. United States v.

Hairston, 888 F.2d 1349, 1353 (11th Cir. 1989) (approving the use of a letter

written by the attorney for the victim bank at the restitution hearing as evidence of

the bank’s loss).

      At the restitution hearing before the magistrate judge, a case agent employed

by the United States Postal Inspection Service testified as to the lenders’ and

servicers’ loss amounts. She stated that she obtained letters and declarations from

the original lenders, as well as lenders who, as of that hearing, held or serviced

loans which were fraudulently obtained. She explained her loss calculations,

including that she considered in the net loss figures the recoveries, which were

obtained when some of the loans were sold at a discount. It was entirely proper for


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the district court to consider her testimony. See United States v. Bourne, 130 F.3d

1444, 1447 (11th Cir. 1997) (deeming as acceptable for purposes of determining

the restitution amount the special agent’s testimony, which was based on his

recollection of the bank auditor’s report prepared on the day of the robbery).

Following the hearing, the magistrate judge also examined supplemental

memoranda submitted by the parties detailing an amended and reduced calculation

of the lenders’ loss amounts. The district court ultimately limited the restitution

order to losses to which Rodriguez was specifically connected and removed from

the requested restitution any amounts that were not sufficiently verified. Based on

the record before the district court and the non-specific nature of Rodriguez’s

objections, we cannot say that the district court’s restitution order was based upon

insufficiently specific and clear factual findings.

   IV.    Conclusion

   For the foregoing reasons, we affirm Rodriguez’s guilty plea, sentence, and

restitution order.

      AFFIRMED.




                                          35
