16-3820-cr
United States v. Cabot

                          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 TO 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
15th day of November, two thousand eighteen.

Present:
            JOHN M. WALKER,
            GUIDO CALABRESI,
            DEBRA ANN LIVINGSTON,
                  Circuit Judges.
_____________________________________

UNITED STATES OF AMERICA,

                         Appellee,

                 v.                                                16-3820-cr

CARLTON P. CABOT,

                         Defendant-Appellant,

TIMOTHY J. KROLL,

                  Defendant.
_____________________________________

For Defendant-Appellant:                   STEVEN Y. YUROWITZ, ESQ., New York, NY.

For Appellee:                              GEOFFREY S. BERMAN, United States Attorney for the
                                           Southern District of New York, (Edward A.
                                           Imperatore, Sarah K. Eddy, Assistant United States
                                           Attorneys, on the brief), New York, NY.

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          Appeal from a judgment of the United States District Court for the Southern District of

New York (Furman, J.).

          UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

          Defendant-Appellant Carlton P. Cabot (“Cabot”) appeals from a judgment of the United

States District Court for the Southern District of New York, entered on October 31, 2016

following a guilty plea, sentencing him to a 120-month term of imprisonment and $17 million in

restitution on one count of securities fraud, in violation of 15 U.S.C. § 78j(b). United States v.

Kroll, Docket No. 15-680 (S.D.N.Y. Oct. 30, 2016) at ECF No. 73 (Judgment).          We assume the

parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on

appeal.

          Cabot was the founder, President, and Chief Executive Officer of Cabot Investment

Properties (“CIP”).       From 2003 through 2012, CIP sponsored and oversaw eighteen

tenants-in-common securities offerings (“TIC”).1       For each TIC investment, CIP formed a

wholly-owned subsidiary that was responsible for managing the property.             The subsidiary

leased the property from the investors pursuant to a “Master Lease Agreement.”         According to

the Master Lease Agreement, if any money remained after the subsidiary had paid the mortgage,

operating expenses, and base rent, CIP was entitled to collect and keep the excess profit.

          As a result of the 2008 financial crisis, a number of TICs started underperforming and

were having trouble covering their operating expenses.     Cabot, along with his co-defendant, the

Chief Operating Officer of CIP Timothy Kroll (“Kroll”), started transferring funds out of some

1
  A TIC investment is a real estate investment in which investors collectively own a piece of
commercial real estate and receive a portion of the rental income, or “base rent,” after the
mortgage payments and operating expenses have been paid.


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of the subsidiaries’ bank accounts before operating expenses and base rent were paid.           They

used the misappropriated funds to pay for (1) millions of dollars’ worth of personal expenses,

such as a luxury rental apartment and private school tuition; (2) CIP business expenses; and (3)

the operating expenses and base rent of other underperforming TIC investments.         From 2008 to

2012, Cabot received $3,700,000 in partnership distributions from CIP, even though CIP lost

more than $21,000,000 during the same time period.        By the end of 2012, Cabot and Kroll had

misappropriated approximately $17 million from the TIC investments.

       On May 31, 2016, Cabot pled guilty to one count of securities fraud, in violation of 15

U.S.C. § 78j(b).   The District Court at sentencing applied an abuse-of-trust enhancement of two

levels and imposed an above-Guidelines sentence under 18 U.S.C. § 3553(a) on account of,

among other reasons, the vulnerability of the victims and the harm suffered by the victims

beyond the loss amount stipulated in Cabot’s plea agreement.       Cabot challenges his sentence on

procedural and substantive grounds.

Cabot’s Procedural Error Claims

       “We consider the reasonableness of the sentence under an abuse of discretion standard,

regardless of whether the sentence was inside or outside the Guidelines range.” United States v.

Lifshitz, 714 F.3d 146, 149 (2d Cir. 2013) (per curiam) (citing Gall v. United States, 552 U.S. 38,

51 (2007)).   When conducting a review for procedural reasonableness, we remember that “[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[,]. . . if it does not consider the § 3553(a) factors, or rests its

sentence on a clearly erroneous finding of fact.” United States v. Cavera, 550 F.3d 180, 190

(2d Cir. 2008) (en banc) (internal citations omitted).


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       1. The Abuse of Trust Enhancement

       Cabot’s first procedural challenge is to the district court’s application of an abuse-of-trust

enhancement.     See U.S.S.G. § 3B1.3.      Cabot argues that his role was not discretionary,

because the distribution of TIC funds was stipulated in the Master Lease Agreements between

CIP and the TICs.    But we do not take this to mean that Cabot did not have discretion: he was

the primary manager of the investments, responsible for finding properties and installing

qualified tenants. Cabot was not subject to any supervision and, along with Kroll, moved funds

in and out of CIP and TIC bank accounts. See United States v. Wright, 160 F.3d 905 (2d Cir.

1998) (finding abuse of trust when the chairperson and sole director of a caretaking facility

enjoyed unsupervised discretion over the disbursement of Medicaid funds intended for the benefit

of its mentally disabled residents, but used those funds for lavish personal expenditures); United

States v. Valenti, 60 F.3d 941, 947 (2d Cir. 1995) (finding abuse of trust when the treasurer had

authority to issue checks on his own signature and was responsible for the financial records).

       Unlike the cases on which Cabot relies, this is not a case of an arm’s-length relationship

between a fraudster and his victims, in which the victims did not entrust significant discretion to

the defendant. See United States v. Jolly, 102 F.3d 46, 48 (2d Cir. 1996) (“[T]he abuse of trust

enhancement applies only where the defendant has abused discretionary authority entrusted to the

defendant by the victim.”). The victims here invested their money in the TIC properties and

entrusted Cabot to manage those properties for a profit. See United States v. Hirsch, 239 F.3d

221, 227–28 (2d Cir. 2001) (finding a relationship of trust where the investors purchased

mortgage liens with promised return from the defendant). Cabot thus relied on and abused the

trust placed in him to handle the victims’ affairs, meriting application of the enhancement.




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          Moreover, even if we could discern any error in application of the enhancement—and we

cannot—that error would be harmless. The district court here explicitly stated that the sentence

would have been the same with or without the enhancement for abuse of trust. See United States

v. Jass, 569 F.3d 47, 68 (2d Cir. 2009) (concluding that harmless error doctrine applies when

district court specifically “stated it would impose the same . . . sentence on [the defendant]

however the issue of . . . [the enhancement] ultimately works out” on appeal (internal quotation

marks omitted)); see also Molina-Martinez v. United States, 136 S. Ct. 1338, 1346–47 (2016).

          2. Section 3553(a) Assessment

          Cabot next argues that the district court erred in its assessment pursuant to 18 U.S.C.

§ 3553(a) by relying on clearly erroneous and speculative facts regarding the victims’

vulnerability and the loss amount. We review a district court’s findings of fact at sentencing for

clear error. United States v. Mi Sun Cho, 713 F.3d 716, 722 (2d Cir. 2013).         “Under the clear

error standard, if the district court’s account of the evidence is plausible in light of the record

viewed in its entirety, the court of appeals may not reverse it even though convinced that had it

been sitting as the trier of fact, it would have weighed the evidence differently.” Id. (internal

quotation marks and brackets omitted).       We discern no error in the court’s evaluation of either

matter.

          As to the vulnerable nature of the victims of Cabot’s crime, the district court chose not to

apply the Guidelines’ “vulnerable victims” enhancement, see U.S.S.G. § 3A1.1, but nonetheless

said the vulnerability of the victims was “a powerful Section 3553 factor.” A105 (Sentencing

Transcript).    We discern no error, much less clear error, in this assessment.    Cabot claims that

he marketed his TIC investments to “accredited investors,” who are supposed to fit within certain

categories, for example by having a minimum net worth. Furthermore, he contends that since


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the “1031 Exchange,” the principal tax mechanism that makes CIP investments attractive, by its

terms applies to owners of investment or business properties, see 26 U.S.C. § 1031, he had

reason to believe his investors were “sophisticated and substantial.” Def.-App.’s Brief at 22.

But Cabot did not attempt at sentencing to controvert the government’s description of the

“natural pool of investors that would be attracted to this investment” as older investors, who both

are more likely to own property and have less time and ability to recover from catastrophic

losses. A82. The district court reasonably concluded that Cabot, even if he did not target

vulnerable victims, knew or should have known the nature of his clientele. United States v.

Abiodun, 536 F.3d 162, 170 (2d Cir. 2008) (“Where there are two permissible views of the

evidence, the factfinder’s choice between them cannot be clearly erroneous.”).

        Cabot next argues that the district court erred when it took into account losses above the

$17 million agreed upon in his plea agreement, claiming they were uncorroborated and

speculative.   While the district court used $17 million in its Guidelines calculations, and indeed

agreed that losses beyond those in the plea agreement should not affect the Guidelines

calculation, it noted that “it’s quite clear that the losses here do, in fact, exceed that.”   A105

(Sentencing Transcript).     Cabot did not raise any objection before the district court to

consideration of this conclusion in the § 3553(a) analysis, so our review is for plain error only.

United States v. Verkhoglyad, 516 F.3d 122, 127–28 (2d Cir. 2008).          We find no such error

here.

        As Cabot noted, the district court admitted that “it isn’t clear . . . how much of [the

monetary loss] is attributable to the criminal conduct as opposed to financial circumstances,” i.e.

the 2008 financial crisis.   A78.   But this does not mean that considering a potentially higher

amount of loss was clearly erroneous. See Mi Sun Cho, 713 F.3d at 722. In concluding that


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the victims’ losses weighed in favor of a sentence somewhat above the Guidelines range, the

district court did not focus on monetary losses alone, but on the “time and energy that the victims

have spent trying to recover their money, the anxiety and emotions that these events have had for

them, [and] losses to third parties, such as . . . employees . . . who were fired or lost their jobs.”

A105.    The court received dozens of letters detailing such losses, and considering them was not

improper. See United States v. Kaye, 23 F.3d 50, 53 (2d Cir. 1994) (noting that even though the

Guidelines account for the amount of monetary loss, it was not error for the district court to find

that they did not adequately account for the degree of harm suffered by the victim, “so great an

impact from a loss as to leave [the victim] financially dependent on the generosity of others,

quite possibly for the rest of her life”).

Cabot’s Substantive Error Claim

        Cabot finally challenges the substantive reasonableness of his sentence. We set aside “a

district court’s substantive determination only in exceptional cases where the trial court’s

decision cannot be located within the range of permissible decisions.” Cavera, 550 F.3d at 189

(internal quotation marks and emphasis omitted). In order for the sentence to be unreasonable,

it must be “so shockingly high, shockingly low, or otherwise unsupportable as a matter of law

that allowing [it] to stand would damage the administration of justice.”            United States v.

Broxmeyer, 699 F.3d 265, 289 (2d Cir. 2012).                  Cabot has demonstrated no such

unreasonableness in his above-Guidelines sentence.

        The district court’s sentence was based on a close examination of the record before it and

was well within the scope of its discretion. United States v. Jones, 531 F.3d 163, 174 (2d Cir.

2008) (“[I]n determining substantive reasonableness, a reviewing court will set aside only those

outlier sentences that reflect actual abuse of a district court’s considerable sentencing


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discretion.”).    The sentence was entirely reasonable based on the record and information

available to the district court. The district court discussed in great detail the aggravating factors

that it found contributed to the above-Guidelines sentence. In the face of the financial crisis,

instead of sharing the loss with his investors, Cabot chose to embezzle their money to fund his

own lifestyle.      Furthermore, the district court concluded that Cabot was not genuinely

remorseful, largely because of his attempt—after the order of forfeiture—to hide his income.

Based on the victim impact letters, the district court reasonably determined that many of the

victims were vulnerable and suffered losses not fully accounted for in the Guidelines calculation.

          To the extent that Cabot argues that the district court placed undue emphasis on the harm

suffered by the victims, we discern no abuse of discretion in the district court’s evaluation of this

factor.    Cavera, 550 F.3d at 191 (“[W]e consider whether the factor, as explained by the district

court, can bear the weight assigned it under the totality of circumstances in the case.”); see also

Broxmeyer, 699 F.3d at 289 (“The particular weight to be afforded aggravating and mitigating

factors is a matter firmly committed to the discretion of the sentencing judge.”). And with

regard to the disparity between his sentence and his co-defendant’s sentence, which Cabot

contests, the district court is not required to consider sentencing disparity among co-defendants.

United States v. Johnson, 567 F.3d 40, 54 (2d Cir. 2009).      In any event, Cabot and Kroll were

not similarly situated, as Kroll pled guilty and cooperated with the government.         See United

States v. Fernandez, 443 F.3d 19, 32 (2d Cir. 2006), abrogated on other grounds by Rita v.

United States, 551 U.S. 338 (2007).




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       We have considered Cabot’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




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