     11-5368
     United States v. Ulloa

                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

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

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 14th day of February, two thousand thirteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                              Chief Judge,
 8                AMALYA L. KEARSE,
 9                SUSAN L. CARNEY,
10                              Circuit Judges.
11
12       - - - - - - - - - - - - - - - - - - - -X
13       UNITED STATES OF AMERICA,
14                Appellee,
15
16                    -v.-                                               11-5368
17
18       RICHARD ENRIQUE ULLOA,
19                Defendant-Appellant,
20       - - - - - - - - - - - - - - - - - - - -X
21
22       FOR APPELLANT:                        MOLLY CORBETT, Federal Public
23                                             Defender Office, Albany, New
24                                             York, for Lisa A. Peebles,
25                                             Acting Federal Public Defender.
26
27       FOR APPELLEES:                        RAJIT S. DOSANJH (Richard D.
28                                             Belliss, on the brief), for

                                                  1
 1                              Richard S. Hartunian, United
 2                              States Attorney for the Northern
 3                              District of New York, Syracuse,
 4                              New York.
 5
 6        Appeal from a judgment of the United States District
 7   Court for the Northern District of New York (McAvoy, J.).
 8
 9        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
10   AND DECREED that the judgment of the district court be
11   AFFIRMED.
12
13        Defendant-Appellant Richard Ulloa appeals from a
14   conviction and sentence imposed by the United States
15   District Court for the Northern District of New York
16   (McAvoy, J.). Ulloa, an adherent of the “sovereign
17   citizens” movement,1 conducted a scheme chiefly involving
18   baseless liens and other fraudulent filings and documents
19   demanding money from his numerous victims. The jury
20   convicted Ulloa of seven counts of mail fraud under 18
21   U.S.C. §§ 1341 and 1349. He was sentenced to 60 months’
22   imprisonment on each count, to run concurrently. We assume
23   the parties’ familiarity with the underlying facts, the
24   procedural history, and the issues presented for review.
25
26        1. Ulloa argues that the government lacked sufficient
27   evidence of his intent to deceive. A defendant challenging
28   the sufficiency of the evidence “bears a heavy burden.”
29   United States v. Caracappa, 614 F.3d 30, 43 (2d Cir. 2010).
30   We “must credit every inference that could have been drawn
31   in the government’s favor, and affirm the conviction so long
32   as, from the inferences reasonably drawn, the jury might
33   fairly have concluded guilt beyond a reasonable doubt.”
34   United States v. Reifler, 446 F.3d 65, 94 (2d Cir. 2006)
35   (internal citations omitted).
36


         1
           The sovereign citizens are a loosely affiliated group
     who believe that the state and federal governments lack
     constitutional legitimacy and therefore have no authority to
     regulate their behavior. The FBI has labeled the sovereign
     citizens a domestic terrorist group. See “Sovereign
     Citizens A Growing Domestic Threat to Law Enforcement,” FBI
     Law Enforcement Bulletin (Sept. 2011), http://www.fbi.g
     ov/stats-services/publications/law-enforcement-bulletin/sept
     ember-2011/sovereign-citizens.
                                  2
 1        Conviction under the mail fraud statute, 18 U.S.C.
 2   § 1341, requires the government to prove “(1) a scheme to
 3   defraud victims of (2) money or property, through the (3)
 4   use of the mails.” United States v. Walker, 191 F.3d 326,
 5   334 (2d Cir. 1999). Ulloa contends that his conduct was
 6   “open and frank” rather than deceptive, and that “[h]e
 7   believed that he had been wronged and candidly sought
 8   recompense for the injuries he suffered,” and thus lacked
 9   the requisite intent. Appellant Br. 18. But the government
10   put forth several examples of Ulloa’s bad intent, including
11   a threat (acted upon) to harass a police officer, made
12   during a routine traffic stop, a statement to FBI agents
13   that his intent was revenge, and emails to credit ratings
14   agencies making them aware of the liens.
15
16        2. Ulloa contends that the government was required to
17   prove that the person deceived by the scheme was the same
18   person harmed by the scheme, and that the requisite showing
19   was not made because his victims were well aware that the
20   liens and other documents were fraudulent. This argument
21   misconstrues the elements of the offense. With respect to
22   the scheme-to-defraud element, “the government is not
23   required to show that the intended victim was actually
24   defrauded”; it is sufficient to show “that the defendant[ ]
25   contemplated some actual harm or injury.” United States v.
26   Wallach, 935 F.2d 445, 461 (2d Cir. 1991). Because the
27   evidence strongly suggests that Ulloa contemplated actual
28   harm or injury, his claim is meritless.
29
30        3. Ulloa challenges the procedural reasonableness of
31   his sentence. The district court decided that a calculation
32   of the victims’ actual loss (roughly $63,000) was a more
33   appropriate measure than the intended loss (approximately
34   $6.75 billion). The result was an offense level of 16, and
35   the Guidelines range was 21 to 27 months.2 The court,
36   however, determined that offense level 16 was inadequate
37   given the extent of the misconduct and increased the offense
38   level to 25, resulting in a Guidelines range of 57 to 71
39   months. The court then sentenced Ulloa to 60 months’
40   imprisonment on each count, to be served concurrently.
41
42        Ulloa challenges this sentence on the ground that the
43   court’s statement of reasons was based on Ulloa’s potential


         2
           Had the court used the intended loss figure, Ulloa’s
     Guidelines range would have been 292 to 365 months.
                                  3
 1   to re-offend, not his actual conduct. However, at
 2   sentencing and in its statement of reasons, the district
 3   court did not intimate that its upward departure was based
 4   on Ulloa’s likely recidivism, but rather on the fact that
 5   the offense level substantially understated the seriousness
 6   of the offense. This was not error. See U.S.S.G. § 2B1.1
 7   cmt. n.19(A) (2012).
 8
 9        Ulloa also contends that the court’s sentence punished
10   him for his involvement in a political movement and
11   therefore infringed his First Amendment rights. However,
12   the First Amendment “‘does not erect a per se barrier’” to a
13   sentencing court’s admission of evidence regarding the
14   defendant’s beliefs, which may be relevant, e.g., to show
15   motive, to examine an aggravating factor, to illustrate
16   future dangerousness, or to rebut mitigating evidence.
17   United States v. Kane, 452 F.3d 140, 142-43 (2d Cir. 2006)
18   (per curiam) (quoting Dawson v. Delaware, 503 U.S. 159, 165
19   (1992)). Ulloa’s involvement in the sovereign citizens was
20   considered to show motive (his desire to punish anyone who
21   crossed him) and to rebut mitigating evidence (Ulloa’s claim
22   that he was delusional), both permissible considerations.
23
24        For the foregoing reasons, and finding no merit in
25   Ulloa’s other arguments, we hereby AFFIRM the judgment of
26   the district court.
27
28                              FOR THE COURT:
29                              CATHERINE O’HAGAN WOLFE, CLERK
30




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