     13-649
     United States v. Bliss

                          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 16th day of May, two thousand fourteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                ROBERT D. SACK,
 8                GERARD E. LYNCH,
 9                              Circuit Judges.
10
11       - - - - - - - - - - - - - - - - - - - -X
12       United States of America,
13                Appellee,
14
15                    -v.-                                               13-649-cr
16
17       Heather Bliss,
18                Defendant-Appellant.
19       - - - - - - - - - - - - - - - - - - - -X
20
21       FOR APPELLANT:                        RANDALL D. UNGER, Law Offices of
22                                             Randall D. Unger, Bayside, New
23                                             York.
24
25       FOR APPELLEE:                         RAHUL KALE, Assistant United
26                                             States Attorney (with Edward
27                                             Chang, Assistant United States
28                                             Attorney, Of Counsel, on the

                                                  1
 1                              brief), for Deirdre M. Daly,
 2                              United States Attorney for the
 3                              District of Connecticut,
 4                              Bridgeport, Connecticut.
 5
 6        Appeal from a judgment of the United States District
 7   Court for the District of Connecticut (Hall, 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        Heather Bliss appeals from a judgment of conviction
14   entered on February 19, 2013, sentencing her chiefly to 30
15   months’ imprisonment following her guilty plea to one count
16   of conspiracy to commit wire fraud, in violation of 18
17   U.S.C. § 371. Bliss challenges the procedural and
18   substantive reasonableness of her sentence. We assume the
19   parties’ familiarity with the underlying facts, the
20   procedural history, and the issues presented for review.
21
22        From 2005 through 2009, Bliss, together with her
23   husband, William Trudeau, and other co-conspirators,
24   defrauded banks and mortgage lenders of millions of
25   dollars.1 As part of the scheme, Bliss submitted false
26   applications for mortgage loans that were used to purchase
27   properties, and executed worthless mortgages to secure cash
28   loans from private lenders in order to perpetrate the fraud.
29   Bliss also owned Huntington South Associates, LLC, a shell
30   company described by the district court as one of the
31   “engine[s] running these frauds.” Tr. of Sentencing, at 38,
32   Feb. 12, 2013.
33
34        On July 30, 2010, Bliss entered a guilty plea pursuant
35   to a written agreement, subject to the condition that she
36   would not testify against her husband. Trudeau proceeded to
37   jury trial before Judge Hall and was convicted of one count


         1
              Bliss’s co-conspirators included (1) her husband
     William A. Trudeau, who orchestrated the scheme; (2)
     attorney Joseph Kriz, who transferred over $1.2 million from
     his attorney trust account to Huntington South Associates,
     LLC, in order to help finance the scheme; (3) mortgage
     broker Fred Stevens, who knowingly filed false mortgage loan
     applications; (4) property appraiser Thomas Preston; and (5)
     attorney John Bryk.
                                  2
 1   of wire fraud and one count of conspiracy to commit mortgage
 2   fraud.
 3
 4        The district court sentenced Bliss and Trudeau at a
 5   single sentencing hearing on February 12, 2013. The
 6   district court calculated Bliss’s Guidelines range as 63 to
 7   78 months’ imprisonment, subject to a statutory maximum of
 8   60 months. Ultimately, Bliss was sentenced to 30 months’
 9   imprisonment.2 This appeal followed.
10
11        Sixth Amendment. Bliss argues that the district court
12   violated her Sixth Amendment right to a jury trial by
13   calculating the Sentencing Guidelines range using facts
14   found by a preponderance. This challenge fails because the
15   district court’s factual findings affected only the
16   calculation of the non-binding Sentencing Guidelines, not a
17   statutory minimum or maximum penalty. As the Supreme Court
18   (again) recognized in Alleyne v. United States, 133 S. Ct.
19   2151 (2013), the Sixth Amendment does not apply to
20   “factfinding used to guide judicial discretion in selecting
21   a punishment ‘within limits fixed by law,’” even though
22   “such findings of fact may lead judges to select sentences
23   that are more severe than the ones they would have selected
24   without those facts.” Id. at 2161 n.2 (quoting Williams v.
25   New York, 337 U.S. 241, 246 (1949)).
26
27        Although Bliss relies on Peugh v. United States, 133 S.
28   Ct. 2072 (2013), for support, Peugh dealt only with the Ex
29   Post Facto Clause, and is therefore inapposite. See id. at
30   2088 (“[T]he Sixth Amendment and Ex Post Facto Clause
31   inquiries are analytically distinct.”).
32
33        The facts found by the district court did not impact
34   the statutory minimum or maximum sentence to which Bliss was
35   subject. Accordingly, the district court’s fact-finding did
36   not implicate the Sixth Amendment.
37
38        Reasonableness of Sentence. We review criminal
39   sentences deferentially, for reasonableness only. See Gall
40   v. United States, 552 U.S. 38, 51 (2007) (“The fact that the
41   appellate court might reasonably have concluded that a
42   different sentence was appropriate is insufficient to
43   justify reversal of the district court.”). “Reasonableness


         2
              Trudeau, the mastermind of the scheme, was
     sentenced to 188 months.
                                  3
 1   review requires an examination of the length of the sentence
 2   (substantive reasonableness) as well as the procedure
 3   employed in arriving at the sentence (procedural
 4   reasonableness).” United States v. Johnson, 567 F.3d 40, 51
 5   (2d Cir. 2009). The standard of review for both inquiries is
 6   abuse of discretion. United States v. Verkhoglyad, 516 F.3d
 7   122, 127 (2d Cir. 2008).
 8
 9        Procedural Reasonableness. “A district court commits
10   procedural error where it fails to calculate (or improperly
11   calculates) the Sentencing Guidelines range, treats the
12   Sentencing Guidelines as mandatory, fails to consider the
13   [18 U.S.C.] § 3553(a) factors, selects a sentence based on
14   clearly erroneous facts, or fails adequately to explain the
15   chosen sentence.” United States v. Robinson, 702 F.3d 22,
16   38 (2d Cir. 2012) (citing Gall, 552 U.S. at 51).
17
18        Bliss argues that her sentence was based on an
19   erroneous loss calculation. The district court held Bliss
20   accountable for the entire loss caused by the fraudulent
21   scheme, $4,260,008.40--a finding that raised her offense
22   level by 18 points. See U.S.S.G. § 2B1.1(b)(1)(J). Bliss
23   accepts responsibility for a loss amount of only $38,700,
24   and contends that the balance was neither caused by nor
25   reasonably foreseeable to her.
26
27        A district court need only make a “reasonable estimate”
28   of the loss amount for purposes of determining a defendant’s
29   offense level under the Sentencing Guidelines. See U.S.S.G.
30   § 2B1.1 cmt. n.3(C). The loss amount attributable to a
31   particular defendant includes the loss caused by the
32   defendant’s own acts and omissions and, “in the case of
33   jointly undertaken criminal activity[,] . . . all reasonably
34   foreseeable acts and omissions of others in furtherance of
35   the jointly undertaken criminal activity.” U.S.S.G. §
36   1B1.3(a)(1); see also United States v. Royer, 549 F.3d 886,
37   905 (2d Cir. 2008).
38
39        “We review the district court’s factual findings on
40   loss for clear error and its conclusions of law de novo.”
41   United States v. Carboni, 204 F.3d 39, 46 (2d Cir. 2000).
42   And because the district court “presided over a week[]-long
43   trial and heard a great deal of live testimony” pertinent to
44   the workings of the fraudulent scheme and Bliss’s role in
45   it, the court’s “‘loss determination is entitled to . . .
46   deference.’” United States v. Lacey, 699 F.3d 710, 720 (2d
47   Cir. 2012) (quoting U.S.S.G. § 2B1.1 cmt. n.3(C)).

                                  4
 1        The district court, having presided over Trudeau’s
 2   trial, was familiar with the workings of the fraud and
 3   Bliss’s role in it. Evidence adduced at trial and in
 4   Bliss’s submission support the district court’s conclusion
 5   that although the conspiracy was “led by Mr. Trudeau,” Bliss
 6   was “involved from the beginning” and was “all over
 7   everything[:] . . . [s]he’s filling out or signing mortgage
 8   applications that are . . . just bold face lies” and, later,
 9   providing mortgages to victims “to keep the house of cards
10   up.” Tr. of Sentencing, at 88, Feb. 19, 2013. Bliss,
11   moreover, was “savvy and sophisticated about the manner in
12   which the mortgage business worked and had no problem
13   signing the false applications.” PSR ¶ 20 (recounting trial
14   testimony of mortgage broker and co-conspirator Fred
15   Stevens). The district court was certainly free to reject
16   Bliss’s claim to be an unwitting participant who was unaware
17   of the schemes. The district court did not clearly err in
18   holding Bliss responsible for the entirety of the loss
19   caused by the fraud.
20
21        Bliss also argues that the district court improperly
22   rejected her application for a departure based on her family
23   circumstances. “[S]uch a departure is not permitted except
24   in extraordinary circumstances.” United States v. Cutler,
25   520 F.3d 136, 164 (2d Cir. 2008) (internal quotation marks
26   omitted). In any event, “‘a refusal to downwardly depart is
27   generally not appealable,’ and . . . review of such a denial
28   will be available only ‘when a sentencing court
29   misapprehended the scope of its authority to depart or the
30   sentence was otherwise illegal.’” United States v. Stinson,
31   465 F.3d 113, 114 (2d Cir. 2006) (per curiam) (quoting
32   United States v. Valdez, 426 F.3d 178, 184 (2d Cir. 2005)).
33   “In the absence of ‘clear evidence of a substantial risk
34   that the judge misapprehended the scope of his departure
35   authority,’ we presume that a sentenc[ing] judge understood
36   the scope of his authority.” Id. (quoting United States v.
37   Gonzalez, 281 F.3d 38, 42 (2d Cir. 2002)).
38
39        Nothing in the record suggests that the district court
40   failed to understand its authority to grant the requested
41   departure. The court considered Bliss’s arguments and
42   attempted to craft a sentence that reflected “the
43   seriousness of [the] offense.” Tr. of Sentencing at 170-71,
44   Feb. 12, 2013. The district court then balanced that
45   against Bliss’s positive characteristics, including her role
46   as a supportive mother. Id.
47

                                  5
 1        Substantive Challenge. “In reviewing [a sentence] for
 2   substantive reasonableness, we consider the totality of the
 3   circumstances, and reverse only in exceptional cases where
 4   the trial court’s decision cannot be located within the
 5   range of permissible decisions[.]” United States v. Mason,
 6   692 F.3d 178, 181 (2d Cir. 2012) (internal quotation marks
 7   and citation omitted). The standard “provide[s] a backstop
 8   for those few cases that, although procedurally correct,
 9   would nonetheless damage the administration of justice
10   because the sentence imposed was shockingly high, shockingly
11   low, or otherwise unsupportable as a matter of law.” United
12   States v. Rigas, 583 F.3d 108, 123 (2d Cir. 2009).
13
14        The record confirms that the district court
15   thoughtfully considered all of the relevant sentencing
16   factors Bliss presented in light of the seriousness of the
17   offense of conviction and her criminal history. After doing
18   so, the district court imposed a sentence well below the
19   advisory Guidelines range. Based on our review of the
20   record, we cannot conclude that that sentence is
21   substantively unreasonable.
22
23        For the foregoing reasons, and finding no merit in
24   Bliss’s other arguments, we hereby AFFIRM the judgment of
25   the district court.
26
27                              FOR THE COURT:
28                              CATHERINE O’HAGAN WOLFE, CLERK
29




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