     Case: 09-50855 Document: 00511478100 Page: 1 Date Filed: 05/16/2011




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

                                                 FILED
                                                                            May 16, 2011

                                       No. 09-50855                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                          Plaintiff - Appellee

v.

ROSARIO DIVINS,

                                                          Defendant - Appellant




                    Appeal from the United States District Court
                         for the Western District of Texas
                             USDC No. 5:08-CR-889-1


Before JONES, Chief Judge, and BENAVIDES and STEWART, Circuit Judges.
PER CURIAM:*
       Rosario Divins was convicted by a jury of seven counts of criminal
contempt in violation of 18 U.S.C. § 401(3) and seven counts of mail fraud in
violation of 18 U.S.C. § 1341. She was sentenced to a total of 350 months of
imprisonment, to be followed by three years of supervised release. Finding no
reversible error in her appellate points, we AFFIRM.




       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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                                  No. 09-50855

                                BACKGROUND
      For the past 30 years, Divins has made a living swindling financially
distressed people by promising (falsely) to keep their homes out of foreclosure in
exchange for exorbitant fees.   She has been brought to court and sanctioned on
four separate occasions for this conduct. Various court orders, issued in 1994,
January 2000, June 2000, and September 2003, permanently enjoined Divins
from the unauthorized practice of law, including offering or providing
bankruptcy services, making representations to assist or stop foreclosure, and
making representations to provide mortgage brokering services to assist or stop
foreclosure.
      In February 2006, the district court learned that Divins was violating
these orders. The court initiated criminal contempt proceedings, which the
government supplemented with charges of mail fraud. The matter went to trial.
At least eight individuals testified against Divins, including Jackie Guerrero,
Guadalupe Dominguez, Stanley Miele, Tommy Bordelon, Lupe Monreal, Maria
Martinez, Issac Vela, and Juana Anderson. Their stories were similar. Each
had faced the possibility of foreclosure due to some sort of financial hardship
brought about by an illness or a lost job. Divins had contacted them via mailed
flyers promising that she could keep them out of foreclosure in exchange for
thousands of dollars in up-front fees. In each case, Divins either had absconded
with the money or refused to return it when she failed to secure the clients relief
from foreclosure. Many of Divins’ victims ultimately spent thousands more on
real attorneys to undo the damage Divins caused.
      Divins elected not to testify, and she presented no witnesses in her
defense. At the close of the Government’ case, Divins moved for a judgment of


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                                 No. 09-50855

acquittal on all counts. That motion was denied, and the jury convicted her on
all counts.
      Divins’s presentence report (“PSR”) calculated a total offense level of 23
on the mail fraud convictions, which included an eight-level increase under
U.S.S.G. § 2B1.1(b)(1)(E) because the amount of loss was greater than $70,000.
In determining the amount of loss, the PSR considered statements of various
victims who did not testify at trial but who instead testified under oath at the
sentencing hearing. On the criminal contempt charges, Divins was subject to a
statutory maximum sentence of six months. Divins objected to the PSR on
various grounds, including an objection to the eight-level enhancement for
amount of loss.
      At the sentencing hearing, Divins argued that the amount of loss should
be calculated only from the receipts admitted into evidence at trial. The district
court concluded that the testimony presented at trial established a loss amount
slightly over $60,000. The court then heard sworn testimony from victims who
had been included in the PSR but did not testify at trial, including Beatriz
Ybarra, Yvonne Cantu, and Rogelio Reyes. Based on the testimony and the facts
as presented in the PSR, the district court determined that the amount of loss
was over $70,000.
      After finding that Divins posed a continuing threat to society and had an
extensive criminal history, and after noting that Divins had threatened
witnesses against her, the court sentenced her to six months on each count of
criminal contempt, all of which were ordered to run concurrently to each other
and to the sentences imposed on the mail fraud charges. On the remaining
seven counts of mail fraud, Divins was sentenced to 50 months on each count,


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which fell on the low end of the guideline. The 50-month sentences, however,
were ordered to run consecutively rather than concurrently, bringing Divins’s
total sentence to 350 months of imprisonment. The district court also imposed
a three-year term of supervised release. After Divins’s motion for a new trial
was denied, she timely appealed. We have jurisdiction pursuant to 28 U.S.C.
§ 1291.
                                 DISCUSSION
I.    Challenges to Conviction
      Divins challenges her conviction on four grounds. First, Divins argues
that the district court erred in denying her motion for judgment of acquittal
because the criminal contempt charges were barred by the statute of limitations.
This challenge fails because it is based on the assertion that the one-year statute
of limitations set forth in 18 U.S.C. § 3285 applies to contempt prosecutions
brought under 18 U.S.C. § 401. The plain language of the statute limits its
applicability to contempt prosecutions arising under 18 U.S.C. § 402. Because
Divins was charged and convicted of violations of § 401(3), and the indictment
was filed within five years of the date of the earliest act alleged in the
indictment, the district court did not err in denying her motion for acquittal on
this ground. See 18 U.S.C. §§ 401, 3282.
      Divins argues next that the evidence was insufficient to support her mail
fraud convictions because the government did not prove her intent to defraud or
that the representations made in the mailings were in furtherance of a
fraudulent scheme. The standard of review for a sufficiency claim is “whether
any reasonable trier of fact could have found that the evidence established the
appellant’s guilt beyond a reasonable doubt.”       United States v. Jaramillo,


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42 F.3d 920, 922-23 (5th Cir. 1995) (citing Jackson v. Virginia, 443 U.S. 307, 319
(1979)). Mail fraud requires the government to prove beyond a reasonable doubt
“(1) a scheme to defraud (2) which involves a use of the mails (3) for the purpose
of executing the scheme.” United States v. Ingles, 445 F.3d 830, 835 (5th Cir.
2006) (internal quotation marks and citations omitted). The government must
also prove that the defendant acted with specific intent to defraud. United
States v. Garza, 429 F.3d 165, 168-69 & n.1 (5th Cir. 2005).         To act with
fraudulent intent, the defendant must contemplate or intend some harm to the
property rights of her victim. United States v. Stouffer, 986 F.2d 916, 922 (5th
Cir. 1993).
      The evidence showed that Divins solicited vulnerable individuals facing
foreclosure by mailing flyers to them to further her scheme. The flyers stated
that she could stop foreclosure. Each individual contacted Divins based on the
representations made in the flyers. The victims would then pay Divins sums of
money, usually in cash, in exchange for promises from Divins that she would
stop foreclosure, negotiate with the mortgage company, and sell homes or
refinance mortgages.    Though there was testimony that foreclosures were
initially delayed, there is no evidence that Divins performed her promised
actions. The evidence showed that she continually requested more money and
then avoided contact with these individuals when her fraudulent actions were
suspected or discovered. Mortgage companies never received the money on
behalf of her “clients.” Additionally, Divins did not inform any of these victims
that she had been prohibited by the bankruptcy court from representing that she
could assist in foreclosure or bankruptcy proceedings. Divins was repeatedly
warned by the bankruptcy court of the consequences if she failed to comply with


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the court's orders. These warnings occurred in bankruptcy proceedings where
it was apparent that the individuals involved had suffered loss as a result of her
actions. There was sufficient evidence for a reasonable jury to conclude that
Divins contemplated or intended some harm to the property rights of her
victims. The district court correctly denied her motion for acquittal.
      Next, Divins contends that the district court violated her due process
rights by excluding documentary and testimonial evidence she sought to present
at trial. The evidence was excluded because Divins failed to comply with a
pretrial order mandating reciprocal discovery. Divins does not dispute that she
failed to comply with the discovery order. Rather, she argues that the court
abused its discretion by excluding the evidence. Divins cannot support this
argument. The evidence pertaining to victims Vela and Bordelon that she
complains was excluded was admitted into evidence after the Government
withdrew its objection. Divins also fails to show any harm that resulted from the
exclusion from the remaining documentary and testimonial evidence. She does
not discuss whom she sought to present as witnesses or detail the purported
testimony. Nor does she explain how the documentary evidence would have
been beneficial. Because Divins does not argue the benefit of the evidence she
sought to produce, she cannot maintain on appeal that the district court abused
its discretion in excluding it. See United States v. Garcia, 530 F.3d 348, 351 (5th
Cir. 2008).
      Finally, Divins contends that her counsel was ineffective in failing to
comply with the discovery order.       We do not address claims of ineffective
assistance of counsel on direct appeal unless the record is adequate to allow the
court to consider the claim’s merits. See United States v. Higdon, 832 F.2d 312,


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313-14 (5th Cir. 1987). No such record exists here, and we decline to consider
this claim.
II.    Challenge to Sentence
       Divins challenges the district court’s application of an eight-level
enhancement to her offense level pursuant to U.S.S.G. § 2B1.1(b)(1)(E) based on
a finding that the amount of loss was greater than $70,000. Divins argues that
the district court’s consideration of sworn testimony from victims at the
sentencing hearing who did not testify at trial violated her rights under the
Confrontation Clause and Federal Rule of Criminal Procedure 32. Specifically,
she claims that the trial court erred in imposing a sentencing enhancement by
“polling the audience” to see if any additional people in the courtroom were
victims of Divins's scheme. Divins also asserts that she was “ambushed” by this
tactic and did not have an adequate chance to rebut the PSR.
       Contrary to her lack of notice contention, the presentence report was
prepared on July 28, 2009.        Divins filed lengthy objections, including an
objection to the eight-level enhancement for amount of loss. She was clearly
aware before sentencing of the existence of these victims as well as their claims.
Further, we have held that the confrontation clause does not apply at
sentencing. United States v. Mitchell, 484 F.3d 762, 776 (5th Cir. 2007).
       It is true that the trial court asked Divins’s victims to stand briefly during
the sentencing hearing. But the record shows that the court did so as a means
of illustrating to Divins how her crimes had affected her community. The court
directed: “But for right now I want everyone either who testified or who
otherwise feels that they have been a victim to stand. Okay. Now, Ms. Divins,




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you may turn around and look at your fellow human beings. All right. Thank
you, ladies and gentlemen.” There was no “polling.”
      The record offers no support for her complaint of “ambush” testimony from
additional witnesses at sentencing. The court added up the loss amounts for
each of Divins’s victims that testified under oath at trial and reached a total of
$60,500. The government noted at the hearing that a number of potential
victims who were listed in the PSR were not able to attend trial. To give these
victims a chance to be heard, the trial court proceeded to hear their sworn
testimony. The court disregarded some of this testimony, but the testimony it
credited brought the amount of money Divins stole over the $70,000 threshold.
The court therefore adopted the PSR’s recommendation. This approach may not
have employed surgical accuracy, but it was certainly reasonable and supported
by sworn testimony of which Divins had reasonable advance notice.
                                CONCLUSION
      For the foregoing reasons, we AFFIRM Divins’s conviction and sentence.
                                                                    AFFIRMED




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