     Case: 14-51207   Document: 00513332814        Page: 1   Date Filed: 01/06/2016




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT


                                    No. 14-51207                  United States Court of Appeals
                                                                           Fifth Circuit

                                                                         FILED
UNITED STATES OF AMERICA,                                          January 6, 2016
                                                                    Lyle W. Cayce
             Plaintiff - Appellee                                        Clerk

v.

RICKEY DONNELL BENNS, also known as Rickey D. Benns,

             Defendant - Appellant




                Appeal from the United States District Court
                     for the Western District of Texas


Before PRADO, SOUTHWICK, and GRAVES, Circuit Judges.
JAMES E. GRAVES, JR., Circuit Judge:
      Rickey Benns appeals an order to pay restitution to the United States
Department of Housing and Urban Development imposed under the
Mandatory Victims Restitution Act. Because HUD is not a victim of Benns’s
convicted offense, the award of restitution is VACATED.
                      FACTS AND PROCEDURAL HISTORY
      Michael and Brenda Arnold conveyed their home, located at 1301 Red
Deer Way in Arlington, Texas, to Rickey D. Benns. Despite the conveyance,
the property remained in the Arnold’s name. The property was subject to a
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                                      No. 14-51207
mortgage loan held by Bank of America 1 and insured by the United States
Department of Housing and Urban Development (HUD). 2 The mortgage was
in arrears at the time of the transaction, but Benns promised to rent the
property and pay the mortgage out of the rental proceeds. Benns successfully
rented the property but failed to pay the mortgage.
       Benns later sought to prevent foreclosure by attempting to refinance the
mortgage on the Red Deer property. Since the previous owners still held the
mortgage and were unaware that the loan continued to be in arrears, Benns
forged the previous owners’ signatures on the loan modification application
and produced a false pay stub in an attempt to deceive the bank into believing
that the Arnolds still owned the property and that they were more creditworthy
than was actually the case. The application was denied and the property was
eventually foreclosed. HUD paid Bank of America for the default and suffered
a loss of $54,906.59, which is the difference between what HUD paid Bank of
America following foreclosure and the later sale price of the property.
       On March 14, 2012, Benns was indicted on one count of making false
statements relating to a credit application, in violation of 18 U.S.C. § 1014.
Benns pleaded guilty without a plea agreement. He accepted, upon entering
the plea, the accuracy of a factual resume prepared by the government. The
resume outlined the facts of the offense and authorized “restitution to victims
or to the community, which may be mandatory under the law, and which
Defendant agrees may include restitution arising from all relevant conduct,
not limited to that arising from the offense of conviction alone.”




       1The mortgage was originally held by Countrywide, but was acquired by Bank of
America when Bank of America purchased Countrywide.

       2 Such insurance requires that HUD pay to the lender any loss that the lender suffers
as a result of the transaction.
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                                 No. 14-51207
      On September 28, 2012, Benns was sentenced to twenty-seven months
imprisonment, five years of supervised release, and ordered, in accordance
with the Mandatory Victims Restitution Act (MVRA), 18 U.S.C. § 3663A, to
pay restitution in the amount of $544,602.42. We vacated the sentence and
restitution order because the district court failed to make factual findings that
supported the loss amount considered when sentencing Benns and because
restitution was based on conduct outside the scope of Benns’s conviction.
United States v. Benns, 740 F.3d 370, 376-78 (5th Cir. 2014). We remanded to
the district court for resentencing. Id. at 378.
      On remand, Benns abandoned the challenge to the imprisonment
because he had already served the entire jail term. He did, however, continue
to oppose the restitution award. The district court, in a short bench ruling,
made no factual findings but concluded that HUD was a direct victim of the
false loan application and awarded HUD $54,906.59 in restitution. Benns now
appeals.
                                DISCUSSION
      The legality of a restitution order is reviewed de novo. United States v.
Lozano, 791 F.3d 535, 537 (5th Cir. 2015); United States v. Hughey, 147 F.3d
423, 436 (5th Cir. 1998). Since Benns objected to the award, the restitution
amount is reviewed for abuse of discretion. United States v. Beacham, 774 F.3d
267, 278 (5th Cir. 2014).
      The MVRA requires the district court, as part of sentencing, to order
restitution payments to “victims” of certain crimes. 18 U.S.C. § 3663A. A
“victim” is defined as “a person directly and proximately harmed as a result of
the commission of an offense for which restitution may be ordered.” Id. at
3663A(a)(2). Generally, restitution is limited to losses arising from underlying
conduct of the defendant’s offense of conviction. Hughey v. United States, 495
U.S. 411, 412-13 (1990); United States v. Espinoza, 677 F.3d 730, 732 (5th Cir.
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2012); United States v. Maturin, 488 F.3d 657, 660-61 (5th Cir. 2007).
Therefore, restitution may only be awarded if the government established, by
a preponderance of the evidence, direct or proximate causation between Benn’s
false credit application and HUD’s loss when it sold the Red Deer property.
United States v. Reese, 998 F.2d 1275, 1282 (5th Cir. 1993).
      The MVRA broadly defines “victim” to include not only losses directly
caused by the behavior underlying the convicted offense, but also losses arising
more generally as a result of a conspiracy, scheme, or pattern of criminal
activity. But, restitution may be ordered for this expanded class of victims only
if the count of conviction includes, as a statutory element of the offense, a
scheme, conspiracy, or pattern of activity. Maturin, 488 F.3d at 661; Espinoza,
677 F.3d at 732. Benns pleaded guilty to one count of submitting a false credit
application to Bank of America. There is no indication in the indictment,
factual summary, or guilty plea that the filing of the false application was part
of a conspiracy, scheme, or pattern of criminal activity. Nor are there any
decisions reading such a requirement into the elements of 18 U.S.C. § 1014.
Therefore, restitution may only be ordered under the MVRA if HUD’s loss was
directly and proximately caused by the filing of the false credit application.
      To be a victim under the MVRA, a person or organization must suffer a
foreseeable loss as a result of the conduct underlying the convicted offense. For
example, in United States v. Espinoza, we held that a defendant convicted of
unlawful possession of firearms could not be ordered to pay restitution to a
pawn shop, where he sold the unlawfully possessed weapons, because the sale
of weapons was not based on the conduct underlying the possession conviction.
677 F.3d at 732-33. This court also rejected the government’s argument, nearly
identical to the argument made in this case, that the pawn shop would not
have suffered harm “but for” the defendant’s possession of the firearms. Id. at
733-34. Rather, we concluded that the pawn shop’s loss was not a foreseeable
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result of the unlawful possession of firearms. Id. Similarly, in United States
v. Mancillas, a defendant pleaded guilty to possession of counterfeit securities
and possession of the implements to make counterfeit securities. 172 F.3d 341,
341 (5th Cir. 1999). The district court awarded restitution to five check-
cashing entities where fraudulent checks, created by the defendant, were
cashed. Id. at 341-42. We reversed, holding that “possession of the implements
with the intent to use them in the future can in no way be said to directly and
proximately have caused . . . the harm to the check-cashing companies.” Id. at
343. The restitution was unlawful because the harm suffered by the check-
cashing entities was a result of the passing of counterfeit securities, not for the
possession of counterfeit securities or possession of the implements to make
counterfeit securities. Id.
      The government argues that HUD’s loss was a direct result of the false
application because the filing of the application delayed the foreclosure which
resulted in HUD selling the property for a loss. But this argument is not
supported by the record. During resentencing, the government was unable to
produce any evidence that the application resulted in a delay or even to
establish when foreclosure proceedings were initiated. The government also
failed to submit any evidence that the alleged delay, instead of market
conditions or other factors, resulted in the loss. Thus, HUD’s loss in this case,
just like the harm in Espinoza and Mancillas, is outside the scope of the offense
of conviction. Benns was indicted and pleaded guilty to one count of filing a
false credit application in an attempt to refinance a mortgage. It therefore
does not follow that the behavior underlying Benns’s offense was the cause of
HUD’s loss.
      Because the evidence is insufficient to support a finding that HUD was
directly and proximately harmed by Benns’s false credit application, we


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                                No. 14-51207
conclude that HUD is, therefore, not entitled to restitution in this case under
the MVRA.
                                  CONCLUSION
      The restitution award is VACATED.




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