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                                                       [DO NOT PUBLISH]

          IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                           No. 16-10082
                     ________________________

                 D.C. Docket No. 1:15-cr-20118-DPG-1

UNITED STATES OF AMERICA,

                                                          Plaintiff - Appellee,
                                versus

RAUL SUAREZ DEL CAMPO,

                                                      Defendant - Appellant.

                     ________________________

                           No. 16-10352
                     ________________________

                 D.C. Docket No. 1:15-cr-20118-DPG-3

UNITED STATES OF AMERICA,

                                                        Plaintiff - Appellant
                                                             Cross Appellee,

                                versus

MARSHALL KING,

                                                       Defendant - Appellee
                                                            Cross Appellant.
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                               ________________________

                     Appeals from the United States District Court
                         for the Southern District of Florida
                            ________________________

                                        (June 2, 2017)

Before WILLIAM PRYOR, MARTIN, and BOGGS, * Circuit Judges.

BOGGS, Circuit Judge:

       Raul Suarez Del Campo and Marshall King were convicted, following a jury

trial, of three counts of bank fraud, in violation of 18 U.S.C. § 1344. Del Campo

and a partner (Richard Sanchez, who is not a party to this proceeding) formed a

business entity that constructed eight single-family homes but sold only five. Del

Campo and Sanchez decided to purchase the three unsold homes from their

business entity. To finance those purchases, they sought and obtained loans from

JPMorgan Chase and Countrywide Bank. Del Campo’s crime was overstating his

income and assets in applying for those loans. King, an attorney, was the closing

agent for the three sales. His crime was signing the HUD-1 statements

corresponding to each sale, each of which falsely stated that the buyer had tendered

a substantial cash-to-close payment at the time of closing. Del Campo and Sanchez




*
 Honorable Danny J. Boggs, United States Circuit Judge for the Sixth Circuit, sitting by
designation.
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eventually defaulted on their loan obligations, causing the lenders to lose

approximately $1.38 million.

      On appeal, King argues that the evidence presented at trial was insufficient

to support his convictions. King and Del Campo both argue that the district court

erred in declining to give a good-faith-defense jury instruction. The government

appeals King’s noncustodial sentence as substantively unreasonable. And King

further argues that the court erred in determining that the lenders were “victims”

deserving of restitution and in ruling that King was liable for the full $1.38 million

in restitution rather than a smaller portion of that amount.

      We address each point in turn and affirm.

                                           I

      We review de novo King’s challenge to the sufficiency of the evidence

supporting his conviction, viewing the evidence and drawing all reasonable

inferences in the light most favorable to the government. United States v. Baldwin,

774 F.3d 711, 721 (11th Cir. 2014).

      Evidence is sufficient so long as any reasonable trier of fact could find that it

established the defendant’s guilt beyond a reasonable doubt. United States v.

Beckles, 565 F.3d 832, 840 (11th Cir. 2009). It does not matter whether the jury

could reasonably have acquitted, nor whether the defendant has “put forth a


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reasonable hypothesis of innocence.” United States v. Thompson, 473 F.3d 1137,

1142 (11th Cir. 2006).

      Nor does it matter whether the evidence presented against the defendant is

direct or circumstantial, United States v. Mieres-Borges, 919 F.2d 652, 656–57

(11th Cir. 1990), although “reasonable inferences, not mere speculation, must

support” a conviction secured using circumstantial evidence. United States v.

Mendez, 528 F.3d 811, 814 (11th Cir. 2008).

      Under 18 U.S.C. § 1344, one commits bank fraud by knowingly executing

“a scheme or artifice (1) to defraud a financial institution; or (2) to obtain any of

the moneys, funds, . . . or other property owned by, or under the custody or control

of, a financial institution, by means of false or fraudulent pretenses,

representations, or promises.” To sustain a conviction under § 1344(1), the

government must prove that “the defendant intentionally participated” in the

scheme or artifice, and that the intended victim “was a federally-insured financial

institution.” United States v. McCarrick, 294 F.3d 1286, 1290 (11th Cir. 2002). To

sustain a conviction under § 1344(2), the government must prove “(1) that a

scheme existed to obtain moneys, funds, or credit in the custody of a federally-

insured bank by fraud; (2) that the defendant participated in the scheme by means

of material false pretenses, representations or promises; and (3) that the defendant


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acted knowingly.” Ibid. Intent to defraud is, therefore, an element of bank fraud

under § 1344(1), but not under § 1344(2). See Loughrin v. United States, 134 S. Ct.

2384, 2393 (2014). Finally, the Supreme Court has held that a conviction for

federal bank fraud requires that the scheme to defraud employ not simply

falsehoods, but material falsehoods, even though materiality is not expressly

mentioned in the bank-fraud statute. See Neder v. United States, 527 U.S. 1, 20–25

(1999).

      Here, the government presented sufficient evidence to sustain King’s

conviction for bank fraud under either § 1344(1) or § 1344(2). While the

indictment refers to both § 1344(1) and § 1344(2), each of the three counts of bank

fraud refer to both sections, and neither the verdict nor the judgment order indicate

that King was charged specifically with violating one but not the other of the two

sections. Rather, King was charged with violating 18 U.S.C. § 1344 generally, and

a rational juror could have found King guilty of bank fraud under either of the two

sections.

      First, there was sufficient evidence for a rational juror to conclude, beyond a

reasonable doubt, that King participated in a scheme involving false

representations, because trial testimony established that King was the closing agent

for the three loans at issue and that King falsely certified that Del Campo and


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Sanchez personally produced and paid cash-to-close payments when they had not

done so. A rational juror could have concluded, beyond a reasonable doubt, that

these false certifications were material because all three underwriters who testified

at trial made clear that actual receipt of cash-to-close payments was a strict

prerequisite for the disbursement of any loan proceeds, and that it was the closing

agent’s responsibility to ensure that the cash-to-close payments were received. And

a rational juror could have concluded that King knowingly and intentionally

facilitated the federally insured lenders’ disbursement of funds based on false

representations, beyond a reasonable doubt, because Sanchez’s trial testimony

established that prior to one of the closing transactions, King instructed Sanchez to

bring a check for the cash-to-close amount, but simultaneously assured Sanchez

that the check would not really be cashed and that the cash-to-close amount would

instead be deducted from the loan proceeds. Reasonable inferences, and not mere

speculation, could lead a rational juror to find King guilty of bank fraud based on

the government’s evidence.

      Accordingly, we affirm King’s convictions in this respect.

                                          II

      King and Del Campo both argue that the district court erred in refusing to

provide the pattern “good faith” jury instruction. We review for abuse of


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discretion. United States v. Sirang, 70 F.3d 588, 593 (11th Cir. 1995). Refusal to

give a requested instruction is an abuse of discretion only if “the requested

instruction is substantially correct as proffered, is not addressed in the charge

given, and the instruction deals with a trial issue that is so important that the failure

to give the instruction seriously impaired the defendant’s ability to present an

effective defense.” United States v. Walker, 26 F.3d 108, 109 (11th Cir. 1994) (per

curiam).

      The defendants in Walker were convicted of fraud. At trial, the court

instructed the jury what “intent” meant in the context of the defendants’ charges.

Id. at 109–10. The defendants appealed, asserting that the trial court wrongly

refused to give the pattern good-faith-defense instruction. But we affirmed, holding

that because “[a] finding of specific intent to deceive categorically excludes a

finding of good faith,” the court had already addressed the substance of the

requested instruction in its jury charge, and the jury had thus been adequately

directed to consider the substance of a good-faith defense. Id. at 110.

      Our pattern good-faith-defense instruction provides:

      “Good faith” is a complete defense to a charge that requires intent to
      defraud. A defendant isn’t required to prove good faith. The
      Government must prove intent to defraud beyond a reasonable doubt.

      An honestly held opinion or an honestly formed belief cannot be
      fraudulent intent – even if the opinion or belief is mistaken. Similarly,
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      evidence of a mistake in judgment, an error in management, or
      carelessness can’t establish fraudulent intent.

      But an honest belief that a business venture would ultimately succeed
      doesn’t constitute good faith if the Defendant intended to deceive
      others by making representations the Defendant knew to be false or
      fraudulent.

Eleventh Circuit Pattern Jury Instructions, Special Instruction 17 (2010).

      Here, the district court did not abuse its discretion in declining to include a

good-faith-defense instruction. King and Del Campo argue that they were entitled

to the instruction because they had presented evidence of “mistaken judgment,”

such as a defense expert’s testimony that King had “merely entered information in

the wrong column.” Del Campo Br. 4. Del Campo argues that he had a “good faith

purpose in refinancing the three unsold homes” because he wanted “to pay off the

labor workers” and “repay the lenders who had financed [the] construction

project.” Id. 8. But even if King and Del Campo met their relatively light burden of

presenting “some evidence” that would allow the issuance of a good-faith

instruction, the district court was not required to issue such an instruction.

      Indeed, the given instructions were more than enough to cover the substance

of the requested good-faith-defense instruction, and the absence of that instruction

did not impair either King’s or Del Campo’s ability to present a defense. The

court’s substantive bank-fraud instruction, for example, elaborated the elements of


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bank fraud as set forth earlier in this opinion, including a definition of “scheme to

defraud” as “any plan or course of action intended to deceive or cheat someone out

of money or property by using false or fraudulent pretenses, representations, or

promises relating to a material fact”—a definition certainly sufficient to cover the

substance of the good-faith instruction. The court issued a separate instruction on

the meaning of “knowingly”: an act “done voluntarily and intentionally and not

because of a mistake or by accident”—a definition certainly sufficient to cover

King’s defense that he had made only a mistake in judgment, for example.

      Moreover, the court included a thorough description of King and Del

Campo’s theory of defense in its charge, which likewise covered the substance of

the good-faith-defense instruction. The court clarified that King and Del Campo

contended that “they did not intend to defraud the banks,” that they “committed no

fraud,” that they were not guilty, and that any misrepresentations they might have

made “were not material to the banks’ decision.”

      Thus, the district court did not abuse its discretion in refusing to include the

proposed good-faith instruction, and we affirm the district court in that respect.

                                          III

      We review the reasonableness of a sentence “under a deferential abuse-of-

discretion standard.” Gall v. United States, 552 U.S. 38, 41 (2007). We “first


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ensure that the district court committed no significant procedural error,” such as

improperly calculating the guideline range or inadequately explaining the chosen

sentence. Id. at 51. We then examine whether the sentence was substantively

reasonable, “tak[ing] into account the totality of the circumstances, including the

extent of any variance from the Guidelines range,” but giving “due deference to the

district court's decision that the § 3553(a) factors, on a whole, justify” a given

variance. Ibid. The party challenging the sentence has the burden to prove that the

sentence is unreasonable in light of the record and the § 3553(a) factors. United

States v. Tome, 611 F.3d 1371, 1378 (11th Cir. 2010).

      The district court must impose a sentence “sufficient, but not greater than

necessary, to comply with the purposes” listed in 18 U.S.C. § 3553(a)(2), including

the need to reflect the seriousness of the offense, promote respect for the law,

“afford adequate deterrence to criminal conduct” (i.e., afford general deterrence),

and “protect the public from further crimes of the defendant” (i.e., provide specific

deterrence). 18 U.S.C. § 3553(a)(2). The court must also consider the nature and

circumstances of the offense, the history and characteristics of the defendant, the

kinds of sentences available, the applicable guideline range, the pertinent policy

statements of the Sentencing Commission, the need to avoid unwarranted




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sentencing disparities, and the need to provide restitution to victims. Id.

§ 3553(a)(1), (3)–(7).

      The weight given to any one § 3553(a) factor is committed to the sound

discretion of the district court. United States v. Clay, 483 F.3d 739, 743 (11th Cir.

2007). But a court abuses its discretion if it fails altogether to consider relevant

factors that were due significant weight, accords significant weight to an improper

or irrelevant factor, or commits a clear error of judgment by unreasonably

balancing the proper factors. United States v. Irey, 612 F.3d 1160, 1189 (11th Cir.

2010) (en banc). We have held that reasonableness review is unquestionably

deferential, but that it is “not the same thing as turning a blind eye to”

unreasonably low (or high) sentences. Id. at 1191. The district court should

articulate a “sufficiently compelling” justification, for example, to support a 100%

downward variance. Id. at 1196; see also United States v. Kuhlman, 711 F.3d 1321,

1328 (11th Cir. 2013) (holding probation-only sentence “fail[ed] to achieve an

important goal of sentencing in a white-collar crime prosecution: the need for

general deterrence” where the defendant had stolen almost $3,000,000 as part of a

healthcare-fraud scheme and the low end of the guideline range was fifty-seven

months of imprisonment).




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      Here, against an advisory guideline range of forty-six to fifty-seven months

of imprisonment, the district court sentenced King to five years of supervised

release, the first six months of which King served under home detention. King’s

sentence was therefore entirely noncustodial, apart from one day of confinement

(the day of King’s arrest and booking).

      The government argues that the district court “gave itself room, analytically,

to undermine the importance of general deterrence in white collar cases” when it

underestimated the seriousness of King’s crimes in order to justify a downward

variance from 46-57 months to no imprisonment. Government’s Responsive Br.

44. And the government maintained at oral argument that a greater sentence is

necessary in order to send a “message.”

      But it is unclear precisely how King’s sentence in this case would in any

way undercut the general deterrent effect of the federal bank-fraud laws. As the

district court recognized, after all, King was a seventy-one-year-old attorney with

no criminal history whatsoever, whose offenses predated his sentencing by nine

years (during which time King’s record was unblemished), and who suffered from

a litany of medical ailments including diabetes, hypertension, and chronic vertigo.

And while King did not express “the contrition that [the district court] expected to

hear,” the district court weighed that against King’s other characteristics and


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relevant facts, such as the fact that King did not personally profit from the three

loan transactions except to the extent of the normal fee that King would have

received for any legitimate closing. The district court thus reasoned that even

though the banks eventually suffered more than a million dollars in losses when

Del Campo and Sanchez defaulted on their loan obligations, and even though King

played a necessary role in the scheme, King personally was not as blameworthy as

one who stood to receive the full benefit of a multi-million-dollar fraud (as in

Kuhlman).

      We defer to the district court’s judgment that a greater sentence was not

necessary to effect specific deterrence in this case, for the district court weighed

King’s particular characteristics in making that determination and did not abuse its

discretion in doing so. We further hold that the district court did not abuse its

discretion in determining that general deterrence did not command a term of

imprisonment. As far as this court can tell, there do not appear to be many 71-year-

old title attorneys in poor health awaiting our decision to determine whether

helping their friends to commit bank fraud will be “worth it.” Indeed, even if there

were, it does not stand to reason that our decision today would actually have an

effect in deterring their criminal action: even if criminals are rational actors and

general deterrence worked to decrease the likelihood of criminal action by


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increasing the probability and severity of punishment, surely what effects general

deterrence (except, perhaps, in certain high-profile cases, see, e.g., Irey, 612 F.3d

1160) is the probability and expected severity of punishment attending a given

offense, rather than the extent of an upward or downward variance in an outlier

case. And there is no indication that King’s sentence here will in any way affect

the expected sentence to be handed down for committing bank fraud. Rather, the

sentencing guidelines and statutory sentencing provisions—and the frequency with

which district courts hand down sentences well within the advisory ranges—send a

clear message that the presumptive penalty for bank fraud is imprisonment.

Whether King personally receives a sentence of probation surely cannot

meaningfully affect whether would-be criminals—again, assuming they act

rationally in determining whether to commit crime in the first place—decide that

their own potential criminal activity is worth the risk of being caught and punished.

      King’s sentence was not substantively unreasonable. The record is clear that

the district court considered the § 3553(a) factors and did not abuse its discretion in

weighing and balancing them. Accordingly, we affirm King’s sentence.

                                          IV

      Generally, we review de novo the legality of a district court’s order of

restitution, reviewing underlying factual findings for clear error and reviewing the


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district court’s determination of the value of lost or destroyed property for abuse of

discretion. United States v. Valladares, 544 F.3d 1257, 1269 (11th Cir. 2008) (per

curiam). When a defendant fails to object to an aspect of a restitution order in the

district court, however, we review for plain error only. United States v. Jones, 289

F.3d 1260, 1265 (11th Cir. 2002).

      The Mandatory Victims Restitution Act (MVRA), 18 U.S.C. § 3663A,

required the district court to award restitution to identifiable victims of bank fraud

without regard to the defendant’s ability to pay. 18 U.S.C. § 3663A(a)(1),

(c)(1)(A)(ii); id. § 3664(f)(1)(A); see also United States v. Singletary, 649 F.3d

1212, 1220 (11th Cir. 2011). Under the MVRA, a victim is any

      person directly and proximately harmed as a result of the commission
      of an offense for which restitution may be ordered including, in the
      case of an offense that involves as an element a scheme, conspiracy,
      or pattern of criminal activity, any person directly harmed by the
      defendant’s criminal conduct in the course of the scheme, conspiracy,
      or pattern.

18 U.S.C. § 3663A(a)(2).

      Thus, a victim must have suffered harm. And the defendant must have

proximately caused that harm. To prove proximate cause, the government

must establish that the defendant is a “but for” cause of the harm, and that

the connection is “not too attenuated (either factually or temporally).”

United States v. Martin, 803 F.3d 581, 594 (11th Cir. 2015).
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      The MVRA sets forth specifically that when more than one defendant

contributes to a victim’s loss, “the court may make each defendant liable for

payment of the full amount of restitution or may apportion liability among

the defendants to reflect the level of contribution to the victim’s loss and

economic circumstances of each defendant.” 18 U.S.C. § 3664(h) (emphasis

added). The sentencing guidelines advise a sentencing court that a restitution

order should reflect the full amount of a victim’s loss, but state that the

MVRA controls where applicable. USSG §5E1.1(a)–(b).

      Here, as an initial matter, plain-error review applies because King did

not argue below that the banks were not victims under the MVRA, nor did

King argue below that the restitution amount should be apportioned based on

fault. In any event, the district court did not err in determining that the banks

were victims. But for King’s actions as closing agent, the banks would not

have disbursed the loans, because King’s verifications that the cash-to-close

payments had been received were necessary prerequisites to their

disbursement, thus making King a proximate cause of the banks’ losses. And

while King may not have stood to benefit from the fraud to the same extent

as Del Campo and Sanchez, the court did not err in holding King jointly and




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severally liable for the full restitution amount, because the governing statute

expressly authorized the district court to do so.

      Finally, King argues that the banks had “unclean hands” and could not

possibly be victims entitled to restitution because they themselves were

engaged in predatory lending practices. But, while unclean hands may be a

defense to receiving the equitable remedy of restitution in a civil case, no

principle of criminal law allows a criminal defendant to assert unclean hands

as a defense to satisfying a court’s award of criminal restitution. We

therefore affirm the district court’s restitution order.

                                            V

      AFFIRMED.




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