United States Court of Appeals

Fifth Circuit



## FILED

October 25, 2005

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

______________________

No. 04-10813

______________________

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

MARIA ELENA GARZA AND ENRIQUE ELIZONDO,

Defendants - Appellants.

______________________

Appeals from the United States District Court

for the Northern District of Texas

3:03-CR-395

_____________________

Before BENAVIDES, STEWART, and OWEN, Circuit Judges.

PER CURIAM:

Enrique Elizondo and Maria Elen a Garza appeal their

convictions and sentences. We find no error in any conviction. We

affirm Garza’s sentence but must vacate and remand Elizondo’s

sentence for proceedings consistent with United States v. Booker

,

__ U.S. __, 125 S. Ct. 738 (2005).

Elizondo and Garza perpetrated a scheme to defraud

undocumented aliens by pretending to be agents of the Immigration

and Naturalization Service (“INS”) and by pu rporting to help the

aliens with fake immigration forms. A jury convicted both Elizondo

and Garza of conspiring to commit mail fraud and convicted Garza,

additionally, of three substantive counts of mail fraud and of1 Mail fraud has the following essential elements: (1) a

scheme to defraud, (2) use of the mails to execute the scheme,

and (3) specific intent to defraud. United States v. Akpan , 407

F.3d 360, 370 (5th Cir. 2005).

2 obtaining money by pretending to be a federal employee. The court

sentenced Elizondo to thirty-seven months imprisonment and Garza to

ninety-seven months impri sonment. It also ordered $172,176

r estitution to be paid jointly and severally by Elizondo, Gar za,

and a third co-defendant who is not before this Court.

I. Sufficiency of the Evidence

Appellant Elizondo complains that the evidence was

insufficient to support his conspiracy conviction. This claim has

no merit. “The three elements of conspiracy to commit mail fraud

are (1) an agreement between appellant[] and others (2) to commit

the crime of mail fraud, and (3) an overt act committed by one of

the conspirators in furtherance of that agreement.” U nited States

v. Sneed

, 63 F.3d 381, 385 (5th Cir. 1995) (internal quotation

marks omitted). 1 A dditionally, the defendant must have acted with

in tent to defraud. S ee United States v. Manges

, 110 F.3d 1162,

1173 (5th Cir. 1997).

Evidence adduced at trial estab lished an immigration scheme

through which the conspirators obtained money from undocumented

aliens by p romising them immigration services. Garza, sometimes

assisted by Elizondo, had undocumented aliens fill out fake

applications for INS residency authorizations or work permits. The

conspirators misrepresented to the victims that they worked for the3

INS and that the applications were genuine. They initially charged

the victims several hundred dollars as an “applicati on fee” and

subsequently sent t he victims an “approval notice.” The notices

instructed the victims to submit an additional fee, generally

$1202, to an “INS Department Ctr.” in either Corsicana, Mesquite,

or Pleasant Grove, Texas. Garza had created a company called

“Independent National Services” (which has the same initials as the

Immigration and Naturalization Service), and the addresses had been

set up by the conspirators to send and receive mail relating to the

scheme. Neither Garza nor Elizondo actually worked for or filed

any papers with the INS, and none of the victims received the

benefits they were promised. The conspirators defrauded at least

224 people of at least $172,176.

Trial evidence also revealed Elizondo’s broad participation in

the conspiracy. He assisted aliens in filling out what appeared to

be “immig ration paperwork” in exchange for money on multiple

occasions. Additionally, Elizondo rented an office used to carry

out the scheme, and one of the misleading “INS Department Ctr.”

post office boxes was opened in the name of his company, “Elizondo

and Associates.” Witnesses also testified that Elizondo collected

mail addressed to “INS Department Ctr.” and told his landlord that

he and Garza “helped non US citizens with different types of

paperwork.” Lastly, fake immigration applications, fraudulent

approval forms, receipts and other documents related to the scheme

were found in common areas of the home that Eli zondo shared with4

Garza.

This evidence is clearly sufficient for a rational jury,

viewing the evidence in the light most favorable to the Government,

to have found all the elements of conspiracy to commit mail fraud

beyond a reasonable doubt. See United States v. Rivera

, 295 F.3d

461, 466 (5th Cir. 2002). W e find no error in Elizondo’s

conviction.

II. Booker Error

Next, Elizondo claims two different errors under United States

v. Booke r . First, Elizondo contends that the district court

committed Booker error by ordering restitution under the Mandatory

Victims Restitution Act of 1996 (“MVRA”). S ee 18 U.S.C. §§

3663A–3664. Elizondo did not object below to the order of

restitution or to the district court’s use of the MVRA. His claim

is, therefore, reviewable only for plain error. S ee F ED

. R. C RI M

.

P. 52. Under United States v. Olano , Elizondo must show that (1)

there is an error, and that the error (2) is plain, (3) affects

substantial rights, and ( 4) seriously affects the fairness,

integrit y, or public reputation of judicial proceedings. See,

e.g.

, United St ates v. Inman , 411 F.3d 591, 595 (5th Cir. 2005)

(citing Olano

, 507 U.S. 725, 732–34 (1993)).

Elizondo’s argument fails at least the first two prongs of the

Olano test. B ooker ’s holding that the Sentenc ing Guidelines are

advisory does not directly affect the MVRA since it is a statute2 Specifically, the district court adjusted Elizondo’s

sentence upwardly upon finding: (1) the offense caused a loss

between $120,000 and $200,000 (U.S.S.G. § 2B1.1(b)(1)), (2) the

offense involved more than 50 victims (U.S.S.G. § 2B1.1(b)(2)),

and (3) the victims were unusually vulnerable (U.S.S.G. §

3A1.1(b)).

5 “distinct and separate from the United States Sentencing

Guidelines.” S ee United States v. Sosebee

, 419 F.3d 451, 462 (6th

Cir. 2005). We agree with our sister Circuits, who have uniformly

held that judicial fact-finding supporting restitution orders does

not violate the Sixth Amendment. S ee id. at 461–62; United States

v. Reichow

, 416 F.3d 802, 808 (8th Cir. 2005); Uni ted States v.

Bussell, 414 F.3d 1048, 1060–61 (9th Cir. 2005); United States v.

George , 403 F.3d 470, 73 (7th Cir. 2005). In any event, even if

there were Booker error in the restitution order, any error would

certainly not be plain under current law.

Elizondo also claims that the district court committed Booker

error by applying upward adjustments based on judicial fact-finding

u nder the then-mandatory Federal Sentencing Guidelines. 2 T he

Government co ncedes (and we agree) that Elizondo preserved the

error by making this claim below and citing Blakely v. Washington

,

542 U.S. 296 (2004). Thus, we review under the harmless-error

standard. The Government bears the burden of showing that Booker

error was harmless, and to do so it must “prove beyond a reasonable

doubt that the district court would not have sentenced [the

defendant] differen tly had it acted under an advisory Guidelines6

regime.” United States v. Akpan

, 407 F.3d 360, 377 (5th Cir.

2005). W e have noted that this is an “arduous burden,” and this

Court “will ordinarily vacate the sentence and remand” where Booker

error has been preserved. United States v. Pineiro , 410 F.3d 282,

284–87 (5th Cir. 2005) (quoting United States v. Mares

, 402 F.3d

511, 520 n.9 (5th Cir. 2005)).

Indeed, this Circuit has held that the Government met its

burd en in showing B ooker error harmless under only two

circumstances. First, we have held that Booker error is harmless

where the district court stated at sentencing that it would not

impose a lower sentence even absent mandatory Guidelines. S ee

United States v. Saldana

,

__ F.3d

__, 2005 WL 2404810, at *10 (5th

Cir. Sept. 30, 2005) (court stated it would impose “the same amount

of imprisonment” even if the Guidelines were deemed

unconstitutional); United States v. Nelson

, 2005 WL 1994287, at *1

(5th Cir. Aug. 19, 2005) (un published) (court expressed

disappointment that there was not a greater statutory maximum and

indicated that a sentence above the maximum would have been

appropriate). Second, in an unpublished decision, we determined

that Booker error was harmless where the sentencing court expressly

refused to run the defendant’s federal Guidelines sentence

concurrently with his state se ntence. U nited States v. Prones

,

2005 WL 2009546, at *1 (5th Cir. Aug. 23, 2005) (unpublished). We

find that the Government’s evide nce in the instant case falls7

woefully short of the circumstances presented in these cases.

The Government contends that the B ooker error was harmless

because the district court sentenced Elizondo in the middle of the

app licable Guidelines range. It claims that this proves the

district court would not have sentenced Elizondo differently under

an advisory regime because it already had discretion to impose a

lower sentence and chose not to do so. It is equally possible,

however, that the court’s sentence reflected a judgment about the

appropriate sentence for Elizondo relative to other defendants with

the same Guidelines range rather than a judgment as to the

appropriate absolute sentence. Indeed, this Circuit has rejected

the claim that a co urt’s decision to sentence in the middle of a

Guidelines range establishes Booker error as harmless in two recent

unpublished decisions. S ee United States v. Yancey

, 2005 WL

1608590, at *1 (5th Cir. July 11, 2005) (unpublished) (per curiam);

United States v. Benavides , 2005 WL 2055884, at *1 (5th Cir. Aug.

26, 2005) (unpublished).

The Government also points to the district court’s statement

that it might have the power to downwardly depart under the

circumstances but that departure would not be appropr iate on the

record before it. Yet, even a discretionary departure decision is

informed by the Guidelines and “thus sheds little light on what a

sentencing judge would have done knowing that the guidelines were

advisory.” U

nited States v. Schlifer

, 403 F.3d 849, 854 (7th Cir.3 In the absence of Cuyler ’s “actual conflict” exception, a

defendant claiming that his attorney had a conflict of interest

must show a reasonable probability that the conflict “prejudiced

the defense, undermining the reliability of the proceeding.”

Beets v. Scott , 65 F.3d 1258, 1273 (5th Cir. 1995) (en banc).

8 2005). No other evidence cited by the Government suggests that

Elizondo would have received the same sen tence under an advisory

regime. In sum, the Government has not met its burden of proving

beyond a reasonable doubt that the Booker err or was harmless.

Because this Booker violation requires remand and resentencing, we

need not address additional sentencing errors claimed by Elizondo.

III. Conflict of Interest

Appellant Garza claims that the district court erroneously

denied her counsel’s motion to wi thdraw for conflict of interest

without holding a hearing on the issue. Specifically, Garza claims

(1) that the district court should have held a hearing to determine

whether her trial attorney faced an “actual conflict” and (2) that

her conviction should be overturned on direct review even without

a showing of prejudice. S ee Cuyler v. Sullivan

, 446 U .S. 335,

348–50 (1980) (stating that trial courts have a “duty to inquire

into the propriety of multiple representation” and that no showing

of prejudice is req uired where there was an “actual conflict”). 3

Both the denial of a motion to withdraw and the decision not to

hold an evidentiary hearing are reviewed for abuse of discretion.

See United States v. Powell

, 354 F .3d 362, 370 (5th Cir. 2003);

United States v. Wild

, 92 F.3d 304, 307 (5th Cir. 1996). The9

district court’s underlying determination as to whether an actual

conflict existed, however, is reviewed de novo. See United States

v. Infante , 404 F.3d 376, 390 (5th Cir. 2005).

On February 2, 2004, Garza pleaded guilty. In support of her

plea, Garza submitted a factual resume, signed by her counsel,

Roderick White, admitting her guilt on all counts. Four days

later, Garza changed her plea to not guilty. On the first day of

trial, White moved to withdraw as counsel, stating that he believed

he had an ethical conflict because Garza intended to testify and he

“[stood] by the representations [he] made on the 2nd.” The

district c ourt denied the motion, inferring from these comments

that Garza was changing her story and that White disbelieved her

proposed testimony. It concluded that this was no reason to delay

the trial. White never requested an evidentiary hearing on his

conflict-of-interest claim nor disputed the court’s understanding

that White believed Garza intended to perjure herself. Garza

eventually testified in narrative form, unassisted by counsel, and

White did not use Garza’s testimony in his closing.

Garza argues that Cuyler ’s “actua l conflict” rules should

apply because her counsel signed the factual resume supporting her

original guilty plea and because any defense would cast doubt on

the truth of that filing, thereby subjecting White to professional

sanctions for offering false ev idence or testimony. These

circumstances, however, do not give rise to an “actual conflict.”10

In Beets v. Scott

, this Circuit “limited Cuyler to actual conflicts

resulting from a la w yer’s representation of multiple criminal

defendants.” H

ernandez v. Johnson

, 108 F.3d 554, 559 (5th Cir.

1997) (citing Beets

, 65 F.3d 1258, 1266 (5th Cir. 1995) (en banc)).

Garza seeks to escape the Beets rule by pointing to our

recognition that some cases might be “the functional equivalent of

a joint representation” (and within Cuyler ’s scope) even though the

attorney did not “formally” represent two parties. B eets

, 65 F.3d

at 1267. The B eets Court made absolutely clear, however, that

Cuyler only applies where an attorney was effectivel y, if not

technically, representing multiple clients in the same proceeding.

See id

. Garza’s claim, by contrast, involves (insofar as it

involves any cognizable conflict) “an attorne y’s conflict of

interest that springs not from multiple client representation but

from a conflict between the attorney’s personal interest and that

of his client.” Beets , 65 F.3d at 1260.

Garza also relies on the Beets Court’s dictum that it had no

“occas ion to discuss the . . . powerful argument . . . that a

lawyer who is a potential co-defendant with his client is burdened

by a ‘multiple representation’ conflict

. . . .” I d. at 1271 n.17.

Yet, she cites no case that has actually considered this issue.

Nor does she argue that White was actually a potential codefen dant. It is doubtful that White could be subject even to

professional sanctions, as Garza claims. White made no personal4 To the extent that Garza’s claim implies that her counsel

had a conflict of interest because he was precluded from

presenting perjured testimony, we find such a suggestion

baseless. See Nix v. Whiteside . 475 U.S. 157, 173–74 (1986). In

any event, Garza insisted on taking the stand and was able to

give her version of the facts in narrative form—a narrative which

ultimately led to the district court finding at sentencing that

she had committed perjury.

11 representations in the factual resume and is not responsible for

assertions made by his client. T E XAS D ISCIPLINARY R ULES OF P ROF ’ L C ONDUCT

3.03, cmt. 2. Furthermore, the record reflects that White did not

c onsider (much less know) that Garza’s admissions in the fact ual

resume could be false. S ee id. at 3.03(a)(5) (requiring knowledge

of evidence’s falsity). That defense evidence might cast doubt on

the factual resume is therefore immaterial. 4 In short, Garza’s

claim falls within Beets ’s broad conclusion that Cuyler should not

apply to attorney self-interest cases. 65 F.3d at 1268–72.

Because the circumstances did not suggest an “actual conflict”

under Cuyler

, the trial court did not abuse its discretion in

denying the motion to withdraw. See United States v. Medina , 161

F.3d 867, 870 (5th Cir. 1998). Lastly, because Garza’s trial

counsel did not make allegations that would give rise to a Cuyler

conflict (and she makes none now), the tr ial court did not abuse

its discretion in declining to hold a sua sponte evidentiary

hearing. S ee United States v. Powell

, 354 F.3d 362, 370 (5th Cir.

2003) (stating that courts should hold evidentiary hearings “when

the defendant alleges sufficient facts which, i f proven, would5 Garza argues only that her claim should be analyzed under

Cuyler . Even if Garza were to make a typical conflict-ofinterest complaint under Strickland v. Washington , 466 U.S. 668

(1984), however, that complaint would have to be made on

collateral review. See United States v. Holmes , 406 F.3d 337,

361 (5th Cir. 2005) (stating that “direct appeal of ineffective

assistance claims in the absence of presentment to the district

court and an adequately developed record” is “generally

preclude[d]” under Fifth Circuit precedent).

12 justify relief”). 5

IV. Vulnerable Victims Sentencing Enhancement

Garza also claims that the district court’s finding that the

victims of her mail fraud scheme were unusually vulnerable was

clearly erroneous. S ee United States v. Angeles-Mendoza

, 407 F.3d

742, 747 (5th Cir. 2005) (reviewing a “fi nding of unusual

vulnerability for clear error”). The Sentencing Guidelines provide

a two-level sentencing enhancement where the victims of the crime

are “unusually vulnerable due to age, physical or mental condition,

or

. . . otherwise particularly susceptible to the criminal

con duct.” U.S.S.G. § 3A1.1, cmt. 2, n.1. The district court

explained its finding at sentencing, stating th at (1) Garza

specifically targeted illegal aliens; (2) her victims “did not have

much money, were unable to read, write or speak English well, if at

all;” (3) her victims “lived with constant fear of deportation and

permanent separation from their loved ones;” and (4) this fear of

deportation and inability to communicate with the authorities made

the individuals particularly vulnerable to Garza’s scheme.

Garza claims that the section 3A1.1 enhancement was improper13

under Angeles-Mendoza

, which held that a finding of unusual

vulnerability could not be based sol ely on the inherent

vulnerabilities of “smuggled aliens” w here the offense at issue

necessarily involved smuggled aliens. 407 F.3d at 747–48. Garza’s

Angeles-Mendoza argument fails for two reasons. First, the finding

of unusual vulnerability in the instant case was not based on the

inherent vulnerabilities of undocumented aliens but rather the

specific vulnerabilities of the individual victims. The district

court in Angeles-Mendoza merely found that in general “aliens

coming from Mexico” have certain vulnerabilities. Id. at 747. The

court in Garza’s case observed several of her victims at trial and

properly relied on these spec ific victims’ poverty, language

problems, and fears of deportation.

Second, the defendant in Angeles-Mendoza had been convicted of

conspiring to smuggle, transport, and harbor illegal aliens. Id.

at 745. Accordingly, the Angeles-Mendoza Court determined that

the victims’ “smuggle d alien” status was adequately taken into

account by the sentence for the base-level offense. Id. at 748.

By contrast, none of the offenses at issue here—mail fraud,

conspiracy, and impersonating a federal employee—necessarily

involve undocumented aliens. The status of Garza’s victims as

undocumented aliens was not taken into account by the base-level

offense and consequently would not be an improper consider ation

under Angeles-Mendoza

. S ee id. at 748 n.7; see also United States14

v. Velasquez , 310 F.3d 1217, 1220 (9th Cir. 2002).

Garza also relies on United States v. Moree

, 897 F.2d 1329,

1335–36 (5th Cir. 1990), and United States v. Box , 50 F.3d 345,

358–59 (5th Cir. 1995). She argues that these decisions hold that

a section 3A1.1 enhancement is improper where the vulnerability at

issue was indispensable to the defendant’s crime a s it was

committed

. She contends that her victims’ vulnerability could not

properly be used to enhance her sentence because their particular

vulne rabilities were essential to her particular scheme. Garza

misreads Moree and Box

. Those cases stand for the proposition that

susceptibility to the defendant’s sch eme alone is not enough to

qualify victims as unusually vulnerable. The victims must also be

“vulne rable . . . members of society” and “fall in the same

category” as “the elderly, the young, or the sick.” U nited States

v. Gieger , 190 F.3d 661, 665 (5th Cir. 1999) (citing Moree ).

Thus, neither the wealthy businessmen victims in Box nor the

gove rnment official victim in Moree could qualify as vulnerable

victims under section 3A1.1, even though they were particularly

susceptible to the crimes at issue in those cases, because they did

not qualify as vulnerable members of society. Because Garza’s

victims’ poverty, language problems, and fears of deportation did

make them vulnerable members of so ciety, M oree and Box are

inapposite, and th e district court’s finding of unusual6 For the first time on appeal, Garza also challenged her

sentence under Booker . She acknowledges that she cannot show

that the judge would have imposed a different sentence under

advisory Guidelines. See Mares , 402 F.3d at 520(requiring such a

showing to merit vacating a sentence under plain-error review).

Furthermore, as Garza’s reply brief concedes, her claim that her

sentence violated the due process or ex post facto clause has

been foreclosed by United States v. Scroggins , 411 F.3d 572, 576

(5th Cir. 2005). Therefore, Garza’s additional sentencing claims

fail.

15 vulnerability was not clearly erroneous. 6

V. Conclusion

Accordingly, we AFFIRM Elizondo’s conviction for conspiracy to

commit mail fraud but VACATE his sentence and REMAND for

resentencing in accordance with Booker. As to Garza, we AFFIRM her

convictions and sentence.