NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 10-1072

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UNITED STATES OF AMERICA

v.

RICHARD UNDERHILL,

 Appellant

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On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. No. 2-08-cr-00177-001)

District Judge: Honorable Joy Flowers Conti

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Submitted Under Third Circuit LAR 34.1(a)

January 5, 2011

Before: AMBRO and FISHER, Circuit Judges, and SÁNCHEZ,

* District Judge.

(Filed: January 6, 2011)

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OPINION OF THE COURT

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FISHER, Circuit Judge.

 *

The Honorable Juan R. Sánchez, District Judge for the United States District 

Court for the Eastern District of Pennsylvania, sitting by designation.
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Richard Underhill pled guilty to mail fraud in violation of 18 U.S.C. § 1341, and 

the District Court sentenced him to four years’ probation, with the first six months to be 

served in a community confinement center and the next six months to be served in home 

detention. On appeal, Underhill challenges the District Court’s calculation of the amount 

of loss attributable to his fraudulent conduct, as well as the reasonableness of his 

sentence. For the reasons stated below, we will affirm.

I.

We write exclusively for the parties, who are familiar with the factual context and 

legal history of the case. Therefore, we will set forth only those facts necessary to our 

analysis.

Underhill owned AARCO Real Estate, a real estate company that purchased and 

developed land. In 2002, Underhill was in the process of creating a housing 

development, Birch Ridge Village, in Washington County, Pennsylvania (the 

“Development”). Underhill purchased the land, but did not have sufficient credit to 

obtain a construction loan necessary for development of the land. To obtain the necessary 

funds, Underhill prepared and submitted a credit loan application using the name of one 

of his employees, Anthony Jacob. In so doing, he grossly overstated Jacob’s income and 

assets and misstated Jacob’s employer. Underhill knew that the information he included 

in the loan application was false at the time the application was prepared.
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Based on the false information, Home Builders Finance approved the loan. 

Accordingly, on July 30, 2002, Jacob signed a loan agreement in the amount of $152,500 

for the construction of a new home to be built on Lot 8 of the Development. The loan 

was collateralized by the land, as well as the home to be constructed on Lot 8.

Shortly after obtaining the loan, Underhill learned that Lot 8 was zoned for 

commercial use. Therefore, Underhill used the money to construct a home on Lot 2, 

while continuously representing to Home Builders Finance that the house was being 

constructed on Lot 8. After Home Builders Finance disbursed the entire $152,500 loan, 

Underhill was unable to make any payments on the loan and defaulted. At that point, 

Home Builders Finance discovered that no construction had taken place on Lot 8, where 

it held the mortgage.

Home Builders Finance instituted a civil suit against Underhill, Jacob, and several 

companies controlled by Underhill, seeking to recover the entire amount of the $152,500 

loan, as well as accrued interest and costs. Home Builders Finance asserted various 

claims, including fraudulent misrepresentation, unjust enrichment, conversion, breach of 

contract, and racketeering. The civil suit settled. Underhill agreed to pay $200,000 to 

Home Builders Finance in order to resolve all outstanding debt on the construction loan. 

In exchange, Home Builders Finance agreed to return the deed to Lot 8 of the 

Development.
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Following the civil suit, Underhill was indicted and charged with one count of mail 

fraud, in violation of 18 U.S.C. § 1341. He pled guilty. The Presentence Investigation 

Report (“PSR”) calculated the amount of loss at $117,600, which represented the amount 

of the fraudulent loan ($152,500) reduced by the value of the land that was pledged as 

collateral for the loan ($34,900)1

Underhill made several objections to the PSR. First, he claimed that the loss 

amount was zero, rather than $117,600, because the lender did not suffer any actual loss. 

Specifically, he argued that the amount of the fraudulent loan ($152,000) should be 

reduced by the amount he paid pursuant to the settlement agreement ($200,000). Second, 

he requested a departure or variance because the amount of loss allegedly overrepresented the seriousness of the offense. Third, he requested a variance based on his 

history and characteristics.

. Accordingly, the PSR designated Underhill’s offense 

level at thirteen, consisting of a base offense level of seven, an eight-level enhancement 

for an amount of loss of $117,600, and a two-level reduction for acceptance of 

responsibility. Underhill was placed in a criminal history category of I, yielding a 

guideline range of twelve to eighteen months of imprisonment.

At the sentencing hearing, the District Court heard arguments regarding the proper 

calculation of the amount of loss. Ultimately, the District Court adopted the PSR’s loss 

 1 The value of the land pledged as collateral for the loan was determined to be 

$34,900, the price at which a comparable neighboring lot was sold to an unrelated party in 

2003.
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figure of $117,600 and applied the corresponding eight-level enhancement. In so doing, 

the District Court found that there was no basis to conclude that the $200,000 settlement 

was paid entirely as disposition of collateral. Instead, the majority of the payment 

represented voluntary restitution on Underhill’s part. The District Court, however, 

granted downward variances based on Underhill’s history, characteristics, and the fact 

that the offense level substantially overstated the seriousness of Underhill’s offense. 

Accordingly, Underhill was sentenced at criminal history I and offense level ten, which 

yielded a guideline range of six to twelve months of imprisonment. The District Court 

sentenced Underhill to a four-year term of probation, with the first six months to be 

served in a community confinement center, and the next six months to be served in home 

detention. Underhill timely appealed.

II.

The District Court had jurisdiction under 18 U.S.C. § 3231, and we have 

jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742. We review the District 

Court’s factual findings, such as the amount of loss, for clear error. United States v. 

Jiminez, 513 F.3d 62, 85 (3d Cir. 2008). However, we review de novo the methodology 

that the District Court used to calculate loss under the Guidelines. Id. at 85-86. We apply 

an abuse-of-discretion standard and review a sentence for reasonableness, which requires 

that the sentence be both procedurally sound and substantively reasonable. United States 

v. Wise, 515 F.3d 207, 217-18 (3d Cir. 2008).
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III.

Underhill raises two issues on appeal. First, he contends that the District Court 

erred in applying an eight-level enhancement based on its calculation of loss. Second, he 

alleges that the sentence is both procedurally and substantively unreasonable. We will 

address each contention in turn.

A.

For offenses involving fraud, the Guidelines provide for an enhancement based on 

the amount of loss that resulted from the fraud. U.S.S.G. § 2B1.(b)(1). The offense level 

is increased by eight where the amount of loss is between $70,000 and $120,000. 

U.S.S.G. §§ 2B1.1(b)(1)(E)-(F). In calculating actual loss, note 3(E)(ii) to Section 2B1.1 

of the Guidelines provides:

In a case involving collateral pledged or otherwise provided by the 

defendant, [loss shall be reduced by] the amount the victim has recovered at 

the time of sentencing from disposition of the collateral, or if the collateral 

has not been disposed of by that time, the fair market value of the collateral 

at the time of sentencing.

U.S.S.G. § 2B1.1, cmt. n.3(E)(ii).2

Underhill argues that the District Court erroneously failed to consider the $200,000 

settlement in its calculation of actual loss. Specifically, Underhill argues that the 

“disposition of the collateral” occurred when the deed was transferred pursuant to the 

 2 The rule of lenity only applies where “there is a grievous ambiguity or uncertainty 

in the statute.” United States v. Flemming, 617 F.3d 252, 270 (3d Cir. 2010) (emphasis in 
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settlement agreement, at which point Underhill simultaneously paid $200,000 to the 

victim. Therefore, Underhill maintains that Home Builders Finance experienced a “zero 

loss” fraud. This argument fails.

In calculating the total amount of loss, the District Court looked to “the amount of 

money the victim ha[d] actually lost (estimated at the time of sentencing).” United States 

v. Kopp, 951 F.2d 521, 536 (3d Cir. 1991) (en banc). The Guidelines provide two 

circumstances under which a defendant is entitled to receive credit to reduce the amount 

of loss. U.S.S.G. § 2B1.1, cmt. n.3(E). First, a sentencing court must subtract from the 

initial loss calculation any funds that were returned to the victim “before the offense was 

detected.” Id. Here, Underhill paid $200,000 only after the offense was detected, and 

therefore cannot receive credit on this basis. Second, a defendant is entitled to credit for 

the amount of loss received by the victim upon disposition of the collateral. In other 

words, the loss is reduced by the pledged assets because those assets are always available 

for recovery. See United States v. Austin, 479 F.3d 363, 369 (5th Cir. 2007).

The District Court properly determined that the $200,000 settlement amount did 

not represent the value of collateral because the undeveloped land was not worth 

$200,000. Instead, Underhill made the $200,000 settlement payment not solely “for the 

disposition of the collateral,” but also as partial voluntary restitution. He was therefore 

not entitled to the full $200,000 setoff. Accordingly, the District Court determined that 

 

original) (quoting Muscarello v. United States, 524 U.S. 125, 138-39 (1998)). It is 
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the proper setoff was the value of the property, which it found to be approximately 

$34,900. Moreover, “[a] defendant in a fraud case should not be able to reduce the 

amount of loss for sentencing purposes by offering to make restitution after being 

caught.” United States v. Mummert, 34 F.3d 201, 204 (3d Cir. 1994). We hold that the 

District Court properly calculated loss under the Guidelines.

Underhill next challenges the District Court’s factual finding regarding the fair 

market value of the collateral. The District Court “is in a unique position to assess the 

evidence” and “need only make a reasonable estimate of the loss.” U.S.S.G. § 2B1.1, 

cmt. n.3(C). Accordingly, we must defer to the District Court’s loss determination unless 

it is clearly erroneous. Id.; see also Jiminez, 513 F.3d at 85. The District Court 

determined that a reasonable estimate of the fair market value was $34,900, the amount at 

which a comparable neighboring lot was sold to an unrelated party in 2003. This is not 

clearly erroneous, and we accept the District Court’s finding.

B.

We review a district court’s judgment of sentence under an abuse-of-discretion 

standard for reasonableness. United States v. Tomko, 560 F.3d 558, 567 (3d Cir. 2009) 

(en banc). We first ensure that the District Court committed no significant procedural 

errors in arriving at its decision. Wise, 515 F.3d at 217. Procedurally, a “sentencing court 

is required to give ‘rational and meaningful consideration’ to the relevant § 3553(a) 

 

therefore inapplicable here because the meaning of the Guidelines is clear.
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factors.” United States v. Doe, 617 F.3d 766, 769 (3d Cir. 2010) (quoting United States v. 

Grier, 475 F.3d 556, 571 (3d Cir. 2007) (en banc)). Substantively, the “final sentence, 

wherever it may lie within the permissible statutory range, [must be] premised upon 

appropriate and judicious consideration of the relevant factors.” Doe, 617 F.3d at 770 

(quoting United States v. Schweitzer, 454 F.3d 197, 204 (3d Cir. 2006)). The record 

reflects that the District Court gave “meaningful consideration” to the relevant sentencing 

factors and weighed those factors against any mitigating considerations. Doe, 617 F.3d at 

769. Accordingly, we conclude that Underhill’s sentence was both procedurally and 

substantively reasonable.

IV.

For the foregoing reasons, we will affirm the District Court’s judgment of 

sentence.