1 18-93 United States v. Constantine 

### UNITED STATES COURT OF APPEALS FOR THE SECO ND CIRCUIT SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROC EDURE 32.1 AND THIS COURT = S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMEN T FILED WITH THIS CO URT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATA BASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPR ESENTED BY COUNSEL. At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Fole y Square, in the City of New York, on the 11 th day of February, two thousand nineteen.
Present: G UIDO C ALABRESI , D EBRA A NN L IVINGSTON , Circuit Judges

. L ORNA G. S CHOFIELD , District Judge .*

_____________________________________ U NITED S TATES OF A MERICA , Appellee , v. 18-93
B OBBI A. C ONSTANTINE , AKA B OBBI B OVE , AKA R OBERT H. B OVE , AKA R OBERT A. B OVE , AKA R OBERT A. B OVIE , AKA R OBERT B OVEE , AKA R OBERT B OVIEEE , AKA R OBERT K. B OVE , Defendant-Appellant

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* Judge Schofield, of the United States District Court for the Southern District of New York, sitting by designation.2 For Defendant-Appellant: J AMES A. R ESILA , Carter, Conboy, Case, Blackmore, Maloney & Laid, PC , Albany, New York. For Plaintiff-Appellee: C ARINA H. S CHOENBERGER , Assistant United States Attorney for Grant. C. Jaquith, United States Attorney for the Northern District of New York, Syracuse, NY. Appeal from the judgments of the United States District Court for the Northern District of New York (D’Agostino, J .). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the January 5, 2018 and November 29, 2018 judgments of the district court are AFFIRMED

. Defendant-Appellant Bobbi A. Constantine ap peals from the January 4, 2018 judgment of the United States District Court for the No rthern District of New York (D’Agostino, J .) sentencing her to thirty-seven months’ imprisonment and ordering her to pay restitution totaling $72,589.96, following her guilty plea to one count of wire fra ud, in violation of 18 U. S.C. § 1343. Constantine also appeals the November 29, 2018 judgment of the district c ourt denying her motion requesting a reduction in her sentence. On appeal, Consta ntine argues that the district court committed procedural error in its loss calculation and crimin al history category assess ment for United States Sentencing Guidelines (“Guidelines”) purposes. We review the reasonableness of the sentence imposed by the district court for abuse of discretion. United States v. Verkhoglyad , 516 F.3d 122, 127 (2d Cir. 2008). A sentence is procedurally unreasonable where the district cour t “fails to calculate the Guidelines range,” “makes a mistake in its Guidelines calculation,” “treats the Guidelines as mandatory,” “does not consider the [18 U.S.C.] § 3553(a) factors,” “rests its sentence on a clearly erroneous finding of fact,” or “fails adequately to explain its chosen sentence.” United States v. Cavera , 550 F.3d 180,3 190 (2d Cir. 2008) (en banc). We assume the partie s’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.
I. Calculation of Loss Over a two-year period, Constantine falsely represented herself as the beneficiary of a $12.5 million trust that produced thousands of dollars of monthly income in order to secure a variety of mortgages, loans and leases. Consta ntine thereby secured, among other pieces of property, a two-year lease on a 2015 Toyota RAV4 (the “Toyota”); a three-year lease on a 2016 Jeep Renegade (the “Chrysler”); and a $25,000 loan in exchange for a promissory note from the seller of a property in South Carolina (an individual identified as E.W.). Constantine argues that the district court erred in its loss calculation respecting the two automobile leases and the promissory note. “U nder the Guidelines, the offense level for fraud offenses is linked explicitly to the harm caused to victims, measured in terms of monetary loss.” United States v. Byors , 586 F.3d 222, 225 (2d Cir. 2009) (citing U.S.S.G. § 2B1.1 (b)). “We review a district court’ s factual findings as to loss amount for clea r error and its legal conclusions de novo. ” United States v. Binday , 804 F.3d 558, 595 (2d Cir. 2015) (citation omitted). “A district court is not requi red to calculate loss with abso lute precision, but need only by a preponderance of the evidence make a reasonab le estimate of the lo ss given the available information.” Id. (internal quotation marks omitted). We conclude that the district court did not commit procedural error in arriving at its loss calculation. For the purposes of calculating the Guide lines range, loss is defined as “the greater of actual loss or intended loss.” United States v. Certified Envtl. Servs., Inc. , 753 F.3d 72, 103 (2d Cir. 2014) (quoting U.S.S.G. § 2B1.1 cmt. 3(A)). “Actual loss, in turn, is defined as ‘the reasonably foreseeable pecuniary harm that resulted from the offense . . . .’” Id. (quoting U.S.S.G.4 § 2B1.1 cmt. 3(A)(i)). The loss estimate should “tak [e] into account” factors such as “[t]he fair market value of the property unlawfully taken.” U.S.S.G. § 2B1.1 cmt. 3(c); see Byors , 586 F.3d at 225 (noting that “[t]he applica tion notes to the Guidel ines shed further light on the meaning of the provisions and assist courts in applying the Guidelines”). He re, the district court’s loss calculation constituted a “reasonable estimate of the loss given the available information.” Binday , 804 F.3d at 595. Constantine first contends that the district court erred in attributing the value of the E.W. promissory note to her loss calculation because the Information to which she pled guilty did not specifically reference the note. We disagree and find no clear error in the dist rict court’s attribution of the loss associated with the promissory note. Constantine admitted in her plea agreement that she obtained the note on behalf of her fraudulent trust, the same trust she relied on to obtain the Toyota and Chrysler leases. The promissory note was “relevant c onduct” for Guidelines purposes, undeniably constituting part of the “same course of conduct or common scheme” as the other offenses referenced in Constantine’s Information. See U.S.S.G. §§ 1B1.3(a)(1)(A), 1B1.3(a)(2) (noting that, when making its sent encing determination, a district co urt may consider all “relevant conduct,” which includes “acts and commissi ons” that “were part of the same course of conduct or common scheme or plan as the offense convicti on”). The district court therefore did not err in adding $24,901.72 (the full amount owed on the pr omissory note minus the single payment Constantine had made on the note) to Constantine’s loss amount. Next, Constantine challenges the district c ourt’s loss calculation of $2,706.30 with respect to the Toyota lease. We again find no clear error in th e district court’s loss calculation. The district court adopted a total loss attri butable to the Toyota of $2,706.30 by reference to Toyota’s “Early Termination Accounting Statement,” which detailed the expense Toyota incu rred as a result of5 Constantine’s fraudulent leasing a nd early return of the vehicle. J.A. 106. Constantine provides no basis for concluding that any of T oyota’s calculations are inflated or irrelevant. The district court ultimately arrived at “a r easonable estimate of loss” resulting from the fraud, see U.S.S.G. §2B.1, by endeavoring to calculate the difference be tween what Toyota would have earned from “somebody entering into a lease in good faith” and Constantine’s fra udulently obtained lease. J.A.
163. Finally, Constantine challeng es the district court’s lo ss calculation of $26,242.94 with respect to the Chrysler lease. C onstantine contends that after entering into the lease agreement for the Chrysler in May of 2016 she subsequently abandoned the vehicl e in a parking garage following her arrest in September of that year. Though Cons tantine did not keep up with her lease payments, she argued at her sentencing hearing that Chrysl er Capital could have repossessed the abandoned Jeep and recovered its full market value. Therefor e, she advocated that the district court limit the loss amount respecting the Chrysler to the remaining lease payments she owed on the vehicle rather than the full market value of the car. The district court rejected that argument, instead calculating a loss amount that represented the total value of the vehicle at the time of sentencing minus the three lease payments Constantin e had already made. Following Constantine’s sentencing, the Chrysler was, in fact, repos sessed by Chrysler Capital and sold for $18,793.15. Constantine then filed a motion requesting that her sentence be reduced in light of the sale of the Chrysler. The district court denied that motion in an order dated November 29, 2018. We need not decide whether the district court erred in its loss calculation with respect to the Chrysler, since any error woul d be harmless. In making its sent encing determination the district court considered factors indepe ndent from the actual loss amount, such as Constantine’s lengthy criminal record and her routinel y successful attempts at defraudi ng people, leaving them without6 recourse. The court concluded th at “if I underestimated the loss or overestimated the loss, the sentence that I impose today would still be the same, in light of everything that I have reviewed in this case.” J.A. 189-90. Thus, “we take comfort in the distri ct court’s emphatic statement that it would have imposed the same sentence regardless of the loss amount, whic h renders any error in the loss calculation harmless.” Binday , 804 F.3d at 598. 1
II. Criminal History Category Constantine also argues that the district cour t erred in assigning her two criminal history points for her prior conviction for giving a false st atement, in violation of 18 U.S.C. § 1001(a)(3). For that offense, Constantine received a sentence of “time served” after being incarcerated for 339 days. Section 4A1.1 of the Guide lines provides that th e district court should “[a]dd 2 points for each prior sentence of imprisonment of at least sixty days.” U.S.S.G. § 4A1.1(b). A sentence of “time served” is treated as “an unambiguous pronouncement of a specific term of imprisonment— the amount of time actually served.” United States v. D’Oliveira , 402 F.3d 130, 132 (2d Cir. 2005). Here, the time Constantine “act ually served” (339 days), clearl y exceeded the sixty days of imprisonment required by the Guidelines for the assessment of two crimin al history points, and the district court approp riately assigned them to her. To th e extent Constantin e objects to her previous sentence, she may not challenge the lawfulness of that sentence here.

1 After the sale of the Chrysler, the district court directed the Clerk of Court “administratively” to reduce the restitution amount owed by Consta ntine by $18,793.15, the amount Chrysler Capital was able to recover from selling the Jeep. In th e wake of this action, we do not understand Constantine to be challenging her outstanding restitution judgment nor these actions by the district court. Accordingly, we do not address this issue.7 We have considered Constantine’s remaining ar guments and find them to be without merit. Accordingly, we AFFIRM the judg ment of the district court.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk