11-5368 United States v. Ulloa



### UNITED STATES COURT OF APPEALS **FOR THE SECOND CIRCUIT**



## SUMMARY ORDER

**R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT**  **. C**  **ITATION TO A SUMMARY ORDER FILED**
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**At a stated term of the United States Court of Appeals** 1 **for the Second Circuit, held at the Thurgood Marshall United** 2 **States Courthouse, 40 Foley Square, in the City of New York,** 3 **on the 14 th** **day of February, two thousand thirteen.** 4 5 **PRESENT: DENNIS JACOBS,** 6 **Chief Judge ,**  7 **AMALYA L. KEARSE,** 8 **SUSAN L. CARNEY,** 9 **Circuit Judges**

**.** 10 11
- - - - - - - - - - - - - - - - - - - -X 12 **UNITED STATES OF AMERICA,** 13 **Appellee ,**  14 15 **-v.- 11-5368** 16 17 **RICHARD ENRIQUE ULLOA,** 18 **Defendant-Appellant ,**  19
- - - - - - - - - - - - - - - - - - - -X 20 21 **FOR APPELLANT:** MOLLY CORBETT, Federal Public 22 Defender Office, Albany, New 23 York, forLisa A. Peebles, 24 Acting Federal Public Defender. 25 26 **FOR APPELLEES:** RAJIT S. DOSANJH (Richard D. 27 Belliss, on the brief ), for 28

1Richard S. Hartunian, United 1 States Attorney for the Northern 2 District of New York, Syracuse, 3 New York. 4 5 Appeal from a judgment of the United States District 6 Court for the Northern District of New York (McAvoy, J. ). 7 8 **UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED** 9 **AND DECREED**that the judgment of the district court be 10
**AFFIRMED**

. 11 12 Defendant-Appellant Richard Ulloa appeals from a 13 conviction and sentence imposed by the United States 14 District Court for the Northern District of New York 15 (McAvoy, J. )

. Ulloa, an adherent of the “sovereign 16 citizens” movement, 1conducted a scheme chiefly involving 17 baseless liens and other fraudulent filings and documents 18 demanding money from his numerous victims. The jury 19 convicted Ulloa of seven counts of mail fraud under 18 20 U.S.C. §§ 1341 and 1349. He was sentenced to 60 months’ 21 imprisonment on each count, to run concurrently. We assume 22 the parties’ familiarity with the underlying facts, the 23 procedural history, and the issues presented for review. 24 25 1. Ulloa argues that the government lacked sufficient 26 evidence of his intent to deceive. A defendant challenging 27 the sufficiency of the evidence “bears a heavy burden.” 28 United States v. Caracappa , 614 F.3d 30, 43 (2d Cir. 2010). 29 We “must credit every inference that could have been drawn 30 in the government’s favor, and affirm the conviction so long 31 as, from the inferences reasonably drawn, the jury might 32 fairly have concluded guilt beyond a reasonable doubt.” 33 United States v. Reifler , 446 F.3d 65, 94 (2d Cir. 2006) 34 (internal citations omitted). 35 36

1 The sovereign citizens are a loosely affiliated group who believe that the state and federal governments lack constitutional legitimacy and therefore have no authority to regulate their behavior. The FBI has labeled the sovereign citizens a domestic terrorist group. See “Sovereign Citizens A Growing Domestic Threat to Law Enforcement,” FBI Law Enforcement Bulletin (Sept. 2011), http://www.fbi.g ov/stats-services/publications/law-enforcement-bulletin/sept ember-2011/sovereign-citizens.

2Conviction under the mail fraud statute, 18 U.S.C. 1 § 1341, requires the government to prove “(1) a scheme to 2 defraud victims of (2) money or property, through the (3) 3 use of the mails.” United States v. Walker , 191 F.3d 326, 4 334 (2d Cir. 1999). Ulloa contends that his conduct was 5 “open and frank” rather than deceptive, and that “[h]e 6 believed that he had been wronged and candidly sought 7 recompense for the injuries he suffered,” and thus lacked 8 the requisite intent. Appellant Br. 18. But the government 9 put forth several examples of Ulloa’s bad intent, including 10 a threat (acted upon) to harass a police officer, made 11 during a routine traffic stop, a statement to FBI agents 12 that his intent was revenge, and emails to credit ratings 13 agencies making them aware of the liens. 14 15 2. Ulloa contends that the government was required to 16 prove that the person deceived by the scheme was the same 17 person harmed by the scheme, and that the requisite showing 18 was not made because his victims were well aware that the 19 liens and other documents were fraudulent. This argument 20 misconstrues the elements of the offense. With respect to 21 the scheme-to-defraud element, “the government is not 22 required to show that the intended victim was actually 23 defrauded”; it is sufficient to show “that the defendant[ ] 24 contemplated some actual harm or injury.” United States v. 25 Wallach , 935 F.2d 445, 461 (2d Cir. 1991). Because the 26 evidence strongly suggests that Ulloa contemplated actual 27 harm or injury, his claim is meritless. 28 29 3. Ulloa challenges the procedural reasonableness of 30 his sentence. The district court decided that a calculation 31 of the victims’ actual loss (roughly $63,000) was a more 32 appropriate measure than the intended loss (approximately 33 $6.75 billion). The result was an offense level of 16, and 34 the Guidelines range was 21 to 27 months. 2 The court, 35 however, determined that offense level 16 was inadequate 36 given the extent of the misconduct and increased the offense 37 level to 25, resulting in a Guidelines range of 57 to 71 38 months. The court then sentenced Ulloa to 60 months’ 39 imprisonment on each count, to be served concurrently

. 40 41 Ulloa challenges this sentence on the ground that the 42 court’s statement of reasons was based on Ulloa’s potential 43

2Had the court used the intended loss figure, Ulloa’s Guidelines range would have been 292 to 365 months.

3to re-offend, not his actual conduct. However, at 1 sentencing and in its statement of reasons, the district 2 court did not intimate that its upward departure was based 3 on Ulloa’s likely recidivism, but rather on the fact that 4 the offense level substantially understated the seriousness 5 of the offense. This was not error. See U.S.S.G. § 2B1.1 6 cmt. n.19(A) (2012). 7 8 Ulloa also contends that the court’s sentence punished 9 him for his involvement in a political movement and 10 therefore infringed his First Amendment rights. However, 11 the First Amendment “‘does not erect a per se barrier’” to a 12 sentencing court’s admission of evidence regarding the 13 defendant’s beliefs, which may be relevant, e.g. , to show 14 motive, to examine an aggravating factor, to illustrate 15 future dangerousness, or to rebut mitigating evidence. 16 United States v. Kane , 452 F.3d 140, 142-43 (2d Cir. 2006) 17 (per curiam) (quoting Dawson v. Delaware , 503 U.S. 159, 165 18 (1992)). Ulloa’s involvement in the sovereign citizens was 19 considered to show motive (his desire to punish anyone who 20 crossed him) and to rebut mitigating evidence (Ulloa’s claim 21 that he was delusional), both permissible considerations. 22 23 For the foregoing reasons, and finding no merit in 24 Ulloa’s other arguments, we hereby **AFFIRM** the judgment of 25 the district court. 26 27 FOR THE COURT: 28 CATHERINE O’HAGAN WOLFE, CLERK 29 30

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