[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

________________________ No. 15

- 13325

________________________ D.C. Docket No

. 1:14

- cr - 20160

- DPG

- 5
UNITED STATES OF AMERICA , Plaintiff

- Appellee ,

versus LAZARO ENRIQUE MENDEZ , STAVROULA PHILIPPOU MENDEZ, a.k.a. Stella, a.k.a. Estella, MARIE ELEANOR MENDEZ , a.k.a. Marie Toro , Defendant s - Appellants

.

________________________ Appeal s from the United States District Court for the Southern District of Florida

_________________________ (June 11, 2018 ) Case: 15-13325 Date Filed: 06/11/2018 Page: 1 of 212 B efore WILLIAM PRYOR and JILL PRYOR, Circuit Judges , and RESTANI , ∗ Judge

. PER CURIAM: Five members of the Mendez family, along with several of their associates, were charged in connection with a far

- reaching mortgage fraud scheme , begun in 2006 and spanning four housing developments: Parc Central Aventura, Diane Condominiums, Yolanda Villa s , and Blue Waves. T he persons charged with this
scheme included patriarch Luis Mendez (“Luis”), his wife Stavroula Mendez (“Stavroula”) , their sons Lazaro Mendez (“Lazaro”) and Luis Michael Mendez (“Michael”), and Michael’s wife Marie Mendez (“Marie”)

. 1 This appeal concerns only Lazaro, Stavroula, and Marie (collectively, “Appellants”) , who were convicted of bank fraud, wire fraud, and conspiracy to commit bank and wire fraud. Luis was a real estate developer who ran Barmec o Enterprises, Inc. (“Barme co”) , where A ppellants were employed in various capacities . Stavroula worked primarily as an administrator at Barmeco’s Miami Beach office

. Marie performed various administrative functions, including a supervisory role at Yolanda Villas , a Barmeco

- owned apartment complex . Lazaro worked with his

∗ Honorable Jane A. Restani, Judge for the United States Court of International Trade, sitting by designation.

1 Michael pleaded guilty to conspirin g to commit bank and wire fraud and had the other charges against him dismissed. Luis was a fugitive at the time of trial and remains a fugitive.

Case: 15-13325 Date Filed: 06/11/2018 Page: 2 of 213 father in sales. The Mendez’s scheme involved paying mortgage brokers to recruit straw bu yers to submit often

- falsified mortgage loan applications, for the purchase
of units in c omplexes owned or controlled by Me ndez f amily members . All loan applications relevant to this appeal w ere presented to the banks through mortgage brokers. Tania and Leidy Masvidal of EZY Mortgage (“EZY”) were the first broke rs to participate in the scheme, which began at Parc Central

. Later, working with the Masvidals as well as other brokers who facilitated similar falsifications, the Mendez family expanded this scheme to Yolanda Villas , Diane Condominiums , and Blue Waves

. Relevant to this appeal, these other brokers included: (1) Wi lkie Perez, and his companies Kinetic Mortgage, L&P Management and Consulting , and VGP Management and Consultants; and (2) Jorge Assef, a broker, who worked with Alfredo Chacon, a recruiter of straw purchasers , and Chacon ’s
company, TCB Property Management

. Once a loan was secured, it was used to pay the unit purchase price, roughly $220,000 per unit. When, for example, the Masvidals had recruited a straw purchaser for a Yolanda Villas unit , Barmeco first used those loan proceeds to pay down Barmeco’s mortgage on the Yolanda Villas building by $152,500

. Barmeco, through Stavroula, then dis tributed the remaining money to one of two companies created by the Masvidals. From thi s sum, the Masvidals each took $7 ,000, as did

Case: 15-13325 Date Filed: 06/11/2018 Page: 3 of 214 Lazaro, and stra w purchasers we re paid $2,000

. The Masvidals used the remaining money to satisfy monthly loan payments and cover other straw purchaser s ’ “cash to close, ” as necessary. The units were thereafter rented to third parties

. Stavroula d istributed monthly rental fees to the Masvidals’ companies, in the form of checks signed by Marie. These funds were applied to loan payments not covered by the loan proceeds. This scheme continued until 2008, when the real estate market turned and most of the properties involved in th is scheme entered foreclosure. Following a joint trial before a jury , the district court denied A ppellants’ motions for judgments of acquittal, and all A ppellants were convicted as charged

. On appeal, Stavroula and Marie challenge the sufficiency of the evidence of knowledge for certain counts, all Appellants challenge the district court’s preclusion of ar guments relating to banks’ lending practices, Lazaro and Marie challenge the jury instructions’ reference to the “deliberate ignorance” theory of knowle dge , all Appellants challenge the district court’s loss calculation s for sentencing purposes, and Marie challenges the sentencing judge’s failure to make releva nt conduct findings. We have jurisdiction over this matter pursuant to 28
U. S.C. § 1291. See Butler v. Sukhoi Co. , 579 F.3d 1307, 1311 (11th Cir. 2009 ). We reject all but the last challenge.

Case: 15-13325 Date Filed: 06/11/2018 Page: 4 of 215 A. Sufficiency of the Evidence The government must prove defendant’s knowledge to prove ba nk fraud under 18 U.S.C. § 1344 and intent to prove wire fraud un der 18 U.S.C. § 1343

. 2
See United States v. De La Mata , 266 F.3d 1275, 1298 (11th Cir. 2001) (bank fraud); United States v. Brown , 40 F.3d 1218, 1221 (11th Cir. 1994) (wire fraud)

. Stavroula and Marie challenge the sufficiency of the evidence of their knowledge. To prevail against a motion for judgment of acquittal, the government, having the benefit of all reasonable inferences in its favor, must present evidence such that “ ‘ a

reas onable jury could have found that the evid ence established the appellants’ guilt beyond a reasonable doubt

. . . . ’ ” United States v. Starrett , 55 F.3d 1525, 1541 (11th Cir. 1995) (alteration in original) (quoting United States v. Russo , 796 F.2d 1443, 14 55 (11th Cir. 1986))

. “As with other fraud crimes, ‘ circumstantial evidence may prove [a defendant’s] knowledge. ’ ” United States v. Martin , 803 F.3d 581, 588 (11th Cir. 2015) (alteration in original) (quoting United States v. Williams , 390 F .3d 1319, 1325 (11th Cir. 2004)) (discussing both bank and wire fraud). Sufficient evidence indicates that Stavroula knowingly participated in the challenged bank and wire fraud Counts: 6, 7, and 16

– 19. Each concerned

2 The “knowingly” and “intentionally” mens rea standards at issue are substantively identical, and will collectively be referred to as the “knowledge element. ” See United States v. Odoni , 782 F.3d 1226, 1232 (11th Cir. 2015) ( mens rea standard for mail and wire fraud is “knowingly and intentionally” )

. Case: 15-13325 Date Filed: 06/11/2018 Page: 5 of 216 submission of fraudulent loan documents in t he na mes of third persons to obtain mortgage s to purchase property at Yolanda Villas. For e very transaction , t he government produced evidence that Stavroula wrote one check from Barmeco aft er each loan had closed

. As to Counts 7 and 17, which involved checks to the Masvidals, the record
also indicate s that Stavroula supplied the Masvidals with lists of Yolanda Villas units for which straw buyers should be sought, and expressed a con cern to Tania Masvidal that EZY ’s president and Lazaro were listed as of ficer s of the Ma svidal s ’ first shell company, Hope Investments of Kendall

. S uch overlap could lead
lenders to seek additional assurances if the seller, Barmeco, were seen to be paying a company owned by the mortgage broker, who is supposed to work for the buyer
in arm’s

- length transaction s . As a licensed mortgage broker, Stavroula almost certainly knew this

. Shortly after this conversation, the Masvidals created Best Investments of Kendall, with Tania Masvidal as the only officer

. 3 Stavroula’s mortgage broker credentials and significant financia l responsibility within
Barmeco indicate a n extensive awareness and understa nding of Barmeco’s activities

. Cf. United States v. Elashyi , 554 F.3d 480, 4 97 (5th Cir. 2008) ( affirming a knowledge finding based on the “deep familial relationship,” defendant’s role in the fraudulent transaction, and the small, family

- run nature of

3 Although Leidy Masvidal was a director of EZY, Tania Masvidal was not

.

Case: 15-13325 Date Filed: 06/11/2018 Page: 6 of 217 the business). H er interactions with the Masvid als, most convincingly her provision of target units , support the jury’s conclusion that Stavroula knew the illicit purpose of her check

- writing

. Counts 6 and 18 involved checks to Wilkie Perez, and Counts 16 and 19 involved checks to ML17 , a company owned and directed by Marie and Michael. The checks were forwarded to Alfredo Chacon

. Stavroula’s family and business relationship s with other major players in the Mendez’s fraud scheme again indicates an awareness of that scheme . A family relationship alone , however, is not sufficient to prove knowledge. Se e United States v. Villegas , 911 F.2d 623, 630 (11th Cir. 1990) . When combined with other indicia, however, it can be probative of a defendant’s knowledge of the substantive offense. See United States v. Ritz , 548 F.2d 510, 522 (5th Cir. 1977) (“The fact of the close association of the several parties and their association with Robert, Sr. the father who was the source of four of the bills is one circumstance from which the jury might infer knowledge.”). On this record, additional indicia exist. First, the transfers at issue in these

counts were structured essentially the same as were the earlier transactions in
Counts 7 and 17, just with different recipients. Second, w here Barmeco stood to benefit from a fraudulent transaction, so too did Stavroula . Third, her interactions with the Masvidals and other Mendez family members who were induced to form

Case: 15-13325 Date Filed: 06/11/2018 Page: 7 of 218 shell corporations and open bank accounts indicate Stavroula’s business acumen, and make it un likely she was simply an unwitting dupe. 4 Fourth, Stavroul a’s checks referenced the unit numbers of the apartments sold. Com bined, these circumstances constitute sufficient evidence that Stavroula knew her check

- writing served to distribute proceeds of the fraud. See Martin , 803 F.3d at 588

. F urthermore , suff icient evidence demonstrates Marie knowingly participated in the bank and wire fraud Counts which she challenges : 5, 8, 16, and 19. Count 5 charged Marie with the 2006 submission of a false application used to obtain a mortgage loan to purchase Blue Waves Unit 206. T he record contains several false documents signed by Marie, relevant to Count 5

. F or Blue Waves Unit 206 , Marie signed an affidavit indicating she would use th at unit as her primary residence. Within a month prior to the Unit 206 transaction, Marie had signed two other such affidavits in applying for mortgages to purchase Blue Waves Unit s 214 and 218. 5 There is no suggestion Marie used any of these units as her primary residence. For the Unit 206 transaction, furthermore, r ecord evidence indicates Stavroula

4 In particular, in 2008, Stavroula persuaded her then

- 24

- year - old nephew, who had done secretarial work at Barmeco’s office, to form a new company, ESJ Group, and open a corresponding bank account. Stavroula and Luis transferred money from their other companies into ESJ’s a ccount. Stavroula was authorized to transfer money from ESJ’s account in October 2009, whereupon she immediately moved that money to accounts in Switzerland and Lichtenstein.

5 The government presented samples of Marie’s signature for comparison. The jury is competent to compare signatures and draw its own conclusions. United States v. Cavallo , 790 F.3d 1202, 1230 (11th Cir. 2015) (citing United States v. Bell , 833 F.2d 272, 27 6 (11th Cir. 1987)).

Case: 15-13325 Date Filed: 06/11/2018 Page: 8 of 219 communicated her desire to front Marie’s “cash to close” to the loan brokers, the Masvidals, Stavroula wired that money to Marie, and Marie signed a HUD

- 1 Form which indicated t hat she was paying roughly $26,000 “cash to close. ” Marie concedes that she signed the loan application , but argues that the loan application was doctored between her signing it and the Masvidals’ submitting it.
A jury should not presume a defendant’s kn owledge of documents he or she signed, but juries are permitted to inf er such knowledge

. See United States v.
Gaines , 690 F.2d 849, 85 3

– 54 (11th Cir. 1982). From the record evidence it is reasonable to conclude that Marie knew her Unit 206 application contained
falsifications when submitted to the lender

. T he Unit 206 transaction occurred roughly eight months after the Masvidals began assisting in the overall mortgage fraud scheme. Marie worked on the rental and property manag ement side of the bu siness, not in loan procurement , but in this capacity she made out checks remitting rent payments to the same company which also received the Masvidals’ post

- closing payments , and communicated with Tania Masvidal about these rent paymen ts. The Masvidals’ partnership with the Mendez family was very lucrative , and Marie ’s contact with the Masvidals, coupled with her receipt of “cas h to close” from Stavroula, and repeated submission of falsified documents in similar transactions, constitutes s ufficient evidence supporting the jury’s verdict

.

Case: 15-13325 Date Filed: 06/11/2018 Page: 9 of 2110 Counts 8 , 16 , and 19 involved submission of fraudulent documents to obtain loans to purchase property at Diane Condominium (Count 8) and Yolanda Villas (Counts 16 and 19). For Diane Condominiu ms, sales proceeds went directly to LM Rentals , which was owned by Marie and Michael

. LM Rentals then wired the money to ML17, which listed Marie as its “director

- treasurer.” Finally, Marie split the money into two checks from ML17 to a company owned by Alfredo Chacon, TCB Property Management. The procedure following sales at Yolanda Villas was similar: sales proceeds went to Barmeco, whereupon Stavroula sent a check to ML17, at which point Marie wrote two checks to TCB Property Management

. Although other nominal officers of Mendez

- affiliated companies were inactive after helping to form those companies , Marie’s situation was markedly different. She was an active treasurer who wrote checks for hundreds of thousands
of dollars from ML17 account s . B etwe en September 2007 and June 2008, the two largest of these checks went to Chacon’s company, one being for the Count 16 sale.
The check

- writing from ML17 to TCB Property Management , in isolation , is perhaps not “ so obvious that knowledge of its character can fairly b e attributed to [the defendant].” United States v. Moran , 778 F. 3d 94 2 , 960

– 61 (11th Cir. 2015) (quoting United States v. Vernon , 723 F.3d 1234, 1273 (11th Cir. 2013)) , cert. denied , 136 S. Ct. 268 (2015) . Neve rtheless, for Count 8 in particular, the money

Case: 15-13325 Date Filed: 06/11/2018 Page: 10 of 2111 took a curiously circuitous route. LM Rentals, owned by Marie and Michael, received the proceeds of the Diane Condominiums sale, which it wired to ML17, also owned by Marie and Michael. Marie then cut multip le checks to Chacon’s company in short succession. Likewise, f or Counts 16 and 19 , the association of the monies with specific unit number s and Marie’s splitting of checks to Chacon gives more than a little pause. With Marie writing large checks, relative to ML17’s usual expenditures, a jury could infer that, as treasurer, she was aware of the purpose of those checks. 6 The other party who might supply such explanations

was M L17’s other principal, Michael , to whom Marie was married

. 7
These facts , combined with Marie’s extensive interaction with the Masvidals, who played a role similar to that of Chacon , and the repetitive nature of her dealings with Chacon, supply s ufficient evidence for a jury to conclude , beyond a reasonable doubt, that Marie understood the purpose of the transactions at issue in Counts 8, 16 , and 19. The foregoing likewise constitutes sufficient evidence for a jury to conclude beyond a reasonable doubt that Marie knowingly participated in the overall conspiracy , c harged in Count 1 . “To sustain [a] conspiracy conviction under 18 U.S.C. § 1349, the government must prove that (1) a conspiracy existed; (2) the

6 See United States v. Hill , 643 F.3d 807, 863 (11th Cir. 2011) (“ A jury is not required to put aside its common sense or to assume that defendants have none .”)

.
7 There was no evidence that ML17 employed anyone else at the time of these transactions.

Case: 15-13325 Date Filed: 06/11/2018 Page: 11 of 2112 defendant knew of it; and (3) the defendant knowingly and voluntarily joined it.”
Moran , 778 F.3d at 960. T he knowledge required is only knowledge of “ ‘ the essential nature of the conspiracy. ’ ” Id. (quoting Vernon , 723 F.3d at 1273 )

. “Guilt may exist even when the defendant plays only a minor role and does not know all the details of the conspiracy.” United States v. Perez

- Tosta , 36 F.3d 1552, 1557 (11th Cir. 1994). The fraudulent transactions in which Marie participated were consistent with the overall scheme in all material respects and furthered its purpose. See Martin , 803 F.3d at 588

– 89; Hill , 643 F.3d at 864

– 65. B. Preclusion of Evidence and Arguments Regarding Banks’ Lending Practices On relevance grounds, t he trial judge sustained the government’s objection s
to arguments and questioning regarding banks’ intentionally risky lending practices , reasoning that these practices were only probative of the bank’s negligence, which is not a defense to fraud. Appellants now argue that precluding this line of questioning violated their rights under the Sixth Amendment of the Constitution

. U.S. Const. amend. VI. “While the district court has ‘discretionary authority to rule on the admissibility of evidence, including the power to limit

cross - examination,’ this discretion is limited by the guarantee of the Sixth Amendment’s Confrontation Clause . . .

. ” United States v. Maxwell , 579 F.3d

Case: 15-13325 Date Filed: 06/11/2018 Page: 12 of 2113 1282, 1296 (11th Cir. 2009) (quoting United States v. Garcia , 13 F.3d 1464, 1468 (11th Cir. 1994)). The Sixth Amendment guarantees defendants’ “right to have a meaningful opportunity to present a complete defense.” Holmes v. South Carolina , 547 U.S. 319, 331 (2006) (internal quotation marks omitted). Appellants contend that evidence of banks’ lending practices was relevant to the jury’s assessment of: (1) the materiality of A ppellants’ false statements; and (2) A ppellants’ fraudulent intent. Regarding materiality, Appellants argue that t he misrepresentations
contained i n the various loan applications were immaterial, as they were incapable of influencing the bank s . United States v. Svete , 556 F.3d 1157, 1165 (1 1th Cir. 2009 ) (en banc) , 8 establishes two alternative modes of proof : an objective standard, which formed the basis of A ppellants’ conviction, and a subjective standard. 9 The district court’s jury instruction , which indicated that materiality could be satisfied where defendant “should have known that a mortgage lender would likely regard the statement as important,” is consistent with Svete’s standard. Regardless of whether these particular mortgage lenders acted with

8 Svete interpret s the federal mail fraud statute, 556 F.3d at 1161

– 62, but the bank and wire fraud st atutes at issue in this case cover a similarly broad scope of f raud

. 9 In contrast to this matter, t he subjective rather than objective standard occupied much of the court’s discussion in Svete . 556 F.3d at 1165

– 70.

Case: 15-13325 Date Filed: 06/11/2018 Page: 13 of 2114 intentio nal disregard for suspected falsity, the falsehoods contained in the mortgage applications c ould have been relied upon by an objective ly reasonable mortgage lender. Additional evidence of these particular mortgage lenders’ unreasonable lending practices w ould not be relevant to an objective assessment of materiality. As for fraudulent intent, Svete clearly holds that victim negligence does not vitiate a fraudster’s criminal intent. 556 F.3d at 1165. 10 Svete d oes not directly address the relevance of a vic tim’s intentional malfeasance , though it d oes note that “ ‘ [t]he focus of the language defining a scheme to defraud is on the violator, not the victim. ’ ” Id. ( quoting United States v. Drake , 932 F.2d 861, 864 (10th Cir. 1991)). Appellants’ argument s regarding the intent element fail because a victim’s
actions upon encountering defendants’ fraudulent scheme do not vitiate the defendant’s prior intent in pursuing the fraudulent transaction. Even if the victim later embraced the scheme despite being aw are of the fraud, that would not extinguish the scheme itself , or the defendant ’s initial intent to deceive

. As Svete

10 Because the focus of the mail fraud statute, like any criminal statute, is on the violator, the purpose of the element of materiality is to ensure that a defendant actually intended to create a scheme to defraud. Proof that a defendant created a scheme to deceive reasonable people is sufficient evidence that the defendant intended to deceive, but a defendant who intends to deceive the ignorant or gullible by preying on their infirmities is no less guilty. Either way, the defendant has criminal intent.
S vete , 556 F.3d at 1165.

Case: 15-13325 Date Filed: 06/11/2018 Page: 14 of 2115 notes, one can be convicted of mail or wire fraud “ ‘ even if his targeted victim never encountered the deception

— or, if he encountered it, was not deceived. ’ ” Id.
at 1166 (quoting Pelletier v. Zweifel , 921 F.2d 1465, 1498 (11th Cir. 1991) , abrogation on other grounds recognized by Almanza v. United Airlines, Inc. , 851 F.3d 1060, 1067 (11th Cir. 2017) )

. Appellants have made no allegation th at th e banks were part of the Mendezes’ scheme from its inception. Thus, no constitutional violation occurred because A ppellants were precluded from advancing only an irrelevant defense. Appellants do not argue , and the court does not conclude , that the district court otherwise abused its discretion

. C. Deliberate Ignorance Instruction Over defendants’ objections, the court issued a deliberate ignorance instruction. Appellants argue that this instruction was inappropriate because record evidence points only to actual knowledge

. A deliberate ignorance instruction is proper where “the facts . . . support the inference that the defendant was aware of a high probability of the existence of the fact in question and purposely contrived to avoid learning all of the facts in order to have a defense in the event of a subsequent prosecution.” United States v. Rivera , 944 F.2d 1563, 1571 (11th Cir. 1991) (alteration in original) (quoting United States v. Alvarado , 838 F.2d 311, 314 (9th Cir . 1987)) . “A district court should not instruct a jury regarding deliberate ignorance when the evidence only points to either actual knowledge or no

Case: 15-13325 Date Filed: 06/11/2018 Page: 15 of 2116 knowledge on the part of the defendant.” See United States v. Schlei , 122 F.3d 944, 973 (11th Cir. 1997) ( citation and internal quotation marks omitted). Nevertheless, “instructing the jury on deliberate ignorance is harmless error where the jury was also instructed and could have convicted on an alternative, sufficiently supported theory of actual knowledg e.” United States v. Steed , 548 F.3d 961, 977 (11th Cir. 2008) ; s ee also Hill , 643 F.3d at 855. A ppellants argue this situation is unique , as the government’s closing argument urged Lazaro’s guilt because he “should have known” he was participating in a fraudulent deal. Yet,
A ppellants failed to object to the impugned statement , and the district court “emphasize[d] that negligence, [carelessness] or [foolishness] isn’t enough to prove that a defendant knew about the bank fraud or wire fraud,” in its instructions to the jury

. Assuming, arguendo , there was insufficient evidence to support a deliberate ignorance finding , and that such instruction was therefore improper, this sit uation does not warrant deviation from our approach in Steed

. As we explained above, the evidence was sufficient for the jury to infer Stavroula’s and Marie’s actual knowledge of the fraudulent scheme. There was also sufficient evidence as to
Lazaro’s ac tual knowledge to render the deliberate ignorance instruction harmless error. For example, the Masvidals testified they had conversations with Lazaro about providing false employment information for borrowers, and that Lazaro

Case: 15-13325 Date Filed: 06/11/2018 Page: 16 of 2117 provided that information. F urthermore, Tania Masvidal testified that Lazaro encouraged her to create a corporation to accept and distribute mortgage proceeds.
Because t he district court’s instructions cured any defect created by counsel’s statement, and jur ors are presumed to follo w the court’s instructions , s ee, e.g. , Jamerson v. Sec’y for Dep’ t of Corr. , 410 F.3d 682, 690 (11th Cir. 2005), we discern no reversible error in giving the deliberate ignorance instruction. D. Sentencing Challenges Appellants raise three specific challenges to the district court’s calculation of overall loss for sentencing purposes : 11 (1) for loans not subject to a foreclosure judgme nt, the calculations failed to use lender records to incorporate payments against the principal; ( 2 ) for Federal Hous ing Administration insured loans, the calculations included interest ; and (3) the outstanding princ ipal balance is not an accurate measure of loss to successor lenders, which held an indeterminate number of Appellants’ mortgages at the time of sentencing. The Sentencing Guidelines do not require a precise determination, but rather a reasonable estimate of the loss, based on available evidence that is “reliable and specific

. ” United States v. Barrington , 648 F.3d 1 178, 1197

– 98 (11th Cir. 2011) (citation a nd internal quotation marks omitted) ; U.S.S.G. § 2B1.1, cmt. n. 3(C).

11 Under the Sentencing Guidelines in force at the time of Appellants’ July 8, 2015 , sentencing hearing, a 22

- point enhancement applied to losses over $20 million and under $50 million

. U.S.S.G. § 2B1.1(b)(1)(L) ( U.S. Sentencing Com m’n 2014). The district court found that Appellants’ caused a loss of $27, 882,027.68

.

Case: 15-13325 Date Filed: 06/11/2018 Page: 17 of 2118 Appellants ’ first argument applied to roughly ten percent of the loans involved, and the a gent of the Federal Housing Finance Agency who performed these
calculations testified that principal payments did not significantly alter the loss

amount for the other ninety percent of loans

. 12 The district court accordingly found that these principal payments c ould not reduce the total loss below the $20 million Sentencing Guidelines threshol d , and used available information to estimate the loss amount

. This i s reasonable, and we are not “ ‘ left with a definite and firm conviction that a mistake has been committed. ’ ” United States v. Ghertler , 605 F.3d 1256, 1267 (11th Cir. 2010) (quoting United States v. Clarke , 562 F.3d 1158, 1165 (11th Cir. 2009))

. A ssuming arguendo that Appellants properly raised their interest

- related claims, 13 although the Sentencing Guidelines do provide that interest shall not be
factored into a loss amount calculati on, U.S.S.G. § 2B1.1, Advisory Note 3(D)(i) , this error affected only six out of the 181 l oans at issue

. As the district court found, e ven if combined with the excluded principal payments referenced above,
this amount would not reduce loss calculations enough to impact Appellants’ Sentencing Guidelines offense level

. “A sentencing error, under the Guidelines, is

12 The total amount of the loans was roughly $35.2 million. Credits associated with the ninety percent of loans which had entered foreclosure reduced the total by $6. 5 million, to $27.8 million. This reduction accounted for both money received as principal payments and the value of the property.

13 Appellants specifically declined to raise this challenge at trial because the affidavit by the U.S. Probation Officer who calculated the loss amount did not mention any FHA loans.

Case: 15-13325 Date Filed: 06/11/2018 Page: 18 of 2119 harmless if a court considers the proceedings in their entirety and determines that the error did not affect the sentence or had but very slight effect.” United States v. Campa , 529 F.3d 980, 1013 (11th Cir. 2008) ( citation and internal quotation marks omitted). The record indicates that the district court was aware of the foregoing two issues, and does not suggest that those marginal differences played a role in determining Appellants’ sentence s . Appellants’ final loss calculation argument

– that they were entitled to a loss amount deduction for loans that were sold to successor lenders

– was not ra ised in the district court, and thus we review it for plain error. See United States v. Anaya
Castro , 455 F.3d 1249, 1253 (11th Cir. 2006). “ The plain

- error test has four prongs: there must be (1) an error (2) that is plain and (3) that has affected the defendant’s substantial ri ghts ; and if the first three prongs are met, then a court may exercise its discretion to correct the error if (4) the error ‘seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.’” United States v. Madden , 733 F.3d 1314 , 1320 (11th Cir. 2013) (quoting United States v. Olano , 507 U.S. 725, 732, 113 S. Ct. 1770, 1776 (1993)) (alteration in original). “[A] t least where the explicit language of a statute or rule does not specifically resolve an issue, there can be no plain error where there is no precedent from the Supreme Court or this Court directly resolving it. ” United States v. Lejarde

- Rada , 319 F.3d 1288, 1291 (11th Cir. 2003)

. Appellants cited Martin for support , b ut that opinion

Case: 15-13325 Date Filed: 06/11/2018 Page: 19 of 2120 addressed how to apportion restitution among specific victims , not how to calculate overall loss

. See 803 F.3d at 59 4

– 96. There, we affirmed the defendant’ s sentence, despite remanding for a re determination of restitution awards. Id. at 596. Having found no binding precedent req uiring that loss calculations account for the sale of a mortgage to a successor lender , we find no plain error

. Finally, Marie argues that the district court failed to make an individualized finding about the scope of relevant conduct attributable to her , as is required by the Sentencing Guidelines. Marie raised this argument before and during the sentencing hearing. The Sentencing Guidelines require that the sentencing level
for a defendant convicted of participating in a conspiracy be based on “all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity.” United States v. Hunter , 323 F.3d 1314, 1319 (11th Cir. 2003) (emphas is omitted) (language unchanged in U .S.S.G. § 1B1.3(a)(1)(B) )

. Under Section 1B1.3, “a sentencing court should make explicit relevant

- conduct findings in order to facilitate appellate review . . . Importa ntly, however, a district
court’ s failure to make such explicit findings . . . does not warrant reversal

—

‘ where the court’ s decisions are based on clearly identifiable evidence. ’ ” United States v. Siegelman , 786 F.3d 1322, 13 31 (11th Cir. 2015) ( quoting United States v. Bradley , 644 F.3 d 1213, 1293 (11th Cir. 2011) ). Here , while the district court made general statements as to Marie’s role in the scheme, it did not clearly make

Case: 15-13325 Date Filed: 06/11/2018 Page: 20 of 2121 relevant conduct findings

. 14 This failure to make explicit finding s is error under Siegelman

. Accordingly , we vacate Marie’s sentence and remand for the district court to make the necessary findings as to the relevant conduct applicable to Marie

. In all other challenged respects , we affirm the judgment of the district court. AFFIRMED in part, VACATED and REMAND ED in part

.

14 At oral argument , the government highlighted a passage in which the district court overruled an objection to a finding that Marie used sophisticated means. In its brief, the government cited the downward variance portion of the sentencing hearing

. Neither section contained relevant conduct findings.

Case: 15-13325 Date Filed: 06/11/2018 Page: 21 of 21