IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-10874

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee

v.

JERMAINE FREDERICK FRAZIER, 

 Defendant – Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:09-CR-247-10

Before SMITH, BENAVIDES, and CLEMENT, Circuit Judges.

PER CURIAM:*

Jermaine Frazier challenges the district court’s restitution order under 

the Mandatory Victim Restitution Act (“MVRA”). For the following reasons, 

we VACATE the restitution order and REMAND for resentencing. 

I.

Together with ten others, Frazier was charged with various financial 

crimes in a vast mortgage fraud case involving a conspiracy to defraud 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be 

published and is not precedent except under the limited circumstances set forth in 5TH CIR. 

R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

August 6, 2014

Lyle W. Cayce

Clerk

 

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residential mortgage lenders. The defendants’ scheme involved recruiting

false borrowers (“straw borrowers”) with acceptable consumer credit standings 

to act as investors in residential properties. The defendants would fabricate

these straw borrowers’ financial information in order to obtain loans. On the 

other side of the transaction, they negotiated sales prices with sellers of 

distressed and pre-foreclosure properties. By inflating the homes’ sales prices, 

they were able to generate surplus loan proceeds. 

In July 2010, Frazier entered into a plea agreement, pleading guilty to 

conspiracy to commit wire fraud in violation of 18 U.S.C. § 1349. In exchange 

for the dismissal of his remaining counts, he was to provide financial evidence 

and testimony as needed. The agreement also contained an appeal waiver 

waiving his rights to direct or collateral appeals, except as to issues involving 

calculation of the maximum punishment, arithmetic error, the voluntariness 

of the agreement, and ineffective assistance of counsel.1 Frazier testified at 

trial, where the remaining defendants (except for one, Suzette Switzer Hinds) 

were convicted on all counts. 

Frazier’s sentencing took place on August 8, 2012. The court sentenced 

him to 46 months confinement and held him jointly and severally liable for 

$2,044,950. It based its restitution calculation on Frazier’s presentence 

investigation report (“PSR”), which listed twenty-one fraudulent real estate 

transactions in which he participated. Frazier did not object to the restitution 

award at his sentencing. He filed his notice of appeal on August 22, 2012, and 

challenges the district court’s restitution order.2

1 The parties agree that Frazier’s appellate waiver does not bar this appeal because 

Frazier’s argument is that his restitution award exceeds the statutory maximum. See United 

States v. Sharma, 703 F.3d 318, 321 n.1 (5th Cir. 2012). 

2 Frazier also appeals what he identifies as two clerical errors in the district court’s final 

judgment: 1. that he agreed in his plea deal to a specific restitution amount, and 2. that he

was liable for bank fraud when he only pled guilty to wire fraud. The government does not 

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Frazier’s appeal relies substantially on information discovered during 

his co-defendants’ hearings months later, where his co-defendants established

that at least some of the loans at issue were sold on the secondary market, and 

that the government often did not have information on who purchased the 

loans, when, or for how much. Frazier claims that the district court’s 

restitution order violated the MVRA because the court calculated the amounts 

based solely on outstanding principal balances, and failed to account for 

transactions in secondary markets or other offsets to lenders’ losses. As a 

result, Frazier claims that the restitution order resulted in awards to financial 

institutions that did not sustain actual losses, and awards in excess to the 

losses he actually caused. 

II.

“This court reviews the legality of a restitution order de novo and the 

amount of the restitution order for an abuse of discretion.” United States v. 

Arledge, 553 F.3d 881, 897 (5th Cir. 2008). But when a defendant fails to object 

to the restitution order either in the PSR or at sentencing, we review for plain 

error. United States v. Maturin, 488 F.3d 657, 559–60 (5th Cir. 2007). “Under 

plain error review, we will reverse only where there was (1) an error, (2) that 

was clear and obvious, (3) that affected the defendant’s substantial rights, and 

(4) that, if not corrected, would seriously affect the fairness, integrity, or public 

reputation of the judicial proceedings.” United States v. Jefferson, 751 F.3d 

314, 322 (5th Cir. 2014) (internal quotation marks omitted); see also Puckett v. 

United States, 556 U.S. 129, 135 (2009). 

oppose deleting “bank fraud” from the judgment, but opposes the challenged language with 

respect to restitution. Because we vacate his restitution order, Frazier may raise these issues 

before the district court on remand.

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III.

The MVRA delimits a district court’s ability to impose restitution 

awards. 

[T]he court shall order the probation officer to obtain and include 

in its presentence report, or in a separate report . . . information 

sufficient for the court to exercise its discretion in fashioning a 

restitution order. The report shall include, to the extent 

practicable, a complete accounting of the losses to each victim . . . . 

If the number or identity of victims cannot be reasonably 

ascertained, or other circumstances exist that make this 

requirement clearly impracticable, the probation officer shall so 

inform the court. 

18 U.S.C. § 3664(a). “The MVRA does not permit restitution awards to exceed 

a victim’s loss,” United States v. Beydoun, 469 F.3d 102, 107 (5th Cir. 2006), 

and “[t]he burden of demonstrating the amount of the loss sustained by a 

victim as a result of the offense shall be on the attorney for the Government” 

who must establish losses “by the preponderance of the evidence,” 18 U.S.C. 

§ 3664(e).

Frazier argues that the district court’s method for calculating restitution 

constituted error. We agree. The court adopted without question or discussion 

the amounts included in Frazier’s PSR. But these amounts represented the 

differences between the properties’ original mortgage prices and their 

foreclosure prices, and at no point did the PSR or the district court at 

sentencing account for whether the mortgages were resold. 

Although this court has never ruled on this specific issue, other courts 

have vacated restitution orders that did not account for secondary mortgage 

markets. In United States v. Yeung, the Ninth Circuit vacated in part a district 

court’s restitution order. 672 F.3d 594 (9th Cir. 2012), abrogated on other 

grounds by Robers v. United States, 134 S. Ct. 1854 (2014). The Yeung court 

held that calculating lenders’ losses “require[s] some adjustment when a victim 

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purchased a loan in the secondary market, that is, where the victim is the loan 

purchaser as opposed to the loan originator.” Id. at 601–02. It reasoned:

Because the value of that loan is not necessarily its unpaid 

principal balance, but may vary with the value of the collateral, 

the credit rating of the borrower, market conditions, or other 

factors, the loan purchaser may have purchased the loan for less 

than its unpaid principal balance. To calculate a victim’s 

restitution award using the outstanding principal balance of the 

loan, if the victim only paid a fraction of that amount to obtain the 

loan on the secondary market, would cause the victim to receive an 

amount exceeding its actual losses. Awarding such an amount 

would constitute plain error.

Id. at 602 (internal citations omitted). Similarly, in United States v. Chaika, 

the Eighth Circuit held that where “the trial evidence suggest[s] that many 

fraudulently-induced mortgages were sold by the initial lender in a secondary 

mortgage market, . . . this greatly alters the determination of the victims’ 

actual loss.” 695 F.3d 741, 748 (8th Cir. 2012). This is so because 

[t]he ultimate foreclosure sale price is irrelevant to an initial 

lender who sold the loan, while the purchasing secondary lender 

may not be a victim, and if it is, actual loss will turn on its purchase 

price in the secondary market, whether it remained on the loan all 

the way to foreclosure, and perhaps other factors. 

Id. 

Here, the method the district court used to calculate the restitution order 

cannot establish actual losses unless the government demonstrated by a 

preponderance of the evidence that the mortgages were never resold or, if they 

were, that their resale prices were the same as their face amounts. But the 

government concedes that the mortgages were sold for at least three of 

Frazier’s properties, and “likely” sold in seven others.3 And the government 

3 Frazier’s PSR identifies seven banks as “victims” for twenty of the properties. Because 

the straw borrower for one property was able to make the mortgage payments and keep the 

property, no loss was attributed to that bank for that transaction. In its brief, the government 

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provides no evidence of the prices at which these mortgages were resold. This 

is because, as the government’s case agent stated, “the records aren’t very 

good” due to the age of the transactions. 

The government thus concedes that it could not show what the resale 

prices were, but asks us to affirm the district court’s order because it was based 

on the best information available.4 As an initial matter, we are skeptical that 

the records for these properties are irretrievably lost. But even assuming no 

information can be gathered, this argument fails because the government has 

the burden of establishing losses under the MVRA, which requires proof 

through a preponderance of the evidence. 18 U.S.C. § 3664(e). 

We hold that the district court erred because its method for calculating 

restitution does not establish actual losses suffered by the victims identified. 

IV.

Having concluded that the district court’s restitution order was error, we 

must still determine whether it was plain error. For the district court’s order 

to be plain error, the error must have been clear and obvious, affect Frazier’s 

“substantial rights,” and “seriously affect the fairness, integrity, or public 

reputation of the judicial proceedings.” Jefferson, 751 F.3d at 322. We hold 

that Frazier’s restitution order meets the remaining three prongs of the plain 

error test. 

“An error is considered plain, or obvious, for purposes of this court’s plain 

error inquiry only if the error is clear under existing law.” Maturin, 488 F.3d 

identifies the properties for which the mortgages were sold or likely sold, based on its review 

of the co-defendants’ restitution hearings. 

4 The government acknowledges that “the amount the secondary lienholder paid for the 

mortgage, minus the amount that lienholder recovered after its sale of the property, is the 

best measure of the restitution owed to that lienholder.” Appellee’s Br. 19.

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at 663. As described above, the MVRA requires “a complete accounting of the 

losses to each victim,” and the government to demonstrate the amount of loss 

by a preponderance of the evidence. 18 U.S.C. § 3664(a), (e). Our precedents 

make clear that “the purpose of the MVRA is to compensate a victim for its 

losses” and that a “court may not award the victim a windfall.” Beydoun, 469 

F.3d at 107–08; see also United States v. De Leon, 728 F.3d 500, 506 (5th Cir. 

2013) (“[T]he MVRA does not permit a court to award a windfall greater than 

the victim’s actual loss.”). And while this circuit has not ruled on the specific 

issue of secondary mortgage markets in restitution calculations, the district 

court could have looked to the Ninth Circuit’s discussion in Yeung, which found 

plain error under similar facts, for guidance. 672 F.3d at 602 (“Awarding such 

an amount would constitute plain error.”).5 

Instead, the district court accepted the PSR’s restitution 

recommendation without requiring the government to prove that any of the 

“victims” suffered losses in the amounts listed. Frazier only discovered after 

his sentencing that some of the mortgages were resold. But that does not 

change our conclusion that the district court should have considered that 

possibility in the first instance, and insisted the government prove that the 

PSR’s figures accurately reflected losses suffered by the banks receiving 

restitution. We hold that its failure to do so was clear and obvious error.

We also hold that the error affected Frazier’s substantial rights. As an 

initial matter, the government conceded this prong in its briefing. See 

Appellee’s Br. 26 (stating that “a higher restitution amount than is legal under 

the MVRA would affect his substantial rights” and arguing instead that 

Frazier “has not met the first, second, and fourth prongs of plain error”). But 

5 See United States v. Hope, 545 F.3d 293, 297 (5th Cir. 2008) (finding plain error when 

the Fifth Circuit had not addressed the issue but other circuits had). 

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even without the government’s concession, we hold that a restitution amount 

greater than what the MVRA authorizes affects Frazier’s substantial rights 

under prong three of the plain error test. 

In Maturin, this court held that “[a]n error affects the defendant’s 

substantial rights if ‘it affected the outcome of the trial court proceedings.’” 

Maturin, 488 F.3d at 663 (quoting United States v. Alarcon, 261 F.3d 416, 423 

(5th Cir. 2001)). Where a district court erroneously ordered $164,988.98 in 

restitution when it could not have ordered more than $54,384.43, the Maturin 

court “easily conclude[d] that the error . . . affected the outcome of the district 

court proceedings and Maturin’s substantial rights.” Id. This court held the 

same in United States v. Inman, finding plain error where a district court 

ordered restitution in the amount of $135,283.11 when, under the MVRA, 

restitution could not have exceeded $64,501.97. 411 F.3d 591, 595 (5th Cir. 

2005) (“The restitution order affected Inman’s substantial rights because the 

outcome of the district court proceedings would have been different if the error 

had not occurred.”). Consistent with our holdings in these cases, we hold that 

the district court’s error affected Frazier’s substantial rights. 

Finally, we hold that the district court’s error “seriously affect[s] the 

fairness, integrity or public reputation of judicial proceedings.” Puckett, 556 

U.S. at 135 (alteration in original) (internal quotation marks omitted). “When 

a defendant is ordered to pay restitution in an amount greater than the loss 

caused, the error affects substantial rights as well as the fairness and integrity 

of the judicial proceeding.” United States v. Austin, 479 F.3d 363, 373 (5th Cir. 

2007) (emphasis added). Without information on the secondary mortgage 

market, we cannot be sure that the district court’s order awarded restitution 

to the right parties in the correct amounts. In light of the revelation that at 

least some of the properties’ mortgages were resold, it is entirely possible that

the “victims” identified in the PSR did not suffer losses, and instead received a 

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windfall. It is also possible that other, actual victims of Frazier’s crimes have 

not been compensated. Such results would certainly affect “the fairness, 

integrity, or public reputation of judicial proceedings.”

 

V.

For the foregoing reasons, we VACATE the district court’s restitution 

order and REMAND for resentencing.

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JERRY E. SMITH, Circuit Judge, dissenting.

By granting relief on plain-error review, the majority attributes to U.S. 

District Judge Jorge Solis a sentence that, in the majority’s view, is unfair, 

lacks integrity, and undermines the reputation of the judicial system. Because 

that criticism is unwarranted under the facts and governing law, I respectfully 

dissent.

Without even reaching the merits, we should summarily affirm because 

the only issue―restitution―is inadequately briefed. Federal Rule of Appellate 

Procedure 28(a)(8) states that the appellant’s brief “must contain (A) appellant’s contentions and the reasons for them, with citations to the authorities 

and parts of the record . . . .” Inadequately briefed issues are deemed waived. 

Carl E. Woodward, L.L.C. v. Acceptance Indem. Ins. Co., 743 F.3d 91, 96 (5th 

Cir. 2014). This court routinely applies such a waiver even without the 

waiver’s being noticed by the opposing party. “Indeed, in many different types 

of cases, we have repeatedly declined to consider issues . . . that were not adequately briefed or argued . . . .” Goudeau v. E. Baton Rouge Parish Sch. Bd., 

540 F. App’x 429, 437 (5th Cir. 2013) (citing a long list of Fifth Circuit cases 

and criticizing, as fatal, the “[f]ailure to provide any legal or factual analysis of 

an issue on appeal”).

Frazier’s counsel candidly admits that the restitution issue was not 

raised in the district court and that the plain-error standard of review therefore applies. Frazier’s brief incants the plain-error standard but fails to 

explain how any of its prongs is satisfied. In his brief, he claims that the 

“restitution order confirms the plain error committed by the district court, 

which affected his substantial rights, and the fairness, integrity, and public 

reputation of judicial proceedings.” At most, the pages that follow could be 

understood to address the first prong―that there was error―but nowhere does 

Frazier point out how, in his view, the error was plain, or how it affected his 

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substantial rights, or in what respect it seriously affects fairness, integrity, or 

reputation.

It should never be enough for an appellant merely to state the standard 

of review and then just say “therefore we win” without explaining how that is 

so. For example, if the standard of review were abuse of discretion, we would 

not credit a brief that showed only that there was error without specifically 

pointing out in what respect the error was so damaging that it amounted to an 

abuse of the district court’s wide discretion. To the same effect here, the very 

point of plain-error review of alleged mistakes not brought to the attention of 

the district court is that to stand any chance of reversal, the appellant must 

show much more than mere error. And under Rule 28(a)(8), that work must 

be done in the opening brief. It is not the job of this court to fashion appellant’s 

arguments for him (as the majority does here) by coming up with an analysis 

of how each of the four prongs of plain-error review is satisfied. 

Even if Frazier had adequately briefed the plain-error test, he does not 

satisfy each of its prongs. As I have said, he can be deemed only to have briefed 

the first prong, which the majority addresses by stating, “Frazier argues that 

the district court’s method for calculating restitution constituted error. We 

agree.” 

Any error, however, was not “plain” under the second prong. There was 

nothing obvious for the district court to use to announce a sentence that might 

not be deemed error. Frazier failed to contest the presentence report or to 

object to the manner of calculation. He introduced no evidence or argument 

regarding which mortgages were resold, which would have afforded the court 

the chance to decide whether it should calculate restitution differently. Thus, 

the district court never had the opportunity to make findings of fact on this 

issue. See, e.g., United States v. Garcia, 447 F. App’x 587, 589 (5th Cir. 2011) 

(“Garcia presented no evidence . . . to rebut the [restitution] amounts provided 

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by the [presentence report]. . . . In any event, these are factual issues that 

were capable of resolution in the district court and, thus, never capable of 

constituting plain (clear or obvious) error.”).

Regarding the third prong―substantial rights―Frazier’s claim fails as 

well. Where, as here, the district court explicitly declined to impose a fine in 

light of the amount of the restitution, the defendant cannot show that his substantial rights were affected. See, e.g., United States v. Miller, 406 F.3d 323, 

330−31 (5th Cir. 2005) (Smith, J.); United States v. Dwyer, 275 F. App’x 269, 

272−73 (5th Cir. 2008) (Smith, J.).

The majority also errs in finding the fourth prong satisfied. Its most 

flagrant mistake is in saying that that prong is automatic. In United States v. 

Escalante-Reyes, 689 F.3d 415, 425 (5th Cir. 2012) (en banc), this court 

emphasized that relief under the fourth prong is not “automatic” and that we 

must focus on “the particular facts of [the] case” in deciding whether to exercise 

our discretion to grant the exceptional relief that is inherent in plain-error 

review. The majority, however, treats fourth-prong relief as following naturally and as a matter of course because “[w]ithout information on the secondary 

mortgage market, we cannot be sure that the district court’s order awarded 

restitution to the right parties in the correct amounts.” Even if old Fifth Circuit caselaw said that excess restitution calls for fourth-prong relief, such a 

holding is superseded by the en banc pronouncement in Escalante-Reyes. 

Finally, the majority overlooks that plain-error reversals should be rare 

and exceptional. See id. at 431−41 (Smith, J., dissenting); see generally

Edward Goolsby, Why So Serious? Taking the Word “Seriously” More Seriously 

in Plain Error Review of Federal Sentencing Appeals, 51 HOUSTON L. REV. 1449 

(2014). The majority’s conclusional assertion that the sentence here “would 

certainly affect” fairness, integrity, and reputation includes no explanation of 

how this case is indeed exceptional. Because it is not, I respectfully dissent.

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