### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 1 2

- 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

- C R

- 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 in volving a conspiracy to defraud

* Pursuant to 5 TH C IR . R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR

. R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED August 6, 2014 Lyle W. Cayce Clerk Case: 12-10874 Document: 00512724449 Page: 1 Date Filed: 08/06/2014No. 1 2

- 10874 residential mortgage lenders. The defendants’ scheme involved recruit ing false borrowers (“straw borrowers”) with acceptable consumer credit standings to act as investors in residential properties. The defendants would fab ricate 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 ab le 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 f inancial 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 ag reement, 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 p res entence investigation report (“ PSR ”) , which listed twenty

- one fraudulent real estate transactions in which he partici pated. 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 Frazie r’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 2 Case: 12-10874 Document: 00512724449 Page: 2 Date Filed: 08/06/2014No. 1 2

- 10874 Frazier’s appeal relies substantially on information discovered du ring his co

- defendants’ hearing s 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 mu ch. 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 lende rs’ 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 orde r 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 affect ed 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 mar ks omitted) ; see also Puckett v. United States , 556 U.S. 129, 135 (2009)

.

oppose deleting “ban k 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. 3 Case: 12-10874 Document: 00512724449 Page: 3 Date Filed: 08/06/2014No. 1 2

- 10874
III.
T he 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 fo r the Government ” wh o must establish losses “ by the preponder ance 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 d iscussion 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 whe th er the mortgages were res old

. Although this court has never ruled on this specific issue, o ther 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). T he Yeung court held that calculating lenders’ losses “require [s] some adjustment when a vi ctim

4 Case: 12-10874 Document: 00512724449 Page: 4 Date Filed: 08/06/2014No. 1 2

- 10874 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 wi th 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 outstand ing 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 g reatly 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 lende r 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 t hat the mortgages were never re sold or, if they were, that the ir re sale prices were the same as the ir face amounts

. But the

govern ment 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 s even 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 5 Case: 12-10874 Document: 00512724449 Page: 5 Date Filed: 08/06/2014No. 1 2

- 10874 provides no evidence of the prices at which these mortgages were res old. 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 concede s that it could not show what the resale prices were , but asks us to affirm the district court’s orde r because it was based on the best information available

. 4 As an initial matter, we are s keptical that the records for these properties are irretrievably lost. But even assuming no information can be gathered, t his argument fails because the government h as 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 t he district court erred because its method for calculating restitution d oes not establish actual losses suffered by the victims identified

.

I V

. 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 pr oceedings

. ” Jefferson , 751 F.3d at 322. We hold that Frazier’s restitution order meets the remaining three pr ongs 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 w hich the mortgage s w ere sold or likely sold , based on its review of the co

- defendants’ restitution hearing s

.
4 T he government acknowledge s that “the amount the secondary lienholder paid for the mortgage, minus the amount that lienholder recovered afte r its sale of the property, is the best measure of the restitution owed to that lienholder.” Appellee’s Br. 19. 6 Case: 12-10874 Document: 00512724449 Page: 6 Date Filed: 08/06/2014No. 1 2

- 10874
at 663 . As described above, the MVRA requires “ a complete accoun ting 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. § 366 4(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 gr eater 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 plai n 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 “v ictims” 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 insta nce, 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 su bstantial 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 othe r circuits had). 7 Case: 12-10874 Document: 00512724449 Page: 7 Date Filed: 08/06/2014No. 1 2

- 10874 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 outco me 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 sec ondary 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 8 Case: 12-10874 Document: 00512724449 Page: 8 Date Filed: 08/06/2014No. 1 2

- 10874
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 rep utation of judicial proceedings. ”

V

. For the foregoing reasons, we VACATE the district court’s restitution order and REMAND for resentencing

.

9 Case: 12-10874 Document: 00512724449 Page: 9 Date Filed: 08/06/2014No. 1 2

- 10874 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 governi ng 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
Pro cedure 28(a)(8) states that the appellant’s brief “must contain (A) app el

lant’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). Th is 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 ade

quately briefed or argued . . . .” G oudeau 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 criti cizing, as fatal, the “[f]ailure to provide any legal or factual analysis of an issue on appeal”). Frazier’s counsel candi dly admits that the restitution issue was not raised in the district court and that the plain

- error standard of review there

fore applies. Frazier’s brief incants the plain

- error standard but fails to explain how any of its prongs is satisfied. In his br ief, 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 b e 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 10 Case: 12-10874 Document: 00512724449 Page: 10 Date Filed: 08/06/2014No. 1 2

- 10874 substantial rights, or in what respect it seriously affects fairness, integrity, or reputation.
I t 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 show ed 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 mista kes 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 fa shion 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 differ ently. Thus, the district court never had the opportunity to make findings of fact on t his 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
11 Case: 12-10874 Document: 00512724449 Page: 11 Date Filed: 08/06/2014No. 1 2

- 10874 by the [presentence report]. . . . In any event, these are factual issues that

were capa ble 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 impo se a fine in light of the amount of the restitution, the defendant cannot show that his sub

stantial 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 cou rt 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 m ajority, however, treats fourth

- prong relief as following natur

ally and as a matter of course because “[w]ith out information on the secondary mortgage market, we cannot be sure that the district court’s order awarded restitution to the right parties in t he correct amounts.” Even if old Fifth Cir

cuit caselaw said that excess restitution calls for fourth

- prong relief, such a hold ing is superseded by the en banc pro nounce ment 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 Seri ously in Plain Error Review of Federa l Sentencing Appeals , 51 H OUSTON L. R EV

. 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. 12 Case: 12-10874 Document: 00512724449 Page: 12 Date Filed: 08/06/2014