United States Court of Appeals

For the First Circuit

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No. 99-2204

UNITED STATES of AMERICA,

Appellee,

v.

ROLANDO SOLARES,

a/k/a Miguel Gamez,

a/k/a Joes Armento Vasquez,

Defendant, Appellant.

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APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Mary M. Lisi, U.S. District Judge]

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Before

Boudin, Lynch, and Lipez, 

Circuit Judges.

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Barry S. Pollack, with whom Dechert Price & Rhoads was on brief,

for defendant-appellant.

Donald C. Lockhart, Assistant U.S. Attorney, with whom Margaret

E. Curran, U.S. Attorney, and Terrence P. Donnelly, Assistant U.S.

Attorney, were on brief, for appellee.

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December 29, 2000
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____________________
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LYNCH, Circuit Judge. Ten members of a conspiracy

defrauded two banks through a counterfeit check cashing scheme.

Defendant Rolando Solares was among them, and appeals from three

aspects of his sentence following his guilty plea. 

Solares and the others obtained counterfeit payroll

checks that appeared to be issued by A & H Manufacturing, a

business based in Rhode Island. The conspirators also obtained

counterfeit identification cards in the names of the payees

listed on the counterfeit checks. Acting alone and in groups of

two or three, the conspirators then quickly cashed 224 of these

counterfeit checks at fifteen different Rhode Island branches of

Citizens Bank by using the false identification. This scheme

took place over three days, from Friday, February 26, 1999,

through Sunday, February 28, 1999. This took advantage of the

fact that the company, A & H, was closed for the weekend and so

Citizens Bank was unable to contact the business to verify the

authenticity of any of the checks. The total loss to Citizens

was $87,586.80.

In a second round, an identical scheme was employed to

defraud Fleet Bank, except this time a new company was used, the
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Cavicchio Greenhouses. The total loss to Fleet was documented

to be $20,069.85.

Solares pled guilty to bank fraud and conspiracy. See

18 U.S.C. § 1344 (bank fraud); 18 U.S.C. § 371 (conspiracy to

commit bank fraud). There were nine co-defendants. On appeal,

Solares argues three objections to his sentence. He says that

the district court erred (1) in making a four level upward

adjustment on the basis that Solares was a leader and organizer,

and in not considering instead a two level adjustment on a

finding that he played only a managerial or supervisory role;

(2) in ordering restitution of $107,656.65 for all losses from

the conspiracy; and (3) in ordering that the defendant remain

outside the United States if he was deported by the INS. We

take each argument in turn.

Upward Adjustments

The Pre-Sentence Report recommended that Solares

receive a four level upward adjustment for leadership and as an

organizer under U.S.S.G. § 3B1.1(a). The PSR recommendation was

based on the fact that Solares recruited co-defendant Luis

Avelar and organized the out-of-state defendants as part of the

second phase of the conspiracy. Solares's counsel filed no
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objection to the PSR and at sentencing said that he was in

agreement with the factual report as well as the Sentencing

Guidelines computations in the PSR. 

The government says that by such agreement, the

defendant forfeited or waived his right to challenge the upward

adjustment. We choose not to explore again the differences

between forfeiture and waiver but will instead assume arguendo

that Solares should have the benefit of plain error review. See

United States v. Olano, 507 U.S. 725, 732 (1993). 

The defendant’s main argument is that the court did not

make sufficient findings to support its conclusions. The

court’s findings were that Solares recruited other members of

the conspiracy and that he took a greater share in the proceeds

of the criminal activity. The defendant denies that there is

evidence he took a greater share of the proceeds and says that

the evidence showed only that he recruited defendant Avelar.

From the record and the PSR, it is clear that Solares was the

only Providence-based defendant, apart from defendant Avelar.

Solares recruited defendant Avelar in the second phase. It is

reasonable to infer that Solares was the one familiar with the

Providence area and with the local bank branches, that he was in
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charge of the operations, and that he instructed the out-ofstate defendants about the logistics of the second phase of the

operation. Telephone records show that seven phone calls were

placed by out-of-state defendants to his residence just before

the second phase began. It is reasonable to infer that Solares

recruited the others, just as he had recruited Avelar. Thus,

many of the seven factors we have identified to show whether a

defendant qualifies as an organizer or leader were met. See

United States v. Robbio, 186 F.3d 37, 45 (1st Cir. 1999)

(listing factors), cert. denied, 120 S. Ct. 602 (2000). The

record thus supports the district court’s determination, and

there is no error. 

Where the defendant did not challenge the PSR, we will

not entertain the defendant's final argument that the court

failed to state adequately in open court the reasons for its

imposition of the particular sentence. The court was on no

notice that there was any issue as to the court’s statement of

reasons, and the defendant, who created that situation, cannot

gain advantage from it.

Amount of the Restitution Award
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Solares objects to the restitution order, which

requires him to pay back the entire loss to the two banks.

Under the Victim and Witness Protection Act, 18 U.S.C. §§

3663(a), 3664(a), restitution awards are limited to "the loss

caused by the specific conduct that is the basis of the offense

of conviction." Hughey v. United States, 495 U.S. 411, 413

(1990). Under the VWPA, "in the case of an offense that

involves as an element a scheme, conspiracy, or pattern of

criminal activity," a victim is defined as "any person directly

harmed by the defendant’s criminal conduct in the course of the

scheme, conspiracy, or pattern" 18 U.S.C. § 3663(a)(2). We

have held that a defendant in a conspiracy is liable for all

reasonably foreseeable losses caused to the victims by the

conspiracy. See United States v. Collins, 209 F.3d 1, 4 (1st

Cir. 1999). 

Once again, as to this issue, Solares filed no

objection to the PSR, and indeed said that he affirmatively

agreed with the facts and Sentencing Guidelines calculations in

the PSR. Again, we give him the benefit of plain error review.

For the reasons stated above, it was quite reasonable for the

district court to conclude that this was a well organized
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conspiracy, and that Solares himself organized and was deeply

involved in it. Thus, he could have reasonably foreseen the

losses at issue. There was no error. 

Condition of Supervised Release

Solares argues that the district court erred at

sentencing when it ordered, as a condition of supervised

release, that if Solares were deported, he was to remain outside

the U.S. for the entire term of his supervised release. Again

he failed to object to this condition, and review is at most for

plain error. 

Solares concedes a key distinction here. While we have

held that a district court may not order a defendant to be

deported as a condition of supervised release, United States v.

Sanchez, 923 F.2d 236, 237 (1st Cir. 1991), the court may, if

the defendant is deported, provide, in the words of the statute,

"as a condition of supervised release, that he be deported and

remain outside the United States," 18 U.S.C. § 3583(d).

Solares argues first that under Sanchez, this court’s

interpretation of § 3583(d) indicates that it is not to disturb

the power of the Executive Branch. That is an overreading of

Sanchez, which does not prohibit the order at issue here. His
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next argument is that to the extent that the statute authorizes

the type of order issued here, the statute violates the

separation of powers doctrine. We do not see why, and the point

is not argued, and so is waived. Solares also makes a vague due

process claim which again we reject as not having been argued

and as facially appearing to have no merit. To the extent

Solares is raising a hypothetical future concern about the

effect of the court order if the INS were willing to readmit him

to the country, that issue can be faced later. If the district

court order stood as an obstacle at that time, a point on which

we express no opinion, Solares would be free then to ask for a

modification.

For these reasons, the sentence is affirmed in all

pertinent respects.