United States Court of Appeals

For the Eighth Circuit

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No. 17-3807

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United States of America

lllllllllllllllllllllPlaintiff - Appellee

v.

Carlos Kalier Rodriguez, also known as Carlos Jose Rodriguez-Ortiz

lllllllllllllllllllllDefendant - Appellant

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No. 17-3809

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United States of America

lllllllllllllllllllllPlaintiff - Appellee

v.

Michael Lee Marcov

lllllllllllllllllllllDefendant - Appellant

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Appeals from United States District Court 

for the Northern District of Iowa - Dubuque

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Submitted: November 12, 2018

Filed: February 7, 2019

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Before BENTON, BEAM, and ERICKSON, Circuit Judges.

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BEAM, Circuit Judge.

I. BACKGROUND

Carlos Rodriguez and Michael Marcov appeal the sentences and restitutional

requirementsimposed by the district court following their guilty pleas to wire fraud. 1

Rodriguez and Marcov, and many others, participated in a scheme to obtain money

from generally elderly victims in the Dubuque, Iowa, area and elsewhere by calling

and telling them that relativesin the Dominican Republic had been jailed and that the 

relatives needed to wire money to get them out. Victims wired money to a person at

a location provided by the callers. The criminal organization employed "crew

leaders" and "runners" in the United States. The crew leaders communicated with

people in the Dominican Republic, while runners picked up money, returned it to

crew leaders, who then deposited it in United States bank accounts for subsequent

transfer to the Dominican Republic, or directly transferred money to the Dominican

Republic.

Starting in 2015, Rodriguez was both a runner and a crew leader and he was

in direct contact with members of the organization in the Dominican Republic to give

them names of possible runners. Rodriguez also recruited runners and crew leaders

The Honorable Linda R. Reade, United States District Judge for the Northern 1

District of Iowa.

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in the United States and directly supervised at least twenty-three runners at various

times during the conspiracy. In December 2015, one of those recruits, co-defendant

Marcov, joined the scheme. Marcov quickly immersed himself in the program,

advancing fromrunner to crew leader within a few months. As a crew leader, Marcov

had direct contact with Dominican Republic organization members and recruited and

ultimately supervised at least nine runners. In May 2017, Rodriguez and Marcov

each pleaded guilty to one count of wire fraud.

At Rodriguez's sentencing, the district court found that Rodriguez was jointly

and severally liable with certain other members of the conspiracy for payment of

restitution in the amount of $774,584.97. Rodriguez agreed at sentencing that this

number was the correct amount of loss involved in the total scheme (but challenged

that he should be personally liable for that amount of restitution). The court departed

upward fourlevels under United States Sentencing Guidelines Manual § 5K2.0(a)(3),

finding that the Guidelines did not adequately take into consideration the number of

victims. Alternatively, the district court stated that if a four-level U.S.S.G. § 5K2

upward departure was not legally appropriate, it would have exercised its discretion

to vary upwards under the factors set forth in 18 U.S.C. § 3553(a). As noted in the

government's brief, the district court made an additional downward adjustment "for

reasons unrelated to this appeal" and Rodriguez's resulting sentence was 79 months

in prison.

At Marcov'ssentencing, a Dubuque, Iowa, police officer who had investigated

the criminal venture testified regarding Marcov's role in the overall scheme. He

testified that Marcov was recruited by Rodriguez to be a runner; that Marcov began

recruiting other individuals to work with himpicking up wire transfersfor Rodriguez;

and stated that eventually Marcov became a crew leader. With regard to the amount

of loss attributable to Marcov, the officer testified that he interviewed several runners

working for both Marcov and Rodriguez, and testified about the financial documents

he examined that were attributable to either Marcov or the runners working for

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Marcov during the time frame when Marcov wasinvolved in the crimes. Based upon

this testimony and extensive documentation, the district court found that the loss

attributable to Marcov wasroughly $298,000, which equaled the total amount of loss

from the wire fraud portion of the conspiracy. The district court also correctly found

that Marcov was a manager or supervisor in the scheme. As with Rodriguez's

sentencing, the district court departed upward in Marcov's case based upon the

number of victims not adequately taken into account by the Guidelines. The court set

restitution for Marcov at $298,314.42, to be shared jointly and severally with

Rodriguez. The district court'sfinalsentence was 120 months, the bottom of the 120-

150 month Guidelines range. 

II. DISCUSSION

On appeal, Rodriguez first challenges the district court's upward departure

based upon the number of victims. But, as previously noted, the district court stated

alternatively that it would vary upwards to the sentence it arrived at under its

discretion authorized by 18 U.S.C. § 3553(a). Thus, it is unnecessary to review the

Guidelines challenge if the upward variance "is sufficient to justify the sentence

imposed." United States v. Hentges, 817 F.3d 1067, 1068 (8th Cir. 2016). We give

"due deference to the district court's decision that the § 3553(a) factors, on a whole,

justify the extent of the variance." United States v. Espinoza, 831 F.3d 1096, 1098

(8th Cir. 2016) (quoting United States v. Moralez, 808 F.3d 362, 368 (8th Cir. 2015)).

We find the district court did not abuse its discretion in sentencing Rodriguez to 79

months in prison.

Rodriguez and Marcov both challenge the amount of restitution ordered. The

Mandatory Victims Restitution Act (MVRA) states that a district court must order

restitution in a case, such asthis, prosecuted under Title 18 of the United States Code

if the offense involved fraud or deceit. 18 U.S.C. § 3663A(c)(1)(A)(ii). The

government must prove the amount of restitution by a preponderance of the evidence

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and we review the resulting restitution order for an abuse of discretion. United States

v. Hoskins, 876 F.3d 942, 945 (8th Cir. 2017), cert. denied, 138 S. Ct. 2589 (2018). 

When multiple defendants are involved in the loss, the district court has discretion to

order restitution for the full amount of loss, to be shared jointly and severally by

defendants. 18 U.S.C. § 3664(h). Restitution includes amounts that were reasonably

foreseeable as losses to the victims. United States v. Alexander, 679 F.3d 721, 731

(8th Cir. 2012).

Rodriguez argues that because there were periods of time when he was not

active in the criminal enterprise, he should not be jointly liable for the full

$774,584.97 amount of restitution. Specifically, Rodriguez argues he was inactive

fromFebruary to April 2016, that the amount lost during that time was not reasonably

foreseeable to him, and the restitution order should be reduced accordingly. The

district court found that Rodriguez should be held responsible for the entire amount

of the loss, even the amount that accrued during his alleged "inactive" time, because

during that time, Marcov and his crew were active and Marcov was recruited by

Rodriguez. Accordingly, the district court did not err in finding that this loss, caused

by a crew leader (Marcov) who had been recruited by Rodriguez, was reasonably

foreseeable to Rodriguez because he knew the crew was active during the time frame

he challenges. Id. Thus, the government met its burden of proving that the correct

amount of restitution was awarded, and the district court did not abuse its discretion

in electing to make the entire amount jointly and severally attributable to Rodriguez. 

Marcov's challenge to the restitution awarded is equally unavailing. As we

understand Marcov's argument, he argues that he did not cause the entire loss

attributed to him, and because he did not personally gain much from the scheme, the

amount should be much less. Since he gained so little, Marcov argues, it was not

reasonably foreseeable to himthat the lossto victims would be nearly $300,000. Like

Rodriguez, Marcov does not challenge that $298,314.42 was lost, he simply argues

this total amount is not "attributable" to him, and instead the amount of restitution

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should be less than $6,500. At sentencing, the officer's testimony indicated that

Marcov was intimately involved in each transaction that occurred during the time

frame he was involved in the conspiracy–Marcov knew the dollar amounts involved

with each transaction and where the wire transfers should be picked up.

Marcov's citation to Honeycutt v. United States 137 S. Ct. 1626 (2017) does

not advance his cause. In Honeycutt the Court held that the forfeiture statute, 21

U.S.C. § 853, limited forfeiture to property the defendant himself actually acquired

as a result of the crime, and further held that joint and several liability was not

appropriate in the forfeiture context. 137 S. Ct. at 1632-33. While we can appreciate

Marcov's attempts to extend the reasoning behind Honeycutt's joint and severability

ruling to the restitution statute, the rationales behind the forfeiture statute and the

restitution statute are quite distinct. The forfeiture statute is meant to prevent a

defendant from keeping his "ill-gotten gains," to return property to those deprived of

it, and to serve as a deterrent to the economic power of criminal activity. Id. at 1631

(quoting Caplin & Drysdale, Chartered v. United States, 491 U.S. 617, 629-30

(1989)). While some aspects of mandatory restitution statutes are punitive, the

primary purpose of such statutes is "remedial or compensatory." Paroline v. United

States, 572 U.S. 434, 456 (2014). Most importantly, unlike the forfeiture statute, the

express language of the MVRA allows joint and severable liability. Nothing in

Honeycutt undercuts the language of 18 U.S.C. § 3664(h) ("If the court finds that

more than 1 defendant has contributed to the loss of a victim, the court may make

each defendant liable for payment of the full amount of restitution . . . ." ). In fact, a

primary reason behind the Honeycutt Court's decision was the lack of statutory text

authorizing forfeiture to be allotted jointly and severally. 137 S. Ct. at 1632. 

Accordingly, the government met its burden to prove the amount of restitution by a

preponderance of the evidence and the district court did not abuse its discretion in

ordering Marcov liable for the full amount of the loss during the time he was active

in the criminal enterprise.

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Marcov further challenges the district court's factual assessment that he had a

supervisory role resulting in the upward departure, and argues instead that the court

should have granted him a minor-role downward departure. We review the district

court'sfactual findings regarding a minor role reduction for clear error. United States

v. Price, 542 F.3d 617, 622 (8th Cir. 2008). We find no clear error in the district

court's factual findings. The police officer testifying at the hearing indicated that

Marcov was not only a recruited participant in the scheme, but rather quickly rose

through the ranks and began recruiting others himself and became a crew leader. 

Marcov admitted that he recruited at least nine people to become runners and then

supervised them as a crew leader. The fact that the scheme involved a large number

of other participants does not make Marcov's supervision over a relatively small

percentage of them any less supervisory. Perhaps he was a "minor supervisor." 

However, neither our cases nor the Guidelines make such a distinction. See id.

(upholding district court's refusal to grant a minor role adjustment where defendant

supervised and directed at least one other person to commit fraud). The district

court's finding that Marcov was a supervisor, not a minor participant, was not clearly

erroneous.

Finally, Marcov challenges his sentence as substantively unreasonable, which

claim we review for an abuse of discretion. United States v. Feemster, 572 F.3d 455,

461 (8th Cir. 2009) (en banc). The district court abuses its discretion if it fails to

consider a relevant factor that should have instead received significant weight, gives

significant weight to an improper factor, or considers appropriate factors but commits

a clear error of judgment in weighing those factors. United States v. Long, 906 F.3d

720, 727 (8th Cir. 2018). We have reviewed the record, including the sentencing

transcript and presentence investigation report, and find no abuse of discretion. Here,

the district court considered all of the relevant factors, did not give weight to any

improper factor, and did not commit a clear error in judgment.

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III. CONCLUSION

We affirm both sentences and restitution orders.

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