FILED 

United States Court of Appeals 

Tenth Circuit 

UNITED ST ATES COURT OF APPEALS 

TENTH CIRCUIT 

May 27, 2005 

PATRICK FISHER 

Clerk 

UNITED ST A TES OF AMERICA, 

Plaintiff-Appellee, 

V. 

DANZENA D. DEGUZMAN, 

Defendant-Appellant. 

No. 04-1433 

(D. Colorado) 

(03-CR-483-D) 

ORDER AND JUDGMENT" 

Before EBEL, BRORBY, and HENRY, Circuit Judges. 

Defendant-Appellant Danzena D. Deguzman appeals from a jury's verdict 

of guilt, contesting the sufficiency of the evidence, the district court's imposition 

of restitution, and the district court's loss calculation. Exercising jurisdiction 

pursuant to 28 U.S.C. § 1291, we affirm. 

• This order and judgment is not binding precedent, except under the 

doctrines of law of the case, res judicata, and collateral estoppel. The court 

generally disfavors the citation of orders and judgments; nevertheless, an order 

and judgment may be cited under the terms and conditions of Tenth Circuit Rule 

36.3. 

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I. BACKGROUND 

Between June 2000 and May 2001, Ms. Deguzman recruited four men with 

training and experience as computer programmer analysts to come to the United 

States from the Philippines to work in the information technology (IT) field. She 

told them they would be employees of her firm, DCG Consulting (DCG), a 

company that supplies IT experts to other companies. She promised paid annual 

salaries of $42,000, medical and dental benefits, and jobs as programmer analysts 

at Qwest or some other DCG client. Ms. Deguzman also assured the men that 

DCG would secure H-1 B visas from the United States Immigration and 

Naturalization Service (INS) permitting them to reside temporarily in the United 

States as non-immigrant professionals. Although she initially told them there was 

a ninety percent chance they would be assigned to work at Qwest, she later 

informed them that they would probably have to work for no more than three 

months in clerical or other non-IT jobs. 

Ms. Deguzman promised to pay for the men's transportation to the United 

States, their additional training, some cash advances, and their housing. In 

exchange, the men were required to sign agreements and promissory notes 

promising to work exclusively for DCG, to repay DCG by payroll deductions from 

their salaries, and to pay DCG $20,000 if they breached their employment 

commitments. 

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Ms. Deguzman signed and filed petitions with the INS for the issuance of 

H-lB visas for the men. Visas of this kind may only be submitted by the 

employer who will employ a named alien in the specific job identified in the 

petition. In her petitions, Ms. Deguzman certified under oath that DCG would 

employ the men as programmer analysts at Qwest through a subcontract DCG had 

with Productive Data Systems (PDS). The INS issued the H-lB visas, expressly 

conditioning the men's legal presence in the United States on their employment as 

specified in the petitions. Because Ms. Deguzman was the petitioner, she was 

required by law to notify the INS if an alien admitted under an H-lB visa ceased 

to be employed in strict compliance with the conditions of the visa. 

In fact, DCG 's subcontract with PDS merely provided that DCG would 

supply IT specialists to PDS 's clients if PDS was unable to do so itself. The 

subcontract did not specify any positions for which IT specialists would be sought 

from DCG and did not obligate PDS to obtain any IT specialists from DCG. 

Ultimately, PDS never obtained any IT specialists from DCG whatsoever. 

On May 5, 2001, the four men entered the United States on the H-lB visas. 

Ms. Deguzman immediately provided shared housing accommodations for them in 

the basement of her house, for which she charged them between $200-$250 per 

month in rent after the first three months. DCG did not employ the men and they 

never received the promised salaries or benefits from DCG. Only one of the men 

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ever performed IT work, and that was as an hourly-wage employee of a state 

government agency. The other three men worked only in non-IT positions with 

casinos and temporary employment agencies. The variance between these jobs 

and the jobs indicated on their H-1 B visas rendered illegal their status in the 

United States. Ms. Deguzman nevertheless demanded that the men pay her 

various amounts of money in monthly installments. In July 2002, she also 

instructed the men to backdate documents falsely indicating they had taken leaves 

of absence from DCG when they arrived in the United States in May 2001. 

A jury convicted Ms. Deguzman on each count of a fourteen-count 

superseding indictment alleging mail fraud in violation of 18 U.S.C. § 1341, wire 

fraud in violation of 18 U.S.C. § 1343, harboring aliens unlawfully in the United 

States in violation of 8 U.S.C. § 1324(a)(l)(A)(iii), lying on visa applications in 

violation of 18 U.S.C. § 1546, and inducing the unlawful entry of aliens into the 

United States in violation of 8 U.S.C. § 1324(a)(l)(A)(iv). The district court 

sentenced her to fourteen months of imprisonment on each count to be served 

concurrently. Ms. Deguzman no,v appeals her conviction and order of restitution, 

and we affirm. 

II. DISCUSSION 

In this appeal, Ms. Deguzman challenges her conviction and restitution 

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order on three grounds. First, she argues the evidence at trial was insufficient to 

support the jury's verdict of guilt because the government failed to prove the 

"specific intent" element of wire fraud and mail fraud. Second, she contends the 

district court erred when it included the men's rent payments in its imposition of 

restitution because their rent was not part of any scheme to defraud. Finally, she 

avers that the jury, instead of the judge, should have determined the amount of 

loss suffered as a result of the scheme and the amount of restitution she owed, 

pursuant to the Supreme Court's recent opinion in United States v. Booker, 125 S. 

Ct. 738 (2005). We will address each argument in turn. 

A. Sufficiency of the Evidence on Mail Fraud and Wire Fraud 

We review de novo claims that the evidence at trial was insufficient to 

sustain a conviction. United States v. Munro, 394 F.3d 865, 869 (10th Cir. 2005). 

In doing so, we view all the evidence in the light most favorable to the 

government because it was the prevailing party in the district court. Id. (citing 

United States v. Hooks, 780 F.2d 1526, 1529 (10th Cir. 1986)). Ultimately, we 

must determine only whether the evidence-both direct and circumstantial, 

together with the reasonable inferences drawn therefrom-could allow a reasonable 

jury to find Ms. Deguzman guilty beyond a reasonable doubt. United States v. 

Magleby, 241 F.3d 1306, 1311-12 (10th Cir. 2001). 

The mail fraud statute under which Ms. Deguzman was convicted provides 

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in relevant part: 

Whoever, having devised or intending to devise any scheme or artifice 

to defraud, or for obtaining money or property by means of false or 

fraudulent pretenses, representations, or promises, ... for the purpose 

of executing such scheme or artifice or attempting so to do, places in 

any post office or authorized depository for mail matter, any matter or 

thing whatever to be sent or delivered by the Postal Service ... or 

knowingly causes to be delivered by mail or such carrier according to 

the direction thereon ... shall be fined under this title or imprisoned 

not more than 20 years, or both. 

18 U.S.C. § 1341. 

To establish a violation under § 1341, the government must prove beyond a 

reasonable doubt (1) the devising of a scheme or artifice either (a) to defraud or 

(b) for obtaining money by means of false or fraudulent pretenses, 

representations, or promises, (2) the specific intent to defraud, and (3) the use of 

the United States mails to execute the scheme. United States v. Kennedv, 64 F .3d 

1465, 1475 (10th Cir. 1995). 

Similarly, the wire fraud statute under which Ms. Deguzman was convicted 

provides in relevant part: 

Whoever, having devised or intending to devise any scheme or artifice 

to defraud, or for obtaining money or property by means of false or 

fraudulent pretenses, representations, or promises, transmits or causes 

to be transmitted by means of wire, radio, or television communication 

in interstate or foreign commerce, any writings. signs, signals, pictures, 

or sounds for the purpose of executing such scheme or artifice, shall be 

fined under this title or imprisoned not more than 20 years, or both. 

18 U.S.C. § 1343. 

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To establish wire fraud under § 1343, the government must prove beyond a 

reasonable doubt (I) a scheme or artifice to defraud, (2) intent to defraud, and (3) 

use of interstate wire communications to facilitate the scheme. United States v. 

Welch, 327 F.3d 1081, 1104 (10th Cir. 2003). 

Thus, "[t]he wire and mail fraud charges require that the jury find that [Ms. 

Deguzman] acted with intent to defraud or intent to deceive." United States v. 

Lawrence, 405 F.3d 888, 900 (10th Cir. 2005). Ms. Deguzman argues that the 

evidence the government presented at trial was insufficient, as a matter of law, to 

prove that she had the specific intent to devise a scheme to defraud the men: 

"[ e ]ven if the evidence tended to show that [she] did intend to deceive the 

government in furtherance of her scheme, it is not enough to prove specific intent 

for the purpose of mail fraud.'' Aplt' s Br. at 1 7. Ms. Deguzman attempts to 

explain that because she never received any money from the government-the party 

deceived by the false visa applications-there could not have been a scheme to 

defraud for financial gain. In support of this proposition, she relies on United 

States v. Lew, 875 F .2d 219 (9th Cir. 1989), in which the Ninth Circuit reversed a 

mail fraud conviction because the intent of an alleged fraudulent scheme must be 

to obtain money or property from the deceived party. Id. at 221. 

There are at least two reasons why Lew is inapplicable here. First, Lew is 

factually distinct from this case in a critical way. In Lew, the court was careful to 

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note that the false statements were made only to the government, not to the 

intended individual victims of the scheme. See Lew, 875 F.2d at 221-22 ("The 

government ... has been unable to refer us to, and we have been unable to find, 

any evidence in the record that Lew deceived his clients." (emphasis in original)). 

In this case, however, the government explicitly alleged that Ms. Deguzman 's 

scheme involved false promises she made directly to the Filipino men, as well as 

false statements she made to the government in the H-1 B visa applications she 

submitted to the INS. When she mailed the false visa applications and sent emails 

including deceptive information, she violated the wire fraud and mail fraud 

statutes as long as the false statements in the visa applications and emails were 

part of her scheme to defraud the individual victims. It is quite clear that they 

were: Ms. Deguzman had to obtain INS permission for the men to be in the 

United States in order to effectuate the remainder of her scheme to receive 

payments from them for rent, loans, travel costs, and the like. Without the visas, 

Ms. Deguzman could not get the men into the country or past INS, and her 

scheme to profit by deceiving them would never have come to fruition. Likewise, 

as soon as Ms. Deguzman used emails to communicate with the men to execute 

her fraudulent scheme, she committed wire fraud. 

Lew is also inapplicable to this case because we have held that evidence of 

false statements to individual victims is unnecessary in proving mail fraud. See 

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Kennedy, 64 F .3d at 14 76 ("[E]ven though the government might frequently 

proffer evidence of actual misrepresentations to individual victims in order to 

help establish the existence of the alleged fraudulent scheme, such evidence is not 

required" to prove a mail fraud scheme (internal citation omitted)) ( citing United 

States v. Pepper, 51 F .3d 469, 4 72-73 (5th Cir. 1995) ( explaining that although 

the government must prove the existence of the scheme to obtain money by 

misrepresentations, "[t]here is no statutory requirement that direct 

misrepresentations be made to the victims of the scheme")). As we noted in 

Kennedy, the plain language of the mail fraud statute "requires only the devising 

of a scheme for obtaining money or property by means of false or fraudulent 

pretenses, representations, or promises - not the making of misrepresentations to 

any particular individuals."" Kennedy, 64 F.3d at 1476 (emphasis in original). 

We have examined the record and determined that the evidence and all 

reasonable inferences drawn therefrom could allow a reasonable jury to find Ms. 

Deguzman guilty beyond a reasonable doubt of devising such a scheme, with the 

intent to defraud, and using the mails to execute the scheme. The record reflects 

testimonial and documentary evidence from which the jury could determine that 

Ms. Deguzman made false statements and representations to the Filipino men 

about who they would work for, the likelihood of them finding work as 

programmer analysts at other companies, the salaries and benefits they would 

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receive, the duties they would perform, and the conditions under which they 

would pay Ms. Deguzman. See Aplt's App., vol. I at 77-141, vol. II at 201-260, 

vol. III at 438-467. 

Moreover, there is ample evidence from which the jury could reasonably 

determine that Ms. Deguzman submitted visa applications to the INS under oath 

which contained false information about whether the jobs for which the men were 

being authorized entry were '·actual" jobs. See id., vol. III at 366-397. In 

addition, there was evidence that Ms. Deguzman demanded money from the men 

while failing to employ them as indicated in the visa petitions she mailed, and that 

she failed to properly inform the INS that their actual employment was not in 

compliance with the requirements of their H-1B visas. See id., vol. I at 77-141, 

vol. 11 at 201-260, vol. III at 366-397, 438-467. Perhaps most indicative of her 

intent to defraud, Ms. Deguzman caused the men to sign backdated documents in 

July 2002 falsely indicating that they had taken leaves of absence from DCG upon 

their arri\'al in the United States in May 2001. See id., vol. I at 117-22, 184, vol. 

II at 235-41. vol. III at 459-60. The jury also heard evidence that Ms. Deguzman 

threatened legal and financial consequences to the men and their families if they 

did not continue to pay her the money she demanded, including reporting the 

men's illegal status to the INS. See id., vol. I at 126-132, vol. II at 249-258, vol. 

III at 462-63. 

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It is simply impossible for us to conclude that no reasonable jury could 

convict when faced with all this evidence. Because the evidence was neither 

inherently incredible nor resolved in an unreasonable manner by the jury, we are 

bound by the jury's resolution of the evidence. Allen v. Wal-Mart Stores, Inc., 

241 F.3d 1293, 1297 (10th Cir. 2001) ("The weighing of evidence, the 

reconciliation of inconsistent testimony, and the assessment of a witness' 

credibility is solely within the province of the jury.''); United States v. McKissick, 

204 F .3d 1282, 1289-90 ( I 0th Cir. 2000) (''It is for the jury, as the fact finder, to 

resolve conflicting testimony, weigh the evidence, and draw inferences from the 

facts presented."); United States v. Smith, 131 F .3d 1392, 1399 (I 0th Cir. 1997) 

("[U]nless the testimony is inherently incredible ... we must resolve credibility 

choices in favor of the jury's verdict.") (quotation omitted); Messer v. Roberts, 74 

F.3d 1009, 1013 (10th Cir. 1996) ("[T]he Court must accept the jury's resolution 

of the evidence as long as it is within the bounds of reason.") (quotation omitted). 

Ms. Deguzman next attempts to bootstrap her appeal of the other counts of 

conviction to the mail and wire fraud counts. She argues that reversal of her 

conviction is required as to every count "[b ]ecause each count of the Superseding 

Indictment relied upon the existence of the fraudulent scheme'' alleged in the mail 

fraud and wire fraud counts. See Aplt's Br. at 20. According to Ms. Deguzman, 

her convictions for harboring illegal aliens (Counts 6-8), making material false 

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statements under oath in her applications to the INS for H-1 B visas (Counts 9-11 ), 

and inducing aliens to enter the United States illegally (Counts 12-14 ), must be 

reversed because of the alleged insufficiency of evidence with regard to specific 

intent to defraud. This is clearly wrong. None of the other charges require proof 

of specific intent to defraud, and we conclude that the government met its burden 

on specific intent to defraud in the mail and wire fraud charges. We need not 

address this argument further. 

B. Inclusion of Rent in the Restitution Order 

The record reflects that Ms. Deguzman initially objected to the court's 

inclusion of the amount of the monthly rent payments in its restitution order, but 

later withdrew the objection: 

I might also be able to put on the record, to make sure that this is 

resolved, in our objections to the presentence report, we had a list of 

different values that we thought were applicable. We have - we will 

withdraw those because we did not calculate into those numbers the 

values of the rents that are considered. Though we disagree with it, it's 

not incorrect. So those objections are now resolved and/or withdrawn, 

whichever the Court prefers. That may help a little bit. 

Aplt's App., vol. IV at 714. 

On appeal. Ms. Deguzman argues she withdrew the objection solely with 

regard to the determination of offense level for sentencing, but not with regard to 

the restitution amount. Aplt's Br. at 22. While we are inclined to believe that she 

actually did withdraw her objection and therefore failed to preserve the issue for 

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appellate review, the record's lack of clarity compels us to address the issue. 

We review the legality of a restitution order de nova. United States v. 

Nichols, 169 F.3d 1255, 1278 (10th Cir. 1999). We review the factual findings 

underlying a restitution order for clear error and the amount of restitution for an 

abuse of discretion. Id. Under the Mandatory Victim's Restitution Act, the 

sentencing court must order the defendant to pay restitution to the victim in an 

amount equal to the actual loss suffered by the victim. 18 U.S.C. § 

3663A(c)(l)(A)(ii), (a)(2), and (b)(l); United States v. Messner, 107 F.3d 1448, 

1455 (10th Cir. 1997). 

Ms. Deguzman argues the district court should not have included in its 

restitution order the amounts the men paid her for "renting" the basement of her 

house during the scheme because rent is not "a loss the men sustained as a result 

of the fraudulent scheme." Aplt's Br. at 24. According to Ms. Deguzman, (1) the 

employment agreements she induced the men to sign "put [them] on notice that 

the housing they were provided upon their arrival in the U.S. had a value of $250 

per month per person''; (2) "the cost of living is a reasonable, foreseeable 

expense .. : (3) the rent she received "correspond[s] to what the men would have 

paid as a\'erage monthly rent for a two-bedroom apartment elsewhere"; and ( 4) "it 

,vas the men themselves who decided not to move during the 20-month period 

they paid rent." Aplt's Br. at 23-24. The government contends that the rent was 

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part of the scheme and therefore should be included in the restitution amount. 

We agree with the government and conclude that the rent was part of the 

loss the men sustained as a result of the fraudulent scheme. The housing 

provision in the employment agreements was an important part of the scheme 

because it enabled Ms. Deguzman to monitor the men's activities and incomes, in 

addition to producing a substantial portion of the money that was her financial 

focus. The agreement allowed Ms. Deguzman to keep the men in her control 

because of the threat that she would turn them in to the INS. This allowed her 

further opportunities to collect rent from them. Ms. Deguzman's fraudulent 

scheme created the men's very need for accommodations, and the 

accommodations furthered her perpetuation of the scheme. The district court 

correctly recognized that the wellspring of criminal behavior in this case was the 

fraudulent scheme: "it would seem to me that but for the defendant's scheme to 

lure the Filipino citizens to this country, none of the rest of this would have 

happened." Aplt's App. at 705. 

In short, the rent she required them to pay constituted a substantial portion 

of the financial gain she sought from the scheme, and was conversely a 

substantial portion of the loss the victims incurred. We conclude that the 

restitution order was legal. Moreover, because there is neither a dispute about the 

factual findings underlying the restitution order nor any disagreement about the 

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amounts of rent paid, the district court neither erred nor abused its discretion in 

imposing the rent payments as part of restitution. 

C. Blake(v/Booker Issues 

The Supreme Court announced its decision in United States v. Booker, 125 

S. Ct. 738 (2005), one week after Ms. Deguzman filed her opening brief. 

However, the Court had already announced its ruling in Blakely v. Washington, 

124 S. Ct. 2531 (2004 ). Ms. Deguzman objected to the Presentence Report on the 

ground that Blakely forbade the court from enhancing her base offense level by 

the inclusion of the rent as a loss-related specific offense characteristic. See 

Aplt's App., vol. V at 771. The district court ruled during sentencing that "the 

Blakely case by its terms doesn't apply to sentences under the federal sentencing 

guidelines." Aplt's App., vol. IV at 703. The court went on to give Ms. 

Deguzman's counsel a specific opportunity to raise a Blakely-type argument: "The 

Supreme Court presumably will clarify the ramifications of Blakely, and I will let 

you make a record, Miss Shein, if you want to on that, but I'm not going to apply 

Blakely one way or the other.'' Id. 

Ms. Deguzman's counsel did not make a further record with regard to loss 

amount and did not make any Blakely argument regarding restitution. Instead, she 

raises for the first time in her reply brief a terse argument that reads in full: 

In light of the recent decision in United States v. Booker, 543 U.S. -

(2005), this Honorable Court should remand for a determination not 

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only of the restitution but as to the loss value. The jury must make 

this determination. Appellant relies on the remainder of her initial 

brief in support of remand on this issue. 

Aplt' s Rep. Br. at 8. 

Ms. Deguzman did not, however, address in her opening brief the issues of 

plain or harmless error, whether she preserved in the district court either the 

restitution or the loss-value argument under Blakely/Booker, or whether loss value 

and/or restitution are facts that must be found by a jury. Moreover, as we note 

above, she withdrew at the sentencing hearing her objection with regard to 

amount of loss. See Aplfs Br. at 22. In this context, we conclude she has failed 

to adequately raise a Blakel_v/Booker challenge on appeal with regard to either 

issue. Perfunctory complaints that fail to frame and develop an issue are 

insufficient to invoke appellate review. Murrell v. Shala/a, 43 F.3d 1388, 1389 

n.2 (10th Cir. 1994 ). Moreover, ''[i]t is insufficient merely to state in one's brief 

that one is appealing an adverse ruling below without advancing reasoned 

argument as to the grounds for the appeal.'' Am. Airlines v. Christensen, 967 F.2d 

410. 415 n.8 (10th Cir. 1992) (citing FED. R. APP. P. 28(a)(4), now FED. R. APP. 

P. 28(a)(9)) ("The appellant's brief must contain ... appellant's contentions and 

the reasons for them, with citations to the authorities and parts of the record on 

which the appellant relies.''). 

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Ill. CONCLUSION 

For the foregoing reasons, we AFFIRM Ms. Deguzman's conviction and 

the district court's calculation of loss and restitution. 

17 

Entered for the Court, 

Robert H. Henry 

Circuit Judge 

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