U.S. v. Soehnge, (10th Cir. 2007)

Text

---

UNITED

STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

No. 06-1212

v.

(D. of Colo.)

PATRICIA SOEHNGE,

Defendant-Appellant.

(D.C. No. 04-CR-102-WYD)

ORDER AND JUDGMENT
name="txt*">(*)

Before TACHA, Chief Judge, HARTZ,

and TYMKOVICH, Circuit Judges.
name="txt**">(**)

Patricia Soehnge pleaded guilty to one count of wire fraud and aiding and

abetting the fraud under 18 U.S.C. 1342 and 1343. The district court found

Soehnge accountable for almost $1 million in losses as a participant in a jointly

conducted criminal scheme to defraud the U.S. Department of Housing and Urban

Development (HUD). The court sentenced her to 18 months in prison and

restitution of $41,734.41. She argues that she did not engage in a joint scheme

and her prison term should reflect only the loss of $41,734.41 directly

accountable to her. We disagree and AFFIRM the district court sentence.

I. Background

On August 25, 2005, Patricia Soehnge pleaded guilty to one count of wire

fraud as well as aiding and abetting such fraud. Soehnge worked as a real estate

agent for William Mendez's real estate agency in Lakewood, Colorado. In her

work, she helped a number of clients whom she knew to be illegal aliens in the

preparation of fraudulent mortgage applications. All of the mortgages were

insured by the Federal Housing Administration, a division of the U.S. Department

of Housing and Urban Development. Soehnge was not alone in preparing

fraudulent applications. All but one Mendez employee was aware of the

fraudulent mortgage applications permeating the office.

Soehnge pleaded guilty to wire fraud involving a mortgage application that

contained a false W-2 and false pay stubs. The application was prepared by

Soehnge's co-defendant, Nicolas Lopez, but Soehnge transmitted the application

from the mortgage's Colorado lender to a HUD computer. The mortgage

eventually went into foreclosure. Soehnge directly caused HUD $41,734.41 in

losses from fraudulent mortgages.

The Presentence Report determined that Soehnge's joint conduct, however,

involved a loss of $997,540.23, which increased her base offense level by 14

levels. This loss amount included losses caused by Mendez and Soehnge's other

co-defendants pursuant to 1B1.3(a)(1)(B) of the Sentencing Guidelines.

Soehnge objected at sentencing. She argued insufficient information existed in

the indictment or the plea agreement to establish that her conduct should extend

to the losses created by Mendez and the other co-defendants. She appeals only

this issue.

II. Did the District Court Commit Clear Error in Finding Soehnge

Jointly

Undertook Criminal Activity with Her Co-Defendants?

We review the district court's sentencing facts for clear error. United

States v. Martinez, 418 F.3d 1130, 1133 (10th Cir. 2005). We will not disturb the

district court findings unless they are without support in the record or, after a full

review, we are left with the firm conviction that a mistake has been made. United

States v. Burridge, 191 F.3d 1297, 1301 (10th Cir. 1999)

To determine the scope of fraud for sentencing Soehnge, the district court

must determine:

(1)(A) all acts and omissions committed, aided, abetted, counseled,

commanded, induced, procured, or willfully caused by the defendant;

and

(B) in the case of a jointly undertaken criminal activity (a criminal plan,

scheme, endeavor, or enterprise undertaken by the defendant in concert

with others, whether or not charged as a conspiracy), all reasonably

foreseeable acts and omissions of others in furtherance of the jointly

undertaken criminal activity.

USSG 1B1.3(1) (2005) (emphasis supplied).

Specifically, we are reviewing whether support exists in the record for the district

court's finding Soehnge jointly undertook criminal activity with her co-defendants for which she

is responsible due to the reasonably foreseeable nature

of her co-defendant's crimes. "In determining the scope of the criminal activity

that the particular defendant agreed to jointly undertake [], the court may consider

any explicit agreement or implicit agreement fairly inferred from the conduct of

the defendant and others." USSG 1B1.3(1), cmt. n.2.

Soehnge does not dispute the amount of losses caused by the entire Mendez

operation, nor that the losses were reasonably foreseeable. She only challenges

whether sufficient evidence existed for the district court to find, by a

preponderance of the evidence, that she undertook the criminal activity jointly

with her co-defendants. See United States v. Magallanez, 408 F.3d 672, 68485

(10th Cir. 2005) (establishing preponderance of the evidence as standard of

factual review for sentencing decision). She cites to this court's decision in

United States v. Dazey, 403 F.3d 1147, 1176 (10th Cir. 2005), establishing that "a

defendant's accountability only extends to the criminal activity that he agreed to

undertake." She believes no evidence presented sufficiently demonstrates that she

agreed to the criminal activity undertaken by her co-defendants. But as we noted

above, such agreement may be "fairly inferred from the conduct of the defendant

and others." USSG 1B1.3(1), cmt. n.2.

The sentencing court found the situation here analogous to the example of

joint criminal conduct provided at USSG 1B1.3(1) comment note 2(c)(8) where

four drug importers mutually assist one another in their efforts to individually

import marihuana. Like these importers, the court felt Soehnge mutually assisted

and was assisted by her co-defendants through the Mendez operation's joint

advertising, office space, arrangements made with loan companies, information

shared at meetings, and use of standardized forms for committing fraud.
name="txt1a">(1) While

the defendant disputes many of these findings in her reply brief, neither she nor

the record provides sufficient contradictions for us to find the district court

clearly erred in making the sentencing findings that it did.

III. Conclusion

For the foregoing reasons, we conclude the district court did not clearly err

in finding Soehnge was part of a jointly conducted criminal activity that involved

all of her co-defendants. We AFFIRM the district court sentence.

Entered for the Court

Timothy M. Tymkovich

Circuit Judge

FOOTNOTES

Click footnote number to return to corresponding location in the text.

*. This order and judgment is not binding

precedent except under the

doctrines of law of the case, res judicata and collateral estoppel. It may be cited,

however, for its persuasive value consistent with Fed. R. App. P. 32.1 (eff. Dec.

1, 2006) and 10th Cir. R. 32.1 (eff. Jan. 1, 2007).

**. After examining the briefs and the

appellate record, this three-judge

panel has determined unanimously that oral argument would not be of material

assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th

Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.

1. The district court relied in large part on

testimony at sentencing from a

special agent in the Internal Revenue Service's criminal division. It was within

its bounds to take evidence not included in the plea agreement or the indictment

to determine relevant conduct for sentencing. As we noted in Magallanez, 408

F.3d at 684, "18 U.S.C. 3661 provides: No limitation shall be placed on the

information concerning the background, character, and conduct of a person

convicted of an offense which a court of the United States may receive and

consider for the purpose of imposing an appropriate sentence."

---