Opinion
Case No. 3:12-cr-134
11-20-2013
UNITED STATES OF AMERICA, Plaintiff, v. ERIC M. MORRIS, Defendant.
Judge Timothy S. Black
DECISION AND ENTRY SETTING DEFENDANT'S
RESTITUTION OBLIGATION
This criminal case came before the Court for sentencing on August 15, 2013. At sentencing, the Court stayed the issue of restitution because the United States Probation Officer informed the Court, pursuant to 18 U.S.C. § 3664(d)(5), that the victims' losses were not ascertainable at that time. Following sentencing, the parties filed memoranda on the issue of restitution as ordered by the Court. (Docs. 23, 25). The issue of restitution is now ripe for final determination.
Defendant plead guilty to one count of conspiracy to commit wire fraud in violation of 18 U.S.C. § 1349 pursuant to a plea agreement. In the statement of facts attached to the plea agreement, Defendant admitted that, between on or about May 25, 2007 and October 31, 2007, he and other individuals unlawfully, willfully and knowingly entered into a mutual understanding, agreement and criminal conspiracy to accomplish a common and unlawful plan to commit acts of wire fraud in violation of federal law, specifically 18 U.S.C. § 1343. As part of the statement of facts attached to his plea agreement, Defendant also admitted that he committed various overt acts in furtherance of the conspiracy, including executing, as seller, a HUD-1 Form for the mortgage loan closing of a property on Far Hills Avenue in Dayton, Ohio that reflected a fraudulent mechanics lien payoff and a down-payment due from an individual identified only as S.K. Defendant admitted that, thereafter, a co-conspirator caused a money wire transfer to be sent from a mortgage lender to the settlement agent for the closing on the Far Hills Avenue property.
As set forth by the Sixth Circuit, under the Mandatory Victims Restitution Act ("MVRA"), 18 U.S.C. § 3663A, where one "'is convicted of a conspiracy, the court can order restitution for damage resulting from any conduct that was part of the conspiracy and not just from specific conduct that met the overt act requirement of the conspiracy conviction.'" United States v. Elson, 577 F.3d 713, 723 (6th Cir. 2009) (citations omitted). However, Defendant's restitution cannot include "injuries caused by offenses that are not part of the [conspiracy] of which [the defendant] has been convicted." Id. (alterations in original) (citing United States v. George, 403 F.3d 470, 474 (7th Cir. 2005); Hughey v. United States, 495 U.S. 411 (1990)). Where a defendant enters a guilty plea pursuant to a plea agreement, "the court should look to the plea agreement, the plea colloquy, and other statements made by the parties to determine the scope of the 'offense of conviction' for purposes of restitution." Id. (citations omitted).
Here, the statement of facts set forth in the plea agreement states that the criminal conspiracy underlying the offense of conviction took place between May 25, 2007 and October 31, 2007. (Doc. 11, PAGEID 44). Based upon the agreement of the parties in the plea agreement, the Court concludes that the scope of the offense of conviction includes only those losses resulting from the acts of the conspiracy that occurred between May 25, 2007 and October 31, 2007.
The presentence investigation report ("PSR") sets forth a total of three transactions that occurred between May 25, 2007 and October 31, 2007: (1) a transaction occurring on June 27, 2007 involving a property on Nevada Avenue, in which the calculated loss was $46,120; (2) a transaction occurring on July 13, 2007 involving a property on Kilmer Avenue, in which the calculated loss was $22,850; and (3) the transaction occurring on October 26, 2007 involving the aforementioned Far Hills Avenue property, in which the calculated loss was $216,005. The government represents that the victim of the Kilmer Avenue loss does not seek restitution, and, therefore, the total calculated loss between May 25, 2007 and October 31, 2007, minus the loss on the Kilmer Avenue property, is $262,125.
Accordingly, the Court orders that Defendant pay restitution in the total amount of $262,125. This restitution shall be paid to the appropriate lending institutions suffering the loss, namely, $46,120 payable to Countrywide Home Loans, Inc., and $216,005 payable to ABN Amor Mortgage Group, Inc.
IT IS SO ORDERED.
______________________
Timothy S. Black
United States District Judge