United States of America v. James Brown

NOT PRECEDENTI
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
NO. 00-2613
UNITED STATES OF AMERICA
v.
JAMES BROWN,
Appellant
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Crim. No. 98-cr-00427-2)
District Judge: Hon. Alfred M. Wolin
Submitted Under Third Circuit LAR 34.1(a)
June 6, 2002
Before: SLOVITER, NYGAARD and BARRY, Circuit Judges
(Filed June 21, 2002)
OPINION OF THE COURT
SLOVITER, Circuit Judge.
Appellant James Brown, who was charged along with other defendants in a
thirty-seven count indictment, pled guilty to Count 1, which charged him with conspiracy
to defraud and obtain money and property by false and fraudulent pretenses by means of
wire communications in violation of 18 U.S.C. 1343.
As the parties are familiar with the facts, we need not discuss them in detail.
Brown, a licensed real estate appraiser, provided fraudulent appraisals on properties that
were the subject of mortgage loan applications. Brown was involved in falsifying ten
real estate appraisals spanning from April to August of 1996. After each property was
purchased, there was a substantial wire transfer from the lending institutions to the
buyers’ attorneys covering the amount of money financed. Each foreclosure resulted in a
considerable loss to the lending institution involved.
Brown was sentenced under the fraud guidelines governed by U.S. Sentencing
Guidelines Manual, 2F1.1 (2000). The District Court determined that the aggregate
loss of the mortgage loans because of Brown’s fraudulent appraisals was $437, 424.
Pursuant to U.S.S.G. 2F1.1(b)(1)(J), the court applied a nine-point upward adjustment
because the aggregate loss was greater than $350,000 but less than $500,000. This
upward adjustment, along with other uncontested adjustments, resulted in a total offense
level of sixteen. With a total offense level of sixteen and a Criminal History Category of
III, Brown was exposed to an imprisonment range of twenty-seven to thirty-three
months. The District Court sentenced Brown to serve a thirty-month term of
imprisonment and to pay restitution in the amount of $105,000.
In determining the aggregate loss attributable to Brown’s fraudulent appraisals,

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the District Court took into account only four of the ten properties that had gone into
foreclosure when the Presentence Report was prepared. The first appraisal used in the
loss calculation involved an estimated loss to First Union National Bank of $105,000.
The other three fraudulent appraisals involved estimated losses to Walsh Securities
totaling $332,424. Brown objects to the calculation of the sentencing enhancement,
arguing that the amount of loss calculated for Walsh Securities should be excluded
because, he contends, Walsh Securities participated in the overall conspiracy to defraud.
A district court’s factual determinations underlying the application of the
sentencing guidelines are reviewed for clear error. United States v. Hebling, 209 F.3d
226, 242-43 (3d Cir. 2000). The District Court’s legal interpretation of the Sentencing
Guidelines is subject to plenary review. United States v. Yeaman, 194 F.3d 442, 456 (3d
Cir. 1999). Once these tests are met, we give deference to a district court’s application of
the Sentencing Guidelines to the facts, as required by 18 U.S.C. 3742(e). See Hebling,
209 F.3d at 243. Further, this court exercises plenary review over a district court’s
interpretation of "loss" under U.S.S.G. 2F1.1. United States v. Sharma, 190 F.3d 220,
226 (3d Cir. 1999).
The burden of persuasion is on the Government to prove by a preponderance of
the evidence that the facts of a case support a sentence enhancement. United States v.
Evans, 155 F.3d 245, 253 (3d Cir. 1988). Brown argues the Government failed to meet
its burden to establish the amount of loss because the Government admitted that Walsh
Securities played a role in the conspiracy. We need not decide whether it would be clear
error to have included the loss of a victim who was neither indicted nor named as an
unindicted co-conspirator because Brown stipulated in his plea agreement that the
properties at issue would be included in the calculation of losses. Schedule A of
Brown’s plea agreement specifically states:
[W]ith respect to 2F1.1(b)(1) the loss amount will be
determined based on the loss resulting from each mortgage
loan supported by a fraudulent appraisal, including those
loans set forth in Counts 8 through 17 of the Indictment.
Supp. App. at 8. Counts 8 through 17 explicitly contain the four loans to First Union and
Walsh Securities.
Brown is attempting to contradict his own sentencing stipulation. We have
repeatedly held that a defendant cannot negotiate a plea agreement based on stipulations
and then attempt to evade those stipulations on appeal. See United States v. Cianci, 154
F.3d 106, 110 (3d Cir. 1998) (holding defendant who made stipulation in plea agreement
cannot later renege that agreement); United States v. Melendez, 55 F.3d 130, 136 (3d
Cir. 1995) (rejecting defendant’s attempt to dispute stipulation regarding appropriate
sentencing range); United States v. Parker, 874 F.2d 174, 175-78 (3d Cir. 1989)
(refusing to allow defendant to argue facts which contradicted those agreed to in plea
agreement). Brown’s argument is foreclosed by his own stipulation in the plea
agreement.
At his Rule 11 allocution, Brown failed to claim that anyone from Walsh
Securities was involved in the fraud. Brown has put forth nothing more than
unsubstantiated allegations that some unknown individuals at Walsh Securities were
involved in some aspect of the conspiracy. Thus, Brown has failed to produce any
evidence that warrants the removal of Walsh Securities’ losses from the total loss
amount. The District Court’s decision to include the losses of Walsh Securities in
the total loss amount of $437,424 was appropriate and not clearly erroneous. The
District Court properly applied the nine-level enhancement based on this total amount of
loss. The judgment of sentence will be affirmed.
___________________
TO THE CLERK:
Please file the foregoing opinion.
/s/ Dolores K. Sloviter

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Circuit Judge

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