US v. Castrillon-Sanchez

Filing

OPINION issued by Rogeriee Thompson, Appellate Judge; William J. Kayatta , Jr., Appellate Judge and David J. Barron, Appellate Judge. Published. [16-1463]

Case: 16-1463

Document: 00117172115

Page: 1

Date Filed: 06/28/2017

Entry ID: 6102608

United States Court of Appeals
For the First Circuit
No. 16-1463
UNITED STATES OF AMERICA,
Appellee,
v.
ROSA E. CASTRILLÓN-SÁNCHEZ,
Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen Consuelo Cerezo, U.S. District Judge]

Before
Thompson, Kayatta, and Barron,
Circuit Judges.

Jose R. Gaztambide-Aneses, on brief for appellant.
James I. Pearce, Attorney, Appellate Section, Criminal
Division, U.S. Department of Justice, Leslie R. Caldwell,
Assistant Attorney General, Criminal Division, Sung-Hee Suh,
Deputy Assistant Attorney General, Criminal Division, Wifredo A.
Ferrer, United States Attorney, Southern District of Florida, H.
Ron Davidson, Assistant United States Attorney, Charles R.
Walsh, Trial Attorney, Criminal Division, and Luke Cass, Trial
Attorney, Criminal Division, on brief for appellee.

June 28, 2017

Case: 16-1463

Document: 00117172115

BARRON,

Circuit

Page: 2

Date Filed: 06/28/2017

Judge.

Rosa

E.

Entry ID: 6102608

Castrillón-Sánchez

("Castrillón") led a large-scale fraudulent financial scheme for
five years.

After the scheme came to an end, she pleaded guilty

to criminal charges, based on her conduct during the course of
the

scheme.

On

appeal,

she

substantively unreasonable.

contends

that

her

sentence

was

We affirm.
I.

In July 2010, a federal grand jury in the District of
Puerto Rico charged Castrillón and eight others with a variety
of criminal conduct.
with

conspiracy

violation

of

to

18

The first count charged all defendants
commit

U.S.C.

wire

fraud

§ 1349.

and

Castrillón

bank
and

fraud,
various

in
co-

defendants were also charged with eleven counts of wire fraud,
in violation of 18 U.S.C. § 1343; fourteen counts of bank fraud,
in violation of 18 U.S.C. § 1344; and four counts of money
laundering,
Castrillón

in

violation

alone

was

of

18

charged

U.S.C.

with

§

four

1957(a).

counts

of

Finally,
aggravated

identity theft, in violation of 18 U.S.C. § 1028A.
The charges pertained to a fraudulent scheme that ran
from April 2005 to March 2010.

During that time, Castrillón and

her co-defendants falsely and fraudulently induced over ninety
people to provide Castrillón with funds totaling more than five
million

dollars.

Those

funds

allegedly

came

from

victims'

savings and brokerage accounts, loans provided by their family

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Case: 16-1463

and

Document: 00117172115

friends,

and

Page: 3

unsecured

Date Filed: 06/28/2017

personal

loans

made

by

Entry ID: 6102608

financial

institutions.
According

to

the

pre-sentence

investigation

report

(PSR) prepared by the probation office prior to sentencing, the
fraud

operated

individual

and

as

follows.

confide

Castrillón

that

she

was

would

the

befriend

beneficiary

of

an
a

Certificate of Deposit or trust for a large amount of money that
was either pledged as collateral or frozen at a local bank.
Castrillón would tell the targeted individual that she needed
money to enable her to obtain the funds that she was due as the
beneficiary of the Certificate of Deposit or trust, and that she
would pay the targeted individual back once she obtained her
funds.

Castrillón would often induce her victims to take out

bank loans and provide her with the proceeds of those loans.
Sometimes, Castrillón also prepared fraudulent documents for the
targeted

individuals

to

submit

to

banks,

so

that

those

individuals could obtain loans and then give the resulting funds
to

Castrillón.

Castrillón

also

used

targeted

individuals'

personal information to obtain loans or cash advances in their
names and without their knowledge.
fraud,

Castrillón

prevented

And, to help perpetuate the

targets

from

contacting

law

enforcement by giving them lulling payments or by threatening
them with violence, criminal liability, or the loss of their
money.

Overall, the fraud continued for five years.

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The grand jury indicted Castrillón in July 2010, and
she was arrested the next day.

In December 2013, Castrillón

pleaded guilty, pursuant to a plea agreement, to two of the
indictment's

counts:

one

count

of

conspiracy

to

commit

wire

fraud and bank fraud, in violation of 18 U.S.C. § 1349, and one
count of aggravated identity theft, in violation of 18 U.S.C. §
1028A.

The

District

Court

dismissed

the

remaining

counts

against Castrillón on the government's motion.
The

plea

recommendations

based

agreement
on

set

calculations

States Sentencing Guidelines.1

forth

made

under

sentencing
the

United

With respect to the conspiracy

count, the plea agreement calculated Castrillón's base offense
level as seven, U.S.S.G. § 2B1.1(a)(1), and then applied an
eighteen-level enhancement based on the amount of money lost,
id. at § 2B1.1(b)(1)(J); a four-level enhancement based on the
number of victims who suffered substantial financial hardship,
id.

at

§

2B1.1(b)(2)(B);

Castrillón's
§ 3B1.1(a);

role
and

a

as

a

a

four-level

leader

two-level

of

enhancement

the

reduction

conspiracy,

based

on

based

on

id.

at

Castrillón's

acceptance of responsibility for her actions, id. at § 3E1.1(a).
The plea agreement thus determined Castrillón's total offense

1

All citations to provisions of the United States
Sentencing Guidelines are to the versions of those provisions in
effect at the time of Castrillón's plea agreement and
sentencing, respectively.

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level to be 31.

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Entry ID: 6102608

The plea agreement did not stipulate a criminal

history category for Castrillón.

But, the plea agreement did

note that, assuming a criminal history category of I (the lowest
level), a total offense level of 31 corresponds to a guidelines
sentencing range of 108-135 months' imprisonment.

U.S.S.G. Ch.

5, Pt. A (Sentencing Table).
For

the

aggravated

identity

theft

count,

the

agreement relied on a sentence prescribed by statute.
has

mandated

aggravated

a

sentence

identity

theft,

consecutively

with

any

§ 1028A(b).

The

plea

of

24

18

U.S.C.

other

term

agreement

months'

plea

Congress

imprisonment

§ 1028A(a)(1),

of

recommended

to

imprisonment,

thus

for
run

id.
a

at

total

sentence of 132 months' imprisonment: 108 months for conspiracy
to commit wire fraud and bank fraud -- the low end of the
guidelines range -- and 24 months for aggravated identity theft.
At sentencing, the District Court considered the PSR,
which

recounted

Castrillón's

conduct

in

detail

recommendations concerning Castrillón's sentence.

and

made

With respect

to the conspiracy count, the PSR's calculation of the total
offense level was identical to the plea agreement's calculation,
except in one respect: the PSR found applicable a two-level
enhancement based on the vulnerability of Castrillón's victims,
many

of

whom

3A1.1(b)(1).

were

elderly

and

unsophisticated.

U.S.S.G.

§

As a result, the PSR calculated a total offense

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level of 33, rather than the plea agreement's total offense
level of 31.

The PSR also determined that Castrillón's criminal

history category was II.

Based on these determinations, the PSR

calculated

sentencing

a

imprisonment.

guidelines

range

of

151-188

months'

U.S.S.G. Ch. 5, Pt. A (Sentencing Table).

With

respect to the aggravated identity theft count, the PSR, like
the plea agreement, noted the mandatory 24 months' imprisonment
required by 18 U.S.C. § 1028A(a)(1).
The
sentencing

District

memorandum,

Court
which

also

considered

contended

that

Castrillón's
the

two-level

enhancement for vulnerable victims added by the PSR wrongfully
"double counts" the enhancements already agreed upon in the plea
agreement.

Castrillón also contended that her criminal activity

was attributable to her gambling addition, that she had begun
the

process

of

rehabilitation,

that

the

probability

of

recidivism was low, and that in several past fraud cases the
various enhancements applicable to her were not applied and the
resulting sentences were considerably lower.
At sentencing, Castrillón's attorney told the District
Court that Castrillón did not dispute the facts set forth in the
PSR.

Castrillón's attorney also stated that Castrillón had no

objections beyond those set forth in her sentencing memorandum.
In sentencing Castrillón for the conspiracy count, the
District Court followed the PSR in finding Castrillón's total

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offense level to be 33.

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However, the District Court determined

Castrillón's criminal history category to be I rather than II.
The District Court thus concluded that the guidelines sentencing
range

for

Castrillón

for

months' imprisonment.
The

the

conspiracy

count

was

135-168

U.S.S.G. Ch. 5, Pt. A (Sentencing Table).

District

Court

stated

that

it

found

that

the

guidelines calculations "satisfactorily reflect the components
of the offense" and that it "ha[d] considered all factors" in 18
U.S.C. § 3553(a).

The District Court further noted "the grave

nature of the offense of conviction, the number of defendant's
victims and their deep suffering, [Castrillón's] leadership role
in the conspiracy, [and] the duration of the scheme and the
amount of the victims' losses."
For
Castrillón

to

these
135

reasons,
months'

the

District

imprisonment

Court

for

the

sentenced
conspiracy

count -- a sentence that is at the low end of the guidelines
range that the District Court found applicable.
The

District

Court

also

sentenced

Castrillón

to

24

months' imprisonment for the aggravated identity theft count, as
required by law.
serve

these

The District Court sentenced Castrillón to

terms

consecutively,

imprisonment of 159 months.

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for

a

total

term

of

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II.
Castrillón

filed

this

timely

appeal

in

which

she

challenges only the substantive reasonableness of her sentence,
as she disclaims any grounds for claiming procedural error.

The

government argues that Castrillón waived the right to appeal.
But, even if we look past the asserted waiver and assume that
Castrillón

is

permitted

to

bring

this

appeal,

her

challenge

fails.
For

a

preserved

challenge

to

the

substantive

reasonableness of a sentence, "we proceed under the abuse of
discretion

rubric,

circumstances."

taking

account

of

the

totality

of

the

United States v. Ruiz-Huertas, 792 F.3d 223,

226 (1st Cir. 2015).

Where, as here, a defendant does not

preserve an objection to the substantive reasonableness of their
sentence,

"[t]he

applicable

standard

of

review

is

somewhat

blurred" as to whether the ordinary abuse of discretion standard
or

the

plain

error

standard

applies.

Id.

at

228.

But

Castrillón's challenge fails even under the abuse of discretion
standard.
"A sentence is substantively reasonable so long as it
rests

on

a

'plausible

'defensible result.'"

sentencing

rationale'

and

embodies

a

Id. at 228 (quoting United States v.

Martin, 520 F.3d 87, 96 (1st Cir. 2008)).

"[T]here is not a

single reasonable sentence but, rather, a range of reasonable

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sentences," and, "[c]onsequently, reversal will result if -- and
only if -- the sentencing court's ultimate determination falls
outside the expansive boundaries of that universe."

Martin, 520

F.3d at 92.
In this case, the District Court explained that the
sentence was based on the gravity of the offense, given the
duration of the fraud, the losses suffered, and the nature of
the victims.

Moreover, the sentence fell within the range of

imprisonment set forth in the guidelines.

And, "a defendant who

attempts to brand a within-the-range sentence as unreasonable
must carry a heavy burden."

United States v. Pelletier, 469

F.3d 194, 204 (1st Cir. 2006); see also United States v. VegaSalgado, 769 F.3d 100, 105 (1st Cir. 2014); United States v.
King, 741 F.3d 305, 310 (1st Cir. 2014).
Castrillón
given

the

engaged.

fails

contemptible

to

nature

carry
of

that

the

burden,

conduct

in

especially
which

she

Castrillón does identify various mitigating factors

that she contends reveal that the District Court abused its
discretion by not imposing a lighter sentence.2

But, the fact

that "the sentencing court chose not to attach to certain of the
2

In particular, Castrillón identifies the following
mitigating facts: the many negative effects of her compulsive
gambling disorder, including the disorder's role as a cause of
her criminal activity; the pain caused by her separation from
her family, especially her son; her efforts at rehabilitation;
her low chance of recidivism; her remorse; and disparities
between her sentence and those in other cases.

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mitigating factors the significance that the appellant thinks
they deserved does not make the sentence unreasonable."

United

States v. Clogston, 662 F.3d 588, 593 (1st Cir. 2011); see also
United States v. Colón-Rodríguez, 696 F.3d 102, 108 (1st Cir.
2012) (same).

To the contrary, we have upheld sentences as

substantively reasonable where -- as here -- "the district court
sufficiently weighed the history and characteristics of both the
offense and the offender" and sentenced "within the universe of
acceptable outcomes."

United States v. Anonymous Defendant, 629

F.3d 68, 78 (1st Cir. 2010).

And, from all that the record

reveals, that is what the District Court did here.
III.
For these reasons, appellant's sentence is affirmed.

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