USA v. Maura Lopes

Filing

Opinion issued by court as to Appellant Maura Barbosa Lopes in 16-10181, 16-10841. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions. [16-10181, 16-10841]

Case: 16-10181

Date Filed: 08/23/2017

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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Nos. 16-10181 & 16-10841
Non-Argument Calendar
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D.C. Docket No. 1:15-cr-20096-RNS-2

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MAURA BARBOSA LOPES,
Defendant-Appellant.
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Appeals from the United States District Court
for the Southern District of Florida
________________________
(August 23, 2017)
Before WILLIAM PRYOR, MARTIN and ANDERSON, Circuit Judges.
PER CURIAM:

Case: 16-10181

Date Filed: 08/23/2017

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Maura Barbosa Lopes appeals her sentence of 135 months of imprisonment,
following her pleas of guilty to one count of conspiring to commit bank fraud, 18
U.S.C. § 1349, and eight counts of bank fraud, id. § 1344. Lopez challenges the
enhancements of her sentence for abuse of trust and for the amount of loss; the
substantive reasonableness of her sentence; and the amount of restitution. We
affirm.
The district court did not clearly err by increasing Lopes’s base offense level
for abuse of trust. A defendant who commits fraud is subject to a two-level
enhancement for abuse of trust if “the victim placed a special trust in the defendant
beyond ordinary reliance on [her] integrity and honesty,” United States v.
Williams, 527 F.3d 1235, 1250–51 (11th Cir. 2008), that she then exploited to
perpetrate or conceal her fraud, United States v. Hall, 349 F.3d 1320, 1324–25
(11th Cir. 2003). The defrauded banks trusted Lopes, as the manager of a closing
company, Title Closing Partners of Brickell, LLC, to provide reliable information
about borrowers and to ensure that the funds loaned for real estate transactions
were dispersed to purchase property and to satisfy closing expenses. See United
States Sentencing Guidelines Manual § 3B1.3 cmt. n.1 (“a position of . . . trust [is
often] characterized by . . . substantial discretionary judgment that is ordinarily
given considerable deference”); see also Chang v. JPMorgan Chase Bank, N.A.,
845 F.3d 1087, 1095 (11th Cir. 2017) (recognizing that a fiduciary relationship
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exists under Florida law between a company that holds funds in escrow and the
supplier of those funds). Lopes abused her position of trust by submitting
fraudulent closing documents, by falsely informing the banks that purchasers had
supplied a down payment or earnest money, by prematurely disbursing loan funds
to putative borrowers, and by misappropriating loan funds for herself and her
coconspirators.
The district court also did not clearly err in finding that Lopes was
responsible for a loss between $9.5 and $25 million. Lopes does not dispute that
she is responsible for outstanding principal loan amounts of $8,733,602. Lopes
contests being held responsible for an additional $1,244,281.21, $776,932 of which
the banks incurred in out-of-pocket costs and $467,349.27 of which the banks paid
for broker’s fees. But the government submitted testimony and detailed records
establishing that the banks incurred $776,932 in expenses to foreclose on and to
dispose of the properties connected to the fraudulent loans. Additionally, Lopes
accepted the proffer of the government that the original loan documents proved
that the banks incurred a separate expense of $467,349.27 in broker’s fees. The
district court correctly increased Lopes’s base offense level by 20 levels for
causing a loss of more than $9.5 million and less than $25 million. See U.S.S.G.
§ 2B1.1(b)(1)(K).
The district court did not abuse its discretion when it sentenced Lopes to the
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low end of her advisory guideline range. Lopes conspired to defraud banks by
using entities she and her coconspirators owned or controlled to fraudulently obtain
mortgage loans. As the manager of Title Closing, Lopes submitted false settlement
statements to lenders, and she and her family profited from funds misappropriated
from escrow accounts. Lopes also submitted a mortgage application falsely stating
that specific property was her primary residence; that she was employed by a
coconspirator’s company, Cellular & Wireless Wholesale Corporation; that she
had a monthly gross income of $55,000; and that she had accounts at Wachovia
Bank containing $117,553 and $355,123. Lopes altered her bank account
statements to reflect the amounts listed on her fraudulent application, and she
obtained prematurely $565,843 in loan funds to purchase a cashier’s check to
create the illusion of paying that amount when closing on the mortgage. The
district court granted Lopes’s motion to reduce the enhancement for her
aggravating role from four to three levels, see U.S.S.G. § 3B1.1(a), (b), which
resulted in a revised sentencing range of 135 to 168 months of imprisonment. The
district court considered imposing a sentence at the high end of Lopes’s sentencing
range because of her substantial role in the conspiracy and the significant harm it
caused to the lending institutions and homeowners whose properties were devalued
as a result. Even so, the district court reasonably determined that a sentence of 135
months would punish Lopes’s wrongdoing yet account for her alleged
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susceptibility to being manipulated by her husband, coconspirator Raul Quintana.
See 18 U.S.C. § 3553. Lopes’s sentence is reasonable.
Lopes argues about a disparity between her sentence and that imposed on
Quintana, but they are not similarly situated. See United States v. Spoerke, 568
F.3d 1236, 1252 (11th Cir. 2009). The district court varied downward from
Quintana’s sentencing range based on his “mitigating” personal characteristics.
Unlike Lopes, Quintana served as a Navy Seal and, as the district court stated, he
“made significant efforts to try and sustain the mortgages and didn’t just walk
away when the market collapsed.”
The district court did not clearly err by finding that Lopes was jointly
responsible for $8,437,863 in restitution. The government submitted statements
from Chase Bank that showed a net principal loss and additional expenses totaling
$282,782 for two fraudulent loans. The government also submitted a statement of
loans originated by Washington Mutual, which the Federal Deposit Insurance
Corporation assumed, that detailed for each loan the net principal loss, amortized
interest, and additional expenses that totaled $8,155,081. Using these documents,
the government established, by a preponderance of the evidence, the losses
incurred by the financial institutions. See 18 U.S.C. §§ 3663A(c), 3664(e), (f).
Lopes contends that the amount of restitution should not exceed $6,250,000,
but she has abandoned the argument by failing to cite any parts of the record
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relevant to her argument or to provide any substantive discussion supporting her
position. See Fed. R. App. P. 28(a)(8)(A). Lopes also cannot rely on the arguments
that her attorney raised before the district court without explaining how the district
court erred. See United States v. Moran, 778 F.3d 942, 985 (11th Cir. 2015).
We AFFIRM Lopes’s sentence.

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