United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER ON RESTITUTION
MATTER comes before the Court following restitution hearings
on June 27, 2018, and October 22, 2018. Following an
evidentiary hearing on the amount of restitution and any
offset to restitution, the Court FINDS that
restitution is in the remaining amount of $776, 640, plus
post-judgment interest. A restitution order shall not be
issued until the matters of Defendant's ability to pay,
and payment schedule, are resolved.
pled guilty to two counts of wire fraud pursuant to 18 U.S.C.
§ 1343. The victims transferred $1 million to Defendant
to invest in a real-estate LLC on their behalf. Defendant
pocketed $995, 000 and did not invest the money as promised.
$5, 000 went to a third party for fees.
restitution hearings, the parties agreed that the amount of
actual loss was $1 million. Defendant did not object to the
PSR factual finding that the amount of loss was $1 million.
The Government also requested prejudgment interest at the
federal statutory rate, and apparently Defendant took no
and the victims entered into a settlement in a civil case
involving this same fraud in the Second Judicial District,
Bernalillo County, New Mexico. In the civil settlement, the
parties agreed as follows:
G. Victim Restitution. The Lees
acknowledge and agree that the consideration being provided
to Plaintiffs hereunder constitutes full and complete
restitution to which the Lees might otherwise be entitled in
USA v. Willis, 15-CR-037640-MCA (Bobby Willis denies
any guilt in USA v. Willis but is entering into this
Agreement so that the Plaintiffs will be compensated for
damages claimed in the Litigation).
Doc. 64-14, p. 3. As part of the settlement,
Defendant (1) transferred real property, and (2) promised to
pay $50, 000, to the victims. Defendant has paid at least
$15, 000, and alleges to have paid $25, 000 on the promissory
38 of the PSR provided:
According to defense counsel, the defendant has paid all but
$35, 000 that were due under a Promissory Note. The
Government advised that the defendant has given the
victim's in this case a piece of property in the
Farmington, New Mexico area that has been appraised at $223,
360.00 as part of a civil settlement. The settlement also
included a promissory note for $45, 000 that has a remaining
balance of $35, 000.
Doc. 55, ¶ 38. Defendant objected to
the above, stating that restitution was paid in full by the
civil settlement. Doc. 59. The PSR also
provided that the total loss the victims was $1, 000, 000. At
the sentencing hearing, the Court reserved addressing the
amount of restitution until a subsequent hearing.
Government argues that the restitution amount should be $1
million, before any offset for the value of the property
transferred to the Lees. The $1 million restitution amount,
before considering any offsets, is supported by the admission
in the plea agreement and the undisputed facts in the PSR.
Defendant does not dispute the $1 million restitution amount,
but instead argues that the real property, along with the
$50k promissory note, satisfies his restitution obligation.
hearing was held on October 22, 2018 to determine the value
of the property transferred to the Lees as part of the civil
Mandatory Victim Restitution Act (“MVRA”)
provides that the district “court shall order ... that
the defendant make restitution to the victim of the
offense.” 18 U.S.C. § 3663A(a)(1).
order of restitution imposed pursuant to the MVRA must be
based on the ‘full amount of each victim's losses
as determined by the court....'” United States
v. Ferdman, 779 F.3d 1129, 1132 (10th Cir. 2015)
(quoting 18 U.S.C. § 3664(f)(1)(A)). “When
calculating loss under the MVRA, absolute precision is not
required. A sentencing court may resolve restitution
uncertainties with a view towards achieving fairness to the
victim, so long as it still makes a reasonable determination
of appropriate restitution rooted in a calculation of actual
loss.” United States v. Gallant, 537 F.3d
1202, 1252 (10th Cir. 2008) (internal citations and quotation
marks omitted). In calculating loss, “[s]peculation and
rough justice are not permitted.” Ferdman, 779
F.3d at 1132.
Amount of Actual Loss.
burden of demonstrating the amount of loss sustained by the
victim as a result of the offense shall be on ... the
Government.” 18 U.S.C. § 3664(e). The PSR must
contain “information sufficient for the court to
exercise its discretion in fashioning a restitution order.
The report shall include, to the extent practicable, a
complete accounting of the losses to each victim....”
Id. § 3664(a). “Any dispute as to the
proper amount ... of restitution shall be resolved by the
court by the preponderance of the evidence.”
Id. § 3664(e). “A district court
‘may resolve restitution uncertainties with a view
towards achieving fairness to the victim so long as it still
makes a reasonable determination of appropriate restitution
rooted in a calculation of actual loss.' ”
Ferdman, 779 F.3d at 1133 (alteration omitted)
(quoting Gallant, 537 F.3d at 1252). See
generally United States v. Dickerson, 678 Fed.Appx. 706,
722 (10th Cir. 2017).