Argued and Submitted, Portland, Oregon: November 19,
Appeal from the United States District Court for the District of Idaho. D.C. No. 1:12-cr-00045-EJL-1. D.C. No. 1:12-cr-00045-EJL-2. Edward J. Lodge, District Judge, Presiding.
The panel vacated Aaron Hymas's sentence, and affirmed the district court's restitution order as to Aaron and Tiffany Hymas, in a case in which Aaron and Tiffany each pled guilty to one count of wire fraud in connection with making false statements in a mortgage loan application.
The panel held that there were no serious due process concerns that required application of a clear and convincing evidence standard, rather than a preponderance of the evidence standard, to determine the extent of loss attributable to the loan that was the subject of Aaron's conviction, where Aaron admitted the facts of the fraud that caused the loan to be made and knew the size of the loan, which defined the potential extent of the loss.
The panel held that before applying an 8-level increase that more than doubled the Sentencing Guidelines range of imprisonment, the district court should have applied the clear and convincing standard to determine the amount of the losses from loans that were not the subject of Aaron's conviction, where Aaron was not charged with a conspiracy, pled guilty only to one count of fraud regarding a specific loan transaction, and had neither need nor opportunity to contest the alleged conspiracy. The panel could not say that the error was harmless.
The panel rejected Aaron's arguments regarding calculation of losses from the loans. The panel held that the district court correctly calculated the losses by taking the principal amount of the loan and subtracting any credits from the subsequent sale of the property, and did not err by considering the losses submitted by successor lenders who had purchased the loans.
The panel held that the district court did not err in calculating Aaron's and Tiffany's respective restitution amounts. The panel held that the record supports (1) holding Aaron responsible for losses resulting from loan applications submitted under the names of Tiffany and his brother-in-law in addition to the loans in his name, and (2) determinations that the lenders listed in the presentence report suffered losses that were directly and proximately caused by the Hymases' conduct. The panel rejected as foreclosed by Robers v. United States, 134 S.Ct. 1854, 188 L.Ed.2d 885 (2014), the Hymases' argument that the amount of restitution is too high because the drop in the market, not the fraud on the loan applications, was responsible for the lenders' losses.
The panel remanded for further proceedings.
Marcus R. Mumford (argued), Mumford PC, Salt Lake City, Utah, for Defendants-Appellants.
Syrena C. Hargrove (argued) and Wendy J. Olson, Assistant United States Attorneys, Boise, Idaho, for Plaintiff-Appellee.
Before: Richard R. Clifton, Milan D. Smith, Jr., and Andrew D. Hurwitz, Circuit Judges. Opinion by Judge Clifton.
CLIFTON, Circuit Judge:
Aaron and Tiffany Hymas were each convicted, pursuant to plea agreements, of one count of wire fraud under 18 U.S.C. § 1343. Aaron appeals his sentence of 24
months' imprisonment, contending that facts found by the district court in sentencing should have been subject to the clear and convincing standard of proof rather than the preponderance of the evidence standard that the district court applied, because of the disproportionate impact of those facts on the sentence that was imposed. We agree, in part, vacate that sentence, and remand to the district court for further proceedings. Both defendants also appeal the district court's orders requiring restitution. We affirm those orders.
Aaron and Tiffany Hymas are a married couple. They partially owned and ran two businesses in the housing industry, Crestwood Construction and OPM Enterprises. In order to acquire financing, the Hymases and their business partner developed a plan to borrow money to construct houses, sell them, and use the proceeds to pay off the loans, ideally leaving a profit.
It was alleged, however, that many of the mortgage loan applications submitted by the defendants from 2005 to 2007 were fraudulent. Indictments alleged that the Hymases made false statements related to their employment, employment income, and rental income in the applications for twenty loans. Five of the loan applications listed Aaron as the borrower, thirteen listed Tiffany, and two listed Allen Bollschweiler, the husband of Aaron's sister.
Both defendants pled guilty to one count of wire fraud pursuant to plea agreements that provided that the other counts would be dismissed. Specifically, each defendant pled guilty to a charge of wire fraud regarding a March 28, 2007 loan to Tiffany in the amount of $295,600, identified as Count Four in both indictments. In the plea agreements, the defendants admitted that identified statements " were false and material to the loan application, and that [he or she] knew that they were false at the time [he or she] made them or caused them to be made." Each plea agreement specified certain ...