Criminal – Plea – Withdrawal

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Where a defendant moved to withdraw his guilty plea, a U.S. District Court judge did not err in denying that motion, as the defendant failed to show a fair and just reason for withdrawing his plea.

Affirmed.

“Having identified defendant-appellant Fulvio Flete-Garcia as the architect of a massive swindle, the government charged him with a litany of fraud-based crimes. Following four days of trial, Flete-Garcia threw in the towel and entered a straight guilty plea to all 48 counts of the indictment. Prior to sentencing, though, Flete-Garcia experienced buyer’s remorse and attempted to withdraw his guilty plea. The district court denied this motion, as well as sentencing-related motions for discovery and for an evidentiary hearing. It then sentenced Flete-Garcia to 132 months’ imprisonment and ordered him to make restitution in the amount of $7,737,486.10. Flete-Garcia appeals, raising a gallimaufry of alleged errors. Finding his asseverational array long on perfervid rhetoric but short on substance, we affirm. …

“Because Flete-Garcia’s motion to withdraw his guilty plea was filed before the imposition of sentence, it is governed by Federal Rule of Criminal Procedure 11(d)(2)(B). Under this rule, ‘[a] defendant may withdraw a plea of guilty … after the court accepts the plea, but before it imposes sentence if … the defendant can show a fair and just reason’ for its withdrawal. Despite its permissive nature, this standard ‘does not endow [a defendant] with an unfettered right to retract a guilty plea.’ …

“The short of it is that here, as in [United States v. Dunfee, 821 F.3d 120, 128 (1st Cir. 2016)], Flete-Garcia ‘affirmatively declared under oath at a properly conducted Rule 11 hearing that he was guilty of the crimes with which he was charged.’ … In the absence of any plausible basis for discounting them, the district court was ‘entitled to give weight to the defendant’s statements at his change-of-plea colloquy.’ … On this record, we discern nothing approaching an abuse of discretion in the district court’s determination that Flete-Garcia had failed to show a fair and just reason for withdrawing his plea.”

Sentencing issues

“We start with Flete-Garcia’s challenge to the district court’s application of a two-level enhancement for crimes involving ten or more victims. …

“We conclude that the statute and the guideline provision, read together, present no barrier to the application of the number of victims enhancement in this case. As applied here, the enhancement punished Flete-Garcia for the overall breadth of his criminal activity — a factor not captured by the statute of conviction and, thus, not foreclosed by application note 2.

“That ends this aspect of the matter. Because we hold that the district court did not clearly err in imposing a two-level enhancement for the presence of ten or more victims, Flete-Garcia’s claim of error founders. …

“Flete-Garcia posits that the district court erred in calculating the amount of loss attributable to the offenses of conviction. …

“Mathematics is an exact science. Engineering is an exact science. But calculating amount of loss under the sentencing guidelines is far from an exact science. In fraud cases, amount of loss is meant to be a proxy for the harm (both actual and intended) inflicted by the fraudster’s nefarious activities. All that is required is a reasonable estimate of the amount of loss. … Here, the district court’s findings, which spell out how and why the amount of loss attributable to Flete-Garcia comfortably exceed the $9.5 million threshold, easily pass muster. Clear error is clearly absent.”

United States v. Flete-Garcia (Lawyers Weekly No. 01-130-19) (49 pages) (Selya, J.) Appealed from a decision by Sorokin, J., in the U.S. District Court for the District of Massachusetts. Mark W. Shea, with whom Shea & LaRocque was on brief, for the defendant-appellant; Yael T. Epstein, with whom Richard E. Zuckerman, S. Roberts Lyons, Chief, Stanley J. Okula Jr., Alexander P. Robbins and Andrew E. Lelling were on brief, for the United States (Docket Nos. 18-1067 and 18-1116) (May 23, 2019).

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