Appeal from the United States District Court for the District of Columbia (No. 01cr00082-01)
Before: Ginsburg, Chief Judge, and Sentelle and Roberts,
The opinion of the court was delivered by: Sentelle, Circuit Judge
Bills of costs must be filed within 14 days after entry of judgment. The court looks with disfavor upon motions to file bills of costs out of time.
Opinion for the Court filed by Circuit Judge SENTELLE.
Dorothy Quigley appeals from a judgment sentencing her to twenty-seven months' imprisonment. Her sole argument on appeal is that the district judge improperly enhanced her offense level by four levels pursuant to the "organizer or leader" role enhancement under § 3B1.1(a) of the United States Sentencing Guidelines. For the reasons more fully set forth below, we agree with appellant that the district court erred in imposing this enhancement, and therefore vacate the judgment and remand for resentencing.
In January 2000, Federal Bureau of Investigation agents confronted Quigley concerning her involvement in a scheme to defraud the federal government. The scheme involved land "flips" in the District of Columbia. Quigley operated as the real estate agent for co-conspirators, helping them buy and then sell (that is, "flip") D.C. properties that were in general disrepair. She aided her conspirators in obtaining a higher price for the land by hiring appraisers who would value the land at an inflated cost. Most of the purchasers could not qualify for the federally insured mortgages critical to the success of the scheme. To solve this problem, Quigley would help the buyers qualify for federally insured mortgages through the Federal Housing Administration ("FHA"), part of the Department of Housing and Urban Development ("HUD"). She helped buyers to get false income records, misrepresenting their ability to pay the mortgage, and at times gave them down-payment money. At the time of the plea agreement, thirteen of the forty-two such loans she had helped to procure from the FHA were in default, resulting in an estimated loss of around $700,000 to the federal government.
After she was approached by the FBI, Quigley and the United States entered a plea agreement. The agreement provided that Quigley would plead guilty to one count of conspiracy to defraud the United States and to make false statements within HUD's jurisdiction and would cooperate with the government in investigating the fraud in which she was involved. In return, the government agreed to drop all other potential charges and not to use any information that Quigley provided against her. The government also agreed to consider moving for a downward departure pursuant to § 5K1.1 of the United States Sentencing Guidelines if Quigley's assistance was substantial.
The parties estimated the final offense level at 18, based on a reading of the 1999 edition of the Guidelines, the version that applied to Quigley. The plea agreement computed that level as follows: (1) a base-offense level of 6, see U.S. Sentencing Guidelines Manual § 2F1.1 (1999) (repealed and consolidated with § 2B1.1 effective Nov. 1, 2001) ("USSG"); (2) a loss amount of between $500,000 and $800,000, which added ten levels to the sentence; and (3) a two-level upward adjustment for more-than-minimal planning under § 2F1(b)(2). The government also agreed not to oppose an additional three-level downward adjustment for acceptance of responsibility. The agreement said nothing about role enhancements. Finally, the agreement noted that the court alone would determine the applicable guideline range, and said that the government "cannot and does not make any promises, representations or predictions regarding what sentence the Court will impose."
In April 2001, Quigley pleaded guilty to one count of conspiracy to defraud the United States and to make false statements within HUD's jurisdiction. At her guilty plea hearing, the government submitted a two-page factual proffer that appellant had acknowledged was accurate. That proffer is not in the record; neither party apparently can locate it and it was not formally filed with the district court. The government, however, summarized the proffer's contents at the hearing:
Ms. Quigley is a real estate agent in D.C. who used her skills to further a conspiracy to illegally obtain FHA insured mortgages based on fraudulently inflated appraisals and falsely qualified buyers.
Ms. Quigley participated in approximately 42 home sales that were based on these fraudulent appraisals and falsely qualified buyers. At the time of her plea agreement, thirteen of the 42 properties were already in default or foreclosure, with estimated losses to the FHA and HUD of over $700,000.
The government will primarily be relying on a written factual proffer that was provided in advance to defense counsel and to the court, and which has been signed today by Ms. Quigley and her counsel.
The district court also examined Quigley in open court concerning the contents of the proffer:
THE COURT: Is it correct that on a substantial number of occasions, the government says there were 42-at least 42 of these, but at least on a substantial number, that you in agreement and in cooperation with a number of other individuals who the government has simply identified as co-conspirators, that you identified properties which could be used for the FHA insured loan program, that you identified potential buyers, and that you helped those buyers appear to get qualified for the loans, and by that I mean that you helped get false pay stubs for them, that in some instances you had them indicate that they were getting their down payment as a gift from a relative, which is legal, when, in fact, one of the co-conspirators was providing the money for the down payment.
THE COURT: Is it also true that you arranged for appraisals on the property, and that you provided the appraiser with the contract price which resulted in getting an ...