Eleventh Circuit Court of Appeals - Published Opinions

Tuesday, March 17, 2020

Cingari: No Plain Error in Joint/Several Forfeiture and 2B1.1 Rather than 2L2.1 Applied to Immigration Fraud

In United States v. Cingari, No. 17-12262 (Mar. 17, 2020) (Grant, Jordan, Siler), the Court upheld the forfeiture award and the defendants’ sentences.

As to forfeiture, the defendants, a married couple, argued for the first time on appeal that the Supreme Court’s decision in Honeycutt precluded holding them jointly and severally liable.  However, the Court found no plain error because it was not clear that Honeycutt applied to civil asset forfeiture under 981(a)(1)(C), which independently authorized the forfeiture in this case, and because Honeycutt turned on the employer-employee relationship and did not obviously apply to a husband-wife relationship where there was joint ownership of the proceeds.  In a footnote, the Court noted that the government had attempted to expressly waive this argument, but that did not relieve the defendants of their burden to show plain error.

As to the sentence, the defendants, who were convicted of both mail fraud and falsifying immigration forms, argued that the district court should have applied 2L2.1 instead of 2B1.1.  Although the calculation began with 2B1.1, since that produced a higher offense level, the defendants argued that the cross-reference provision in 2B1.1(c)(3)(C) applied.   Applying circuit precedent, the Court rejected that argument, finding that the heart of the offense conduct was a fraud that more aptly fit 2B1.1 rather than 2L2.1.  The Court also found that this analysis was supported by the commentary governing the cross-reference provision, and there was no inconsistency with the text of the Guideline.  The Court again cast doubt on whether the rule of lenity applies to the Guidelines but found it unnecessary to resolve that issue because the language was not grievously ambiguous.