FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
PUERTO RICO [Hon. Pedro A. Delgado-Hernández, U.S.
Ignacio Fernández de Lahongrais on brief for
Emilia Rodríguez-Vélez, United States Attorney,
Mariana E. Bauzá-Almonte, Assistant United States
Attorney, Chief, Appellate Division, and Francisco A.
Besosa-Martínez, Assistant United States Attorney,
Senior Appellate Counsel, on brief for appellee.
Thompson, Circuit Judge, Souter, [*] Associate Justice, and
Lipez, Circuit Judge.
González-Calderón was charged with crimes
arising from a conspiracy to steer telecommunications
contracts with the House of Representatives of Puerto Rico
(the "House") to a company controlled by a
co-conspirator, 3 Comm Global, Inc. ("3 Comm"),
through a rigged bidding process. He pleaded guilty and was
ordered to pay mandatory restitution of $408, 208.42 pursuant
to the Mandatory Victims Restitution Act ("MVRA"),
18 U.S.C. § 3663A(a)(1), (c)(1)(A) & (B). On appeal,
he asks us to vacate the restitution order and remand for a
new calculation of restitution. We affirm.
did not object to the restitution amount at sentencing;
hence, we review for plain error. See United States
v. Salas-Fernández, 620 F.3d 45, 48
(1st Cir. 2010). He must therefore show "(1) that an
error occurred (2) which was clear or obvious and which not
only (3) affected [his] substantial rights, but also (4)
seriously impaired the fairness, integrity, or public
reputation of judicial proceedings." United
States v. Duarte, 246 F.3d 56, 60 (1st
Cir. 2001). His appeal fails at the first step because we
discern no error in the district court's restitution
a restitution order pursuant to the MVRA is proper if it is
"record-based and constitutes a fair appraisal of [the
victim's] actual losses." United States
v. Naphaeng, 906 F.3d 173, 182 (1st Cir.
2018); see also id. at 179 (stating that restitution
under the MVRA "is designed to compensate the victim,
not to punish the offender," and is thus calculated
based on the victim's actual losses). Although the
government bears the burden of proving actual loss by a
preponderance of the evidence, see 18 U.S.C. §
3664(e), "[a] district court's calculation of
restitution is not held to standards of scientific
precision," United States v.
Sánchez-Maldonado, 737 F.3d 826, 828 (1st Cir.
2013). Rather, we consider only whether the restitution award
has "a rational basis in the record."
Salas-Fernández, 620 F.3d at 48.
Specifically, we assess whether the award is supported by
"a modicum of reliable evidence,"
Naphaeng, 906 F.3d at 179 (quoting United
States v. Vaknin, 112 F.3d 579, 587
(1st Cir. 1997)), and whether the district court has made
"a reasonable determination of appropriate restitution
by resolving uncertainties with a view towards achieving
fairness to the victim," United States
v. Alphas, 785 F.3d 775, 787 (1st Cir.
2015) (quoting United States v.
Burdi, 414 F.3d 216, 221 (1st Cir. 2005)).
contends that the district court erred by calculating the
restitution amount based on the conspiracy's pecuniary
gain, "the gross amount earned by the
conspiracy (the full value of the property and services
acquired)," rather than on the actual pecuniary
loss sustained by the House, i.e., the victim.
Although he does not dispute that "the gross amount
earned by the conspiracy" as a result of the rigged
bidding process -- that is, the total amount paid by the
House for the installation and servicing of a new
telecommunications system -- was $482, 208.42, he argues that
the payment amount is not equivalent to the victim's
actual loss. To that end, he asserts that the rigged bidding
system resulted in the delivery of a telecommunications
system that the House continues to use, at a lower price than
that offered by other bidders.
true that "restitution should not be ordered if the loss
would have occurred regardless of the defendant's
misconduct"; there must be a but-for connection between
the defendant's fraud and the victim's pecuniary
harm. Alphas, 785 F.3d at 786 (quoting United
States v. Cutter, 313 F.3d 1, 7 (1st
Cir. 2002)). However, the record supports the conclusion that
the House would not have initiated a bidding process for a
telecommunications system if not for the conspiracy. The
uncontested allegations underlying the charges to which
González-Calderón pleaded guilty suggest that
the conspirators concocted the need for a new
telecommunications system with the goal of steering contracts
to 3 Comm. In other words, the record supports the conclusion
that the conspiracy was the but-for cause of the House's
telecommunications payments. González-Calderón
has not pointed to any authority or support for the
proposition that the payments do not constitute a loss merely
because the House continues to use the telecommunications
system installed by 3 Comm. He also has failed to develop any
alternative argument that certain amounts should have been
deducted from the restitution calculation as
"legitimate" payments notwithstanding the
conspiracy. See United States v.
Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (holding
that arguments not sufficiently developed on appeal are
we are unconvinced by González-Calderón's
contention that his position draws support from United
States v. Kilpatrick, 798 F.3d 365
(6th Cir. 2015). In Kilpatrick, the Sixth Circuit
reversed a restitution award because the sentencing court
concededly used the defendant's gain as a proxy for the
victim's actual loss where there was essentially no
evidence concerning that loss. 798 F.3d at 389-90. The
appellate court, however, recognized that, in some cases, a
"defendant's gain can act as a measure of .
. . the victim's loss." Id. at 390
(emphasis added). In this case, as we have explained, the
record supports a determination that the dollar amount
pocketed by the conspirators is a reasonably accurate measure
of the victim's actual loss.
therefore affirm the district court's award of $408,
208.42 in restitution.