Appeal from a judgment of the United States District Court for the Eastern District of New York (I. Leo Glasser, Judge).
Rulings by summary order do not have precedential effect. Citation to a summary order filed on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and this court's Local Rule 32.1.1. When citing a summary order in a document filed with this court, a party must cite either the Federal Appendix or an electronic database (with the notation "summary order"). A party citing a summary order must serve a copy of it on any party not represented by counsel.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on the 28th day of August, two thousand twelve.
PRESENT: JOSE A. CABRANES, CHESTER J. STRAUB, PETER W. HALL, Circuit Judges.
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the District Court be AFFIRMED. Defendant-appellant Anthony Onua appeals from a judgment of the District Court convicting him, after a guilty plea, on charges of conspiracy to commit bank fraud and wire fraud in violation of 18 U.S.C. § 1349, and sentencing him principally to five years' imprisonment and to pay $2,704,739 in restitution. We assume the parties' familiarity with the underlying facts and the procedural history of this case, some of which we briefly summarize below.
This appeal arises out of Onua's conviction on charges related to mortgage and bank fraud. Onua and others conducted a scheme in which banks were induced to make mortgage loans collateralized by real property for which the actual value was far less than what was reported to the banks. In order to prolong the scheme and avoid raising the banks' suspicions, Onua and his co- conspirators initially made regular mortgage payments on the loans; however, after a period of time the payments stopped, and the mortgages went into default. As the scheme unraveled, the banks foreclosed on the collateral, and received at foreclosure sales amounts that were generally far less than the value of the loan.*fn1
On October 5, 2010, Onua pleaded guilty to a single count of conspiracy to commit bank and wire fraud, pursuant to a plea agreement which listed restitution as a statutory penalty for his offense. At sentencing, the District Court calculated that Onua was liable for a loss to the banks of $2,704,739. The Court entered a preliminary restitution order, but permitted the Government and the defendant to work together to develop a final restitution order that would specify the victims to receive restitution and the co-conspirators with whom Onua was jointly and severally liable. In the cover letter to the proposed final restitution order, submitted by the Government on September 20, 2011, the Government represented that "[t]he government and the defendant have agreed upon the enclosed proposed restitution order, which the parties respectfully request that the Court endorse." In the absence of any objection from the defendant, the proposed order was adopted as the judgment of the District Court on September 23, 2011.
On appeal, Onua challenges only his restitution obligation. Specifically, he argues: (1) the District Court miscalculated the amount of restitution owed to the banks; (2) the District Court erred in its apportionment of the restitution obligation as between Onua and his co-conspirators; and (3) the District Court erred by ordering restitution to go to the original victim banks, rather than to various transferee banks to which the defaulted loans had been sold.*fn2
In general, "we review an . . . order of restitution deferentially, and we will reverse only for abuse of discretion." United States v. Boccagna, 450 F.3d 107, 113 (2d Cir. 2006) (internal quotation marks omitted); cf. Sims v. Blot, 534 F.3d 117, 132 (2d Cir. 2008) (explaining that the term of art "abuse of discretion" includes errors of law). However, "where, as here, a defendant fails to object to the restitution order at the time of sentencing, our review is for plain error." United States v. Zangari, 677 F.3d 86, 91 (2d Cir. 2012).
In order to succeed on a claim of plain error, the defendant must demonstrate that: "(1) there is an error; (2) the error is clear or obvious, rather than subject to reasonable dispute; (3) the error affected the appellant's substantial rights, which in the ordinary case means it affected the outcome of the district court proceedings; and (4) the error seriously affected the fairness, integrity or public reputation of judicial ...