Full Opinion

24-1376(L) United States v. Nunez UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER 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 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 5th day of November, two thousand twenty-six. Present: SUSAN L. CARNEY, MICHAEL H. PARK, SARAH A. L. MERRIAM, Circuit Judges. __________________________________________ UNITED STATES OF AMERICA, Appellee, v. 24-1376 (Lead) 24-2396 (Con) 24-2191 (Con) KEILY NUNEZ, Defendant-Appellant. * __________________________________________ FOR APPELLEE: Susan Corkery, Patrick J. Campbell, Assistant United States Attorneys, for Joseph Nocella, Jr., United States Attorney for the Eastern District of New York, Brooklyn, NY. * The Clerk of Court is respectfully directed to amend the caption accordingly. FOR DEFENDANT-APPELLANT: Jesse M. Siegel, Law Office of Jesse M. Siegel, Huntington, NY. Appeal from an August 26, 2024 amended judgment of the United States District Court for the Eastern District of New York (Chen, J.). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that Nunez’s order of restitution is AFFIRMED. Defendant Keily Nunez appeals from a judgment of the United States District Court for the Eastern District of New York requiring him to pay $1,415,800 under the Mandatory Victims’ Restitution Act (“MVRA”) to his former employer, JetBlue. On July 25, 2023, Nunez pleaded guilty to conspiracy to commit honest services fraud in violation of 18 U.S.C. §§ 1343 and 1346. Between 2017 and 2021, Nunez abused his position as a technical buyer at JetBlue by carrying out two fraudulent schemes. First, he used his authority to approve purchases of airplane parts to facilitate more than $8.5 million in sales from Alaris Aerospace Systems, Inc, to JetBlue, for which he received kickbacks. And second, using his authority to approve new vendors, he fraudulently registered Summit LLC as a certified reseller of parts to JetBlue. Nunez approved more than $1.5 million in purchases from Summit, again receiving kickbacks for each one. After Nunez’s schemes were discovered, JetBlue commissioned its accounting firm, Deloitte, to produce a report on the fraud (the “Deloitte Report”). Deloitte estimated the fair market value of the parts that JetBlue had purchased from Alaris and Summit by calculating the average amount that JetBlue had paid for similar parts from other vendors between 2015 and 2021. If such a comparator was not available, Deloitte calculated fair market value using an industry- wide average from a commercial database. The Deloitte Report subtracted this fair market value from the total price JetBlue paid to Alaris and Summit to yield a fraud “premium”—14% for the 2 Alaris fraud, and 29% for the Summit fraud. The district court used these premiums as “reasonable approximations” of the loss Nunez caused JetBlue and awarded restitution on that basis. We presume the parties’ familiarity with the facts and arguments on appeal and refer to them only as necessary to explain our decision. “We review an MVRA order of restitution deferentially, and we will reverse only for abuse of discretion.” United States v. James, 151 F.4th 28, 49 (2d Cir. 2025). “A district court abuses its discretion when a challenged ruling rests on an error of law or a clearly erroneous finding of fact, or otherwise cannot be located within the range of permissible decisions.” United States v. Yalincak, 30 F.4th 115, 121 (2d Cir. 2022) (alteration omitted). Nunez first argues that the district court erred because the Deloitte Report’s historical comparison was not a “sound methodology” for calculating loss. Nunez Br. at 11. He asserts that a “reasonable approximation” is inadequate when a precise calculation is possible. Id. But this argument fails because “the MVRA requires only a reasonable approximation of losses supported by a sound methodology.” United States v. Gushlak, 728 F.3d 184, 196 (2d Cir. 2013). We concluded in Gushlak that the district court applied a “sound methodology” based on an “expert report and testimony” to “calculate the fair market price” of an asset, which it then deducted from the fraud-inflated cost that the victims paid. Id. at 196, 198 (internal quotation marks omitted). Similarly here, the Deloitte Report calculated the fraud premium as the difference between the estimated fair market value and the fraud-inflated price JetBlue actually paid. And as in Gushlak, the district court relied on both “company-specific” and “industry- specific” factors—the average prices that JetBlue paid for each part, and their industry-average price—to calculate fair market value. Id. at 201. The Deloitte Report’s loss-calculation method was thus sound. 3 Nunez says a finely tuned, multifactor calculation of JetBlue’s loss on each part purchased from Alaris or Summit is possible and thus required here. But the MVRA does not require a more precise analysis of “potential company-specific factors other than fraud that could have affected the market price.” Id. We have recently reaffirmed that “a restitution amount need not be mathematically precise,” James, 151 F.4th at 49 (internal quotation marks omitted), and that district courts are not obliged to “evaluat[e] each claim . . . to determine whether it was fraudulent,” United States v. Rainford, 110 F.4th 455, 490 (2d Cir. 2024). The Deloitte Report provided a reasonable approximation of loss, and the district court properly relied on it. Next, Nunez calls the Report unreliable because Deloitte prepared it for internal business purposes and did not verify the underlying data. The district court concluded that the Deloitte Report was reliable and provided a reasonable estimate of the loss. See App’x at 145–46. This is a factual determination that we review for clear error. See Yalincak, 30 F.4th at 121. JetBlue commissioned the Deloitte Report for internal business purposes well in advance of litigation, so the district court concluded that Deloitte was not “trying to inflate the figures for purposes of restitution” and would be “diligent about how they [were] calculating the . . . overcharge.” App’x at 145. We discern no clear error in the district court’s conclusion that the Deloitte Report was reliable. Finally, Nunez argues that the district court itself rejected the Deloitte Report as unreliable when it imposed a sentence on his co-defendant, Ramnik Soni, ten months later. When the district court sentenced Soni, it found that the Deloitte Report calculated a “reasonable” “price premium” and a “reasonable estimate” of JetBlue’s losses. App’x at 294. Like Nunez, Soni argued that a part-by-part analysis of the fraud would reveal that JetBlue paid no premium over fair market price. The district court disagreed because Soni relied on a sample of transactions 4 that were not “representative” of JetBlue’s losses, and it was not feasible to review “every single transaction to come up with the most reliable . . . price premium calculation.” App’x at 291, 292. The district court thus imposed the same restitution award on Soni for the Alaris fraud as it had earlier imposed on Nunez. It is true that the district court also found Soni’s offense conduct to be less serious because it was “not convinced that there was a significant harm to JetBlue” from the Alaris fraud. App’x at 312. But at most, Nunez has identified a minor inconsistency between factual findings at his sentencing and Soni’s ten months later. That is not an error, much less one that renders reliance on the Deloitte Report an abuse of discretion. * * * We have considered Nunez’s remaining arguments and find them to be without merit. For the foregoing reasons, we AFFIRM the judgment of the district court. FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court 5