Case: 14-11801 Date Filed: 02/05/2015 Page: 1 of 15
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 14-11801 Non-Argument Calendar ________________________
D.C. Docket No. 9:13-cr-80108-DTKH-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BRANDON JEROME JAMES,
Defendant-Appellant.
________________________
Appeal from the United States District Court for the Southern District of Florida ________________________
(February 5, 2015)
Before HULL, WILSON, and BLACK, Circuit Judges.
PER CURIAM: Case: 14-11801 Date Filed: 02/05/2015 Page: 2 of 15
Brandon Jerome James appeals his 81-month total sentence after pleading
guilty to one count of conspiracy to steal money from the United States, in
violation of 18 U.S.C. § 371; one count of theft of government funds, in violation
of 18 U.S.C. § 641; and one count of aggravated identity theft, in violation of 18
U.S.C. § 1028A.
Upon review of the record and after careful consideration of the parties’
briefs, we affirm.
I.
James was one of several individuals involved in a complex scheme to
defraud the United States Treasury using stolen names and social security
numbers. On August 31, 2012, police officers in Boca Raton, Florida stopped a
vehicle James was driving. Eric Quincy Fussell and Laron Lanece Larkin were
passengers. James and Fussell were arrested on outstanding warrants. Larkin was
arrested for loitering and prowling.
The officer’s search of the vehicle incident to arrest revealed a Netspend
visa debit card that was wrapped in cardboard with the name, social security
number, date of birth, and address of another individual written on the cardboard in
Larkin’s purse. Officers also found, among other things, photocopied drivers
licenses and social security cards that belonged to unknown individuals. In
James’s wallet, officers located additional cardboard-wrapped debit cards with
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personal information written on them. A complete search of the vehicle revealed
more cardboard-wrapped debit cards, $4,700.00 in cash, and a disposable cell
phone.
The investigation established that the scheme involved claiming tax refunds
using the names of real people and channeling the tax refunds from the Internal
Revenue Service (IRS) to the Netspend pre-purchased debit cards. Fussell and
James secured the stolen identities, while James recruited Larkin to withdraw the
tax refunds from several ATM machines throughout Florida. James divided the
money based on each person’s respective responsibility. James received the most
money because he was responsible for channeling the tax refunds to the debit
cards.
Further investigation revealed that a total of $73,422.00 was deposited onto
the debit cards that were recovered from the vehicle. Records from the IRS
revealed an extensive pattern of fraudulent filings associated with the debit cards
and the disposable cell phone found in the vehicle. These records confirmed that
James and his co-conspirators had intended to obtain a total amount of
$862,643.00 in tax refunds from a total of 121 victims. Before the scheme was
discovered, the IRS released $383,484.00 in tax refunds.
On appeal, James raises five arguments. First, he argues that the district
court erred by attributing $862,643.00 in loss and 121 victims to him at sentencing.
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Second, he argues that the district court erred by applying a sophisticated means
enhancement under U.S.S.G. § 2B1.1(b)(10)(C). Third, he argues that the district
court erred by failing to apply a mitigating role reduction pursuant to
U.S.S.G. § 3B1.2(b), despite his failure to request such a reduction at sentencing.
Fourth, he argues that the district court erred, both in a constitutional and
evidentiary sense, by applying an aggravating role enhancement to him pursuant to
U.S.S.G. § 3B1.1(c). Finally, he argues that the district court erred in denying his
request for a downward variance, and that the imposed total sentence was therefore
unreasonable.
For ease of reference, we will address each point in turn.
II.
First, we address James’s argument that the district court erred when it
attributed $862,643.00 in loss and 121 victims to him at sentencing. We review
the district court’s determination of the amount of loss and the number of victims
for clear error. United States v. Liss, 265 F.3d 1220, 1230 (11th Cir. 2001)
(amount of loss); United States v. Rodriguez, 732 F.3d 1299, 1305 (11th Cir. 2013)
(number of victims).
The Sentencing Guidelines apply a base offense level, and then increase the
level based on the value of the loss caused. U.S.S.G. § 2B1.1(a), (b)(1). A four-
level enhancement applies if the offense involved more than 50, but fewer than 250
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victims. Id. § 2B1.1(b)(2)(B). The sentencing court is only required to make a
reasonable estimate of the loss suffered, and a “sentencing judge is in a unique
position to assess the evidence and estimate the loss based upon that evidence.” Id.
§ 2B1.1 cmt. n.3(C). When a defendant challenges the attributed loss or the
number of victims, the government must provide evidence to establish the loss, and
the court must make factual findings sufficient to support its conclusions. Liss,
265 F.3d at 1230; Rodriguez, 732 F.3d at 1305.
The Guidelines advise the court to use the greater of actual or intended loss.
U.S.S.G. § 2B1.1 cmt. n.3(A). Proper calculation requires consideration of all the
acts and omissions that were part of the same scheme. United States v. Rodriguez,
751 F.3d 1244, 1256 (11th Cir.), cert. denied, 135 S. Ct. 310 (2014). “A
participant in a conspiracy may thus be held responsible for the losses resulting
from the reasonably foreseeable acts of co-conspirators in furtherance of the
conspiracy.” Id. (internal quotation marks omitted).
The evidence produced by the government indicated that all 121 fraudulent
tax returns and all 121 fraudulent debit card accounts were part of the same
conspiracy. The evidence also demonstrated that, had all 121 refunds been issued,
the loss to the United States Treasury would have been $862,643.00. This
intended loss was readily ascertainable based on the tax records from the IRS, and,
therefore, the court correctly used that number. See U.S.S.G. § 2B1.1 cmt. n.3(C).
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Furthermore, it should be noted that whether James personally stole all of the
identifying information, opened all of the accounts, or filed all of the tax returns is
of no significance. See Rodriguez, 751 F.3d at 1256. These acts were all
reasonably foreseeable acts that occurred in furtherance of the same conspiracy;
James’s participation in the conspiracy made him accountable for all of them. See
id. We conclude that the district court did not clearly err in attributing $862,643.00
in loss and 121 victims to James at sentencing.
III.
Next, we address James’s argument that the district court erred when it
applied a sophisticated means enhancement pursuant to U.S.S.G. §
2B1.1(b)(10)(C). Generally, we review application of a sophisticated means
enhancement for clear error. United States v. Ghertler, 605 F.3d 1256, 1267 (11th
Cir. 2010). However, issues raised for the first time on appeal are reviewed for
plain error only. United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005).
The parties disagree about whether James properly preserved the issue below, but
it is unnecessary for us to resolve this question because James’s argument fails
even under the clear error standard.
The Guidelines provide for a two-level enhancement if the offense in
question “involved sophisticated means.” U.S.S.G. § 2B1.1(b)(10)(C). This
enhancement applies to especially complex or especially intricate conduct
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pertaining to the execution or concealment of an offense. Id. § 2B1.1 cmt. n.9(B).
“There is no requirement that each of a defendant’s individual actions be
sophisticated in order to impose the enhancement. Rather, it is sufficient if the
totality of the scheme was sophisticated.” Ghertler, 605 F.3d at 1267.
While the district court did not explicitly mention the sophisticated means
enhancement, it did respond directly to James’s arguments concerning the
complexity of the conspiracy. In doing so, the district court noted that the
conspiracy involved the combination of two different crimes; identity theft and tax
fraud. The district court explained that James and his co-conspirators took
advantage of the Treasury’s ability to quickly refund tax money to its taxpayers
through the means of identity theft and the unauthorized use of other personal and
sensitive information. In addition, the undisputed evidence establishes that James
and his co-conspirators went to great lengths to conceal their criminal activity.
Specifically, James and his co-conspirators used disposable cell phones, opened
false debit accounts, recruited Larkin to retrieve the money from the ATMs, and
traveled throughout Florida to conceal the commission of these fraudulent acts.
The factual question, as to whether James’s role was limited to acquiring debit
cards and cashing them out, is insignificant because the court looks to the criminal
conspiracy as a whole. Ghertler, 605 F.3d at 1267. When viewed in its entirety,
the conspiracy was complex and sophisticated; both in its execution and in its
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concealment. Accordingly, the evidence supports the district court’s application
of the sophisticated means element.
IV.
Next, we confront James’s argument that that the district court erred by
failing to apply a mitigating role reduction pursuant to U.S.S.G. § 3B1.2(b),
despite his failure to request such a reduction at sentencing. Generally, whether a
defendant is a minor participant is a finding of fact, reviewed on appeal for clear
error. United States v. Rodriguez De Varon, 175 F.3d 930, 937–38 (11th Cir.
1999) (en banc). As noted above, however, issues raised for the first time on
appeal are reviewed for plain error only. Rodriguez, 398 F.3d at 1298. Error is not
plain unless it is clear or obvious under current law. United States v. Olano, 507
U.S. 725, 734, 113 S. Ct. 1770, 1777 (1993).
The Sentencing Guidelines provide for a two-level reduction when a
defendant was a minor participant in the criminal activity. U.S.S.G. § 3B1.2(b). A
minor participant is one whose behavior is less culpable than that of most other
participants, “but whose role could not be described as minimal.” Id. § 3B1.2 cmt.
n.5. It is the defendant’s burden to substantiate the minor role reduction by a
preponderance of evidence. Rodriguez, 751 F.3d at 1258. To determine whether a
two level reduction for a minor role is appropriate, the district court must consider
the following: “1) the defendant’s role measured against the relevant conduct for
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which [he] has been held accountable at sentencing; and 2) [his] role as compared
to other participants in that relevant conduct.” Id.
We have never vacated a sentence as unreasonable because the district court
failed to sua sponte apply a minor role reduction, and there is no law that would
require a district court to do so. For this reason, there cannot be plain error.
Olano, 507 U.S. at 734, 113 S. Ct. at 1777. In any event, a thorough examination
of the record does not indicate that a mitigating role reduction was warranted, or
for that matter, even reasonable. The undisputed evidence indicated that James
played a significant role in the conspiracy. James was responsible for channeling
the tax refunds to the debit cards, traveling to various ATM machines across
Florida to withdraw the cash proceeds, and dividing the proceeds between each co-
conspirator based on their respective responsibility. Plainly stated, the
conspiracy’s success was, in large part, contingent upon James’s conduct.
Consequently, James’s conduct cannot be described as conduct that was less
culpable than his co-conspirators conduct; nor can it be characterized as minimal.
We therefore cannot conclude that the district court, by failing to apply a
mitigating role reduction under these circumstances, plainly erred.
V.
Next, we consider James’s argument that the district court erred, both in a
constitutional and evidentiary sense, by applying an aggravating role enhancement
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to him pursuant to U.S.S.G. § 3B1.1(c). We review constitutional issues de novo;
however, we will “reverse only for plain error where the defendant fails to object at
the district court.” United States v. Nash, 438 F.3d 1302, 1304 (11th Cir. 2006)
(per curiam). A defendant’s role as an organizer or leader is a factual finding that
we review for clear error. United States v. Ramirez, 426 F.3d 1344, 1355 (11th
Cir. 2005) (per curiam).
A district court may find facts such as an aggravating role “at sentencing so
long as the judicial factfinding does not increase the defendant's sentence beyond
the statutory maximum triggered by the facts conceded or found by a jury beyond
a reasonable doubt.” Ghertler, 605 F.3d at 1268 (internal quotation marks
omitted). The Sentencing Guidelines provide for a two-level enhancement when a
defendant was an organizer, leader, manager, or supervisor in the criminal activity.
U.S.S.G. § 3B1.1(c). This section applies to a participant who supervised or
managed “one or more other participants.” Id. § 3B1.1 cmt. n.2. Factors that are
considered to determine whether this enhancement is appropriate are “(1) exercise
of decision-making authority, (2) nature of participation in the commission of the
offense, (3) recruitment of accomplices, (4) claimed right to a larger share of the
fruits of the crime, (5) degree of participation in planning or organizing the
offense, (6) nature and scope of the illegal activity, and (7) degree of control and
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authority exercised over others.” Ramirez, 426 F.3d at 1355 (internal quotation
marks omitted).
James’s constitutional argument fails. Our precedent is clear that because
the aggravating role found by the district court did not increase his total sentence
beyond the statutory maximum established by the facts conceded to by James;
there was no constitutional violation, and, therefore, no error. See Ghertler, 605
F.3d at 1268.
In an evidentiary sense, James’s argument lacks persuasive luster as well.
As previously stated, the record reflects that James exercised power and decision-
making authority over the cashing out of the debit cards, was in charge of an entire
aspect of the offense, recruited Larkin as an accomplice and exercised authority
and control over her, selected the ATMs to be used, received a larger share of the
fraudulent proceeds, and, ultimately, played a major role in a complex and well
devised conspiracy to perpetrate tax fraud and identity theft. Therefore, the
evidence clearly supported the district court’s decision to apply an aggravating role
enhancement because § 3B1.1(c) applied to his behavior. See Ramirez, 426 F.3d at
1355 (defendant does not have to be the only leader or even the main kingpin of
the conspiracy to be considered a leader or organizer within the meaning of the
guidelines). For these reasons, the district court did not err by applying an
aggravating role enhancement.
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VI.
Finally, we address James’s argument that the district court erred in denying
his request for a downward variance and that the imposed total sentence was
therefore unreasonable. We review the substantive reasonableness of a sentence
for abuse of discretion. Gall v. United States, 552 U.S. 38, 51, 128 S. Ct. 586, 597
(2007). The district court’s denial of a defendant’s request for a variance is
subsumed under that review. See United States v. Willis, 560 F.3d 1246, 1251
(11th Cir. 2009) (per curiam) (reviewing the reasonableness of the district court’s
denial of the defendant’s motion for variance by examining the sentence itself).
The district court must impose a sentence “sufficient, but not greater than
necessary to comply with the purposes” listed in 18 U.S.C. § 3553(a)(2), including
“the need . . . to reflect the seriousness of the offense, to promote respect for the
law, and to provide just punishment for the offense; . . . to afford adequate
deterrence to criminal conduct; . . . [and] to protect the public from further crimes
of the defendant.” See 18 U.S.C. § 3553(a)(2); see also United States v. Booker,
543 U.S. 220, 259–60, 125 S. Ct. 738, 764–65 (2005). The weight given to any
specific factor is generally committed to the discretion of the district court. United
States v. Clay, 483 F.3d 739, 743 (11th Cir. 2007). The court’s attachment of great
weight to a single factor is not necessarily reversible error, although a “district
court’s unjustified reliance on a single § 3553(a) factor may be a ‘symptom’ of an
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unreasonable sentence.” United States v. Williams, 526 F.3d 1312, 1322 (11th Cir.
2008) (per curiam). A district court can err by unreasonably weighing the §
3553(a) factors and arriving at an unreasonable sentence given the facts of the
case. United States v. Irey, 612 F.3d 1160, 1189–90 (11th Cir. 2010) (en banc).
In imposing a particular sentence, the court must also consider, in addition to
the purposes listed in § 3553(a)(2), the nature and circumstances of the offense, the
history and characteristics of the defendant, the kinds of sentences available, the
applicable guideline range, the pertinent policy statements of the Sentencing
Commission, the need to avoid unwarranted sentencing disparities, and the need to
provide restitution to the victim. Id. § 3553(a)(1), (3)–(7). The law does not
require the court to discuss these factors, or even explicitly state that it has
considered them. United States v. Scott, 426 F.3d 1324, 1329 (11th Cir. 2005). If
the court does explicitly state that it considered the required factors, however, that
statement alone is sufficient to establish that the court did, in fact, consider them.
Id. at 1329–30. Although we do not presume that a sentence falling within the
guideline range is reasonable, we ordinarily expect such a sentence to be
reasonable. United States v. Hunt, 526 F.3d 739, 746 (11th Cir. 2008). “The fact
that the appellate court might reasonably have concluded that a different sentence
was appropriate is insufficient to justify reversal of the district court.” Gall, 552
U.S. at 51, 128 S. Ct. at 597.
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Here, the district court had no discretion to vary from the required statutory
minimum sentence on Count Nine. See United States v. Shelton, 400 F.3d 1325,
1333 n.10 (11th Cir. 2005); see also United States v. Clark, 274 F.3d 1325, 1328
(11th Cir. 2001) (per curiam) (Even when “a guidelines range falls entirely below a
mandatory minimum sentence, the court must follow the mandatory statutory
minimum sentence.”). On Counts One and Four, the district court gave a lengthy
explanation of its reasoning when it imposed the sentences, explicitly considering
the § 3553(a) factors, particularly James’s minimal criminal history. In addition,
the district court appropriately weighed James’s minimal criminal history and
personal characteristics against the extensive and complex nature of the fraud in an
attempt to fulfil all the goals of sentencing. These goals are to impose a sentence
that, among other things, promotes respect for the law, provides just punishment
for the offense, deters criminal conduct, and protects the public from James’s
future criminal conduct. Based on the sophistication of the crime, the number of
victims, and the scope of the fraud conspiracy, the district court reasonably
concluded that a total sentence within the guideline range was appropriate to
promote respect for the law, provide just punishment, and deter James and others
from committing further criminal activity. See 18 U.S.C. § 3553(a)(2). Because
the district court appropriately considered all of the relevant factors (both
aggravating and mitigating) and arrived at sentences for Counts One and Four,
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with a total sentence for all three counts that is within the guideline range, the
district court did not abuse its discretion.
AFFIRMED.