United States v. Jimmy Lee Theodore

Opinion

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED ________________________ U.S. COURT OF APPEALS ELEVENTH CIRCUIT No. 11-12771 FEB 23, 2012 Non-Argument Calendar JOHN LEY ________________________ CLERK

D.C. Docket No. 0:10-cr-60311-DMM-2

UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllllPlaintiff-Appellee,

versus

ALBERT ANTHONY ANDRULONIS,

llllllllllllllllllllllllllllllllllllllllDefendant-Appellant.

________________________

No. 11-12939 Non-Argument Calendar ________________________

D.C. Docket No. 0:10-cr-60311-DMM-1

versus JIMMY LEE THEODORE,

Appeals from the United States District Court for the Southern District of Florida ________________________

(February 23, 2012)

Before DUBINA, Chief Judge, MARCUS, and MARTIN, Circuit Judges.

PER CURIAM:

Appellants Albert Anthony Andrulonis and Jimmy Lee Theodore appeal

their 132-month and 175-month total sentences, respectively. They both pled

guilty to one count of wire fraud, in violation of 18 U.S.C. § 1343, one count of

unauthorized use of a debit card, in violation of 18 U.S.C. § 1029(a)(2), and one

count of aggravated identity theft, in violation of 18 U.S.C. § 1028A(a)(1).

On appeal, Andrulonis first challenges the imposition of a sentence

enhancement for causing a loss between $400,000 and $1,000,000. He argues that

the losses from Chase Bank caused by Theodore cannot be attributed to him, the

expenses from Holy Cross Hospital cannot be attributed to him, and the expenses

from Holy Cross Hospital were not reasonably foreseeable. Andrulonis next

argues that the district court incorrectly applied a sophisticated means

2 enhancement to his guideline range because he was involved in a run-of-the-mill

fraud scheme that involved no special planning or attempt at concealment.

Finally, Andrulonis argues that the district court incorrectly calculated the number

of victims, because it included victims who were not connected to Andrulonis or

did not sustain any actual loss.

Theodore, in turn, argues that various sentencing enhancements were

incorrectly included in his guideline range, and that his sentence is substantively

unreasonable. However, Theodore signed an appeal waiver that the government

urges us to enforce before reaching the merits of his claims.

I.

Andrulonis first challenges the district court’s determination that the amount

of loss was between $400,000 and $1,000,000.

“The district court’s determination of loss is reviewed for clear error.”

United States v. Barrington, 648 F.3d 1178, 1197 (11th Cir. 2011), cert. denied, --

- S. Ct. ----, (No. 11-7635) (Jan. 09, 2012). A district court’s interpretation of the

sentencing guidelines is reviewed de novo. Id. A failure to object to the factual

allegations in the PSI with specificity and clarity will be deemed an admission by

the defendant. United States v. Bennett, 472 F.3d 825, 833-34 (11th Cir. 2006).

Loss is the greater of the actual loss or intended loss. U.S.S.G. § 2B1.1

3 comment. (n. 3(A)). Actual loss is the reasonably foreseeable pecuniary harm that

resulted from the offense. U.S.S.G. § 2B1.1 comment. (n. 3(A)(i)). Intended loss

is the pecuniary harm that was intended to result from the offense, even if the harm

was impossible or unlikely to occur. U.S.S.G. § 2B1.1 comment. (n. 3(A)(ii)).

Pecuniary harm is a harm that is readily measurable in money, and does not

include things such as emotional distress and harm to reputation. U.S.S.G.

§ 2B1.1 comment. (n. 3(A)(iii)). A reasonably foreseeable pecuniary harm is one

that the defendant knew or reasonably should have known was a potential result of

the offense. U.S.S.G. § 2B1.1 comment. (n. 3(A)(iv)). Interest, finance charges,

late fees, penalties, and other similar costs are specifically excluded from a loss

calculation. U.S.S.G. § 2B1.1 comment. (n. 3(D)(I)).

The government must support its loss calculation with reliable and specific

evidence; however, a sentencing court does not need to make a precise

determination of loss, but only a reasonable estimate given the available

information. Barrington, 648 F.3d at 1197.

A participant in a conspiracy may be held responsible for the losses

resulting from the reasonably foreseeable acts of co-conspirators in furtherance of

the conspiracy. United States v. Mateos, 623 F.3d 1350, 1370 (11th Cir. 2010),

cert. denied, Alrarez v. United States, l131 S. Ct. 1540 (2011); see also U.S.S.G. §

4 1B1.3(a)(1)(B) (stating that, in the case of jointly undertaken criminal activity, all

reasonably foreseeable acts and omissions of others in furtherance of the criminal

activity can count towards offense characteristics). A court must first make

individualized findings concerning the scope of the defendant’s criminal activity,

and then may consider all reasonably foreseeable acts of others in the jointly

undertaken criminal activity. Id. A failure to make such individualized findings

does not require us to vacate a sentence if the record supports the district court’s

offense conduct determination. United States v. Petrie, 302 F.3d 1280, 1290 (11th

Cir. 2002).

While the district court did not make an individualized finding attributing

the activities of Andrulonis’s co-defendants to him, the record is more than

sufficient to support the district court’s determinations. Andrulonis, Theodore,

and the other conspirators worked closely to carry out their identity theft scheme.

Stealing patient information from Holy Cross Hospital was a reasonably

foreseeable act of that scheme in furtherance of the conspiracy, as was using the

stolen information to cause losses to various Chase Bank accounts. Accordingly,

we conclude that the activities of the conspiracy, and the losses sustained by Holy

Cross Hospital and Chase Bank, were properly attributed to Andrulonis during

sentencing.

5 Finally, given the offense conduct before us, we conclude that the expenses

incurred by Holy Cross Hospital were reasonably foreseeable. Accordingly, we

hold that the district court correctly arrived at the loss amount and the associated

guideline enhancement.

II.

Andrulonis’s second challenge is to the sophisticated means enhancement

applied by the district court.

We review a district court’s finding that sophisticated means were used for

clear error. Barrington, 648 F.3d at 1199. The sophisticated means enhancement

is appropriate for especially complex or especially intricate offense conduct,

during either execution or concealment of the conduct. U.S.S.G. § 2B1.1

comment. (n. 8(B)). Only the totality of the scheme needs to be sophisticated, not

each individual action. Barrington, 648 F.3d at 1199. Repetitive and coordinated

activities by numerous individuals using sophisticated technology can justify a

sophisticated means enhancement. See United States v. Ghertler, 605 F.3d 1256,

1267-68 (11th Cir. 2010).

In Ghertler, we stated that the defendant qualified for a sophisticated means

enhancement because he conducted extensive research to develop inside

information to facilitate a scheme to defraud; used unwitting couriers to pick up

6 and deliver proceeds of his frauds to conceal the scheme; forged false company

documents and internal numbers; and used unwitting third parties, despite other

times making little or no effort to conceal his identity or fraud. Id. Similarly, in

United States v. Campbell, 491 F.3d 1306 (11th Cir. 2007), we held that a

sophisticated means enhancement was appropriate because the defendant used

campaign accounts and credit cards issued to other people to conceal cash

expenditures and cover his tax fraud. Id. at 1315.

We conclude from the record that Andrulonis and Theodore developed a

sophisticated scheme to steal identities and fraudulently obtain money. They hired

three employees in the healthcare field to feed them confidential patient data.

They combined that data with publicly available information that was sufficient to

defeat Chase Bank’s security measures. They created new accounts in the victims’

names prior to transferring and withdrawing any money, to avoid detection. The

district court found it likely that they were also working with an insider at Chase

Bank. They attempted to hide their calls into Chase Bank by making their phone

numbers private. They frequently accessed the Chase Bank website from a public,

rather than a personal, computer. Accordingly, we conclude from the record that

the district court did not clearly err in determining that this offense conduct was

committed through sophisticated means.

7 III.

Finally, Andrulonis challenges the district court’s determination that more

than 250 victims were involved in his offense conduct.

We review the factual findings for number of victims for clear error. See

United States v. Lee, 427 F.3d 881, 892 (11th Cir. 2005). We have stated that, if a

defendant does not object to a fact contained in the prosecution’s factual recitation

during a plea colloquy, that fact is deemed admitted. See United States v. Shelton,

400 F.3d 1325, 1330 (11th Cir. 2005) (holding that there was no error when a

defendant admitted to part of his drug quantity enhancement during a plea

colloquy, part during sentencing, and made no objections to the PSI).

The government stated during the factual proffer at the Rule 11 hearing that

there were 310 individual victims. Andrulonis agreed to the factual proffer

without objection. Accordingly, Andrulonis is bound by the government’s factual

proffer. Since the proffer included 310 victims, we conclude that the district court

did not clearly err in determining that there were more than 250 victims and

applying the appropriate guideline enhancement.

IV.

We review the validity of a sentence appeal waiver de novo. United States

v. Bushert, 997 F.2d 1343, 1352 (11th Cir. 1993). We enforce a sentence appeal

8 waiver if the government shows either “(1) the district court specifically

questioned the defendant concerning the sentence appeal waiver during the Rule

11 colloquy, or (2) it is manifestly clear from the record that the defendant

otherwise understood the full significance of the waiver.” Id. at 1351. Where an

appeal waiver is specifically discussed during the Rule 11 colloquy, we have

consistently enforced them, according to their terms, when the district court

specifically questioned the defendant during the plea colloquy about the appeal

waiver, adequately explained the significance of the appeal waiver, and confirmed

that the defendant understood the full significance of the appeal waiver. United

States v. Grinard-Henry, 399 F.3d 1294, 1296 (11th Cir. 2005).

The record demonstrates that Theodore’s appeal waiver was specifically

discussed during the Rule 11 colloquy. The district court informed Theodore that

he was giving up his right to appeal his sentence unless it exceeded the statutory

maximum or the guideline range and confirmed his understanding of the waiver.

The district court specifically found that the waiver was knowing and voluntary.

Moreover, per the terms of the appeal waiver, Theodore can only appeal his

sentence if it was in excess of the statutory maximum, the result of an upward

departure or variance, or if the government appealed the sentence. The district

court imposed a low-end guideline sentence within the statutory maximum. The

9 government did not appeal the sentence. Thus, Theodore cannot challenge his

sentence on appeal. Because Theodore only raises sentencing issues on appeal, we

dismiss his appeal as barred by the appeal waiver without proceeding to the merits.

DISMISSED IN PART; AFFIRMED IN PART.