United States v. Nicholas Thomas

• Court: Court of Appeals for the Eleventh Circuit
• Decided: November 23, 2022
• Docket: 22-10831
• Status: Unpublished

Opinion

USCA11 Case: 22-10831 Date Filed: 11/23/2022 Page: 1 of 11

[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit

____________________

No. 22-10831 Non-Argument Calendar ____________________

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus NICHOLAS THOMAS,

Defendant-Appellant.

Appeal from the United States District Court for the Northern District of Georgia D.C. Docket No. 1:20-cr-00334-SDG-CMS-1 ____________________ USCA11 Case: 22-10831 Date Filed: 11/23/2022 Page: 2 of 11

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Before JORDAN, BRANCH, and MARCUS, Circuit Judges. PER CURIAM: Nicholas Thomas appeals his 55-month total sentence for one count of wire fraud conspiracy, 18 counts of wire fraud, and 9 counts of mail fraud. On appeal, he argues that: (1) the district court improperly determined the amount of loss for which he was responsible under U.S.S.G. § 2B1.1(b), leading to an unreasonable sentence; and (2) the court should not have enhanced his offense level by three points under U.S.S.G. § 3B1.1(b) for playing an ag- gravating role in the offense. After careful review, we affirm. I. “The Government bears the burden of establishing the loss attributable to the defendant by a preponderance of the evidence, and we review a district court’s determination of monetary loss for clear error.” United States v. Cavallo, 790 F.3d 1202, 1232 (11th Cir. 2015). We will conclude that a finding of fact is clearly errone- ous only if we are left with a “definite and firm conviction that a mistake has been committed.” United States v. Pierre, 825 F.3d 1183, 1191 (11th Cir. 2016) (quotations omitted). We review the sentence a district court imposes for “reason- ableness,” which “merely asks whether the trial court abused its discretion.” United States v. Pugh, 515 F.3d 1179, 1189 (11th Cir. 2008) (quoting Rita v. United States, 551 U.S. 338, 351 (2007)). Fi- nally, we review a determination that a defendant is subject to a USCA11 Case: 22-10831 Date Filed: 11/23/2022 Page: 3 of 11

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§ 3B1.1 role enhancement for clear error. See United States v. Crabtree, 878 F.3d 1274, 1290 (11th Cir. 2018). II. First, we are unpersuaded by Thomas’s claim that the dis- trict court improperly determined the amount of loss for which he was responsible. Section 2B1.1 provides the base offense level for crimes involving fraud and deceit and includes various increases in the offense level based on the amount of money at issue. United States v. Maxwell, 579 F.3d 1282, 1305 (11th Cir. 2009). Under § 2B1.1(b)(1), if the loss attributable to the defendant exceeds $550,000, but is less than $1,500,000, the defendant is subject to a 14-level increase in his offense level. U.S.S.G. § 2B1.1(b)(1)(H). However, if the loss attributable to a defendant is between $250,000 and $550,000, the defendant is subject to a 12-level in- crease in his offense level. U.S.S.G. § 2B1.1(b)(1)(G). While the government must support its loss calculations with specific, reliable evidence, the guidelines do not require that a sentencing court make a precise determination of loss. United States v. Barrington, 648 F.3d 1178, 1197 (11th Cir. 2011). Instead, a sentencing court need only make a reasonable estimate of the loss, given the available information. Id.; U.S.S.G. § 2B1.1, com- ment. (n.3(C)). Because the district court is in a unique position to assess the evidence and estimate the loss based on that evidence, its loss determination is entitled to appropriate deference. U.S.S.G. § 2B1.1, comment. (n.3(C)). USCA11 Case: 22-10831 Date Filed: 11/23/2022 Page: 4 of 11

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“[I]n calculating the amount of loss, the Guidelines require a district court to take into account not merely the charged con- duct, but rather all relevant conduct, in calculating a defendant’s offense level.” United States v. Foley, 508 F.3d 627, 633 (11th Cir. 2007) (quotations omitted). The district court may hold all partici- pants in a conspiracy responsible for the losses resulting from the reasonably foreseeable acts of co-conspirators in furtherance of the conspiracy where the acts and omissions are: (1) within the scope of the jointly undertaken criminal activity; (2) in furtherance of the activity; and (3) reasonably foreseeable in connection with the ac- tivity. United States v. Whitman, 887 F.3d 1240, 1248 (11th Cir. 2018); U.S.S.G. § 1B1.3(a)(1)(B). To determine the scope of a defendant’s agreement to par- ticipate in a jointly undertaken criminal scheme, the district court may consider any explicit agreement or implicit agreement fairly inferred from the conduct of the defendant and others. Whitman, 887 F.3d at 1248. A defendant’s mere awareness that he was part of a larger scheme is insufficient to show that another individual’s criminal activity was within the scope of jointly undertaken crimi- nal activity, but actions that suggest that the defendant was actively involved in a criminal scheme permit the inference that the defend- ant agreed “to jointly undertake” that scheme. Id. For example, an implicit agreement may be inferred if, even though the various participants in the scheme acted on their own behalf, each of the participants knew each other and was aware of the other’s activi- ties, and they aided and abetted one another by sharing USCA11 Case: 22-10831 Date Filed: 11/23/2022 Page: 5 of 11

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information necessary to operate the scheme. See United States v. Hunter, 323 F.3d 1314, 1322 (11th Cir. 2003). Under U.S.S.G § 1B1.8, if a defendant agrees to cooperate with the government by providing information concerning the un- lawful activities of others, and the government agrees that any self- incriminating information revealed during that cooperation will not be used against the defendant, that information shall not be used in determining the applicable guidelines range. This re- striction does not apply to information known to the government before the defendant enters into the cooperation agreement. U.S.S.G § 1B1.8(b)(1). In reviewing the “‘substantive reasonableness of [a] sentence imposed under an abuse-of-discretion standard,’” we consider the “‘totality of the circumstances.’” Pugh, 515 F.3d at 1190 (quoting Gall v. United States, 552 U.S. 38, 51 (2007)). 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). 1 The

1 The § 3553(a) factors include: (1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) the need for the sen- tence imposed to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (3) the need for the sentence imposed to afford adequate deterrence; (4) the need to protect the public; (5) the need to provide the defendant with educational or vocational training or medical care; (6) the kinds of sentences available; (7) the Sentencing Guidelines range; (8) the pertinent policy statements of the Sentencing Com- mission; (9) the need to avoid unwanted sentencing disparities; and (10) the need to provide restitution to victims. 18 U.S.C. § 3553(a). USCA11 Case: 22-10831 Date Filed: 11/23/2022 Page: 6 of 11

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court must consider all of the § 3553(a) factors, but it may give greater weight to some factors over others -- a decision that is within its sound discretion. United States v. Rosales-Bruno, 789 F.3d 1249, 1254 (11th Cir. 2015). We will not substitute our own judgment for that of the sentencing court and will sometimes af- firm the district court even if we would have done something dif- ferently because the question is whether the district court’s deci- sion was “in the ballpark of permissible outcomes.” Id. at 1257 (quotations omitted). Moreover, we’ve said that “[d]istrict courts have broad leeway in deciding how much weight to give to prior crimes the defendant has committed.” Id. at 1261. The disparity between sentences of codefendants is gener- ally not an appropriate basis for relief on appeal. Cavallo, 790 F.3d at 1237. In considering the need to avoid unwarranted sentencing disparities, the district court should not draw comparisons to cases involving defendants who pleaded guilty or lacked extensive crim- inal histories if those things are not true of the defendants. United States v. Jayyousi, 657 F.3d 1085, 1118 (11th Cir. 2010). A sentence is substantively unreasonable when it does not reflect the need to avoid unwarranted sentencing disparities among defendants who committed similar crimes and the district court failed to adequately explain how its sentence avoids the disparity in sentences with other similarly-situated defendants. Pugh, 515 F.3d at 1202–03. When considering disparity, we first consider whether the defend- ant is similarly situated to his codefendants. United States v. USCA11 Case: 22-10831 Date Filed: 11/23/2022 Page: 7 of 11

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Duperval, 777 F.3d 1324, 1338 (11th Cir. 2015). And one source of dissimilarity stems from different charges of conviction. Id. While we do not automatically presume a sentence falling within the guideline range to be reasonable, we ordinarily expect that sentence to be reasonable. United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005). A sentence imposed well below the stat- utory maximum penalty is another indicator of reasonableness. United States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008). Here, the district court did not clearly err in determining the amount of loss for which Thomas was responsible. For starters, Thomas does not challenge the loss calculations, and he even con- ceded in the district court that they were correct. As a result, the central inquiry for us is whether the district court erred in using the whole amount of loss, including that attributed to codefendant George Chambers, to calculate Thomas’s offense level. The crimes at issue arise out of a scheme in which Thomas, along with four codefendants -- Chambers, as well as Chelsea Gor- don, Allen Hauser, and Michael Pitts -- ran a shell company called “Sophisticated Means” that defrauded various payroll processing companies. Specifically, Sophisticated Means contracted with sev- eral staffing companies to provide payroll services, but when the staffing companies issued payroll funds to Sophisticated Means’s al- leged “employees,” Thomas and his codefendants kept the payroll funds for themselves and never reimbursed the staffing companies. The record reflects that Thomas discussed the scheme with Cham- bers before it began, and, to the extent that they did not execute USCA11 Case: 22-10831 Date Filed: 11/23/2022 Page: 8 of 11

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every aspect of the fraud together, Chambers executed his portions with Thomas’s explicit or implicit approval, and Thomas received payment from Chambers sporadically throughout the scheme. Consistent with this evidence, Thomas was named in the wire fraud conspiracy count (Count One), and also in every substantive wire fraud and mail fraud count (Counts Two through Twenty- Eight). No other defendant was charged in all 28 counts. Thomas ultimately pleaded guilty to all 28 counts without a plea agreement. Based on this record, both Thomas’s and Chambers’s acts were within the scope of the jointly undertaken scheme. Whitman, 887 F.3d at 1248; see also U.S.S.G. § 1B1.3(a)(1)(B). They both knew of each other’s roles in the overall scheme, and they aided and abetted each other by sharing information and money as part of the scheme. See Whitman, 887 F.3d at 1248; Hunter, 323 F.3d at 1322. In addition, Chambers’s individual acts -- in recruiting and supervising others into the scheme -- were reasonably foreseeable to Thomas based on the structure and workings of the fraud scheme itself, on which Thomas instructed Chambers. See Whit- man, 887 F.3d at 1248; U.S.S.G. § 1B1.3(a)(1)(B). Accordingly, the district court did not clearly err in finding Thomas responsible for both his direct loss amount and the loss amounts of the other co- conspirators under U.S.S.G. § 1B1.3(a)(1)(B), nor in imposing a 14- level increase in his offense level under U.S.S.G. § 2B1.1(b)(1)(H). See Whitman, 887 F.3d at 1248. Nor has Thomas shown that his sentence was substantively unreasonable. He claims that the district court failed to treat him USCA11 Case: 22-10831 Date Filed: 11/23/2022 Page: 9 of 11

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the same as similarly-situated codefendants for loss calculation pur- poses, but this argument is refuted by the record. As the district court explained in detail, he and Chambers were not similarly situ- ated. Duperval, 777 F.3d at 1338. For one, U.S.S.G. § 1B1.8 -- which protects cooperating defendants who provide information to the government -- was applied to Chambers’s interview, and the other defendants appear to have entered into plea agreements with the government, whereas Thomas did not. Further, the district court concluded that Thomas and the other codefendants had different criminal histories; notably, the district court permissibly gave great weight to Thomas’s relevant criminal history of very similar crimes in an earlier case, for which he was still on supervised release. Rosales-Bruno, 789 F.3d at 1261. The district court also found that Thomas and the other codefend- ants were not similarly situated because of the differences in the charges they faced in the present case. Duperval, 777 F.3d at 1338. Indeed, Thomas was the only defendant who pleaded guilty to all 28 charges, which was a permissible aggravating factor in reaching a sentence. Id. In light of these dissimilarities, Thomas has not overcome the general rule against relief on appeal based on sen- tence disparities between codefendants. Cavallo, 790 F.3d at 1237. In short, Thomas has not shown that his 55-month total sen- tence -- which was within the applicable guidelines range and far below the statutory maximum total sentence he faced for all 28 of his felony convictions -- was substantively unreasonable. Accord- ingly, we affirm as to this issue. USCA11 Case: 22-10831 Date Filed: 11/23/2022 Page: 10 of 11

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III. We also find no merit in Thomas’s claim that the district court should not have enhanced his offense level by three points under U.S.S.G. § 3B1.1(b) for playing an aggravating role in the of- fense conduct. Section 3B1.1 provides for a three-point enhance- ment if the defendant was a manager or supervisor and the criminal activity involved five or more participants or was otherwise exten- sive. U.S.S.G. § 3B1.1(b). Courts consider several factors when de- termining whether a defendant was a manager or supervisor, in- cluding his decision-making authority, the nature of his participa- tion in the offense, recruitment of accomplices, the claimed right to a larger share of the fruits of the crime, the degree of participa- tion in planning or organizing the offense, the nature, and scope of the offense, and the degree of control and authority exercised over others. Id. comment. (n.(4)). Here, the district court did not clearly err in awarding Thomas a three-point role enhancement under § 3B1.1. As an ini- tial matter, Thomas does not challenge the district court’s factfind- ing on this issue, nor does he contest that the scheme involved five or more participants. U.S.S.G. § 3B1.1(b). Rather, he mainly reit- erates his arguments that Chambers received a lower enhance- ment, entitling him to the same. But regardless of whether Chambers should have also been awarded a three-level role enhancement, the district court’s analy- sis as to Thomas properly considered the factors in the guidelines and in the commentary that justified a three-level enhancement for USCA11 Case: 22-10831 Date Filed: 11/23/2022 Page: 11 of 11

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Thomas. U.S.S.G. § 3B1.1(b); id. comment. (n.(4)). As the record reflects, Thomas was a manager and supervisor who had received payments from nearly all of his co-conspirators. In addition, Cham- bers’s testimony and the presentence investigation report (“PSI”) revealed that Thomas had certain decision-making authority, owned the domain for Sophisticated Means, and helped organize the offense by teaching or instructing Chambers about his past ex- periences with payroll fraud. U.S.S.G. § 3B1.1 comment. (n.(4)). Further, both Gordon and Chambers identified Thomas as the originator of the scheme, and it is uncontested that Thomas had prior experience in his previous, similar scheme. Based on these facts, the district court did not clearly err in finding that § 3B1.1(b) applied to Thomas, and Thomas’s arguments do not raise a “defi- nite and firm conviction that a mistake has been committed.” Pierre, 825 F.3d at 1191. Accordingly, we affirm as to this issue as well. AFFIRMED.