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[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit
____________________
No. 22-10944 ____________________
UNITED STATES OF AMERICA, Plaintiff-Appellee, versus SEAN KERWIN BINDRANAUTH,
Defendant-Appellant.
Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 4:19-cr-10016-KMM-1 ____________________ USCA11 Case: 22-10944 Document: 49-1 Date Filed: 10/08/2024 Page: 2 of 29
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Before WILSON, GRANT, and LAGOA, Circuit Judges. PER CURIAM: Sean Bindranauth was convicted of multiple money laun- dering offenses and sentenced to 180 months’ imprisonment. He now appeals his convictions and sentence, raising two issues. First, he argues that the district court erred by giving an unwarranted jury instruction on deliberate ignorance that was further aggra- vated by supplemental instructions that misstated the law. Second, he contends that the district court committed reversible error by miscalculating the Sentencing Guidelines. After careful review, and with the benefit of oral argument, we affirm Bindranauth’s convictions and sentence. I. FACTUAL AND PROCEDURAL BACKGROUND From February 2018 through September 2019, Bindranauth operated a money laundering scheme from Key West, Florida. His co-conspirators perpetrated investment or romance scams on social media, engendering trust with victims to eventually induce them into sending or delivering something of value. The victims were instructed to send money to Bindranauth, who received the fraudulent proceeds. The government never alleged that Bindranauth himself participated in the underlying online scams that induced the vic- tims, but his defense did not deny their existence at trial. Bin- dranauth ultimately laundered around one million dollars of trace- able funds, including from many victims that did not testify. At trial, the government called six witnesses who were victims of USCA11 Case: 22-10944 Document: 49-1 Date Filed: 10/08/2024 Page: 3 of 29
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either romance or investment scams and who sent money to Bin- dranauth. For instance, Dorothy Bates met “Nicholas Strickland” on Facebook and believed that they were in a romantic relationship. At Strickland’s request, Bates sent $15,000 in March 2018 and then $38,000 in May 2018 to Bindranauth to finance transporting food to an island. Karen Webster received a “follow” request from “Pe- ter Clark” on Instagram. Clark asked for financial support to fund a private plane to the United States from the United Kingdom due to alleged issues in security and customs. Webster sent multiple wires to multiple individuals, including Bindranauth in September 2018. In total, she sent $53,000 for the “private plane.” Kathleen Tucker met “Nick Vanterheyden,” allegedly a doctor based in Af- ghanistan, on the online game Words with Friends. They devel- oped a romantic relationship, and he asked her to help pay for a courier to move a large sum of money that he had in Afghanistan. Tucker sent a total of $200,000 to multiple individuals, including two payments in January 2019 to Bindranauth that totaled $36,000. Lastly, Kathleen Houser met a man named “Miguel” on Facebook in January 2018. They discussed purchasing a home together in Tuscon, Arizona, and Miguel asked her for $15,000 to help some- one else buy a truck. She sent $16,000 to Bindranauth with the notation “fixed my pool” in January 2019 after Miguel told her to lie about the reason for sending the money. Houser’s bank blocked the transaction as suspicious activity. USCA11 Case: 22-10944 Document: 49-1 Date Filed: 10/08/2024 Page: 4 of 29
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In total, Bindranauth sent $47,823 through Western Union and MoneyGram while directing others to send a total of $211,284 through Western Union and MoneyGram. Through his bank ac- counts, Bindranauth sent or withdrew a total of $914,227.51. He sent or withdrew additional amounts through non-traceable funds such as “ATM withdrawals, cash withdrawals, [and] cash ad- vance[s].” The money was laundered through transfers to bank ac- counts in Nigeria provided by co-conspirator Nancy Turney. Tur- ney gave Bindranauth the bank account information for him to route the incoming wires to and kept close tabs on the funds that he laundered. The government’s theory was that Turney worked with other co-conspirators to defraud the victims and launder the money through Bindranauth. Bindranauth referred to Turney as his “wifey” and “fi- ancé[e]” in communications. They regularly communicated as though they shared a romantic relationship. However, law en- forcement explained at trial, “Nancy Turney, at the very least, is a Facebook page that Mr. Bindranauth communicates with willingly. As far as who controls it, we don’t know that. . . . But as far as the concept of the physical person of Nancy Turney, as it’s portrayed by Mr. Bindranauth, we’re relatively certain that person doesn’t ex- ist.” Bindranauth’s methods of transferring funds evolved over time. At first, he transferred money through MoneyGram and Western Union both by himself and through others working at his USCA11 Case: 22-10944 Document: 49-1 Date Filed: 10/08/2024 Page: 5 of 29
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direction. As of August 2018, the only bank account he had open, at the Monroe County Federal Teachers Credit Union, did not al- low him to send money internationally. Bindranauth then opened five additional accounts to wire funds through. He first opened an account with Iberia Bank. The bank closed the account in October 2018 because of a security request based on suspicious activity, namely, the rapid movement of funds and unusual wire activity. He then opened a Bank of America ac- count in October 2018, which he stopped using in February 2019. Bindranauth opened a Wells Fargo account in January 2019 which the bank closed the next month due to suspected fraud. Wells Fargo sent several notifications to Bindranauth advising him that the bank closed the account because “one or more money transfers to [his] account [were] reported as unauthorized.” He opened a BB&T account in February 2019, which closed in May 2019. Fi- nally, he opened an account with First State Bank in May 2019, which the bank shut down in a few weeks after two suspicious wires of around $7,000 each. Law enforcement agents detected no evidence of “legiti- mate incoming sources” in these accounts. From these accounts, Bindranauth wired money to a United Bank for Africa account as- sociated with an individual named Olukayode Ayodele Michael (“Mr. Michael”) along with other individuals based in Nigeria. He did not send money to an account under Nancy Turney’s name and had no family or business ties to Mr. Michael specifically or Nigeria generally. He also pulled cash from these accounts and used the USCA11 Case: 22-10944 Document: 49-1 Date Filed: 10/08/2024 Page: 6 of 29
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accounts to make personal purchases and payments on his Toyota truck and phone. All told, Bindranauth laundered about one million dollars, and according to the plan’s design, he intended to pocket three per- cent of the laundered funds, amounting to about $30,000. In one interview with law enforcement, he said he already spent much of his cut from the overall scheme. Bindranauth admitted recruiting individuals to send money for him. Tristan Vergara sent $1,000 multiple times at Bin- dranauth’s direction. Bindranauth paid him $20 for each transac- tion, drove him to make the transactions, and directed him with the name and banking information for the receiving end of the wire. On multiple occasions in the spring of 2018, Bindranauth also drove and directed James Sweeting to make transactions, paying him $20 each time. Bindranauth recruited his mother and aunt to send money for him too. Crystal Hernandez, who was living with him and apparently in a romantic relationship with him, also sent money on his behalf. On January 24, 2020, a federal grand jury returned a ten- count superseding indictment against Bindranauth, charging him with conspiracy to commit money laundering, in violation of 18 U.S.C. § 1956(h) (Count One); money laundering, in violation of 18 U.S.C. §§ 1956(a)(1)(B)(i) and 2 (Counts Two-Nine); and engaging in the business of money remittance or transmitting without a li- cense, in violation of 18 U.S.C. §§ 1960(a) and 2 (Count Ten). USCA11 Case: 22-10944 Document: 49-1 Date Filed: 10/08/2024 Page: 7 of 29
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Bindranauth proceeded to trial, which lasted four days. In its case-in-chief, the government offered the testimony of fourteen witnesses and introduced exhibits that included bank statements, Facebook messages, and two video interviews between Bin- dranauth and Homeland Security Investigations agents. Bin- dranauth offered the testimony of two witnesses of his own. At the conclusion of trial, the district court instructed the jury, including instructions on both actual knowledge and deliber- ate ignorance. For the deliberate ignorance instruction, the court used the “Deliberate Ignorance as Proof of Knowledge” Eleventh Circuit pattern instruction. During the jury deliberations, the dis- trict court received the following note from the jury: Would like clarity on statement on p. 23 of Judge’s instructions. ‘But I must emphasize that negligence, carelessness or foolishness isn’t enough to prove that the Defendant knew.’ Can we have elaboration on how this applies to ‘Deliberate avoidance of positive knowledge.’ The district court discussed the note with the parties, then brought in the jury to elaborate on the deliberate ignorance instruction. The district court provided the jury with the following explanation: So if somebody was really stupid enough to, let’s say, be in Colombia, South America—they’re American, coming back to the United States, and somebody comes to them and says, will you please take this package off the plane for me and I will pay you $1,000; and you say, Sure why not, you know. USCA11 Case: 22-10944 Document: 49-1 Date Filed: 10/08/2024 Page: 8 of 29
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And I’m deaf, dumb and blind, and I go ahead and do it, and I was stupid enough to do that and I get through Customs and they find out that there’s drugs in the package, maybe that person is negligent, care- less, or foolish, in which case, he didn’t know some- thing that some other person might know. After the district court provided the supplemental instruc- tion, Bindranauth’s counsel requested a sidebar and stated the fol- lowing to the court: I agree, and don’t take any issue to the description of someone may be deaf, dumb, and blind can be fool- ish, but the standard also says that there can be negli- gence; and I’m concerned that maybe by saying un- less he was deaf, dumb, and blind, then he was being deliberately ignorant. I would like the jurors to un- derstand that if he was negligent that it doesn’t have to go to -- The district court interjected by asking, “Was that in?” Bin- dranauth’s counsel responded, “No, you didn’t, you said careless and foolish.” The district court then reminded the jury to consider the instructions as a whole and not focus solely on the deliberate ignorance instruction. And the district court repeated for a third time that negligence, carelessness, or foolishness was not enough to prove deliberate ignorance. Bindranauth raised no further ob- jection to the supplemental instruction and the district court dis- missed the jury to return to its deliberations. The jury returned a verdict finding Bindranauth guilty of conspiracy to commit money laundering (Count 1). It found him USCA11 Case: 22-10944 Document: 49-1 Date Filed: 10/08/2024 Page: 9 of 29
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not guilty of two substantive money laundering counts (Counts 2 and 3), but guilty of the remaining money laundering counts (Counts 4-9). The jury also found him guilty of operating an unli- censed money transmitting business (Count 10). Prior to the sentencing hearing, a probation officer prepared a Presentence Investigation Report (“PSI”). The PSI grouped Counts One and Four through Ten and set the base offense level at 22 under U.S.S.G. § 2S1.1. The PSI then applied (1) a four-level increase under U.S.S.G. § 2S1.1(a)(2) for being “in the business of laundering funds”; (2) a two-level increase under U.S.S.G. § 2S1.1(b)(3) because the offense involved “sophisticated launder- ing”; (3) a two-level increase under U.S.S.G. § 3A1.1(b)(1) because Bindranauth “knew or should have known that a victim of the of- fense was a vulnerable victim”; and (4) a four-level increase under U.S.S.G. § 3B1.1(a) because Bindranauth “was a leader or organizer and the criminal activity involved five or more participants or was otherwise extensive.” Bindranauth’s total offense level was 34. Bindranauth’s criminal history included six previous convic- tions. Bindranauth’s first four convictions for petit theft, marijuana possession, driving with a suspended license, and battery did not score criminal history points. Bindranauth received a total of three criminal history points from two convictions including two counts of marijuana possession, two counts of possession of narcotic equipment, and one count of possession of narcotics. Bindranauth committed the money laundering offenses while under a criminal justice sentence, so two points were added pursuant to § 4A1.1(d). USCA11 Case: 22-10944 Document: 49-1 Date Filed: 10/08/2024 Page: 10 of 29
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In sum, Bindranauth had five criminal history points, placing him in criminal history category III. The advisory guideline range for Bindranauth’s sentence was 188 to 235 months’ imprisonment. The statutory range, if sentences for each count ran concurrently, was zero to 240 months’ imprisonment. Bindranauth filed written objections, challenging each of the four adjustments applied to his offense level, and the government responded. The district court then held a sentencing hearing. Dur- ing the hearing, after defense counsel had presented its arguments on the first enhancement, the district court announced that: In the event that this matter is taken up on appeal, and any one or more of this Court’s objections is overruled—in fact, on appeal, that the appellate Court would have the benefit of this Court’s ruling, that it would have imposed the same sentence, in any event, as . . . a reasonable sentence based on [the] 3553(a) factors. The district court then overruled Bindranauth’s objection to the four-level enhancement for being in the business of laundering funds, noting “multiple sources, multiple banks, does not suggest an isolated instance of money laundering.” The district court also overruled Bindranauth’s objection to the two-level enhancement for sophisticated laundering. The district court did, however, sustain the objection to the two-level vulnerable victim enhancement. The district court also overruled Bindranauth’s objection to the four-level enhancement for his role as a leader or organizer in a criminal activity that USCA11 Case: 22-10944 Document: 49-1 Date Filed: 10/08/2024 Page: 11 of 29
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involved five or more participants or was otherwise extensive. The final offense level was 32 with a criminal history category III, which made the advisory guidelines range 151 to 188 months’ imprison- ment. Bindranauth addressed the district court, and two witnesses spoke on his behalf. Bindranauth’s counsel asked the district court to impose a sentence of no more than sixty months. The govern- ment advocated for a sentence within the guidelines range. The district court sentenced Bindranauth to a term of im- prisonment of 180 months as to each of Counts One and Counts Four through Nine, and to 60 months’ imprisonment as to Count Ten, with all counts to run concurrently. Bindranauth renewed his objections to the three enhancements that the court overruled in calculating the guidelines range. This timely appeal followed. II. STANDARDS OF REVIEW Several standards of review govern this appeal. We review de novo whether evidence supports a deliberate ignorance instruc- tion. United States v. Stone, 9 F.3d 934, 937 (11th Cir. 1993). But our review of jury instructions is deferential, and we will reverse only if “left with a substantial and eradicable doubt as to whether the jury was properly guided in its deliberations.” United States v. Crab- tree, 878 F.3d 1274, 1289 (11th Cir. 2018) (quoting United States v. Steed, 548 F.3d 961, 977 (11th Cir. 2008)). And when “a party did not object to a jury instruction in the district court, we review that instruction for plain error.” United States v. Prather, 205 F.3d 1265, USCA11 Case: 22-10944 Document: 49-1 Date Filed: 10/08/2024 Page: 12 of 29
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1270 (11th Cir. 2000). “The district court has broad discretion in formulating a jury charge as long as the charge as whole is a correct statement of the law.” Crabtree, 878 F.3d at 1289 (quoting United States v Perez-Tosta, 36 F.3d at 1552, 1564 (11th Cir. 1994). When reviewing Sentencing Guidelines issues, we “review legal questions de novo, factual findings for clear error, and the dis- trict court’s application of the guidelines to the facts with due def- erence, which is ‘tantamount to clear error review.’” United States v. Isaac, 987 F.3d 980, 990 (11th Cir. 2021) (quoting United States v. Rothenberg, 610 F.3d 621, 624 (11th Cir. 2010)). “The government bears the burden of establishing by a preponderance of the evi- dence the facts necessary to support a sentencing enhancement.” United States v. Kinard, 472 F.3d 1294, 1298 (11th Cir. 2006). III. ANALYSIS On appeal, Bindranauth raises two issues. First, he argues that the district court erred by giving an unwarranted jury instruc- tion on deliberate ignorance that was further aggravated by supple- mental instructions that misstated the law. Second, he contends that the district court committed reversible error by miscalculating the Sentencing Guidelines. We address each argument in turn. A. The Instructions on Deliberate Ignorance Bindranauth’s convictions for money laundering and con- spiracy to commit money laundering required the government to prove that Bindranauth knowingly transacted funds that were the proceeds of some form of unlawful activity. See United States v. Tar- koff, 242 F.3d 991, 994 (11th Cir. 2001) (listing the elements of an 18 USCA11 Case: 22-10944 Document: 49-1 Date Filed: 10/08/2024 Page: 13 of 29
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U.S.C. § 1956(a)(1)(B)(i) offense); United States v. Broughton, 689 F.3d 1260, 1280 (11th Cir. 2012) (listing the elements of an 18 U.S.C. § 1956(h) offense). To satisfy the knowledge element, the govern- ment had to show that Bindranauth knew the funds came from “some form of unlawful activity” but he did not need to know the exact nature of the crime from which the money was derived. See 18 U.S.C. § 1956(a)(1). On appeal, Bindranauth argues that the gov- ernment failed to prove that he knew that his financial transactions involved illegal proceeds. As an initial matter, the evidence presented at trial sup- ported actual knowledge by Bindranauth. The evidence presented at trial suggested that Bindranauth knew the funds he laundered were illegal proceeds. The government presented evidence includ- ing Bindranauth’s own repeated acknowledgments that he might have been involved in a scam with Nancy Turney, and Bin- dranauth’s continued activity after repeated warnings by banks, friends, family, and law enforcement, that his conduct was illegal. As one example, Wells Fargo closed his account a month af- ter he opened it, due to suspected fraud. 1 Wells Fargo sent several notifications to Bindranauth advising him that the bank closed the account because “one or more money transfers to [his] account [were] reported as unauthorized.” His personal communications indicated that he knew why the banks had closed his accounts. For instance, in October 2018, Bindranauth told Turney, “Baby, I went
1 In total, the evidence showed that Bindranauth opened five bank accounts,
four of which were later shut down for suspicious activity. USCA11 Case: 22-10944 Document: 49-1 Date Filed: 10/08/2024 Page: 14 of 29
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to the bank. They told me the money is in there and I can’t get it until the people that said I’m doing a fraud with the other bank release my account.” In December 2018, he told her, “I do not want the bank to say anything to me about money laundering, then I will be pissed off.” By all accounts, the circumstances of the trans- actions made it plausible for a jury to conclude that Bindranauth knew he laundered illegal funds. See, e.g., United States v. Puche, 350 F.3d 1137, 1143–44 (11th Cir. 2003) (finding sufficient evidence to sustain a money laundering conviction where the jury could infer intent from the large volume of transfers, their frequency, and other suspicious features). Even setting aside Bindranauth’s clear communications referencing possible fraud or money laundering, a jury could have determined that Bindranauth must have known there was some fraudulent explanation for the money arriving in his account from strangers based on the nature of his “work” with his co-conspirators. Bindranauth argues that the district court erred by giving a deliberate ignorance jury instruction, over his objection, because he proactively sought out information about whether he was com- mitting a criminal act. He asserts that he sought information and assurances from Turney repeatedly in response to questions and concerns that he received from friends, family members, and banks. He also contends that the record contained no evidence that he purposefully attempted to avoid learning all of the facts. A deliberate ignorance instruction is appropriate when the facts “support the inference that the defendant was aware of a high USCA11 Case: 22-10944 Document: 49-1 Date Filed: 10/08/2024 Page: 15 of 29
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probability of the existence of the fact in question and purposely contrived to avoid learning all of the facts in order to have a defense in the event of a subsequent prosecution.” United States v. Rivera, 944 F.2d 1563, 1571 (11th Cir. 1991) (quoting United States v. Al- varado, 838 F.2d 311, 314 (11th Cir. 1987)). It is not error to give the instruction “when the evidence could support both actual knowledge or deliberate ignorance and the jury was instructed on both.” United States v. Maitre, 898 F.3d 1151, 1157 (11th Cir. 2018). As Bindranauth points out, “[t]he record is replete with ex- amples of [him] actively seeking information and assurance from Nancy” that he was not committing a crime. Bindranauth provides examples such as when he asked Nancy if he was “doing money laundering.” He also points to when he asked her “what’s going on” in response to a bank official telling him that he was committing wire fraud. But this is precisely the evidence that warranted the de- liberate ignorance instruction. Bindranauth concedes that he was warned repeatedly, by friends, family members, and banks, that he was potentially engaging in illicit activity. Yet, he chose to ignore it. Here, the circumstantial evidence also suggested actual knowledge. Bindranauth, however, argued that, despite the optics, he never knew that he was participating in a money laundering scheme. For his defense, he directed the jury to his communica- tions with Nancy Turney that suggested that he was unaware of the precise nature of his activity. It was therefore for the jury to determine whether this ignorance was feigned. To enable the jury USCA11 Case: 22-10944 Document: 49-1 Date Filed: 10/08/2024 Page: 16 of 29
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to make that determination, the district court properly instructed that the jury could find knowledge if it determined that Bin- dranauth’s failure to learn the true facts was conscious avoidance on his part. Since the evidence supported actual knowledge, if Bin- dranauth is right that his conduct did not warrant a deliberate ig- norance instruction, then his “contention contains the basis of its denial.” Stone, 9 F.3d at 938. If, as he contends, there was insuffi- cient evidence that he was deliberately ignorant of the money laun- dering scheme, then our precedent is clear that the jury must have convicted on the alternative theory of actual knowledge. See United States v. Colston, 4 F.4th 1179, 1192 (11th Cir. 2021). The district court therefore committed no reversible error when it gave a de- liberate ignorance jury instruction. B. Supplemental Jury Instructions Turning to the supplemental instructions, Bindranauth ar- gues that the district court misled the jury by providing an errone- ous explanation of the law in response to the jury question on de- liberate ignorance. As an initial matter, the parties dispute whether Bindranauth objected to the supplemental instruction below. Whether the chal- lenge is persevered or unpreserved determines whether our review is for an abuse of discretion, See United States v. Lopez, 590 F.3d 1238, 1247 (11th Cir. 2009), or for plain error. See United States v. Schlei, 122 F.3d 944, 973 (11th Cir. 1997). USCA11 Case: 22-10944 Document: 49-1 Date Filed: 10/08/2024 Page: 17 of 29
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On appeal, Bindranauth argues that the district court’s refer- ence to being “deaf, blind, and dumb” misled the jury to believe that one must be physically incapacitated to be negligent, careless, or foolish. Based on the wording of the purported objection below, however, it appears that he was objecting to the court’s failure to specifically reference negligence in its supplemental instruction. Indeed, following the supplemental instruction, Bindranauth’s counsel requested a side bar and stated: “I agree, and don’t take any issue to the description of someone may be deaf, dumb, and blind can be foolish.” The transcript indicates that Bindranauth’s claimed objection to the supplemental instruction consisted of merely prodding the court to explain that negligence, carelessness or foolishness is not enough. This is further supported by the dis- trict court’s next statement to the jury, following the sidebar, where it reiterated that it “must emphasize negligence, careless- ness, or foolishness isn’t enough to prove the defendant knew.” Af- ter the district court provided that clarifying statement at Bin- dranauth’s request, the court dismissed the jury to continue its de- liberations. Here, Bindranauth never objected to the supplemental in- struction, let alone to the specific language that he now challenges on appeal. And “to preserve an objection to jury instructions for appellate review, a party must object before the jury retires, stating distinctly the specific grounds for the objection.” Schlei, 112 F.3d at 973 (quoting United States v. Starke, 62 F.3d 1374, 1380-81 (11th Cir. 1995)). Even where a defendant objects to a jury instruction in the district court, we review for plain error if that objection was “on USCA11 Case: 22-10944 Document: 49-1 Date Filed: 10/08/2024 Page: 18 of 29
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different grounds than the ones he raises on appeal.” United States v. Baston, 818 F.3d 651, 661 (11th Cir. 2016). We thus conclude that plain error review applies because Bindranauth failed to object to the use of “deaf, dumb, and blind” in the supplemental instruction by arguing that the jury would be misled into believing that it could not find negligence, carelessness, or foolishness unless Bindranauth was physically incapacitated. Under plain error review, we ask whether there was (1) er- ror, that (2) was plain, (3) affected the defendant’s substantial rights, and (4) seriously affected the fairness of the judicial proceed- ings. United States v. Pena, 684 F.3d 1137, 1151 (11th Cir. 2012). Here, the court did not plainly err in giving its supplemental in- struction because Bindranauth cannot show that any error affected his substantial rights. Satisfying the substantial rights prong of the plain error test is “anything but easy” and “almost always requires” that the alleged error affected the outcome of the district court pro- ceedings. United States v. Rodriguez, 398 F.3d 1291, 1299 (11th Cir. 2005). And it is the defendant who bears the burden of persuasion regarding the third prong. Id. Bindranauth cannot carry that bur- den here. As noted above, the evidence was sufficient to convict Bindranauth based on his actual knowledge, so he cannot demon- strate that the result would be any different if the court had never given the supplemental instruction. Even assuming the challenge to the supplemental instruc- tion is preserved, we conclude that there is no reversible error. “A trial court enjoys broad discretion to formulate jury instructions USCA11 Case: 22-10944 Document: 49-1 Date Filed: 10/08/2024 Page: 19 of 29
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provided those instructions are correct statements of the law.” United States v. Lebowitz, 676 F.3d 1000, 1014 (11th Cir. 2012)). And we defer to district courts “on questions of phrasing.” Prather, 205 F.3d at 1270. When jury instructions, taken together, accurately state the applicable law, “there is no reason for reversal even though isolated clauses may, in fact, be confusing, technically im- perfect, or otherwise subject to criticism.” United States v. Gibson, 708 F.3d 1256, 1275 (11th Cir. 2013) (quoting United States v. Beasley, 72 F.3d 1518, 1525 (11th Cir. 1996)). Reviewing the supplemental instruction in light of the entire jury charge, as we must, we are not left “with a substantial and in- eradicable doubt as to whether the jury was properly guided in its deliberations.” See Lopez, 590 F.3d at 1248. (quoting United States v. Grigsby, 111 F.3d 806, 814 (11th Cir. 1997)). Notably, at Bin- dranauth’s request following the supplemental instruction, the dis- trict court repeated for a third time that the jury could not find Bin- dranauth’s deliberate avoidance of positive knowledge merely be- cause of “negligence, carelessness, or foolishness.” Juries are pre- sumed to follow the instructions given to them by district judges. United States v. Ramirez, 426 F.3d 1344, 1352 (11th Cir. 2005). Therefore, we presume here that the jury understood that it could not convict based on negligence, carelessness, or foolishness, and that it convicted because the evidence suggested that Bindranauth either knew of, or else purposefully avoided knowing, the nature of his conduct. Accordingly, we conclude that the jury was not misled in its deliberations, and we affirm Bindranauth’s convic- tions. USCA11 Case: 22-10944 Document: 49-1 Date Filed: 10/08/2024 Page: 20 of 29
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C. The Sentencing Enhancements Bindranauth also argues that the district court committed several errors in calculating the applicable sentencing guidelines. He contends that the court misapplied enhancements for being “in the business of laundering funds” under U.S.S.G. § 2S1.1(b)(2)(C), for “sophisticated laundering” under U.S.S.G. § 2S1.1(b)(3), and for being an “organizer or leader” under U.S.S.G. § 3B1.1(a). Bin- dranauth further asserts that the district court made an invalid find- ing under United States v. Keene, 470 F.3d 1347 (11th Cir. 2006), which cannot shield its sentencing errors from appellate review. For the reasons below, we conclude that the district court’s sentenc- ing enhancements do not require reversal. 1. The “Business of Laundering Funds” Enhancement Section 2S1.1(b)(2)(C) of the Sentencing Guidelines provides for a four-level enhancement if the defendant was “in the business of laundering funds.” We look to the totality of circumstances to determine whether a defendant was in the business of laundering funds. See U.S.S.G. § 2S1.1, cmt. n.4(A). The commentary lists six non-exclusive factors for courts to consider, including whether the defendant: (1) regularly engaged in laundering funds; (2) laundered funds for an extended period of time; (3) engaged in laundering funds from multiple sources; and (4) generated a substantial amount of revenue in return for laundering funds. U.S.S.G. § 2S1.1, cmt. n.4(B)(i)-(iv). USCA11 Case: 22-10944 Document: 49-1 Date Filed: 10/08/2024 Page: 21 of 29
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Bindranauth concedes that he “may satisfy” the second fac- tor, but he asserts that the length of his money laundering scheme alone was insufficient to support the enhancement. We disagree. First, Bindranauth did engage in laundering funds with reg- ularity. We have defined “regularly” as “more than isolated, casual, or sporadic activity.” See United States v. Saunders, 318 F.3d 1257, 1265 (11th Cir. 2003) (quoting United States v. St. Cyr, 977 F.2d 698, 703 (1st Cir. 1992)). And “[i]n exploring the regularity of a defend- ant’s illegal operations—the most important factor—the stolen goods need not be the defendant’s sole or even dominant source of income.” Id. The evidence at trial showed that Bindranauth en- gaged in the laundering of funds repeatedly, resulting in convic- tions for six separate counts that each related to a specific illicit transaction. He received funds from several suspicious sources and sent money through bank wires, money orders, and other means, to individuals with bank accounts in Nigeria for more than a year and a half. For similar reasons, Bindranauth satisfies the second factor because he laundered funds for an extended period of time, from February 2018 to September 2019. § 2S1.1, cmt. n.4(B)(i)-(ii); see Saunders, 318 F.3d at 1265. Third, Bindranauth laundered funds from multiple sources. § 2S1.1, cmt. n.4(B)(iii). Six individuals tes- tified that they deposited money to Bindranauth’s accounts after being victimized by his coconspirators. And his victims were not limited to the individuals that testified at trial. At sentencing, the district court noted that the Iberia Bank investigation was sparked USCA11 Case: 22-10944 Document: 49-1 Date Filed: 10/08/2024 Page: 22 of 29
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by evidence that multiple suspected fraud victims wired money to Bindranauth along with law enforcement’s confirmation that Bin- dranauth received fraudulent proceeds from various sources. As to the fourth factor, Bindranauth admitted to law enforcement that he received three percent of the fraudulently acquired proceeds, generating nearly $30,000, which could be considered a substantial amount of revenue in return for laundering funds. See § 2S1.1, cmt. n.4(B)(iv). In applying the enhancement, the district court remarked that multiple sources and multiple banks did “not suggest an iso- lated instance of money laundering.” The court did not clearly err in applying the facts to the guideline provision here. Accordingly, we affirm its imposition of the enhancement. 2. The “Sophisticated Laundering” Enhancement Bindranauth next objects to the district court’s application of the sentencing enhancement for sophisticated laundering. The guidelines define sophisticated laundering as “complex or intricate offense conduct pertaining to the execution or concealment of the 18 U.S.C. § 1956 offense,” typically involving the use of “fictitious entities,” “shell corporations,” “two or more levels (i.e., layering) of transactions,” or “offshore financial accounts.” U.S.S.G. § 2S1.1, cmt. n.5(A). Bindranauth argues that his conduct “involved none of the above—no fictious entities; no shell corporations; no layered trans- actions; and no offshore financial accounts.” Therefore, he con- tends, his actions “were the opposite of sophisticated” and the USCA11 Case: 22-10944 Document: 49-1 Date Filed: 10/08/2024 Page: 23 of 29
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district court erred in applying the enhancement. The record, how- ever, indicates that Bindranauth layered his transactions. In remarking on a sophisticated means enhancement in United States v. Campbell, 491 F.3d 1306 (11th Cir. 2007), we saw “no difference between ‘hiding assets or transactions . . . through the use of fictitious entities, corporate shells, or offshore financial ac- counts,’ and hiding assets or transactions through the use of a straw man or campaign fund.” Id. at 1316 (emphasis added) (quoting U.S.S.G. § 2T1.1, cmt. n.4). At trial, the evidence showed that Bin- dranauth recruited, directed, and paid at least twenty individuals to receive and send money on his behalf. In other words, Bindranauth hired others to act as “straw men” to conceal the broader money laundering scheme. Namely, when Bindranauth was prohibited from sending money to Turney via Western Union or MoneyGram, he located friends and family members who would send the money on his behalf, and he would pay some of them $20 to compensate them for their actions. See § 2S1.1, cmt. n. 5(A)(iii). Bindranauth received victims’ funds, then withdrew the funds and wrote himself checks, before sending the money to Nigeria via money orders. To do so, he used others to send the money that he had received via check and had deposited into his Monroe County Teachers’ Credit Union Bank account. By using others to send money to Nigeria on his behalf, Bindranauth “layer[ed]” the trans- actions to avoid raising suspicion and to hide his involvement in the money laundering scheme. See, e.g., United States v. Feldman, 931 F.3d 1245, 1263–64 (11th Cir. 2019) (holding that the sophisticated USCA11 Case: 22-10944 Document: 49-1 Date Filed: 10/08/2024 Page: 24 of 29
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money laundering enhancement applied to a defendant who used a company to funnel salaries and commissions). On these facts, the district court did not clearly err in finding that the scheme involved “two or more levels . . . of transactions,” so we affirm its application of the sophisticated laundering en- hancement. See U.S.S.G. § 2S1.1, cmt. n. 5(A)(iii). 3. The “Leader or Organizer” Enhancement Finally, Bindranauth also challenges the district court’s find- ing that he was an organizer or leader of the scheme. Section 3B1.1(a) provides for a four-level enhancement if a “defendant was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive.” U.S.S.G. § 3B1.1(a). Bindranauth argues that he was not a leader or organizer because the individuals that he recruited to assist him were not “partici- pants” because they were not criminally responsible for the offense, and their participation was de minimis. District courts examine whether a defendant was an organ- izer or leader by considering the following factors: (1) the exercise of decision making authority, (2) the nature of participation in the commission of the of- fense, (3) the recruitment of accomplices, (4) the claimed right to a larger share of the fruits of the crime, (5) the degree of participation in planning or organizing the offense, (6) the nature and scope of the illegal activity, and (7) the degree of control and au- thority exercised over others. USCA11 Case: 22-10944 Document: 49-1 Date Filed: 10/08/2024 Page: 25 of 29
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United States v. Gupta, 463 F.3d 1182, 1198 (11th Cir. 2006) (quoting U.S.S.G. § 3B1.1, cmt. n.4). The factors are nonexclusive, and there may be more than one leader in an organization. See United States v. Dixon, 901 F.3d 1322, 1348 (11th Cir. 2018); U.S.S.G. § 3B1.1, cmt. n.4. Several factors apply to Bindranauth’s role in the scheme. Bindranauth exercised decision-making authority, as shown by his exchange with Turney where he took charge to determine how they would address Kathleen Houser’s report of fraud. His of- fenses involved the coordination and recruitment of multiple peo- ple, and two witnesses testified that Bindranauth drove them to the banks and paid them to execute transactions on his behalf. Bin- dranauth received a larger share of the profits, paying his accom- plices $20 while he received three percent of the proceeds. And numerous text messages support the conclusion that Turney and Bindranauth planned and organized some of the offenses, and the record suggests that Bindranauth’s offense affected hundreds of people. Although Turney was directly involved in defrauding the victims, her role as a leader or organizer does not foreclose the pos- sibility that Bindranauth was also a leader or organizer of the con- spiracy. Of those directed by Bindranauth alone, the scheme in- volved at least twenty other participants who laundered money. On appeal, Bindranauth focuses on the lack of criminal responsi- bility of the accomplices he recruited, which, he argues, is neces- sary for those accomplices to be “participants” under the guideline. USCA11 Case: 22-10944 Document: 49-1 Date Filed: 10/08/2024 Page: 26 of 29
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The guideline, however, also allows for the imposition of the en- hancement if the defendant “plays a leadership role and the opera- tion ‘is otherwise extensive.’” United States v. Holland, 22 F.3d 1040, 1045 (11th Cir. 1994) (quoting U.S.S.G. § 3B1.1(a)). The nature and scope of the illegal activity here can be reasonably described as ex- tensive because Bindranauth and his co-conspirators laundered ap- proximately one million dollars over a year and a half, using multi- ple different banks and layering techniques to mask their crimes. Accordingly, the district court did not clearly err in finding that Bin- dranauth was a leader in a criminal operation that was extensive. We thus affirm its application of the enhancement. 4. The District Court’s Keene Finding Finally, the government argues that we need not decide whether the guidelines were properly calculated because the dis- trict court stated that it would have imposed the same sentence de- spite the guidelines. The government thus contends that we may affirm the sentence under Keene, 470 F.3d 1347. Here, the district court—before hearing arguments from the parties regarding their positions pursuant to § 3553(a) and before hearing from Bindranauth himself—announced that: In the event that this matter is taken up on appeal, and any one or more of this Court’s objections is overruled – in fact, on appeal, that the appellate Court would have the benefit of this Court’s ruling, that it would have imposed the same sentence, in any event, as . . . a reasonable sentence based on the 3553(a) fac- tors. USCA11 Case: 22-10944 Document: 49-1 Date Filed: 10/08/2024 Page: 27 of 29
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In Keene, we determined that any error in calculating the guidelines is harmless where the district court makes clear that it would impose the same sentence regardless of the guidelines, pro- vided the sentence is substantively reasonable under 18 U.S.C. § 3553(a). 470 F.3d at 1349. The district court in Keene noted that “even if the guideline calculations are wrong,” its application of the sentencing factors under § 3553(a) would still have compelled the conclusion that a 10-year sentence was reasonable and appropriate under all the factors that it considered. Id. Notably, the court made this statement after it had reviewed and overruled Mr. Keene’s ob- jections to his PSI, found what it believed to be the appropriate guidelines range, considered the § 3553(a) factors, and pronounced its sentence. Id. at 1348–49. We determined that, because the dis- trict court had made clear that the sentence imposed would remain the same even “after the § 3553(a) factors are considered,” any error was harmless. Id. But we note that had there been a guidelines error here, the district court’s statement would not have shielded its sentence from reversal. In determining a sentence, the guidelines range is the beginning of the analysis, not the end. Ensuring that a sentence adequately reflects all of the applicable § 3553(a) factors is a “holis- tic endeavor” that requires consideration of the specific individual before the court, and consequently involves hearing from the par- ties about the individual facts and circumstances of the case before imposition of a sentence. See United States v. Rosales-Bruno, 789 F.3d 1249, 1254 (11th Cir. 2015). Relatedly, we have made clear that “the right of allocution is ‘the type of important safeguard that USCA11 Case: 22-10944 Document: 49-1 Date Filed: 10/08/2024 Page: 28 of 29
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helps assure the fairness, and hence legitimacy, of the sentencing process.’” United States v. Prouty, 303 F.3d 1249, 1253 (11th Cir. 2002) (quoting United States v. Adams, 252 F.3d 276, 288 (3d Cir. 2001)). The problem with providing a purported Keene statement be- fore listening to the parties’ arguments is illustrated by what oc- curred at the sentencing hearing here. The district court ultimately changed its mind on one of the four proposed enhancements. The court initially stated that it appeared that each of the “adjustments are warranted, based on the evidence.” Yet after hearing argu- ments on the vulnerable victim enhancement proposed in the PSI, the court reversed course, finding that the government did not meet its burden of establishing that Bindranauth knew the victims were vulnerable. In United States v. Delgado, we advised that “the better prac- tice would be for the court to make clear at the time of pronouncing the sentence that it would reach the same sentence regardless of the Guidelines range.” 981 F.3d 889, 900 n. 8 (11th Cir. 2020) (emphasis added). We reiterate that instruction. “To arrive at an appropriate sentence, the district court must consider all of the applicable § 3553(a) factors.” Rosales-Bruno, 789 F.3d at 1254. A sentencing court therefore cannot insulate itself from appellate review by de- claring—before hearing any argument on those factors and before providing the accused the opportunity to allocute— that it would have imposed the same sentence anyway. If that were so, im- portant procedural safeguards, federal sentencing hearings, the USCA11 Case: 22-10944 Document: 49-1 Date Filed: 10/08/2024 Page: 29 of 29
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requirements of § 3553(a), and the right to allocution, all might be rendered meaningless. IV. CONCLUSION For these reasons, we affirm Bindranauth’s convictions and sentence. AFFIRMED.