[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS ________________________ ELEVENTH CIRCUIT JAN 29, 2009 No. 08-13717 THOMAS K. KAHN Non-Argument Calendar CLERK ________________________
D. C. Docket No. 07-00140-CR-3-RV
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WAYLON BRYANT GREGORY,
Defendant-Appellant.
________________________
Appeal from the United States District Court for the Northern District of Florida _________________________
(January 29, 2009)
Before ANDERSON, BARKETT and MARCUS, Circuit Judges.
PER CURIAM:
Waylon Bryant Gregory appeals his 90-month, within-guidelines sentences for three counts of mail fraud, in violation of 18 U.S.C. §§ 1341, 2.1 He argues that
the district court incorrectly applied the 2-level enhancement for a scheme
involving 10 or more victims, because (1) the finding was based in part on
judicially noticed losses, (2) only 6 victims were found to have sustained losses for
which they were owed restitution, and (3) the government did not prove the
number of victims beyond a reasonable doubt. He further argues that the district
court erred in applying the two-level enhancement for use of sophisticated means.
I.
A district court must begin the sentencing process by correctly calculating
the applicable guidelines range. Gall v. United States, 552 U.S. ___, 128 S.Ct.
586, 596, 169 L.Ed.2d 445 (2007). Likewise, we review the reasonableness of a
sentence in part by “ensur[ing] that the district court committed no significant
procedural error, such as failing to calculate (or improperly calculating) the
Guidelines range.” Id. at ___, 128 S.Ct. at 597. We review the interpretation and
application of the guidelines de novo and the underlying factual findings for clear
error. United States v. Foley, 508 F.3d 627, 632 (11th Cir. 2007), cert. denied, 128
S.Ct. 1912 (2008). Whether a person is a “victim” under the Guidelines is
1 Gregory’s guilty plea on two counts of aggravated identity theft, 18 U.S.C. § 1048A, carried a mandatory, consecutive, 24-month penalty, bringing his total sentence to 114 months. This portion of his sentence is not at issue on appeal.
2 reviewed de novo. Id.
Where a defendant fails to raise a specific sentencing argument in the district
court, we apply the plain error standard. See United States v. Aguillard, 217 F.3d
1319, 1320 (11th Cir. 2000) (per curiam). To succeed under this standard, the
defendant must show (1) an error that (2) is plain, (3) affects substantial rights, and
(4) seriously affects the fairness, integrity, or public reputation of judicial
proceedings. United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 1776, 123
L.Ed.2d 508 (1993).
Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 2362-63, 147
L.Ed.2d 435 (2000), only requires that a jury find facts relevant to sentencing
beyond a reasonable doubt when those facts would increase a crime’s penalty
beyond the statutory maximum. Otherwise, at the sentencing hearing, the
government must prove by a preponderance of the evidence any fact to be
considered by the district court, United States v. Duncan, 400 F.3d 1297, 1304
(11th Cir. 2005), including the applicability of any guidelines enhancements,
United States v. Ndiaye, 434 F.3d 1270, 1300 (11th Cir. 2006). “The findings of
fact of the sentencing court may be based on evidence heard during trial, facts
admitted by a defendant’s plea of guilty, undisputed statements in the presentence
report, or evidence presented at the sentencing hearing.” United States v.
3 Saunders, 318 F.3d 1257, 1271 n.22 (11th Cir. 2003) (quoting United States v.
Wilson, 884 F.2d 1355, 1356 (11th Cir. 1989)). When a defendant challenges a
fact in the PSI, the government’s burden of proof is triggered. United States v.
Lawrence, 47 F.3d 1559, 1566 (11th Cir. 1995). Failure to object to an allegation
in the PSI constitutes an admission for sentencing purposes, and failure to object to
a sentencing court’s findings of fact precludes the argument on appeal that the
findings were erroneous. United States v. Wade, 458 F.3d 1273, 1277 (11th Cir.
2006).
Guideline § 2B1.1(b)(2)(A)(i) imposes a 2-level increase when the offense
involved 10 or more victims. Application Note 1 states, “‘Victim’ means (A) any
person who sustained any part of the actual loss determined under subsection
(b)(1); or (B) any individual who sustained bodily injury as a result of the offense.”
U.S.S.G. § 2B1.1, comment. (n.1). A “person” may be a business as well as an
individual. Id. “Actual loss” refers to “the reasonably foreseeable pecuniary harm
that resulted from the offense.” § 2B1.1, comment. (n.3(A)(i)). The district court
may not merely adopt the number of victims in the presentencing investigation
report (PSI) without making findings that connect the number of victims to the loss
calculation. Foley, 508 F.3d at 633-34. In calculating the amount of loss, the
district court is not limited to the loss specifically associated with the charged
4 conduct. Id. at 633. Rather, the loss associated with all relevant conduct may be
included in the guidelines calculation. Id.
A fact may be judicially noticed only if it is not subject to reasonable
dispute, either because it is generally known within the district court’s territorial
jurisdiction or because it can be accurately and readily determined using sources
whose accuracy cannot reasonably be questioned. Fed.R.Evid. 201(b). “[T]he
taking of judicial notice of facts is . . . a highly limited process” because it
bypasses the usual procedural safeguards involved in proving facts through
competent evidence. Shahar v. Bowers, 120 F.3d 211, 214 (11th Cir. 1997).
Courts may take judicial notice of such scientific, historical, and geographical facts
as the boundaries of a state or the time of sunset. Id. The doctrine of judicial
notice may not be extended to such matters as a person’s unofficial conduct, id., or
a prediction that would normally rely on expert knowledge, see Fielder v.
Bosshard, 590 F.2d 105, 110-11 (5th Cir. 1979).
The number of victims owed restitution was based on the specific counts of
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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS ________________________ ELEVENTH CIRCUIT JAN 29, 2009 No. 08-13717 THOMAS K. KAHN Non-Argument Calendar CLERK ________________________
D. C. Docket No. 07-00140-CR-3-RV
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WAYLON BRYANT GREGORY,
Defendant-Appellant.
________________________
Appeal from the United States District Court for the Northern District of Florida _________________________
(January 29, 2009)
Before ANDERSON, BARKETT and MARCUS, Circuit Judges.
PER CURIAM:
Waylon Bryant Gregory appeals his 90-month, within-guidelines sentences for three counts of mail fraud, in violation of 18 U.S.C. §§ 1341, 2.1 He argues that
the district court incorrectly applied the 2-level enhancement for a scheme
involving 10 or more victims, because (1) the finding was based in part on
judicially noticed losses, (2) only 6 victims were found to have sustained losses for
which they were owed restitution, and (3) the government did not prove the
number of victims beyond a reasonable doubt. He further argues that the district
court erred in applying the two-level enhancement for use of sophisticated means.
I.
A district court must begin the sentencing process by correctly calculating
the applicable guidelines range. Gall v. United States, 552 U.S. ___, 128 S.Ct.
586, 596, 169 L.Ed.2d 445 (2007). Likewise, we review the reasonableness of a
sentence in part by “ensur[ing] that the district court committed no significant
procedural error, such as failing to calculate (or improperly calculating) the
Guidelines range.” Id. at ___, 128 S.Ct. at 597. We review the interpretation and
application of the guidelines de novo and the underlying factual findings for clear
error. United States v. Foley, 508 F.3d 627, 632 (11th Cir. 2007), cert. denied, 128
S.Ct. 1912 (2008). Whether a person is a “victim” under the Guidelines is
1 Gregory’s guilty plea on two counts of aggravated identity theft, 18 U.S.C. § 1048A, carried a mandatory, consecutive, 24-month penalty, bringing his total sentence to 114 months. This portion of his sentence is not at issue on appeal.
2 reviewed de novo. Id.
Where a defendant fails to raise a specific sentencing argument in the district
court, we apply the plain error standard. See United States v. Aguillard, 217 F.3d
1319, 1320 (11th Cir. 2000) (per curiam). To succeed under this standard, the
defendant must show (1) an error that (2) is plain, (3) affects substantial rights, and
(4) seriously affects the fairness, integrity, or public reputation of judicial
proceedings. United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 1776, 123
L.Ed.2d 508 (1993).
Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 2362-63, 147
L.Ed.2d 435 (2000), only requires that a jury find facts relevant to sentencing
beyond a reasonable doubt when those facts would increase a crime’s penalty
beyond the statutory maximum. Otherwise, at the sentencing hearing, the
government must prove by a preponderance of the evidence any fact to be
considered by the district court, United States v. Duncan, 400 F.3d 1297, 1304
(11th Cir. 2005), including the applicability of any guidelines enhancements,
United States v. Ndiaye, 434 F.3d 1270, 1300 (11th Cir. 2006). “The findings of
fact of the sentencing court may be based on evidence heard during trial, facts
admitted by a defendant’s plea of guilty, undisputed statements in the presentence
report, or evidence presented at the sentencing hearing.” United States v.
3 Saunders, 318 F.3d 1257, 1271 n.22 (11th Cir. 2003) (quoting United States v.
Wilson, 884 F.2d 1355, 1356 (11th Cir. 1989)). When a defendant challenges a
fact in the PSI, the government’s burden of proof is triggered. United States v.
Lawrence, 47 F.3d 1559, 1566 (11th Cir. 1995). Failure to object to an allegation
in the PSI constitutes an admission for sentencing purposes, and failure to object to
a sentencing court’s findings of fact precludes the argument on appeal that the
findings were erroneous. United States v. Wade, 458 F.3d 1273, 1277 (11th Cir.
2006).
Guideline § 2B1.1(b)(2)(A)(i) imposes a 2-level increase when the offense
involved 10 or more victims. Application Note 1 states, “‘Victim’ means (A) any
person who sustained any part of the actual loss determined under subsection
(b)(1); or (B) any individual who sustained bodily injury as a result of the offense.”
U.S.S.G. § 2B1.1, comment. (n.1). A “person” may be a business as well as an
individual. Id. “Actual loss” refers to “the reasonably foreseeable pecuniary harm
that resulted from the offense.” § 2B1.1, comment. (n.3(A)(i)). The district court
may not merely adopt the number of victims in the presentencing investigation
report (PSI) without making findings that connect the number of victims to the loss
calculation. Foley, 508 F.3d at 633-34. In calculating the amount of loss, the
district court is not limited to the loss specifically associated with the charged
4 conduct. Id. at 633. Rather, the loss associated with all relevant conduct may be
included in the guidelines calculation. Id.
A fact may be judicially noticed only if it is not subject to reasonable
dispute, either because it is generally known within the district court’s territorial
jurisdiction or because it can be accurately and readily determined using sources
whose accuracy cannot reasonably be questioned. Fed.R.Evid. 201(b). “[T]he
taking of judicial notice of facts is . . . a highly limited process” because it
bypasses the usual procedural safeguards involved in proving facts through
competent evidence. Shahar v. Bowers, 120 F.3d 211, 214 (11th Cir. 1997).
Courts may take judicial notice of such scientific, historical, and geographical facts
as the boundaries of a state or the time of sunset. Id. The doctrine of judicial
notice may not be extended to such matters as a person’s unofficial conduct, id., or
a prediction that would normally rely on expert knowledge, see Fielder v.
Bosshard, 590 F.2d 105, 110-11 (5th Cir. 1979).
The number of victims owed restitution was based on the specific counts of
conviction, not on all the relevant offense conduct, so it is not the correct measure
of victims for purposes of the guidelines enhancement. The PSI listed all persons
affected by the relevant conduct; the district court adopted that list without
objection by either party. Because 12 of those persons had submitted undisputed
5 evidence that identified specific monetary losses incurred as a result of the relevant
offense conduct, Gregory’s scheme was properly found to have had 10 or more
victims who contributed to the actual loss amount.
To the extent that Gregory challenges the judicial noticing of losses suffered
by the other seven persons on the list, we review for plain error. A finding, based
on a judge’s own professional experience, that the seven persons must have
suffered “any number of . . . losses” as a result of Gregory’s conduct was not a
“fact” appropriate for judicial notice, and the district court committed a plainly
obvious error in concluding otherwise. Nevertheless, because the error affected
neither Gregory’s statutory penalties nor the calculation of his guidelines range,
Gregory cannot show that his rights were substantially affected by the error.
Because the number of victims did not increase Gregory’s penalty beyond
the statutory maximum, the government was not required to prove it beyond a
reasonable doubt. Furthermore, because he conceded at sentencing that at least 12
victims had incurred actual losses as a result of the scheme, he is precluded from
arguing otherwise on appeal. Accordingly, we cannot say that the district court
clearly erred in applying the 2-level enhancement for a scheme involving 10 or
more victims.
II.
6 We review for clear error the district court’s finding that the defendant used
sophisticated means. United States v. Robertson, 493 F.3d 1322, 1329-30 (11th
Cir. 2007), cert. denied, 128 S.Ct. 1295 (2008).
Guideline § 2B1.1(b)(9) imposes a two-level increase “[i]f (A) the defendant
relocated . . . a fraudulent scheme to another jurisdiction to evade law enforcement
. . . ; (B) a substantial part of a fraudulent scheme was committed from outside the
United States; or (C) the offense otherwise involved sophisticated means.”
Application Note 8 explains,
“[S]ophisticated means” means especially complex or especially intricate offense conduct pertaining to the execution or concealment of an offense. For example, in a telemarketing scheme, locating the main office of the scheme in one jurisdiction but locating soliciting operations in another jurisdiction ordinarily indicates sophisticated means. Conduct such as hiding assets or transactions, or both, through the use of fictitious entities, corporate shells, or offshore financial accounts also ordinarily indicates sophisticated means.
U.S.S.G. § 2B1.1, comment. (n.8(b)).
Gregory’s scheme involved acquiring multiple automobile insurance
policies, including some on cars that did not belong to him, discontinuing
payments once he made claims on them, and using a variety of names,
identification information, credit cards, and bank accounts to conceal his identity
from the insurance companies. He submitted fraudulently obtained medical
information and bills he falsely claimed to have paid. He also submitted falsified
7 employment histories and wage claim forms with the assistance of his girlfriend.
He eventually began to obtain stacked coverage and homeowner discounts. We
therefore conclude that the district court did not clearly err in finding that this
scheme constituted especially complex or intricate conduct.
AFFIRMED.