United States v. Laquitta S. Brackins , 711 F. App'x 491 ( 2017 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
__________________________
No. 16-15195
Non-Argument Calendar
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D.C. Docket No. 1:14-cr-00435-SCJ-JSA-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
LAQUITTA S. BRACKINS,
Defendant - Appellant.
__________________________
Appeal from the United States District Court
for the Northern District of Georgia
__________________________
(September 26, 2017)
Before TJOFLAT, MARCUS, and FAY, Circuit Judges.
PER CURIAM:
Laquitta S. Brackins appeals her 87-month sentence, which fell at the low
end of the Guidelines range. After being indicted by a grand jury, Brackins pled
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guilty to fifteen counts: one count of conspiracy under 18 U.S.C. § 1349, eight
counts of mail fraud under 18 U.S.C. § 1341, and six counts of wire fraud under 18
U.S.C. § 1343. The convictions stemmed from a scheme in which Brackins, along
with others, conspired to defraud an insurance provider by filing false claims on
cell phones, tablets, and other electronic devices. Through this scheme, Brackins
managed to obtain more than 100 electronic devices worth an average of $545.21.
On appeal, Brackins makes three arguments. First, she argues that the
District Court erred by applying a sixteen-level increase for economic losses that
ranged between $1,500,000 and $3,500,000. U.S.S.G. § 2B1.1(b)(1)(I).
Specifically, she argues that the District Court should not have included the
deductibles on the fraudulently obtained devices in calculating the total loss. She
further contends that the District Court included intended losses that were
speculative. Second, Brackins argues that the District Court erred by finding that
she was a leader or organizer of the conspiracy, and thus raising her sentencing
range by four levels. U.S.S.G. § 3B1.1(a). She alleges that she did not exercise
decision-making authority, recruit, lead, or control the other participants. Third,
Brackins argues that the District Court erred in applying a two-level sentencing
enhancement based on obstruction of justice. U.S.S.G. § 3C1.1. The District Court
applied this enhancement after finding that Brackins, and Barnes under her orders,
destroyed computers in an attempt to conceal the fraud. Brackins argues that the
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District Court based this finding on the testimony of Amanda Barnes, a co-
conspirator who Brackins contends did not provide credible testimony.
I.
We review the district court’s loss calculation for clear error. United States
v. Barrington, 648 F.3d 1178, 1197 (11th Cir. 2011) (citations omitted). Under
clear error review, if the evidence supports two permissible viewpoints, the
factfinder’s choice between them stands. Id. at 945. However, where the reviewing
court has a “definite and firm” conviction that a mistake has been made, the factual
finding is clearly erroneous. United States v. Gupta, 572 F.3d 878, 887 (11th Cir.
2009) (quotations omitted) (quotation omitted).
A sentencing judge must only make “a reasonable estimate of the loss, given
the available information.” Barrington, 648 F.3d 1178, 1197 (quotations omitted).
District courts stand in a unique position to evaluate the evidence relevant to a loss
determination, which entitles their determinations to deference. United States v.
Bradley, 644 F.3d 1213, 1290 (11th Cir. 2011); U.S.S.G. § 2B1.1, comment.,
n.2(C). The government must establish reliable and specific facts on a
preponderance of the evidence. Bradley, 644 F.3d at 1290. The district court, in
turn, may make factual findings related to the loss determination based on evidence
heard during trial, undisputed statements in the presentence investigation report, or
evidence presented during the sentencing hearing. Id. However, courts cannot
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“speculate about the existence of a fact that would result in a higher sentence.”
Barrington, 648 F.3d at 1197 (quotation omitted).
For fraud, the Guidelines authorize a sixteen-level increase to the base
offense level if the economic loss from the offense falls between $1,500,000 and
$3,500,000. U.S.S.G. § 2B1.1(b)(I). To calculate loss, courts may use the intended
loss if the intended loss is greater than the actual loss. Id. § 2B1.1, comment.,
n.3(A). Actual loss represents the “reasonably foreseeable pecuniary harm that
resulted from the offense.” Id. § 2B1.1, comment., n.3(A)(i). Intended loss means
the “pecuniary harm that was intended to result from the offense.” Id. § 2B1.1,
comment., n.3(A)(ii). It includes “pecuniary harm that would have been impossible
or unlikely to occur.” Id. For fraud offenses, we have held that district courts may
base sentencing on intended loss even where no actual loss occurred. See United
States v. Menichino, 989 F.2d 438, 442 (11th Cir. 1993).
Here, the District Court did not clearly error in determining that the loss
from the fraud exceeded $1,500,000. Because the amount of intended loss
exceeded the actual loss, the District Court properly based the loss amount on the
larger of the two: the intended loss. In this respect, the Government presented
specific, reasonable estimates of the intended loss amounts. See U.S.S.G. § 2B1.1,
comment., n.3(A); Barrington, 648 F.3d at 1197; Bradley, 644 F.3d at 1290.
Moreover, the record shows that the District Court did not include deductibles in
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the economic losses attributable to Verizon Wireless. Since Verizon required
recipients to pay the deductible at delivery, the District Court properly inferred that
Brackins must have paid these deductibles. However, the District Court included
the deductibles in calculating the economic losses to AT&T. The Government
presented evidence that AT&T charges the deductibles on the service bill
following delivery of a device. In a sampling of AT&T claims, the Government
showed that Brackins never paid these deductibles. Therefore, the District Court
reasonably inferred that Brackins did not pay deductibles for the AT&T claims.
The District Court thus reasonably included the AT&T deductibles in the loss
amount. Thus, since the intended loss exceeded the actual loss and the District
Court made reasonable findings as to the deductibles, the District Court did not
clearly error in applying the sixteen-level enhancement.
II.
When determining whether a leadership or recruitment enhancement was
warranted, we review the district court’s determination on the defendant’s role for
clear error. United States v. Rodriguez De Varon, 175 F.3d 930, 936–37 (11th Cir.
1999) (en banc). The government carries the burden of proof on a preponderance
of the evidence. United States v. Yeager, 331 F.3d 1216, 1226 (11th Cir. 2003).
Under U.S.S.G. § 3B1.1(a), a four-level enhancement applies if (1) the
defendant organized or led a criminal activity and (2) the criminal activity involved
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five or more participants or was otherwise extensive. In assessing a defendant’s
role, courts should consider the following factors: (1) “the exercise of decision
making authority,” (2) “the nature of participation in the commission of the
offense,” (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 authority exercised over others.” Id. § 3B1.1, comment.,
n.4. These factors represent “considerations for the sentencing judge,” and a
district judge need not find each factor present. United States v. Martinez, 584 F.3d
1022, 1026 (11th Cir. 2009) (quotation omitted).
In addition, the defendant need not be the “sole leader or kingpin of the
conspiracy” to be considered an organizer or leader. United States v. Rendon, 354
F.3d 1320, 1332 (11th Cir. 2003) (quotation omitted); see U.S.S.G. § 3B1.1
comment., n.4 (“There can . . . be more than one person who qualifies as a leader
or organizer of a criminal association or conspiracy.”). The leadership
enhancement in § 3B1.1(a) applies even if the defendant led or organized only one
person. Yeager, 331 F.3d at 1226–27. Evidence that the defendant recruited and
instructed participants in the conspiracy suffices for a leadership enhancement.
United States v. Carabello, 595 F.3d 1214, 1231 (11th Cir. 2010).
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The task of determining witness credibility typically falls to the fact finder.
United States v. Ramirez-Chilel, 289 F.3d 744, 749 (11th Cir. 2002). This flows
from the reasoning that the “fact finder personally observes the testimony,” and
thus inhabits a superior position to assess credibility. Therefore, we defer to the
district court’s credibility determinations, unless the evidence defies “the laws of
nature, or is so inconsistent or improbable on its face that no reasonable factfinder
could accept it.” Id. (quotation omitted).
Here, the District Court did not clearly err in determining that a four-level
enhancement was warranted. The District Court determined that Amanda Barnes, a
participant in the scheme, provided credible testimony that Brackins recruited
individuals into the scheme and ordered individuals to create false affidavits, email
accounts, and fake cell phone bills. See Doc. 152-106, at 116. This determination
neither contradicts the laws of nature, nor is so inconsistent or improbable on its
face that no reasonable factfinder could accept it. See Ramirez-Chilel, 289 F.3d at
749. Barnes’s testimony and other evidence also established the following: the
scheme included five or more participants, Brackins recruited accomplices and
exercised control over them, and Brackins enjoyed a large share of the illicit gains
from the conspiracy. See U.S.S.G. § 3B1.1, comment., n.4. Thus, the District Court
did not commit clear error in applying an enhancement for leadership and
organization.
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III.
In reviewing an obstruction of justice enhancement, we review the district
court’s factual findings for clear error. United States v. Doe, 661 F.3d 550, 565
(11th Cir. 2011) (quotations omitted). However, the application of the factual
findings to the Guidelines is reviewed de novo. Id.The Guidelines provide a two-level sentence enhancement where the
defendant willfully obstructed or impeded, or attempted to obstruct or impede, the
administration of justice with respect to the investigation, prosecution, or
sentencing of the offense of conviction. U.S.S.G. § 3C1.1. The enhancement
applies when a defendant destroyed or concealed, or directed another person to
destroy or conceal, evidence that is material to an official investigation or judicial
proceeding, or attempted to do so. Id. § 3C1.1, comment., n.4(D).
Here, the District Court did not clearly err by enhancing Brackin’s sentence
for obstruction of justice. The evidence supports that she destroyed two hard drives
in an attempt to conceal the fraud. She also directed Barnes to erase data from her
laptop for similar purposes. While the evidence relies almost on Barnes’s
testimony at the sentencing hearing, the District Court found that testimony
credible. We will not disturb that finding.
AFFIRMED.
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