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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 17-13682
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D.C. Docket No. 1:15-cr-00403-MHC-AJB-2
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ROBERTA SHEFFIELD,
Defendant - Appellant.
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Appeal from the United States District Court
for the Northern District of Georgia
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(October 1, 2019)
Before TJOFLAT, JORDAN, and ANDERSON, Circuit Judges.
JORDAN, Circuit Judge:
Roberta Sheffield pled guilty to numerous criminal charges relating to her
involvement with others in a fraudulent tax credit scheme. Generally speaking, the
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scheme involved the submission of thousands of tax returns falsely claiming a
$1,000 tax credit. The returns were fraudulent because the taxpayers had not
incurred the $4,000 in educational expenses needed to qualify for the tax credit.
Based on the fraudulent returns, the IRS issued a $1,000 refund to each taxpayer for
each tax credit claimed.
The district court sentenced Ms. Sheffield to 37 months’ imprisonment
followed by a term of supervised release. The court fixed the amount of loss from
the fraudulent tax credit scheme at $3,461,638, and ordered Ms. Sheffield to pay
restitution in that amount jointly and severally with her co-defendants. In this
appeal, Ms. Sheffield contests only the restitution order.
We agree with Ms. Sheffield that the restitution order must be set aside. The
refunds issued by the IRS due to the fraudulent tax credit scheme were all for the
same exact amount — $1,000 — and the evidence the government submitted in
support of its restitution request was admittedly and demonstrably inaccurate.
Where, as here, the appropriate restitution amount is definite and easy to calculate,
the government cannot satisfy its burden of proof by relying on the oft-stated (but
not always applicable) principle that restitution can be based on a reasonable
estimate of loss. Cf. Fred R. Shapiro, The Yale Book of Quotations 639 (Yale
University Press 2006) (quoting Frank Robinson: “Close only counts in horseshoes
and grenades.”).
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I
At sentencing, the government bore the burden of demonstrating the loss
sustained by the IRS by a preponderance of the evidence. See 18 U.S.C. § 3664(e);
United States v. Baldwin,
774 F.3d 711, 728 (11th Cir. 2014). Without objection
from Ms. Sheffield, the government introduced a spreadsheet purportedly listing
each fraudulent tax return, along with the name of the taxpayer and the amount of
the tax credit refund issued by the IRS. According to the spreadsheet, the loss from
the tax credit scheme totaled $3,461,638.
Although Ms. Sheffield did not object to the introduction of the spreadsheet,
she argued that the restitution amount should be lower than $3,461,638 because the
spreadsheet contained duplicative entries:
I believe that [the figure] included not just the actual loss
but some of the duplicates, like, some of the things were
counted twice. There were some entries that I reviewed
that appeared to be duplicates. So I’m not sure what the
exact restitution amount should be because that’s, frankly,
the government’s burden, but I believe it was lower than
$3.4 million.
D.E. 225 at 7.
In response to Ms. Sheffield’s objection, the government asserted that
“restitution does not have to be calculated with absolute precision,” and maintained
that “the burden lies on the defendant, if this is an inaccurate number, to point out
why it’s inaccurate.”
Id. at 8. The government acknowledged that the spreadsheet
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might contain duplicate entries, and conceded that one taxpayer was listed twice for
the same tax year. But it again argued that “the burden is on the defendant to point
out what the restitution amount should be if this is inaccurate.”
Id.
The district court said that it could not tell whether there were duplicate
entries, and invited Ms. Sheffield to provide a list of the entries she believed were
duplicative. It also noted that, “unless Ms. Sheffield hits the lottery sometime
between now and the end of her life, the odds of her and her co-defendants paying
this money back are below slim.”
Id. at 9. When Ms. Sheffield said she did not have
such a list, the district court overruled her objection and ordered restitution in the
amount set out in the spreadsheet.
II
We review the district court’s restitution order for clear error. See United
States v. Martin,
803 F.3d 581, 595 (11th Cir. 2015). That means that we will reverse
only if we are left with a “definite and firm conviction that a mistake has been
committed.” Anderson v. City of Bessemer City,
470 U.S. 564, 573 (1985) (citation
and internal quotation marks omitted). Despite this deferential standard of review,
we cannot affirm the restitution order because the government’s spreadsheet was
admittedly inaccurate.
“[R]estitution seeks to make victims whole by reimbursing them for their
losses[.]” United States v. Joseph,
743 F.3d 1350, 1354 (11th Cir. 2014). Because
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“[r]estitution is not designed to punish the defendant[,] . . . the amount . . . owed . . .
must be based on the amount of loss actually caused by the defendant’s conduct.”
Martin, 803 F.3d at 595 (citation and internal quotation marks omitted). See also 18
U.S.C. § 3663(a)(1)(B)(i)(I) (directing courts to consider the “amount of the loss
sustained by each victim as a result of the offense”).
The “use of estimation” is permitted because “it is sometimes impossible to
determine an exact restitution amount.” United States v. Futrell,
209 F.3d 1286,
1291–92 (11th Cir. 2000). In some cases, therefore, the government is allowed to
submit, and the district court is permitted to use, a “reasonable estimate” of that
amount. See, e.g., United States v. Gushlak,
728 F.3d 184, 196 (2d Cir. 2013)
(explaining that “a ‘reasonable approximation’ will suffice, especially in cases in
which an exact dollar amount is inherently incalculable”).
For example, in Martin we laid out a formula to calculate loss in situations
where a successor lender is injured by a defendant’s mortgage fraud—“[i]n simple
terms, how much it paid minus how much it
made.” 803 F.3d at 595–96. But we
left open the possibility that a district court might lack evidence regarding a loan’s
actual purchase price, given that “today’s banking realities,” such as “the bundling
of mortgages into securities . . . may make it difficult to identify precisely the
proceeds a lender received for a specific . . . loan.”
Id. (citation and quotation marks
omitted). In such a situation, some “reasonable estimate[s]” would be, by necessity,
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acceptable. See
id. We cautioned, however, that district courts cannot simply make
baseless presumptions, and remanded the restitution portion of the defendant’s
sentence because the government had not introduced evidence regarding the actual
prices paid or evidence supporting the estimates it had put forth. See
id.
Like the Second Circuit, we have “never adopted a one-size fits all standard
of precision for application in restitution cases.”
Gushlak, 728 F.3d at 195. In our
view, Martin does not stand for the broad proposition that a “reasonable estimate”
of restitution will always suffice. Indeed, before Martin we explained that “where
difficulties arise, a district court may accept a ‘reasonable estimate’ of the loss based
on the evidence presented.”
Baldwin, 774 F.3d at 728 (emphasis added and citation
omitted).
Here the losses suffered by the IRS due to the tax credit scheme were definite
and easy to calculate. Because each fraudulent tax credit triggered a refund of
$1,000 — not a penny more, not a penny less — figuring out the loss only required
a simple mathematical exercise, i.e., multiplying each false tax credit by $1,000.
Given that the government must put forth “reliable and specific evidence” to support
a restitution award, see United States v. Stein,
846 F.3d 1135, 1156 (11th Cir. 2017),
it is not too much to require precision in a case like this one.
Ms. Sheffield made a specific objection to the proposed restitution amount,
explaining that the government’s spreadsheet contained some duplicate entries.
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Once the government acknowledged that there was in fact some duplication, it could
not carry its burden without correcting the spreadsheet. At the very least, the one
acknowledged duplicative entry should have been deducted from the spreadsheet’s
total.
III
The Supreme Court, citing a 2018 publication by the Government Accounting
Office, recently noted that approximately 90% of restitution orders in criminal cases
are uncollectible. See Lagos v. United States,
138 S. Ct. 1684, 1689 (2018). As the
district court surmised, it is highly unlikely that Ms. Sheffield and her co-defendants
will be able to satisfy a restitution obligation of over $3 million.
At oral argument, Ms. Sheffield asserted that the duplicate entries totaled
$136,000. The government, for its part, stated that the duplicate entries amounted
to only $31,000. If Ms. Sheffield is correct about the extent of the duplication error
in the spreadsheet, that error amounts to a mere .04% of the government’s proposed
total of $3,461,638. So one may wonder why it is that we are reversing a multi-
million dollar restitution order when the result on remand is likely to be
approximately the same and payment (at least full payment) is unlikely. The reason
is a simple one. Ms. Sheffield has the “right not to be sentenced on the basis of
inaccurate or unreliable information,” United States v. Giltner,
889 F.2d 1004, 1008
(11th Cir. 1989), and is not required to pay restitution she is not responsible for.
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In a case like this one, where the loss from each fraudulent tax credit is the
same fixed amount, and figuring out the total is a simple computational exercise,
“[r]estitution . . . requires an exact figure.” United States v. Caputo,
517 F.3d 935,
943 (7th Cir. 2008). Otherwise, the IRS would receive an inappropriate windfall
from the restitution order. See
Martin, 803 F.3d at 594 (“[T]he purpose of restitution
is not to provide a windfall for crime victims but rather to ensure that victims, to the
greatest extent possible, are made whole for their losses.”) (citation and internal
quotation marks omitted).
We vacate Ms. Sheffield’s restitution order and direct the district court on
remand to calculate the actual amount of refunds issued by the IRS as a result of the
fraudulent tax credit scheme.
RESTITUTION ORDER VACATED AND CASE REMANDED WITH
INSTRUCTIONS.
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