United States v. Marquis R. Seals ( 2014 )

Case: 13-15753 Date Filed: 06/02/2014 Page: 1 of 5
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 13-15753
Non-Argument Calendar
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D.C. Docket No. 3:13-cr-00082-LC-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARQUIS R. SEALS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Florida
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(June 2, 2014)
Before MARCUS, WILSON and ANDERSON, Circuit Judges.
PER CURIAM:
Marquis Seals appeals his nine-month sentence, imposed after he pleaded
guilty to two counts of mail fraud, in violation of 18 U.S.C. § 1341. Seals was
indicted, along with five codefendants, following a string of fraudulent relief
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claims by Hooters Pensacola Beach employees following the BP Deepwater
Horizon oil spill. Seals personally received $17,000 from a fraudulent claim that
he filed asserting that the oil spill caused him to lose bonus wages as an assistant
manager. His co-worker, Bernard Cook, was initially denied a $7,000 claim but
then supplemented the denied claim with a letter from Seals written on Hooters
letterhead. Cook subsequently filed a second claim, this time for $19,040, and it
was also supplemented by a fraudulent letter from Seals. At sentencing, the district
court held Seals accountable for an intended loss of $17,000 from his actions, and
$26,040 from Cook’s two claims, for a total intended loss of $43,040. On appeal,
Seals argues that the district court erred in attributing to him $43,040 in intended
losses, because it had merely speculated that the amount that Cook requested was
reasonably foreseeable to Seals. After careful review, we affirm. 1
We review the sentence a district court imposes for “reasonableness,” 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)). The court may abuse its discretion if it imposes a procedurally
unreasonable sentence by improperly calculating the guidelines range. United
States v. Bonilla, 579 F.3d 1233, 1245 (11th Cir. 2009). We review a district
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Due to the proximity of his projected release date, Marquis Seals’s motion to expedite is
GRANTED, to the extent that it seeks to expedite the disposition of his appeal. However,
because both parties have already submitted briefs, his motion is DENIED AS MOOT, to the
extent that it seeks to expedite the briefing period.
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court’s application of the guidelines to the facts de novo. United States v. Lamons,
532 F.3d 1251, 1268 (11th Cir. 2008). We review a district court’s factual findings
-- including an amount-of-loss determination -- for clear error. United States v.
Cabrera, 172 F.3d 1287, 1292 (11th Cir. 1999). A finding is clearly erroneous only
if we are left with a definite and firm conviction that a mistake has been
committed. United States v. Almedina, 686 F.3d 1312, 1315 (11th Cir. 2012).
In a fraud case, a defendant’s offense level is increased six levels if the loss
was more than $30,000 but not more than $70,000, while the offense level is
increased by four levels if the loss was more than $10,000 but not more than
$30,000. U.S.S.G. §2B1.1(b)(1)(C)-(D). For the purposes of that provision, loss
equals the greater of actual loss or intended loss. U.S.S.G. § 2B1.1, comment.
(n.3(A)). “Intended loss” means the pecuniary harm that was intended to result
from the offense and “actual loss” is the “reasonably foreseeable pecuniary harm
that resulted from the offense.” U.S.S.G. § 2B1.1, comment. (n.3(A)(i)-(ii)). The
Sentencing Guidelines make a criminal defendant responsible for “all acts and
omissions committed, aided, abetted, counseled, commanded, induced, procured,
or willfully caused by the defendant,” as well as, in the case of joint criminal
activity, “all reasonably foreseeable acts and omissions of others in furtherance of
the jointly undertaken criminal activity.” U.S.S.G. § 1B1.3(a)(1)(A)-(B).
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If the district court errs in calculating the guidelines range, we must vacate
the sentence, unless the error is harmless. United States v. Barner, 572 F.3d 1239,
1247 (11th Cir. 2009). An error in loss calculation is harmless if the district court
would have imposed the same sentence regardless of the guidelines’
recommendations on the amount of loss. United States v. Tampas, 493 F.3d 1291,
1305 (11th Cir. 2007). A loss calculation must be supported by reliable and
specific evidence. United States v. Munoz, 430 F.3d 1357, 1370 (11th Cir. 2005).
When a defendant fails to object to allegations of fact in a presentence
investigation report (“PSI”), he admits those facts for sentencing purposes. United
States v. Beckles, 565 F.3d 832, 844 (11th Cir. 2009).
Here, the district court’s amount-of-loss calculation was not clearly
erroneous. Cook’s requests for $7,000 and $19,040 were unobjected-to facts from
the probation officer’s PSI, and therefore were established with specific and
reliable evidence. Moreover, Cook’s reasonably foreseeable conduct could be
attributed to Seals, who undertook joint criminal activity with Cook, forging letters
to supplement Cook’s fraudulent claims. Unobjected-to facts from the PSI also
showed that Seals had recovered $17,000 himself prior to Cook’s second claim.
The amount that Cook requested was not exorbitant -- the greater of his claims was
only $2,040 more than Seals had already received. Therefore, a finding that the
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request was reasonably foreseeable to Seals does not leave us with a “definite and
firm conviction” that a mistake was made.
In any event, even if the district court had erred in its guidelines calculation,
that error would have been harmless, because the district court said that Seals’s
sentence would be the same regardless of its ruling on his objection to the loss
amount. Accordingly, we affirm Seals’s sentence.
AFFIRMED.
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