United States v. Jasmin Rembert , 479 F. App'x 952 ( 2012 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUNE 27, 2012
No. 11-14700 JOHN LEY
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 0:11-cr-60047-UU-2
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllllPlaintiff - Appellee,
versus
JASMIN REMBERT,
llllllllllllllllllllllllllllllllllllllllDefendant - Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(June 27, 2012)
Before EDMONDSON, MARTIN and FAY, Circuit Judges.
PER CURIAM:
Jasmin Rembert appeals her sixty-three-month sentence for conspiracy to
commit bank fraud, in violation of 18 U.S.C. § 1349, and for conspiracy to commit
identity theft and access device fraud, in violation of 18 U.S.C. § 371.
Rembert worked in the Teacher Certification Department of the Broward
County School Board, Florida, where she used her access to the teacher
certification database to collect the personal identification information contained
within that database and then sell that information to her co-conspirators. Her co-
conspirators then used this information to make fraudulent purchases and receive
cash advances.
Rembert was convicted of one count of conspiracy to commit bank fraud
and one count of conspiracy to commit identity theft and access device fraud. The
revised pre-sentence investigation report determined that Rembert defrauded or
intended to defraud more than fifty victims of more than $414,840. At the
sentencing hearing, the government offered testimony from a federal agent that
forty-two individuals and eight banks suffered a loss of $408,000. The agent
further testified that Rembert had access to the names of the forty-two individual
victims through the teacher certification database, suggesting that the total loss
amount could be attributed to her. On cross-examination, the defense counsel
demonstrated that the federal agent’s testimony relied exclusively on hearsay from
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fraud affidavits filed with the banks. Nevertheless, the district court concluded
that the government had shown that the amount of loss was $408,000. The court
further determined that the guideline sentence was appropriate, rejecting
arguments by Rembert that her family situation and absence of a criminal history
warranted a downward departure.
On appeal, Rembert argues that the government did not meet its burden of
proof as to the amount of loss. Rembert also argues that her sentence was
substantively unreasonable. We address each argument in turn.
This Court reviews for clear error a district court’s determination of the
amount of loss for sentencing purposes. United States v. Medina, 485 F.3d 1291,
1297 (11th Cir. 2007). “When a defendant challenges one of the factual bases of
[her] sentence . . . the Government has the burden of establishing the disputed fact
by a preponderance of the evidence.” United States v. Lawrence, 47 F.3d 1559,
1566 (11th Cir. 1995). Hearsay may be admitted at sentencing if there are
“sufficient indicia of reliability, the court makes explicit findings of fact as to
credibility, and the defendant has an opportunity to rebut the evidence.” United
States v. Zlatogur, 271 F.3d 1025, 1031 (11th Cir. 2001) (quotation marks
omitted). However, “the absence of such [credibility and reliability] findings does
not necessarily require reversal or remand where the reliability of the statements is
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apparent from the record.” United States v. Gordon, 231 F.3d 750, 761 (11th Cir.
2000). Rembert argues that the district court clearly erred by considering
unsubstantiated evidence, and by failing to make specific findings of fact that the
hearsay testimony relied upon by the government was credible and reliable.1 We
disagree.
At the sentencing hearing, the federal agent testified that Rembert had
access to the teacher certification database that fueled a major identity theft
operation. The federal agent further testified that “all victims were teachers in the
education field,” based upon hearsay reports that the bank had delivered to the
agent. The district court judge directly questioned the federal agent, probing the
reliability of his testimony.2 Although defense counsel challenged the strength of
the government’s evidence, the district court was satisfied that the government
“produced sufficient circumstantial evidence to tie the defendant to individuals
who were the victims and . . . provided . . . adequate sufficiently specific
1
The government argues that Rembert never disputed the loss amount at the sentencing
hearing, but that her only claim was that “she had not provided any identifying information”
directly to a co-conspirator. We disagree. Defense counsel for Rembert clearly objected to the
loss amount in her written objections to the PSR, and questioned the reliability of the federal
agent’s testimony.
2
Specifically, the judge asked the agent whether he had obtained fraud affidavits for each
victim, and also questioned how the agent ascertained the occupation of those victims who did
not list their occupations on the fraud affidavits.
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information concerning the amounts [of loss].” Thus, we cannot say that the
district court failed to make findings as to the reliability of the hearsay testimony,
especially where the defense had an opportunity to challenge the government’s
evidence, and the court confirmed the reliability of the evidence by asking its own
questions. See Zlatogur, 271 F.3d at 1031; Gordon, 231 F.3d at 761. And based
on the evidence presented at sentencing, we cannot say that the district court’s
finding was clearly erroneous. See Medina, 485 F.3d at 1297; Lawrence, 47 F.3d
at 1565.
As to Rembert’s argument that her sentence was unreasonable, we review
the reasonableness of a sentence for abuse of discretion. Gall v. United States,
552 U.S. 38, 41, 128 S. Ct. 586, 591 (2007). A district court is required to impose
a sentence that is “sufficient, but not greater than necessary,” to reflect the
seriousness of the offense, promote respect for the law, provide just punishment
for the offense, and protect the public from future criminal conduct. See 18 U.S.C.
§ 3553(a)(2). A district court should also consider the nature of the offense, the
history and characteristics of the defendant, the sentences available under the
guidelines, and the need to avoid unwarranted sentencing disparities. See id.§ 3553(a)(1), (3)–(7). Although we do not presume a sentence within the
guideline range to be reasonable, we ordinarily expect such a sentence to be
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reasonable. United States v. Hunt, 526 F.3d 739, 746 (11th Cir. 2008) (citations
omitted). Rembert argues that her need to care for three children, her absence of a
prior criminal history, and the minimal nature of the losses to individual victims
warrants a downward departure from the sentencing guidelines range. She further
argues that her sentence was more severe than that imposed on similarly culpable
defendants in this case, and that a downward departure is therefore required to
avoid unwarranted sentencing disparities.
After considering all these arguments at the sentencing hearing, the district
court concluded that the guideline sentence was appropriate, because Rembert had
significantly abused a position of trust. The court also expressed concern about
the number of victims and the large amount of loss. Given that the district court
considered the § 3553(a) factors, we will not substitute our judgment for that of
the district court by re-weighing those factors. See United States v. Amedeo, 487
F.3d 823, 832 (11th Cir. 2007). As to the alleged sentencing disparity, Rembert
fails to point to a co-conspirator who was responsible for both an equivalent
amount of loss and a similar number of victims, but who also received a lesser
sentence. Therefore, we do not perceive there to be any sentencing disparity under
§ 3553(a)(6).
For the reasons stated, we AFFIRM the district court.
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