USCA11 Case: 21-13717 Document: 32-1 Date Filed: 12/21/2022 Page: 1 of 9
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-13717
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KAREN MUNROE,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 0:19-cr-60311-JIC-2
____________________
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2 Opinion of the Court 21-13717
Before NEWSOM, GRANT, and BRASHER, Circuit Judges.
PER CURIAM:
Karen Munroe conspired with Chukwuemeka Chinye to
commit financial fraud. She helped Chinye procure a counterfeit
Florida driver’s license and withdrew a couple thousand dollars
with a debit card issued in someone else’s name. The government
indicted Munroe, and the jury convicted her on four criminal
counts, including conspiracy to commit access device fraud. The
district court sentenced her to forty-five months’ imprisonment,
imposing enhancements because the offense involved (1) sophisti-
cated means and (2) ten or more victims. On appeal, Munroe ar-
gues that the district court clearly erred in applying these two en-
hancements. After reviewing the record, we are not left with a def-
inite and firm conviction that the district court erred in applying
the sophisticated-means enhancement. But the government de-
clines to defend the district court’s factfinding on the number of
victims, instead asking us to find that Munroe’s offense involved
different victims that also number ten or more. We cannot make
such a factfinding. Accordingly, we affirm in part and remand in
part.
I.
We begin by rehearsing the relevant facts of this case, which
arose when Munroe and Chinye conspired to steal money from un-
suspecting victims. Their elaborate scheme transpired between
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21-13717 Opinion of the Court 3
May 2018 and January 2019 and involved creating fraudulent bank
accounts, changing victims’ mailing addresses, rerouting check
payments, and “washing” checks. Munroe was instrumental in
helping Chinye acquire a counterfeit Florida driver’s license. The
license contained identifying information Chinye used to open
bank accounts that housed the pair’s ill-gotten gains. On one occa-
sion, Munroe texted Chinye information listed on an illegally ob-
tained credit card that was in her possession. On another, the pair
diverted a $20,000-check and deposited it into one of the fraudulent
accounts. Munroe then made several ATM withdrawals from the
account using a debit card issued in the victim’s name.
The government indicted Munroe for (1) conspiracy to com-
mit access device fraud under
18 U.S.C. § 1029(b)(2); (2) producing,
using, and trafficking in counterfeit access devices under
18 U.S.C.
§ 1029(a)(1); (3) use of unauthorized access devices under
18 U.S.C.
§ 1029(a)(2); and (4) aggravated identity theft under 18 U.S.C. §
1028A(a)(1). A jury convicted her on all counts.
Central to this appeal, the district court imposed two en-
hancements at sentencing over Munroe’s objection: one under
U.S.S.G. § 2B1.1(b)(10)(C) because the offense utilized sophisti-
cated means; another under U.S.S.G. § 2B1.1(b)(2)(A)(i) because
the offense involved ten or more victims. The district court then
sentenced Munroe to forty-five months’ imprisonment. She timely
appealed.
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4 Opinion of the Court 21-13717
II.
We review the district court’s decision to impose a sophisti-
cated-means enhancement for clear error. United States v. Pres-
endieu,
880 F.3d 1228, 1248–49 (11th Cir. 2018). The clear-error
standard is highly deferential to the district court’s findings—if we
are not “left with a definite and firm conviction that a mistake has
been committed,” we affirm the sentence. United States v. Sosa,
777 F.3d 1279, 1300 (11th Cir. 2015) (quotations omitted).
We also review the “district court’s finding of the number of
victims for clear error.” United States v. Baldwin,
774 F.3d 711, 735
(11th Cir. 2014). Yet, because the “district court’s determination
that a person or entity was a victim for purposes of loss calculation”
requires interpretation of the Guidelines, we review that finding de
novo. United States v. Stein,
964 F.3d 1313, 1319 (11th Cir. 2020).
When a defendant challenges the factual basis for an en-
hancement, the government must prove the disputed fact by a pre-
ponderance of the evidence—the proposition must be “more likely
true than not true.” United States v. Philador,
717 F.3d 883, 885
(11th Cir. 2013); United States v. Watkins,
10 F.4th 1179, 1185 (11th
Cir. 2021) (quotation omitted). And we can affirm “for any reason
supported by the record,” even if the district court did not expressly
rely upon it. Williams v. Bd. of Regents of Univ. Sys. of Ga.,
477
F.3d 1282, 1294 (11th Cir. 2007).
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21-13717 Opinion of the Court 5
III.
On appeal, Munroe advances two principal arguments to
challenge her sentence. First, she posits that that the district court
clearly erred in applying a sophisticated-means enhancement be-
cause she did not “mastermind[] a complex scheme.” Second, she
contends that her conduct did not cause the companies identified
as “victims” by the district court to sustain actual losses—the dis-
trict court erred in imposing an enhancement on that basis too. We
take up each issue in turn.
A. Sophisticated Means
Munroe’s first challenge boils down to the claim that her in-
dividual conduct did not amount to sophisticated means. She there-
fore argues that the district court clearly erred by imposing a two-
point sophisticated-means enhancement. We disagree.
The Guidelines recommend a two-point enhancement
when (1) the offense “involved sophisticated means” and (2) “the
defendant intentionally engaged in or caused the conduct consti-
tuting sophisticated means.” U.S.S.G. § 2B1.1(b)(10)(C). “Sophisti-
cated means” denote “especially complex or especially intricate of-
fense conduct” related to “the execution or concealment of an of-
fense.” Id. § 2B1.1 n.9. The district court need not conclude that
every aspect of the offense is sophisticated to apply the enhance-
ment. See United States v. Wheeler,
16 F.4th 805, 830 (11th Cir.
2021). Yet, the district court should not apply a sophisticated-means
enhancement without a determination that “the defendant’s own
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6 Opinion of the Court 21-13717
conduct was sophisticated.” Presendieu, 880 F.3d at 1248 (quota-
tions omitted). Unlawfully procuring checks payable to others and
acquiring fraudulent identification constitute sophisticated means.
Id. Moreover, spreading out illegal activities over an extended
timeframe points to a scheme’s sophistication. See United States v.
Feaster,
798 F.3d 1374, 1381 (11th Cir. 2015).
Here, the scheme that Munroe and Chinye devised, which
entailed changing victims’ mailing addresses, “washing” checks,
and opening fraudulent bank accounts, falls squarely within the
definitional scope of “sophisticated means” under the Guidelines.
Nor does Munroe dispute the totality of the sophistication on ap-
peal.
Instead, she claims that she did not intentionally engage in
or cause the sophisticated conduct. But this argument fails to per-
suade. First, Munroe helped Chinye acquire a counterfeit Florida
driver’s license. She even communicated with a co-conspirator to
ensure that the fake license would display proper markings under
black light and be scannable. Second, Munroe made several ATM
withdrawals from an account that held funds from an illegally di-
verted $20,000-check. Third, Munroe forwarded Chinye infor-
mation from a fraudulently obtained credit card.
Casting Munroe as an innocent bystander to Chinye’s arti-
fice does not comport with the record. Acquiring false identifica-
tion, as Munroe did, constitutes sophisticated means under the
Guidelines. See Presendieu, 880 F.3d at 1248. Munroe also engaged
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21-13717 Opinion of the Court 7
in her criminal activities over the course of several months, a tell-
tale sign of sophistication. See Feaster, 798 F.3d at 1381.
Munroe was involved in a sophisticated criminal scheme
with Chinye, and the record suggests that she intentionally en-
gaged in and caused the sophisticated conduct. Accordingly, the
district court did not clearly err by imposing this enhancement.
B. Ten or More Victims
Munroe next contends that the district court improperly en-
hanced her sentence by two points for an offense involving ten or
more victims.
The Guidelines advise imposing a two-point enhancement
when the offense “involved 10 or more victims.” U.S.S.G. §
2B1.1(b)(2)(A)(i). A “victim” includes “any person who sustained
any part of the actual loss,” namely, any “reasonably foreseeable
pecuniary harm” resulting from the offense, or “any individual
whose means of identification was used unlawfully or without au-
thority.” Id. § 2B1.1 nn.1, 3(A)(i), 4(E). When calculating the of-
fense level in a case involving “jointly undertaken criminal activ-
ity,” the district court can consider “all acts and omissions” within
the conspiracy’s scope that furthered the criminal activity and were
“reasonably foreseeable.” Id. § 1B1.3(a) (emphasis added). Individ-
uals whose identifying information was used to obtain fraudulent
credit cards are “victims” under Section 2B1.1. See United States v.
Hall,
704 F.3d 1317, 1321 (11th Cir. 2013). Yet, counting an individ-
ual as a “victim” under Section 2B1.1 “regardless of whether that
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8 Opinion of the Court 21-13717
individual’s information was ever fraudulently ‘used’” amounts to
plain error. United States v. Corbett,
921 F.3d 1032, 1040 (11th Cir.
2019).
Here, Munroe argues that her conduct harmed only two vic-
tims: (1) a man from whom she and Chinye diverted the $20,000-
check and (2) a woman whose personal information was used to
obtain a fraudulent credit card. Conversely, the district court found
that Munroe’s and Chinye’s joint criminal activity harmed eleven
other victims, including several financial institutions.
On appeal, the government concedes that “it is unclear”
whether these financial institutions qualify as “victims” under the
Guidelines. Instead, it points to evidence adduced at trial that
Chinye possessed twelve credit cards belonging to other people at
the time of his arrest. Munroe aptly observes that neither the
Presentence Investigation Report nor the government’s Sentenc-
ing Memorandum mentioned these twelve additional victims.
The district court found that the banks listed in the govern-
ment’s Sentencing Memorandum were victims and based the en-
hancement solely on that ground. The government now refuses to
defend that position and for good reason—the record does not re-
flect that some of the banks sustained an actual loss that would
qualify them as victims. See U.S.S.G. § 2B1.1; see also United States
v. Corbett,
921 F.3d 1032, 1040 (11th Cir. 2019) (concluding that
the district court plainly erred “when it counted every individual
whose information was illegally downloaded as a ‘victim,’
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21-13717 Opinion of the Court 9
regardless of whether that individual’s information was ever fraud-
ulently ‘used’ for any purpose to which it was adapted”).
Instead of addressing Munroe’s argument, the government
advances an alternate theory for why her offense involved ten or
more victims, positing that the people whose names were printed
on the twelve credit cards found on Chinye during his arrest are
“victims” under Section 2B1.1. According to the government,
Chinye illegally acquired the credit cards, and Munroe jointly par-
ticipated in Chinye’s fraud, so “[t]hose victims are part of Munroe’s
relevant conduct.”
We need not probe the soundness of that argument because
the government did not make it to the district court. Nor did the
credit cards in Chinye’s possession serve as the basis for the district
court’s factfinding on this sentencing enhancement. Though we
can affirm the district court “for any reason supported by the rec-
ord,” Williams,
477 F.3d at 1294, we cannot “substitute ourselves
for the district court as factfinder.” United States v. Fulford,
662
F.3d 1174, 1181 (11th Cir. 2011). We cannot find new victims that
the district court never considered. We therefore remand for re-
sentencing on this issue.
IV.
Accordingly, we remand for resentencing on the number of
victims but affirm in all other respects.
AFFIRMED IN PART; REMANDED IN PART.
