United States v. Dianna Shade , 513 F. App'x 921 ( 2013 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-14683
Non-Argument Calendar
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D.C. Docket No. 6:12-cr-00021-CEH-DAB-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DIANNA SHADE,
Defendant - Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(March 22, 2013)
Before CARNES, BARKETT and KRAVITCH, Circuit Judges.
PER CURIAM:
Dianna Shade appeals her sentence of 18 months’ imprisonment, imposed
after she pleaded guilty to one count of conspiracy to make, utter, and possess
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counterfeit checks in violation of 18 U.S.C. § 371. Because we conclude the
district court did not clearly err in deciding the amount of loss attributable to
Shade, we affirm.
Between late 2008 and August 2010, Shade, along with her mother, two
uncles, and several others, was involved in a check-counterfeiting scheme. Shade
and her co-conspirators obtained legitimate checks from bank accounts at several
banks. Several manufacturers would then print counterfeit checks using the
account and routing data from those legitimate checks. Briefly, Shade also
manufactured checks. Primarily, however, Shade’s role was to recruit individuals,
usually from homeless shelters and Salvation Army locations, to cash the
counterfeit checks. Shade would drive the individuals to retail stores to cash the
checks, collect the cash, pay the casher a bounty, and divide the remainder back up
the chain. All said, the district court concluded the loss resulting from the entire
conspiracy during the period Shade was involved amounted to $585,373.82.
At sentencing, the district court included a 14-level enhancement under
U.S.S.G. § 2B1.1(b)(1)(H) in its guidelines calculation, concluding that the full
loss amount was reasonably foreseeable to Shade. With that enhancement, Shade’s
guidelines range was 57 to 60 months. Nonetheless, in light of the 18 U.S.C.
§ 3553(a) factors and because the district court believed the guidelines overstated
Shade’s culpability, the court varied downward, sentencing her to only 18 months.
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Shade argues on appeal that her sentence is procedurally unreasonable because the
district court’s loss calculation was erroneous.
“The party challenging the sentence bears the burden of establishing that the
sentence is unreasonable.” United States v. Willis, 649 F.3d 1248, 1258 (11th Cir.
2011). We review the district court’s amount-of-loss calculation under U.S.S.G. §
2B1.1(b) for clear error. United States v. Naranjo, 634 F.3d 1198, 1206 (11th Cir.
2011). A defendant should be held responsible for loss “the defendant knew or,
under the circumstances, reasonably should have known, was a potential result of
the offense.” U.S.S.G. § 2B1.1, cmt. (n.3(A)). “A district court may hold
participants in a conspiracy responsible for the losses resulting from the reasonably
foreseeable acts of co-conspirators in furtherance of the conspiracy.” United States
v. Mateos, 623 F.3d 1350, 1370 (11th Cir. 2010) (internal quotation marks
omitted); see also U.S.S.G. § 1B1.3(a)(1)(B). “Only after the district court makes
individualized findings concerning the scope of criminal activity the defendant
undertook is the court to determine reasonable foreseeability.” United States v.
Hunter, 323 F.3d 1314, 1319 (11th Cir. 2003). We need not reverse if the district
court failed to make such findings, however, if the record as a whole supports the
court’s determination of the amount of loss reasonably foreseeable to the
defendant. United States v. Petrie, 302 F.3d 1280, 1290 (11th Cir. 2002).
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At sentencing, Special Agent Jeff Starnes of the U.S. Secret Service testified
that Shade was a recruiter for two check manufacturers, that she was aware of the
scope of the conspiracy and admitted knowing many of the participants including
other manufacturers and recruiters, that she drove cashers to cash checks and
would divide the proceeds, and that she had tried her hand at manufacturing
counterfeit checks for the conspiracy. That testimony makes this case quite
different from Hunter, on which Shade relies, because the three defendants in that
case were check cashers who were aware that a scheme was larger than themselves
but never functioned at its higher rungs. 323 F.3d at 1320-22. Rather, the case is
more akin to United States v. McCrimmon, 362 F.3d 725, 732 (11th Cir. 2004), in
which we concluded the entire loss from a conspiracy was reasonably foreseeable
to a defendant who “was fully aware of the objective of the conspiracy and was
actively involved in recruiting [others] to further the . . . scheme.”
Shade concedes that she “knew these people, and knew some of them
committed crimes . . . .” She also does not dispute that she functioned at and knew
players within the upper levels of the conspiracy’s hierarchy or challenge the
court’s finding she was a manager or supervisor in the conspiracy. That Shade was
not personally involved in every transaction is immaterial to whether she can be
held responsible for the loss that was objectively likely to result from the activities
of her co-conspirators in furtherance of the scheme. The guidelines do not require
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that a defendant have caused the loss in order for her to be held responsible for it;
only that she objectively could have foreseen its extent. See United States v.
Mitchell, 146 F.3d 1338, 1346 (11th Cir. 1998) (recognizing that the question of
whether the actions of co-conspirators were reasonably foreseeable is judged
objectively). Because Shade has not shown the district court clearly erred in
finding that she reasonably could have foreseen the extent of intended loss that
resulted from the entire conspiracy, her 18-month sentence is
AFFIRMED.
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