United States v. Harlan DeCoste , 692 F. App'x 557 ( 2017 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-11840
Non-Argument Calendar
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D.C. Docket No. 0:15-cr-60172-WPD-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HARLAN DECOSTE,
a.k.a. Money King,
a.k.a. Moneyking_111,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(May 17, 2017)
Before WILLIAM PRYOR, MARTIN and ANDERSON, Circuit Judges.
PER CURIAM:
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Harlan Decoste appeals his sentence of 210 months of imprisonment, which
was imposed following his pleas of guilty to conspiring to defraud the United
States, 18 U.S.C. § 286; conspiring to possess 15 or more unauthorized access
devices, id. § 1029(b)(2); and possessing 15 or more unauthorized access devices,
id. § 1029(a)(3). Decoste also pleaded guilty to aggravated identity theft and the
district court imposed a mandatory consecutive sentence of 24 months, id.
§ 1028A(a)(1), (b)(2), which Decoste does not appeal. Decoste challenges the
enhancements to his sentence for causing a loss of more than $25 million, United
States Sentencing Guidelines Manual § 2B1.1(b)(1)(L) (Nov. 2015); for being a
leader of the conspiracy, id. § 3B1.1(a); for using or attempting to use a minor to
commit his offense, id. § 3B1.4; and for use of sophisticated means, id.
§ 2B1.1(b)(10)(C). We affirm.
The district court did not clearly err in finding that Decoste caused a loss of
$26.3 million. Decoste does not contest the $14.5 million that the district court
assessed Decoste for the 29,000 items of stolen personal identification information
discovered in a house in Miramar, Florida, that served as his residence and the base
of operations for the conspiracy. The district court also attributed to Decoste $11.8
million in tax refunds claimed on fraudulent tax returns that were filed from
internet protocol address 71.206.68.241. Decoste, for the first time on appeal,
disclaims responsibility for $6.1 million of the refunds tied to the internet protocol
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address. He argues that the address was misused by “others who were never
identified,” but we cannot say that the district court plainly erred, see United States
v. Cobb, 842 F.3d 1213, 1221 (11th Cir. 2016), by making a contrary finding.
Decoste acknowledges that $5.7 million of the fraudulent returns incorporated
stolen identification information found in the Miramar residence, and all the
fraudulent returns reported identical occupations, wages, and amounts for
withholding and contained identical misspellings of the word “manager.” Decoste
also admitted that he used the internet protocol address to file one fraudulent tax
return and to post messages on his Instagram account and that his fingerprints and
stolen personal identification information were found on an Apple MacBook Air
computer that connected repeatedly to the internet protocol address. The district
court reasonably inferred from the evidence that Decoste was responsible for all
the fraudulent tax returns. See United States v. Almedina, 686 F.3d 1312, 1315
(11th Cir. 2012). And the calculation of Decoste’s loss amount was not based on
speculation. After hearing the evidence, the district court rejected the $80 million
loss amount proposed by the government and made a reasonable, even
conservative, estimate of loss based on the loss amounts attributable to stolen
identification information and to the fraudulent tax returns that were filed
electronically using a specific internet protocol address. See id. The district court
did not clearly err in determining that Decoste caused a loss of more than $25
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million and applying the corresponding 22-level enhancement to his offense level.
See U.S.S.G. § 2B1.1(b)(1)(L).
The district court also did not clearly err in finding that Decoste was a leader
of the conspiracy. A defendant is subject to a four-level increase in his offense
level if he “was an organizer or leader of a criminal activity.” Id. § 3B1.1(a).
Decoste owned “GroundUp 111 Entertainment,” a company with no identifiable
form of income, and its articles of incorporation listed Decoste as the president and
chief executive officer and two of his conspirators in the subordinate roles of vice
president and treasurer. Decoste used the online name “MoneyKing111” and
posted messages on social media stating that he was “a boss,” “put[] people in
position,” made money “so [his] whole team be shining,” and had to “stop hangin
[sic] with workers.” Decoste’s use of the title “boss” by itself is not dispositive, see
id. § 3B1.1 cmt. n.4, but he posted with his messages photographs of items
connected to the conspiracy, such as drugs, a debit card, and expensive luxury
items from which the district court reasonably inferred that Decoste exercised
decision making authority in the criminal enterprise. Decoste also controlled his
coconspirators after investigators halted operations at the Miramar residence and
arrested Decoste for other fraudulent activities. While imprisoned, officers
recorded telephone calls in which Decoste directed coconspirators to access files
on his computer and to “handle” fraudulent filings. See United States v. Villarreal,
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613 F.3d 1344, 1359 (11th Cir. 2010). Decoste qualified as an organizer or leader
of the conspiracy.
The district court did not clearly err by enhancing Decoste’s base offense
level for using his minor brother, Frantz, in the conspiracy. A two-level
enhancement is appropriate if a defendant “used or attempted to use a person less
than eighteen years of age to commit the offense or assist in avoiding detection of,
or apprehension for, the offense.” U.S.S.G. § 3B1.4. Frantz participated in the
conspiracy while still a minor. Several months before Frantz turned eighteen years
old, investigators seized from his bedroom in the Miramar residence several items
of stolen personal identification information and a debit card used to access tax
refunds obtained fraudulently. And Decoste, as leader of the conspiracy, “used” his
brother through “encouraging, . . . training, . . . recruiting, or soliciting” him to
participate in the scheme to defraud. See id. § 3B1.4 cmt. n.1. The district court
was entitled to find that Decoste enticed Frantz to join the conspiracy by allowing
him to live in the Miramar residence, by exposing him to the wealth obtainable
through the fraud scheme, and by buying him a $40,000 car. See United States v.
Taber, 497 F.3d 1177, 1181 (11th Cir. 2007).
The district court also did not clearly err in applying a sentencing
enhancement for Decoste’s use of sophisticated means. Decoste was subject to a
two-level increase of his offense level because the methods used to execute and
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conceal the scheme to defraud were sophisticated. See U.S.S.G. § 2B1.1(b)(10)(C);
see also United States v. Ghertler, 605 F.3d 1256, 1267 (11th Cir. 2010). The
conspirators devised a complex method of amassing and exploiting stolen personal
identification information. See U.S.S.G. § 2B1.1 cmt. n.9(b). They collected about
30,000 items of personal identification information by photographing lists
displayed on computers, classified and stored the stolen information in electronic
files on ten computers, and selected pieces of the stolen information to report in
fraudulent tax returns. The conspirators also used sophisticated means to conceal
their crimes and to launder the proceeds. See id. They filed tax returns on different
computers containing software that hid the sender’s internet protocol address; they
communicated using email accounts created for temporary use that would later
self-destruct; they had tax refunds mailed to multiple real and fictitious addresses;
and they transferred the refunds to prepaid debit cards. Ample evidence supported
the finding that Decoste used sophisticated means to perpetuate the scheme to
defraud.
We AFFIRM Decoste’s sentence.
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