United States v. Rashella Reed ( 2014 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-15210
Non-Argument Calendar
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D.C. Docket No. 4:12-cr-00086-WTM-GRS-6
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RASHELLA REED,
DERRICK JAMEIN ROBINSON,
a.k.a. Dred,
TORY HARDWICK,
Defendants-Appellants.
________________________
Appeals from the United States District Court
for the Southern District of Georgia
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(November 5, 2014)
Before WILLIAM PRYOR, JULIE CARNES and FAY, Circuit Judges.
PER CURIAM:
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Rachelle Reed, Derrick Robinson, and Tory Hardwick appeal their
convictions and sentences for conspiring to commit wire fraud, 18 U.S.C. § 1349,
and to launder money, id. § 1956(h). Reed and Robinson challenge the denial of
their joint motion for funds to hire an investigator. Robinson also challenges the
six-level enhancement of his base offense level to account for the number of his
victims. See United States Sentencing Guidelines Manual § 2B1.1(b)(2)(C) (Nov.
2012). Hardwick challenges the determination of the amount of loss. We affirm.
We lack jurisdiction to review Reed and Robinson’s challenge to the denial
of their motion for investigative funds. “The law is settled that appellate courts are
without jurisdiction to hear appeals directly from federal magistrates.” United
States v. Schultz, 565 F.3d 1353, 1359 (11th Cir. 2009) (quoting United States v.
Renfro, 620 F.2d 497, 500 (5th Cir. 1980)). A magistrate judge denied Reed and
Robinson’s joint motion, and neither defendant sought review of that decision in
the district court. We cannot review the decision of the magistrate judge.
The district court did not clearly err by enhancing Robinson’s base offense
level by six levels to account for the large number of his victims. Robinson
purchased, at 65 percent of face value, thousands of electronic transfer cards and
vouchers that had been issued to children as part of the Georgia Women, Infants,
and Children Program (WIC Program) and the Supplemental Nutrition Assistance
Program. Robinson then delivered the cards and vouchers to cashiers at children’s
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stores that he knew would charge the cards and redeem the vouchers using
fraudulent transactions and would give him cash in the amount of the transactions.
Robinson argues that the only victim of his offense is the United States Department
of Agriculture, which administered the state benefits programs. But a victim is
“any person who sustain[s] any part of the actual loss” of an offense. U.S.S.G.
§ 2B1.1 cmt. n.1. As explained in the presentence investigation report adopted by
the district court, the victims of Robinson’s fraud included the children who were
named on the cards and vouchers as the intended beneficiaries of the programs. A
defendant is subject to a six-level enhancement of his base offense level when an
offense involves more than 250 victims, id. § 2B1.1(b)(2)(C), and Robinson does
not dispute that the conspiracy involved the acquisition and fraudulent use of more
than 250 cards and vouchers.
Even if the district court had erred by enhancing Robinson’s sentence, the
error would have been harmless. See United States v. Keene, 470 F.3d 1347, 1348–
49 (11th Cir. 2006). The district court varied downward 90 months from the low
end of Robinson’s advisory guideline range of 235 to 293 months of imprisonment
based on the statutory sentencing factors, see 18 U.S.C. § 3553, and sentenced
Robinson as if the enhancement did not apply. The district court stated that, even if
it had not applied the enhancement, Robinson would have had a guideline range
between 121 and 151 months of imprisonment, and the district court sentenced
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Robinson within that range to avoid any unwarranted sentencing disparities and to
enable him to pay restitution. See id. § 3553(a)(6), (7). The enhancement did not
affect Robinson’s sentence.
The district court also did not clearly err in determining that Hardwick was
responsible for a monetary loss of more than $6 million. A defendant is
accountable for the amount of loss, U.S.S.G. § 2B1.1(b)(1), which is based on his
relevant conduct and includes the losses caused by his acts and omissions and
those caused by “all reasonably foreseeable acts and omissions of others in
furtherance of [their] jointly undertaken criminal activity,” id. § 1B1.3(a)(1)(A),
(B). Between November 16, 2009, and January 21, 2011, Hardwick conspired with
his father, Robinson, and numerous others to acquire and fraudulently use
electronic transfer cards and vouchers. The district court found that Hardwick
moved from Tennessee to Georgia to live with his father; he attended a week of
training with 50 other coconspirators to learn how the conspiracy operated among
14 stores in Georgia and how to thwart detection by law enforcement and
regulatory officials; he was taught at A Babies Castle how to process fraudulent
transactions as a cashier and how to notify cohorts when he needed to replenish his
supply of cash; and he worked regularly at The Baby Spot, where he charged cards
and redeemed vouchers in false transactions and paid cash to the coconspirators
who delivered cards and vouchers to the store. Between 2009 and 2011, The Baby
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Spot processed more than 10,000 cards and vouchers, and during Hardwick’s
tenure, the conspiracy processed fraudulent transactions that totaled $6,784,634.79.
Although Hardwick worked solely as a cashier, the district court was entitled to
find that Hardwick knew about and reasonably should have foreseen the scope and
magnitude of the conspiracy, see United States v. Hunter, 323 F.3d 1314, 1319–20
(11th Cir. 2003), and to hold him responsible for the number of fraudulent
transactions conducted by him and his coconspirators between November 2009 and
January 2011, see United States v. Dabbs, 134 F.3d 1071, 1081–82 (11th Cir.
1998). Hardwick does not challenge the finding that he and his coconspirators
caused more than $6 million in losses, see U.S.S.G. § 2B1.1(b)(1)(J), or the order
that held him jointly and severally responsible for paying restitution to the
Department for its loss, see 18 U.S.C. § 3663A(a)(2); United States v. Robertson,
493 F.3d 1322, 1333–34 (11th Cir. 2007).
We AFFIRM the convictions and sentences of Reed, Robinson, and
Hardwick.
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