United States v. Justina Maria Holland ( 2023 )

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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-13968
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUSTINA MARIA HOLLAND,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 6:20-cr-00086-RBD-EJK-1
____________________
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2 Opinion of the Court 21-13968
Before LUCK, LAGOA, AND TJOFLAT, Circuit Judges
PER CURIAM:
Justina Holland appeals her 96-month sentence imposed
upon her conviction for 22 counts of various fraud offenses. She
argues that the District Court erred when it applied a sophisticated
means enhancement under U.S.S.G. § 2B1.1(b)(10)(C) by failing to
consider the totality of the scheme and engaging in impermissible
double-counting. We disagree and affirm.
I.
In June 2020, a grand jury indicted Holland on 22 counts of
fraud offenses related to fraud against her employer, public assis-
tance fraud, and false use of a social security number. These
charges included: 3 counts of mail fraud, in violation of 18 U.S.C.
§ 1341; 12 counts of wire fraud, in violation of 18 U.S.C. § 1343; 2
counts of access device fraud, in violation of 18 U.S.C.
§§ 1029(a)(2), (b), (c)(1)(A)(ii) and 2; 2 counts of aggravated identity
theft, in violation of 18 U.S.C. §§ 1028A(a)(1) and 2; 1 count of theft
of government property, in violation of 18 U.S.C. §§ 641 and 2; and
2 counts of false use of a social security number, in violation of 42
U.S.C. §§ 408(a)(7)(B) and 2. Holland pleaded guilty to all 22 counts
in the indictment without a plea agreement.
In the preparation of a presentence investigation report
(“PSR”), a probation officer reported that, between March 2015 and
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21-13968 Opinion of the Court 3
July 2018, Holland had obtained more than $1 million through her
fraud schemes. The schemes consisted of four parts:
1) Holland used her position as bookkeeper to embezzle
over $300,000 from her employer, M.J., and his prop-
erty rental business by diverting checks sent to the
business, creating false invoices to receive unauthor-
ized reimbursements, and manipulating the payroll
system to receive unauthorized salary payments;
2) Holland made over $700,000 in unauthorized and
fraudulent purchases using (a) M.J.’s American Ex-
press and Visa BB&T cards and (b) a Visa card she
opened in M.J.’s name without his consent using his
social security number; she paid those credit card bills
by making unauthorized transfers from M.J.’s bank
accounts;
3) Holland applied for, and received, food stamps after
falsely representing, among other things, that she and
her husband did not earn any income; and
4) Holland used her minor son’s social security number
to obtain financing to purchase a BMW and a Por-
sche.
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4 Opinion of the Court 21-13968
In September 2014, victim M.J. hired Holland to be the
bookkeeper 1 for his businesses, which included a property rental
business and a hot tub business (collectively, “the businesses”). Her
duties included paying bills, preparing spreadsheets and tax forms,
collecting rent checks on the property rental business’s properties,
managing bank deposits related to the businesses, preparing M.J.’s
monthly paycheck from the hot tub business, preparing financial
information for the accountant, arranging M.J.’s travel, and prepar-
ing spreadsheets related to M.J.’s travel and expenses. Holland was
also authorized to use M.J.’s American Express credit card to book
his work-related travel but was not authorized to make personal
purchases with the card.
1 Holland objected to the PSR’s description of her job title as “bookkeeper” in
her objections to the PSR and during the sentencing hearing, claiming the title
related to her objections to the enhancements for use of sophisticated means
under U.S.S.G. § 2B1.1(b)(10)(C) and abuse of a position of trust under
U.S.S.G. § 3B1.3. She also claimed that M.J. employed another administrator
who performed the duties for the hot tub business that Holland performed for
the property rental business, and that Holland would work with this pur-
ported hot tub business administrator to compile information about the busi-
nesses’ finances for M.J. M.J. testified at the sentencing hearing that he did not
employ a separate bookkeeper for the hot tub business.
The Court overruled the objections related to Holland’s job title, and
she does not raise the issue of her title or her responsibilities to the hot tub
business on appeal. The Court also found that the undisputed facts about the
responsibilities of her position were sufficient to support the abuse-of-trust and
sophisticated means enhancements regardless of her title.
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To help conceal her conduct, Holland used interstate wires
to send spreadsheets to M.J. that contained false financial infor-
mation. She also submitted false invoices to receive unauthorized
reimbursements by mail from the property rental business. In Feb-
ruary 2018, M.J. was advised of issues with his credit when he con-
sidered purchasing a boat. In July 2018, M.J. confronted Holland,
who admitted the embezzlement. M.J. subsequently fired Hol-
land.
A. Misappropriation of the Property Rental Business’s Funds
Holland used her position at M.J.’s business to embezzle
over $300,000 from the property rental business. For example, she
misappropriated approximately $151,522.20 from the property
rental business by making unauthorized direct payroll deposits
from the property rental business’s bank accounts into her personal
bank accounts.
Holland also misappropriated $59,301.89 by using false in-
voices to receive unauthorized payments from the IRA account
that M.J. used to cover costs for some of the property rental busi-
ness’s properties. Generally, to pay for work done on these prop-
erties, an employee would submit an invoice for the work to the
manager of the IRA, who would pay the invoice from the account.
Holland would instead pay invoices using funds from one of M.J.’s
credit cards or bank accounts and then submit the invoices to the
manager of the IRA account for repayment. She would falsely rep-
resent that the invoice was due to be paid to her and request that
the manager of the IRA issue her a check for the amount of the
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invoice. The manager would send the checks by United States Mail
or Federal Express. Holland would then deposit the check into one
of her personal accounts.
Holland also abused her position to enable her and her fam-
ily to live nearly rent-free on properties owned by the property
rental business. Holland rented a property from M.J. for $1,100 per
month, for which she was responsible for paying the rent and util-
ities. Yet after 2 years, Holland had only paid $2,600 in rent of the
total $45,100 owed for the property. Holland also let her parents
stay at one of the property rental business’s properties for free. She
then used the property rental business’s bank account to pay for
the utilities of both residences. Holland would represent to M.J.
that she and her parents had paid rent on these properties by send-
ing him spreadsheets with fictitious entries. This conduct caused
$49,108.85 in losses.
Holland also abused her position to divert funds sent to M.J.
or the property rental business. She deposited $110,359.10 in un-
authorized funds into her bank accounts by diverting checks that
were made payable to M.J. or the property rental business.
B. Fraud Using Credit Cards
Holland used various credit cards and bank accounts to en-
gage in approximately $750,000 of fraud. The majority of that
amount came from Holland’s use of M.J.’s American Express ac-
count. Holland made herself Card Master Administrator, giving
her access to use the card for personal purchases. She made
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$451,851.03 in unauthorized purchases for travel, retail, and enter-
tainment.
To conceal these purchases, Holland manipulated the online
statements using a feature offered by American Express online to
omit purchases. As M.J. requested paper copies of his credit card
statements, she would print the manipulated versions before send-
ing them to him.
Holland also made unauthorized purchases on M.J.’s other
personal and business credit cards. Holland made $81,033.75 in un-
authorized purchases on the property rental business’s BB&T Visa
card for retail, entertainment, and travel. She also used several of
M.J.’s personal and business bank accounts to pay $16,491.96 to-
ward her personal Capital One credit card without his consent.
In addition, Holland diverted funds from M.J.’s personal
BB&T account to open a Discover it Chrome Card. She then used
funds from M.J.’s personal BB&T account to pay for $7,835.58 in
purchases that she made using the Chrome Card. She also used the
property rental business’s Staples customer account number to
make $4,163.63 in unauthorized purchases.
Holland also fraudulently opened a Disney VISA credit card
at JP Morgan Chase using M.J.’s name, date of birth, and social se-
curity number without his consent. To conceal the credit card’s
existence and the purchases, Holland used her personal email ad-
dress and mailing address to receive account statements and other
account information. She made $196,578.60 in purchases using this
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8 Opinion of the Court 21-13968
card. Holland used six corporate accounts of the property rental
business, several of M.J.’s personal bank accounts, and an unknown
MasterCard to pay the balance owed on the Disney VISA credit
card. 2
C. Public Assistance Fraud
Holland also fraudulently obtained public assistance
through the Supplemental Nutrition Assistance Program (the
“SNAP”). The Florida Department of Children and Families (the
“DCF”) administers SNAP benefits in Florida. Holland first applied
in April 2012, representing that she lived with her husband and
their son. She also represented that she and her husband were un-
employed. She thereafter submitted ten more applications that in-
cluded the same representations. She submitted the last such ap-
plication in July 2016. She also confirmed these representations
were correct during several telephonic interviews with the DCF,
and she provided incomplete documents to DCF investigators to
thwart investigations into her eligibility. She received $23,054 in
SNAP benefits between May 2012 and August 2016.
The information Holland provided the DCF in her applica-
tions and during telephonic interviews contained several misrepre-
sentations. Her husband was not unemployed—he worked at a cell
phone store from at least January 1, 2012, through April 15, 2016.
2 The use of M.J.’s name and social security number qualified as aggravated
identity theft, which was indicted as Count 17.
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21-13968 Opinion of the Court 9
Holland was also not unemployed. She had another job between
February 2014 and August 2014 before working for M.J.’s busi-
nesses between September 2014 and July 2018. And Holland failed
to report that her husband was not residing with her during and/or
subsequently to her reviews of eligibility dated July 14, 2014, and
January 29, 2015. The public assistance fraud fell under Count 19
of the indictment for theft of government property.
D. Fraud Related to Luxury Car Financing
In November 2015, because she had bad credit, Holland
used her minor son’s social security number to fraudulently apply
for credit in connection with the purchase of a 2011 BMW 535. In
May 2017, she used her son’s social security number again to apply
for credit to buy a 2010 Porsche. She also submitted a fabricated
W-2 form that reported her 2016 wages as $115,000 in connection
with her purchase of the Porsche. After fraudulently obtaining fi-
nancing, she used the property rental business’s BB&T account to
make online payments for the cars.
The fraudulent use of her son’s social security number fell
under Counts 20 and 21—false use of a social security number—
and Count 22—aggravated identity theft. The online payments she
made using the property rental business’s bank account on the cars
fell under Count 12, a wire fraud count.
II.
Holland fraudulently obtained over $1 million through the
schemes described above. The probation officer stated in the PSR
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10 Opinion of the Court 21-13968
that the total loss amount from Holland’s schemes was
$1,179,829.94. The total amount of restitution owed was
$1,161,185.64.
The probation officer stated that U.S.S.G. § 2B1.1 addressed
the offenses in Counts 1–16 and 18–21. 3 The probation officer
stated that these counts were grouped for guideline calculation
purposes because the total amount of harm or loss largely deter-
mines the offense level. The probation officer calculated a base of-
fense level of seven for the conviction under § 2B1.1(a)(1). The
probation officer then increased the offense level by 14 under
§ 2B1.1(b)(1)(H) because the loss amount was between $550,000
and $1,500,000.
The probation officer then applied a two-level enhancement
under § 2B1.1(b)(10)(C) because the offenses involved sophisti-
cated means. The probation officer based this finding on Holland’s
manipulation of the payroll system to receive additional salary pay-
ments and her attempts to conceal the fraud by diverting funds and
creating false spreadsheets.
The probation officer added another two-level increase un-
der U.S.S.G. § 2B1.1(b)(11)(C)(i) because the offense involved the
unauthorized use of a means of identification to unlawfully obtain
another means of identification. The probation officer also added
3 These counts include all of Holland’s charges except the two charges for ag-
gravated identity theft under § 1028A (Counts 17 and 22).
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21-13968 Opinion of the Court 11
a two-level increase for abuse of a position of private trust to com-
mit the offense under § 3B1.3. The probation officer applied a two-
level reduction for acceptance of responsibility under § 3E1.1(a)
and a one-level reduction for assisting authorities in the prosecu-
tion by timely notifying authorities of her intent to enter a guilty
plea under § 3E1.1(b). The probation officer calculated Holland’s
total offense level as 24.
The probation officer also stated that Holland’s two convic-
tions for violating § 1028A required at least a two-year prison term
imposed consecutively to any other term of imprisonment. See
§ 1028A(a)(1), (b)(2). The probation officer noted that the Court
could impose the sentence for the two § 1028A convictions concur-
rently. See § 1028A(b)(4).
Then, the probation officer reported that Holland’s criminal
convictions resulted in a total criminal history score of five and a
criminal history category of III. The probation officer concluded
that the guideline imprisonment range was 63–78 months, with
any terms of imprisonment for the aggravated identity theft con-
victions to be served consecutively.
In her memo to the probation officer, Holland objected to
the sophisticated means enhancement under § 2B1.1(b)(10)(C).
She argued in her memo that using someone else’s bank accounts
and credit cards is not sophisticated enough to warrant the sophis-
ticated means enhancement. She also argued that she only used a
basic QuickBooks program to manipulate the payroll system, and
that a basic audit would have revealed the fraud. Holland also
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12 Opinion of the Court 21-13968
objected to the position of trust enhancement and to the loss
amount. The probation officer considered Holland’s objections
but found them unpersuasive.
At the sentencing hearing, the District Court addressed Hol-
land’s objection to the application of the sophisticated means en-
hancement. Repeating the essence of her objection to the proba-
tion officer, Holland argued that M.J.’s property rental business
was small and that the payroll programs she manipulated were not
sophisticated. She also claimed the accounting department could
have easily noticed her conduct. It “seems unusual,” Holland ar-
gued, that someone like herself, “with limited education and no
real financial background,” could use sophisticated means to con-
ceal fraud against a business that employed a full-time CPA.
Holland further argued that concealment is inherent in
fraud, and that it would be arbitrary to apply the sophisticated
means enhancement based on concealment alone. She added that
the identity theft charges already covered her conduct related to
opening accounts in others’ names. Holland then claimed that
much of the fraud could have been detected by a credit check or
simple audit, as there were times when she was out of the office
and the “books [were] open to anyone to review and double-check
and to catch these losses as they were occurring.” She last argued
that her crimes were not as complex as the schemes the sentencing
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21-13968 Opinion of the Court 13
guidelines use as examples in the application notes for the sophisti-
cated means enhancement. 4
Holland’s arguments did not persuade the District Court. It
found Holland’s argument that “lack of vigilance on the part of the
victim somehow impacts the appropriateness of the application of
sophisticated means . . . entirely unpersuasive.” Holland re-
sponded,
[T]o clarify, for the record, it’s not the defense’s posi-
tion that because some action wasn’t taken by M.J. or
M.J. Properties that it doesn’t rise to the level of so-
phistication. It’s the fact that these activities could
have been easily discoverable, and it’s not some diffi-
cult financial auditing that would have to basically
trudge up the concealment. This is essentially sur-
face-level concealment and nothing that would take a
forensic auditor to dive in and discover what exactly
is going on. And that was my point.
The Court responded, “And I characterize that as vigilance or lack
of vigilance on the part of the fraud victim. You may disagree with
4 See U.S.S.G. § 2B1.1 cmt. n.9(B) (“For purposes of subsection (b)(10)(C), ‘so-
phisticated means’ means especially complex or especially intricate offense
conduct pertaining to the execution or concealment of an offense. For exam-
ple, in a telemarketing scheme, locating the main office of the scheme in one
jurisdiction but locating soliciting operations in another jurisdiction ordinarily
indicates sophisticated means. Conduct such as hiding assets or transactions,
or both, through the use of fictitious entities, corporate shells, or offshore fi-
nancial accounts also ordinarily indicates sophisticated means.”).
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14 Opinion of the Court 21-13968
the terminology that I used, but I think that’s an appropriate sum-
mary of your argument.”
The Court then added that, while the discoverability of a
fraud scheme might be relevant in other situations, it found the of-
fense involved sophisticated means based on the totality of the
scheme. The court explained:
[M]y determination is that the duration of the fraud,
the efforts of Ms. Holland to conceal the fraud, the
number of different accesses of financial—accesses to
financial information between manipulating the pay-
roll, making efforts to cover up her fraud, utilizing
credit cards, all of those things combined show a so-
phisticated fraudulent—show sophisticated fraudu-
lent activity sufficient to warrant the enhancement.
So the record will be clear, that’s the basis for my rul-
ing.
The District Court went on to overrule all of Holland’s remaining
objections.
The District Court sentenced Holland to a total prison term
of 96 months. The sentence consisted of 72 months on Counts 1
through 16 and Counts 18 through 21 to be served concurrently,
followed by 24 months in prison on Counts 17 and 22 to be served
concurrently with each other but consecutively to the other
counts. The District Court also imposed a three-year term of su-
pervised release to follow her release from prison. The District
Court further ordered Holland to pay a total of $1,161,185.64 in
restitution.
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After imposing the sentence, the District Court elicited the
parties’ objections in accordance with Eleventh Circuit precedent.
See United States v. Jones, 899 F.2d 1097, 1102 (11th Cir. 1990),
overruled on other grounds by United States v. Morrill, 984 F.2d
1136, 1137 (11th Cir. 1993) (en banc). Holland renewed her objec-
tions “raised in the PSR, going toward the procedural and substan-
tive reasonableness of the sentence, the Court’s weighing of the
3553(a) factors, and imposing a mid-to-high range sentence in her
case.”
III.
On appeal, Holland first argues that the District Court pro-
cedurally erred when it applied the two-level sophisticated means
enhancement. She argues that the Court failed to consider how
easily detectable her scheme was and that she did not carry out the
scheme in a sophisticated manner. In doing so, she claims the Dis-
trict Court failed to consider the totality of her scheme. She also
argues that the Court mischaracterized her argument as blaming
the victim for failing to detect the fraud and thus ignored her argu-
ment.
We cannot tell what exactly Holland is arguing. At points,
the argument in her opening brief reads like a challenge to the Dis-
trict Court’s interpretation of the sophisticated means enhance-
ment and its finding that the guideline enhancement applied on the
ground that the Court failed to adequately account for how easily
discoverable the scheme was. Her statement of the issue asks:
“Whether the district court erred in failing to consider the totality
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16 Opinion of the Court 21-13968
of the scheme, including how easily detectable the fraudulent acts
actually were, when determining whether to impose a two-level
enhancement, pursuant to U.S.S.G. § 2B1.1(b)(10)(C), for commit-
ting the offenses by sophisticated means.” Appellant’s Brief at 2.
The standard of review section then states that we review a district
court’s interpretation of the sentencing guidelines de novo and its
finding that the defendant used sophisticated means for clear error.
Id. at 10 (citing United States v. Zaldivar, 615 F.3d 1346, 1350 (11th
Cir. 2010), United States v. Feaster, 798 F.3d 1374, 1380 (11th Cir.
2015)).
But in the argument section, the brief appears to pivot to
claiming the District Court made a procedural error by refusing to
adequately consider a material argument that defense counsel pre-
sented. See Fed. R. Crim. P. 32(i)(3)(B) (explaining that the court
“must—for any disputed portion of the presentence report or other
controverted matter—rule on the dispute or determine that a rul-
ing is unnecessary either because the matter will not affect sentenc-
ing, or because the court will not consider the matter in sentenc-
ing”); United States v. Wise, 881 F.2d 970, 972 (11th Cir. 1989) (dis-
cussing how, at the sentencing hearing, “the court must resolve all
factual and legal disputes raised in the addendum to the presen-
tence report—as well as any other objections raised by the parties
during the course of the hearing”). The brief states:
[T]he district court procedurally erred in failing to
consider defense counsel’s argument that her fraud
was easily detectable and was not carried out or
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21-13968 Opinion of the Court 17
concealed in any sophisticated manner. Instead, the
district court mischaracterized defense counsel’s po-
sition as “lack of vigilance” on the part of the victim,
and refused to consider the argument, a procedural
error.
Appellant’s Brief at 12. The brief also states that “the relative ease
with which a victim or law enforcement could have discovered the
fraud is a relevant and necessary consideration.” Id. at 13. But the
brief does not cite any authority regarding a district court’s duty to
resolve material issues that the parties raise at sentencing.
Instead, the brief only cites our precedent about how to de-
termine whether an offense involved sophisticated means. The
brief points out that our Court instructs “the district court to con-
sider all aspects of the criminal offense to judge how sophisticated
the scheme, instead of focusing on the individual actions of the de-
fendant.” Appellant’s Brief at 15 (citing Feaster, 798 F.3d at 1381).
The brief then says the District Court made a procedural error be-
cause it “rejected that approach” by denying “Ms. Holland’s re-
quest to consider whether or not the fraud was well concealed.”
Appellant’s Brief at 15, 18.
The brief also attempts to distinguish between what factors
support applying the enhancement, which it calls “substantive”
rules, and the totality-of-the-scheme approach, which it calls a
“procedural” rule. Appellant’s Brief at 14–15. This distinction does
not exist. Rather, there is a distinction between the legal standard
a district court applies when considering whether to apply a
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18 Opinion of the Court 21-13968
sentencing enhancement—which we review de novo for potential
legal errors—and a district court’s finding that an enhancement ap-
plies—which is a factual finding we review for clear error. See Zal-
divar, 615 F.3d at 1350.
In addition, all the potential errors that Holland may be ar-
guing are categorized as procedural errors. Refusing to consider a
material issue is a procedural error, and legal and factual errors in
applying sentencing enhancements involve errors in the calcula-
tion of the guidelines range, which are also categorized as proce-
dural errors. See Gall v. United States, 552 U.S. 38, 51, 128 S. Ct.
586, 597 (2007) (listing types of procedural sentencing errors).
The totality-of-the-scheme approach—under which a dis-
trict court considers whether the whole scheme was sophisticated
even when each step was not—and the factors that support apply-
ing the enhancement are both parts of the legal standard a district
court applies when considering the sophisticated means enhance-
ment. See United States v. Moran, 778 F.3d 942, 977 (11th Cir.
2015). If Holland is claiming the District Court rejected—rather
than ignored—an argument that the discoverability of a fraud
scheme is a necessary consideration when applying the sophisti-
cated means enhancement, then she is asserting a legal error that
we would review de novo. See Zaldivar, 615 F.3d at 1350.
Based on the foregoing, Holland’s first argument may be any
one or more of the following: (1) the District Court improperly ig-
nored a material issue she raised at sentencing; (2) the District
Court made a legal error in its interpretation of the sophisticated
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21-13968 Opinion of the Court 19
means enhancement; or (3) the District Court clearly erred in its
determination that the offense involved sophisticated means. The
Government interpreted the argument as only one that the District
Court wholly ignored Holland’s argument. See Appellee’s Brief at
17–18. We need not decide which of the above arguments Holland
made because, as explained infra, they all lack merit.
Holland also argues that the District Court impermissibly
double counted by citing facts that other parts of the sentencing
guidelines accounted for when it applied the sophisticated means
enhancement. She argues that the Court’s consideration of the du-
ration of the offense overlaps with the loss amount because the
longer the scheme, the greater the loss amount. She also argues
that the position of trust enhancement already covered the harm
related to her access to different financial instruments. And she
claims fraud inherently requires concealment, so basing the sophis-
ticated means enhancement on “any concealment”—which she
claims the District Court did—leads to double counting that ig-
nores the intent of the sentencing guidelines.
IV.
The Government argues that Holland forfeited both the
claim that the District Court procedurally erred by ignoring her ar-
gument about the discoverability of the scheme and the claim that
the District Court engaged in impermissible double-counting. Hol-
land preserved claims that the District Court erred in its treatment
of her arguments related to the discoverability of her schemes. But
she did not preserve the double-counting claim.
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20 Opinion of the Court 21-13968
To preserve a claim of error on appeal, a party must inform
the court “of the action the party wishes to take, or the party’s ob-
jection to the court’s action and the grounds for that objection.”
Fed. R. Crim. P. 51(b). This objection must be sufficient to apprise
the trial court and the opposing party of the particular grounds
upon which appellate relief will later be sought and “in such clear
and simple language that the trial court may not misunderstand it.”
United States v. Straub, 508 F.3d 1003, 1011 (11th Cir. 2007) (inter-
nal quotation marks omitted). To be preserved, the issue must
have been decided, litigated, and explicitly resolved on the merits.
United States v. Pon, 963 F.3d 1207, 1226 (11th Cir. 2020). When a
party raises a claim on appeal that she did not raise in the district
court, we review for plain error only. United States v. Corbett, 921
F.3d 1032, 1035 (11th Cir. 2019).
In her objections to the PSR, Holland objected to the appli-
cation of the sophisticated means enhancement. In her memo re-
garding the exceptions, she argued that a basic audit would have
revealed the fraud, that she used an unsophisticated accounting
program to pay herself, and that using another person’s credit cards
and bank accounts is not sophisticated enough to warrant the en-
hancement. At the sentencing hearing, she reiterated these argu-
ments. She added that concealment is present in every fraud, and
that opening and using accounts in others’ names was accounted
for in the identity theft charge. The Court then considered and
rejected her arguments.
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21-13968 Opinion of the Court 21
Holland thus informed the Court of the action she wanted it
to take: to consider the discoverability of her scheme as an im-
portant factor when applying the sophisticated means enhance-
ment and to find the enhancement did not apply. See Fed. R. Crim
P. 51(b). In doing so, she preserved a claim that the Court erred by
finding her conduct involved sophisticated means. She also pre-
served a claim that the Court made a legal error by failing to factor
in the discoverability of her scheme. Likewise, she preserved a
claim that the Court improperly refused to consider her argument
by mischaracterizing it.
But Holland did not preserve her double-counting claims.
She makes three arguments that applying the sophisticated means
enhancement involved double-counting: (1) concealment is inher-
ent in fraud, so applying the enhancement based on “any conceal-
ment” double counted an inherent aspect of fraud; (2) considering
her access to the financial instruments she used double-counted the
conduct that the abuse-of-trust enhancement covered; and (3) con-
sidering the duration of the offense in applying the enhancement
double-counts the loss amount because the longer the scheme
lasts, the greater the loss amount.
Holland did not make any of these double-counting argu-
ments in her objections to the PSR. She thus forfeited the double-
counting issue, as she did not specifically ask the Court to consider
those arguments at the sentencing hearing based on good cause.
See Fed. R. Crim. P. 32(f)(1) (discussing how parties have 14 days
to state written objections to the PSR); see also United States v.
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22 Opinion of the Court 21-13968
Edouard, 485 F.3d 1324, 1351 (11th Cir. 2007) (discussing how, if
good cause is shown, a district court has the discretion to alter the
time limit for filing an objection or allow a party to make a new
objection any time before imposing a sentence) (citing Fed. R.
Crim. P. 32(b)(2), Fed. R. Crim. P. 32(i)(1)(D)).
Holland also failed to sufficiently apprise the Court of her
double-counting theories at the sentencing hearing. During the
hearing, she claimed it would be “arbitrary” to apply the sophisti-
cated means enhancement based on “just concealment” because
concealment is inherent in fraud. This argument is similar to her
double-counting argument on appeal that the District Court dou-
ble counted an inherent aspect of fraud by considering conceal-
ment alone as a reason to apply the sophisticated means enhance-
ment. But at the hearing, she framed this argument as one against
applying the sophisticated means enhancement based on her argu-
ment that the concealment strategies she used were not sophisti-
cated enough to warrant the enhancement. She thus failed to ap-
prise the Court of a double-counting claim on this theory. The
Court also did not address her argument as a double-counting
claim, and Holland needed to press the Court to do so to preserve
the issue. See Pon, 963 F.3d at 1226.
Holland likewise failed to apprise the Court of her other two
double-counting claims at the sentencing hearing. She objected
separately to the application of the position of trust and sophisti-
cated means enhancements. But she made no claim that applying
both enhancements involved double-counting. She also did not
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21-13968 Opinion of the Court 23
claim that the Court should not have taken the duration of the of-
fense into account when it applied the sophisticated means en-
hancement, let alone raise an argument that doing so double-
counted the loss amount.
So, Holland preserved arguments that the District Court
erred by inadequately considering how discoverable the scheme
was. But she did not preserve any double-counting claims.
V.
We review a district court’s interpretation of a sentencing
enhancement de novo, Zaldivar, 615 F.3d at 1350, and a district
court’s finding that the sophisticated means enhancement applied
for clear error. United States v. Sosa, 777 F.3d 1279, 1300 (11th Cir.
2015). Under clear error review, we “will not disturb a district
court’s findings unless we are left with a definite and firm convic-
tion that a mistake has been committed.” Id. (internal quotation
marks omitted). The district court may base its factual findings on
undisputed facts in the PSR. United States v. Beckles, 565 F.3d 832,
843 (11th Cir. 2009). “Facts contained in a [PSR] are undisputed
and deemed to have been admitted unless a party objects to them
before the sentencing court with specificity and clarity.” Id. at 844(internal quotation marks omitted). 5
5 Rule 32 is intended to “ensure that the district court can meaningfully exer-
cise its sentencing authority based on a complete and accurate account of all
relevant information,” and the deadlines and procedures imposed by Rule
32(f) “are meant to facilitate this process by ensuring that the probation officer
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24 Opinion of the Court 21-13968
Under U.S.S.G. § 2B1.1(b)(10)(C), a defendant’s offense level
is enhanced by two levels if the offense involved sophisticated
means “and the defendant intentionally engaged in or caused the
conduct constituting sophisticated means.” The commentary de-
fines “sophisticated means” as “especially complex or especially in-
tricate offense conduct pertaining to the execution or concealment
of an offense.” Id. cmt. n.9(B). Examples of sophisticated means
listed in the commentary include “hiding assets or transactions, or
both, through the use of fictitious entities, corporate shells, or off-
shore financial accounts.” Id. But the application notes do not con-
tain an exhaustive list of the ways a defendant can use sophisticated
means to conceal a crime. Feaster, 798 F.3d at 1380.
Section 2B1.1(b)(10)(C) was amended in 2015 to narrow the
focus of the enhancement to the sophistication of the defendant’s
individual conduct rather than the scheme as a whole. See United
States v. Presendieu, 880 F.3d 1228, 1248 (11th Cir. 2018). In gaug-
ing sophistication, the court must examine the totality of the de-
fendant’s “conduct as a whole, not on each individual step.” Mo-
ran, 778 F.3d at 977. There is no requirement that each of the
has an adequate opportunity to investigate and resolve any potential inaccu-
racies in the PSR.” United States v. Aguilar-Ibarra, 740 F.3d 587, 591 (11th Cir.
2014). And so, the “the law of this circuit [is] that a failure to object to allega-
tions of fact in a PS[R] admits those facts for sentencing purposes.” United
States v. Wade, 458 F.3d 1273, 1277 (11th Cir. 2006) (citing United States v.
Shelton, 400 F.3d 1325, 1130 (11th Cir. 2005)); see also United States v. Pilati,
627 F.3d 1360, 1365 (11th Cir. 2010); United States v. Bennett, 472 F.3d 825,
833–34 (11th Cir. 2006).
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21-13968 Opinion of the Court 25
defendant’s individual actions be sophisticated. United States v.
Ghertler, 605 F.3d 1256, 1267 (11th Cir. 2010). Use of “repetitive,
coordinated conduct” to perpetuate and conceal a fraud scheme
supports a sophisticated means enhancement. United States v.
Bane, 720 F.3d 818, 826–27 (11th Cir. 2013). Further, the length of
time for which the conduct is not detected, and the loss inflicted by
the conduct can reflect on the sophistication of the scheme.
Feaster, 798 F.3d at 1381.
We generally hold that using multiple accounts and making
false documents to hide transactions can constitute sophisticated
means under § 2B1.1(b)(10)(C). In United States v. Clarke, we held
that the district court did not err by applying the sophisticated
means enhancement when the defendant concealed the true extent
of his income from the IRS by depositing income into church and
credit union accounts not registered in his name, instructing the
church to pay his personal creditors out of those accounts, and di-
recting his employer to pay his insurance premiums on his behalf.
562 F.3d 1158, 1166 (11th Cir. 2009). In United States v. Campbell,
we found the district court did not err by applying the sophisticated
means enhancement when the defendant—a former mayor of At-
lanta—used various campaign accounts and credit cards that were
issued to other people to conceal transactions. 491 F.3d 1306, 1315–
16 (11th Cir. 2007). And in Feaster, we found the district court did
not err by applying the sophisticated means enhancement when a
secretary at the Department of Veterans’ Affairs (the “VA”) made
personal purchases on the VA’s purchase card. 798 F.3d at 1376,
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26 Opinion of the Court 21-13968
1381–82. To conceal her fraud, the secretary prepared fraudulent
purchase orders, bought gift cards with the purchase card to add a
layer of concealment over her purchases, and made fictitious en-
tries in the VA’s purchase-order tracking system to hide her con-
duct. See id. at 1381–82. That she used “inside information” and
her unique position at the VA also supported applying the enhance-
ment. See id. at 1381.
Here, the District Court did not clearly err by finding the
sophisticated means enhancement applied. The District Court ap-
propriately applied the enhancement based on the totality of Hol-
land’s conduct, even if each individual action was not sophisticated.
See Moran, 778 F.3d at 977. The District Court relied in part on
Holland’s efforts to conceal her fraud. Those efforts included ma-
nipulating the payroll system, preparing false invoices, providing
her employer with spreadsheets that contained false financial infor-
mation, using various credit card accounts and bank accounts, ma-
nipulating credit card statements, and creating a credit card using
M.J.’s name and social security number. Those efforts resemble
the concealment in Feaster, where the defendant used gift cards
and made fictitious entries in a tracking system to hide personal
purchases on her employer’s purchase card. See Feaster, 798 F.3d
at 1382. The duration of the fraud also supports the Court’s appli-
cation of the enhancement. See id. at 1381. In addition, Holland’s
use of a false credit card account in M.J.’s name supported applying
the enhancement, like how the use of accounts in others’ names to
hide transactions supported applying the enhancement in Clarke
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21-13968 Opinion of the Court 27
and Campbell. See Clarke, 562 F.3d at 1166; Campbell, F.3d at
1315–16.
In addition, Holland’s claim that the District Court “denied
[her] request to consider whether or not the fraud was well con-
cealed” is inaccurate. Appellant’s Brief at 18. Though the District
Court interpreted the argument as involving the victim’s lack of
vigilance, the District Court did not wholly fail to consider how
well-concealed the fraud was. The Court instead found Holland’s
argument that the scheme was not sophisticated because an audit
could have revealed the fraud unpersuasive.
The District Court also applied the correct legal standard
when it found Holland’s argument about the discoverability of the
scheme unpersuasive. The Court focused on the defendant’s con-
duct using appropriate factors that supported applying the sophis-
ticated means enhancement. It also noted that the discoverability
of a scheme “might be relevant” in other cases. So, it did not inter-
pret the enhancement to mean the discoverability of a scheme is
irrelevant.
The thrust of the District Court’s reasoning was that the to-
tality of Holland’s scheme was sophisticated regardless of whether
M.J. could have discovered the scheme by conducting an audit.
That reasoning reflected a correct understanding of the enhance-
ment.
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28 Opinion of the Court 21-13968
VI.
We ordinarily review double-counting claims de novo.
United States v. Little, 864 F.3d 1283, 1291 (11th Cir. 2017). But we
review unpreserved double-counting claims for plain error. United
States v. Suarez, 893 F.3d 1330, 1336 (11th Cir. 2018). Under plain
error review, we may correct an error when the defendant demon-
strates: (1) an error occurred; (2) the error was plain; and (3) the
error affected her substantial rights. United States v. Hesser, 800
F.3d 1310, 1324 (11th Cir. 2015). We then only exercise our discre-
tion to correct the error when it seriously affected the fairness, in-
tegrity, or public reputation of judicial proceedings. Id.For an error to be plain under the second prong of the test,
“[s]uch error must be so clearly established and obvious that it
should not have been permitted by the trial court even absent the
defendant’s timely assistance in detecting it.” Id. at 1325 (internal
quotation marks omitted). “When the explicit language of a stat-
ute or rule does not specifically resolve an issue, there can be no
plain error where there is no precedent from the Supreme Court
or this Court directly resolving it.” United States v. Castro, 455
F.3d 1249, 1253 (11th Cir. 2006) (internal quotation marks omitted).
“Impermissible double counting occurs only when one part
of the Guidelines is applied to increase a defendant’s punishment
on account of a kind of harm that has already been fully accounted
for by application of another part of the Guidelines.” United States
v. Flanders, 752 F.3d 1317, 1340 (11th Cir. 2014) (quotation marks
omitted). But “[d]ouble counting a factor during sentencing is
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21-13968 Opinion of the Court 29
permitted if the Sentencing Commission intended that result and
each guideline section in question concerns conceptually separate
notions relating to sentencing.” Id. (quotation marks omitted).
Our Court presumes separate sections apply cumulatively absent
specific direction to the contrary. United States v. Babcock, 924
F.3d 1180, 1196 (11th Cir. 2019). The sentencing guidelines also
instruct that its sections apply cumulatively absent instruction to
the contrary, even when they are triggered by the same conduct.
U.S.S.G. § 1B1.1 cmt. n.4(B). So, what may look like impermissible
double counting is often valid cumulative counting. Babcock, 924
F.3d at 1196 (internal quotation marks omitted).
Holland contends the District Court impermissibly double
counted when it applied the sophisticated means enhancement.
She claims the Court did so by considering: (1) Holland’s conceal-
ment of her fraud, which she claims is inherent in fraud; (2) her
access to different financial instruments, which she claims the
abuse of private trust enhancement under U.S.S.G. § 3B1.3 already
covered; and (3) the duration of the offense, which she claims the
loss amount under U.S.S.G. § 2B1.1(b)(1)(H) already covered.
Holland does not cite, and we have not found, a case from
this Court or the Supreme Court that has held that the way the
District Court applied the sophisticated means enhancement con-
stituted double counting under any of her theories. Neither the
text of § 2B1.1(b)(10)(C) nor the application notes explicitly pro-
hibit applying the sophisticated means enhancement cumulatively
with the abuse of private trust enhancement. See § 2B1.1 cmt.
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30 Opinion of the Court 21-13968
n.9(C). And nothing in § 2B1.1(b)(10)(C) or the comments under
§ 2B1.1 cmt. n.9(C) explicitly prohibits considering the duration of
the offense, the loss amount, or the kind of concealment efforts she
used when applying the sophisticated means enhancement. Ac-
cordingly, there can be no plain error. See Castro, 455 F.3d at 1253.
In any event, Holland’s double-counting theories lack merit.
As to the argument that concealment is inherent in fraud, there is
a difference between whether and how someone conceals a fraud-
ulent scheme, and the sophisticated means enhancement addresses
the method of concealment. Here, the District Court found that
the methods by which Holland committed and concealed her
fraudulent schemes—including using various credit card accounts
and manipulating payroll—involved sophisticated means, not that
any concealment was enough to apply the enhancement. This
double-counting theory is merely a repackaged argument that the
offense did not involve sophisticated means. If the District Court
applied the enhancement without citing any sophisticated methods
of concealment, it would have erred by applying the enhancement
at all, not because of double counting.
Considering the duration of the offense when applying the
sophisticated means enhancement also does not double count the
loss amount increase under § 2B1.1(b)(1)(H). The Sentencing
Commission intended for loss amount to serve as an important and
distinct factor for sentencing crimes under § 2B1.1. See § 2B1.1
cmt. background (“[A]long with other relevant factors under the
guidelines, loss serves as a measure of the seriousness of the offense
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21-13968 Opinion of the Court 31
and the defendant’s relative culpability and is a principal factor in
determining the offense level under this guideline.”). True, as Hol-
land points out, the longer a scheme lasts, the more time someone
has to steal money. But how much a defendant stole during the
scheme is a distinct kind of harm from the scheme’s sophistication
or how long it lasted. And how long a scheme lasted is probative
of its sophistication because “the length of time for which the con-
duct is not detected can reflect on the sophistication of the
scheme.” Feaster, 798 F.3d at 1381.
In addition, we do not find that the application of the abuse
of trust enhancement (U.S.S.G. § 3B1.3) and the sophisticated
means enhancement constituted impermissible double-counting.
Nothing in the text of either enhancement explicitly prohibits
courts from applying both enhancements. See § 3B1.3;
§ 2B1.1(b)(10)(C). Whether someone abused a position of trust to
commit fraud is also conceptually distinct from whether someone
used sophisticated methods to commit the fraud. Moreover, when
someone who occupies a position of trust conceals a fraud scheme
in sophisticated ways, she can steal a lot of money from an unsus-
pecting victim who does not think she needs to search vigorously
for fraud. So, to the extent that applying both enhancements
harshly punishes those who use sophisticated means to commit
fraud from positions of trust, the Commission most likely intended
that result. See United States v. Humber, 255 F.3d 1308, 1312 (11th
Cir. 2001) (discussing how the sophisticated means enhancement
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32 Opinion of the Court 21-13968
“reflect[s] an overall intent by the Sentencing Commission to im-
pose harsher sentences for white-collar criminals”).
***
For the above reasons, Holland has not shown that the Dis-
trict Court committed any error in applying the sophisticated
means enhancement under U.S.S.G. § 2B1.1(b)(10)(C), or that the
Court otherwise erred by engaging in impermissible double-count-
ing.
AFFIRMED.