USCA11 Case: 21-12255 Document: 56-1 Date Filed: 06/05/2023 Page: 1 of 9
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-12255
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CASEY DAVID CROWTHER,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 2:20-cr-00114-JES-MRM-1
____________________
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2 Opinion of the Court 21-12255
Before WILSON, ROSENBAUM, and JILL PRYOR, Circuit Judges.
PER CURIAM:
Casey Crowther appeals the district court’s denial of his mo-
tion for judgment of acquittal after a jury found him guilty of one
count of bank fraud, in violation of
18 U.S.C. § 1344; one count of
making a false statement to a lending institution, in violation of
18
U.S.C. § 1014; and two counts of illegal monetary transactions, in
violation of
18 U.S.C. § 1957. He also appeals the district court’s
calculation of the loss amount under the Sentencing Guidelines.
On appeal, Crowther first argues that the district court erred
in denying his motion for judgment of acquittal because he did not
violate the terms of his Paycheck Protection Program (PPP) loan
agreement; and even if he did, he did not violate the law because
money is fungible, and he spent the full amount of the $2.1 million
PPP loan on authorized expenses. Second, Crowther argues that
his sentence is subject to reversal because the district court improp-
erly relied on Application Note 3(A) to U.S.S.G. § 2B1.1 to calculate
the loss amount based on the intended loss rather than the actual
loss. We will address each argument in turn.
I. Judgment of Acquittal
A. Standard of Review
“We review de novo whether the evidence was sufficient to
sustain a criminal conviction.” United States v. Davis,
854 F.3d 1276,
1292 (11th Cir. 2017). The district court’s denial of “motions for a
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21-12255 Opinion of the Court 3
judgment of acquittal will be upheld if a reasonable trier of fact
could conclude that the evidence establishes the defendant’s guilt
beyond a reasonable doubt.” United States v. Rodriguez,
218 F.3d
1243, 1244 (11th Cir. 2000) (per curiam). We “view the facts and
draw all reasonable inferences therefrom in the light most favora-
ble to the government.” United States v. Hansen,
262 F.3d 1217, 1236
(11th Cir. 2001) (per curiam) (quoting United States v. Slocum,
708
F.2d 587, 594 (11th Cir. 1983)).
“It is not necessary that the evidence exclude every reasona-
ble hypothesis of innocence or be wholly inconsistent with every
conclusion except that of guilt, provided a reasonable trier of fact
could find that the evidence establishes guilt beyond a reasonable
doubt.” United States v. Young,
906 F.2d 615, 618 (11th Cir. 1990).
This is so because “[a] jury is free to choose among reasonable con-
structions of the evidence.” United States v. Vera,
701 F.2d 1349,
1357 (11th Cir. 1983) (quotation marks omitted). Thus, we sustain
a verdict “where there is a reasonable basis in the record for it.”
United States v. Farley,
607 F.3d 1294, 1333 (11th Cir. 2010). A judg-
ment of acquittal is warranted only where no reasonable jury could
have found the defendant guilty beyond a reasonable doubt. United
States v. Almanzar,
634 F.3d 1214, 1221 (11th Cir. 2011).
B. Applicable Law
It is illegal to knowingly execute a scheme or artifice (1) “to
defraud a financial institution,” or (2) to obtain money from a fi-
nancial institution “by means of false or fraudulent pretenses, rep-
resentations, or promises.”
18 U.S.C. § 1344(1), (2). Subsections
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4 Opinion of the Court 21-12255
(1) and (2) of § 1344 present “two alternative methods” for estab-
lishing the offense. United States v. Dennis,
237 F.3d 1295, 1303 (11th
Cir. 2001). A scheme to defraud under § 1344(1) is a scheme to de-
prive someone of “something of value by trick, deceit, chicane, or
overreaching.” United States v. Takhalov,
827 F.3d 1307, 1312–13
(11th Cir. 2016) (quotation marks omitted).
Further, it is illegal to knowingly make any false statement
or report for the purpose of influencing in any way the action of a
bank regarding any application or loan.
18 U.S.C. § 1014.
Finally, it is illegal to knowingly engage in monetary trans-
actions in “criminally derived property of a value greater than
$10,000 . . . derived from specified unlawful activity.”
Id. § 1957(a).
Criminally derived property is “any property constituting, or de-
rived from, proceeds obtained from a criminal offense.” Id.
§ 1957(f)(2). “Specified unlawful activity” includes violations of
Sections 1344 (bank fraud) and 1014 (making a false statement to a
lending institution). Id. §§ 1957(f)(3); 1956(c)(7)(A), (D).
C. Discussion
Here, the district court did not err in denying Crowther’s
motion for a judgment of acquittal because the evidence was suffi-
cient for a reasonable jury to conclude that he violated his loan
agreement.
As to his conviction for bank fraud, the evidence supported
a finding that Crowther defrauded the bank by lying about his need
for, and the purpose of, his PPP loan. In his loan applications,
Crowther represented that his roofing company would use the
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21-12255 Opinion of the Court 5
loan for payroll, rent, mortgage interest, and utilities, and that the
loan was necessary to support the company’s ongoing operations.
However, the government presented evidence of 39 fake social se-
curity and green cards for nonexistent employees and new-hire pa-
perwork for several of Crowther’s family members who were
added to the company’s payroll for about one month. None of the
checks that were issued to these new hires were ever cashed—ex-
cept for one check issued to “Agustin Castillo,” which was depos-
ited about three months later into one of Crowther’s own ac-
counts. The government also presented evidence showing
Crowther, after receiving the loan, used the money to buy a boat
and a horse; to pay off credit card debt for business and personal
expenses; and to pay down debt he owed to a former business part-
ner. The government’s evidence showed Crowther obfuscated the
purpose of various wire transfers by telling the bank that they were
for business purposes (such as equipment or roofing material)
when the wire transfers were really for other purposes (i.e., the
boat and the horse). In light of all this evidence, the jury could
reasonably conclude that Crowther committed bank fraud by exe-
cuting a scheme to defraud the bank, or, alternatively, by obtaining
money through false pretenses. Dennis,
237 F.3d at 1303.
Similarly, for his conviction for making a false statement to
a lending institution, the evidence supported a finding that
Crowther made false statements to the bank in order to secure the
PPP loan. On the loan application, Crowther affirmed that it was
“for legitimate business purposes,” such as payroll, costs related to
the continuation of group health care benefits, business-related
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6 Opinion of the Court 21-12255
mortgage interest payments, rent and utility payments, etc. How-
ever, the evidence showed Crowther used the money for several
non-legitimate purposes. The jury could reasonably find that
Crowther knowingly made false statements to the bank in viola-
tion of
18 U.S.C. § 1014.
Finally, for his conviction for illegal monetary transactions,
the evidence supported a finding that Crowther used the unlaw-
fully derived money for two transactions greater than $10,000.
First, the government presented evidence showing that on April
21, 2020, Crowther transferred $100,000 from his company’s new
PPP account to Crowther’s former business partner. Second, on
April 24, 2020, Crowther transferred $689,417 from the PPP ac-
count to Sara Bay Marina to purchase the boat. From this evi-
dence, a reasonable jury could find Crowther made two illegal
monetary transactions in violation of
18 U.S.C. § 1957(a).
Accordingly, we affirm as to this issue.
II. Loss Amount
A. Standard of Review
We review for plain error a sentencing challenge raised for
the first time on appeal. United States v. Clark,
274 F.3d 1325, 1326
(11th Cir. 2001) (per curiam). Plain error lies only where “(1) there
is an error in the district court’s determination; (2) the error is plain
or obvious; (3) the error affects the defendant’s substantial rights in
that it was prejudicial and not harmless; and (4) the error seriously
affects the fairness, integrity, or public reputation of judicial pro-
ceedings.”
Id. If the explicit language of a statute or rule does not
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21-12255 Opinion of the Court 7
specifically resolve an issue, there can be no plain error where nei-
ther our court’s nor the Supreme Court’s precedent directly re-
solves it. United States v. Lejarde-Rada,
319 F.3d 1288, 1291 (11th
Cir. 2003) (per curiam).
B. Applicable Law
Section 2B1.1 of the Sentencing Guidelines contains the of-
fense-level calculation for theft and fraud offenses. Section
2B1.1(b)(1)(I) provides for an offense-level increase of 16 if the loss
caused by the offense exceeds $1,500,000 but is no more than
$3,500,000.
The section itself does not define “loss.” However, Applica-
tion Note 3 to the section defines “actual loss” as “the reasonably
foreseeable pecuniary harm that resulted from the offense,” and
“intended loss” as “the pecuniary harm that the defendant pur-
posely sought to inflict . . . includ[ing] intended pecuniary harm
that would have been impossible or unlikely to occur.”
Id. § 2B1.1,
comment n.3(A)(i), (ii). Application Note 3(A) directs courts to cal-
culate loss as “the greater of actual loss or intended loss.” Id. com-
ment n.3(A); United States v. Moran,
778 F.3d 942, 973 (11th Cir.
2015).
Following Supreme Court precedent, we recently held that
courts should only defer to the commentary when—after exhaust-
ing all traditional tools of construction—we are left with the con-
clusion that the Guidelines are “genuinely ambiguous.” United
States v. Dupree,
57 F.4th 1269, 1274–75 (11th Cir. 2023) (en banc)
(citing Kisor v. Wilkie,
139 S. Ct. 2400, 2414–15 (2019)). However,
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8 Opinion of the Court 21-12255
when ambiguity exists and deference to the commentary is war-
ranted, the Supreme Court has held that the commentary to the
Guidelines is “authoritative unless it violates the Constitution, or a
federal statute, or is inconsistent with, or a plainly erroneous read-
ing of, that guideline.” Stinson v. United States,
508 U.S. 36, 38
(1993).
C. Discussion
Here, Crowther cannot demonstrate that the district court
committed plain error in using Application Note 3(A) to calculate
the applicable loss amount as the intended loss, rather than the ac-
tual loss, under § 2B1.1(b)(1)(I) of the Sentencing Guidelines.
Crowther argues that under our recently published decision
in Dupree, “loss” simply means loss. He argues that his case must
be remanded for resentencing based on loss alone.1 Crowther is
partially correct—Dupree did overrule our precedent on how the
Guidelines and the commentary interact, but under plain error re-
view, remand is not warranted because the district court did not
plainly err by referring to the commentary. For an error to be
plain, the issue must be “specifically and directly resolved by . . . on
point precedent from the Supreme Court or this Court.” United
States v. Sanchez,
940 F.3d 526, 537 (11th Cir. 2019). Contrary to
1 At Crowther’s request, we permitted supplemental briefing on the sentenc-
ing guidelines issue after our court agreed to rehear United States v. Dupree en
banc.
25 F.4th 1341 (11th Cir. 2022) (Mem.). After our recent decision in
Dupree was published, Crowther filed supplemental authority which mostly
reiterated the same arguments in his initial supplemental briefing.
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Crowther’s arguments, Dupree did not “specifically and directly re-
solve[]” whether § 2B1.1’s definition of “loss” is ambiguous. See
United States v. Verdeza, No. 21-10461,
2023 WL 3728960, *9 (11th
Cir. May 31, 2023) (holding the same).
Thus, Crowther cannot demonstrate that the district court
committed plain error in using Application Note 3(A) to calculate
the applicable loss amount as the intended loss, rather than the ac-
tual loss, under § 2B1.1(b)(1)(I).
Accordingly, we affirm as to this issue.
AFFIRMED.
