United States v. Heather Jones , 533 F. App'x 448 ( 2013 )

Case: 12-10599 Document: 00512238188 Page: 1 Date Filed: 05/10/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 10, 2013
No. 12-10599 Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
HEATHER NICOLE JONES,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
No. 4:11-CR-196-8
Before KING, DAVIS, and ELROD, Circuit Judges.
PER CURIAM:*
Heather Nicole Jones pled guilty to one count of making, uttering, or
possessing a forged and counterfeit security of a private entity, and aiding and
abetting the same, in violation of 18 U.S.C. §§ 513(a) and 2. Jones now
challenges her sentence, arguing that the district court erred in applying
enhancements for: (1) the involvement in the offense of 250 or more victims;
(2) an amount of loss in excess of $30,000; (3) the use of “sophisticated means”;
and (4) the unauthorized use of a means of identification unlawfully to produce
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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another means of identification. For the reasons set forth below, we conclude
that the district court erred in enhancing Jones’s sentence based on the
involvement in the offense of 250 or more victims, though we affirm the district
court’s judgment in all other respects. Accordingly, we AFFIRM in part,
REVERSE in part, and REMAND for resentencing.
I. FACTUAL AND PROCEDURAL BACKGROUND
On December 14, 2011, a grand jury indicted Heather Nicole Jones on one
count of making, uttering, or possessing a forged and counterfeit security of a
private entity, and aiding and abetting the same, in violation of 18 U.S.C.
§§ 513(a) and 2. Jones pled guilty to the offense on January 6, 2012, and the
district court subsequently sentenced her to a within-Guidelines term of fifty
months’ imprisonment, to be followed by three years of supervised release.
Jones appeals, raising several procedural challenges to her sentence.
Jones stipulated that on or about June 3, 2011, “[she], aided and abetted
by others known and unknown, did make, possess, and utter a forged and
counterfeit security in the amount of $2,000 purporting to be a security of
Southside Bank, . . . and did so with the intent to deceive Southside Bank.” Six
days later, Jones was driven to the bank by Jereamine Deshawn Moore and
Crystal Moore (collectively, “the Moores”). Upon their arrival, Crystal Moore
gave Jones a fake identification card bearing Jones’s photograph, but the name
and other personal information of a different individual. Jones entered the
bank, presented the fake identification card to a teller, and, posing as the person
identified on the card, “told the teller that she had run out of checks, but needed
to write a check on her account.” At Jones’s request, the teller produced a $2,000
check drawn on the account of the person falsely identified on the card. Jones
then marked the check payable to “cash,” forged the victim’s signature on the
check, and returned it to the teller for payment. Suspecting fraud, the teller
refused to cash the check, at which point Jones exited the bank.
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Jones’s presentence report (“PSR”) reflects that after she left the bank, she
reentered the Moores’s vehicle and the three fled the scene. Shortly thereafter,
police officers stopped the vehicle based on information provided by the teller.
After receiving consent to search the vehicle, officers discovered fourteen credit
cards in Crystal Moore’s name and three fraudulently obtained debit cards
containing the names of other individuals. Officers verified that Jones was the
individual who attempted to cash the check and arrested her.
Investigators later connected Jones’s activities to a larger scheme. As part
of that scheme, an unindicted co-conspirator stole mail from at least six blue
collection boxes belonging to the United States Postal Service (“USPS”). Using
bank account information and other personal data contained in the stolen mail,
or information illegally purchased by the Moores from a check-cashing business,
co-conspirator Darin Eugene Foley created fraudulent identification cards.
“Runners” then were recruited to cash fraudulent checks or withdraw funds
directly from the victims’ accounts. The Moores oversaw the runners’ activities
and maintained possession of the fraudulent identification information and
checks. As explained in Jones’s PSR, although each runner worked with the
Moores, “they each acted independently from the other, as their agreement for
the jointly undertaken criminal activity was only entered into with [the
Moores].”
As to Jones’s conduct, the PSR identified her as a runner and stated that
“Jones is known to have negotiated between 10 and 20 fraudulent checks during
the conspiracy.” The report also indicated, however, that “to date, none of the
negotiated checks have been associated with her, with the exception of the check
she attempted to cash on the date of her arrest.” Accordingly, the PSR noted
that “no loss amount has been determined as to [Jones].” Similarly, a chart in
the PSR summarizing the intended and actual losses caused by each conspirator
reflected that Jones was responsible for an intended loss of $2,000, and an actual
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loss of $0. However, based on evidence that Jones negotiated “between 10 and
20 checks,” the probation officer concluded that “a reasonable estimate of
[Jones’s] loss would be the 15 checks she cashed, at an estimated rate of $2,000
each, combined with the $2,000 check she attempted to negotiate, resulting in
an estimated loss of $32,000.”
The PSR assessed a Guidelines base offense level of six. See U.S.S.G.
§ 2B1.1(a)(2). Four enhancements then were assigned, resulting in a sixteen-
level increase. First, a six-level increase was applied pursuant to
§ 2B1.1(b)(2)(C), based on a finding that the offense involved 250 or more
victims. This enhancement rested on the probation officer’s finding that mail
was stolen from at least six USPS collection boxes, and Guidelines commentary
that each such offense “shall be considered to have involved at least 50 victims.”
Id. § 2B1.1 cmt. n.4(C)(i)(II), (ii)(I). The PSR applied another six-level increase
based on the estimated intended loss of $32,000. Id. § 2B1.1(b)(1)(D). Next,
because the fraudulent scheme involved the use of “sophisticated means,” the
PSR assigned a two-level increase pursuant to U.S.S.G. § 2B1.1(b)(10)(C).
Finally, another two-level increase was applied because the offense involved “the
unauthorized transfer or use of any means of identification unlawfully to
produce or obtain any other means of identification.” Id. § 2B1.1(b)(11)(C)(i).
After a three-level reduction for acceptance of responsibility, Jones’s total offense
level was nineteen. With a category IV criminal history score, Jones’s offense
level resulted in a Guidelines range of 46–57 months. Id. ch. 5, pt. A (sentencing
table).
Jones filed objections to the PSR contesting the applicability of each
enhancement. In connection with the enhancement based on the number of
victims, Jones maintained that she had no involvement in stealing mail from
USPS collection boxes, and therefore could not be held responsible for such
conduct, or for a presumed number of victims affected by such conduct. As to the
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amount-of-loss enhancement, Jones contended that the information in the PSR
was internally inconsistent, speculative, and not based on reliable facts. Jones
further asserted that her mere “act of going into a bank and attempting to cash
a check” did not satisfy the standard for imposition of the sophisticated means
enhancement. Finally, Jones argued that she was not responsible for creating
fraudulent identification cards or checks, so the identity theft enhancement was
inapplicable to her.
In response to Jones’s objections, the probation officer filed a PSR
addendum. Regarding Jones’s objection to the number of victims involved in the
offense, the addendum simply stated that the related enhancement was applied
because Jones “agreed to jointly undertake the activity of cashing between 10
and 21 fraudulent checks, and the offense involved using [identification] cards
containing . . . information conspirators stole from at least six different collection
boxes.” As to Jones’s disagreement with the amount-of-loss enhancement, the
addendum explained that the information about the number of checks Jones
negotiated had been provided by Jereamine Moore, and had been deemed
credible. Because Jones was responsible for successfully negotiating “between
10 and 20 checks,” the probation office determined that 15 was a “reasonable
estimate” of the number of checks Jones cashed, and that the average amount
of each check reasonably could be estimated “by using the amount of the check
which [Jones] was known to have attempted to negotiate.”1 In connection with
the remaining two objections, the addendum explained that Jones’s “conduct in
the offense exceeded just entering the bank and negotiating or attempting to
negotiate fraudulent checks.” To the contrary, the addendum noted that Jones
“provided a picture to conspirators, which was imposed on a false [identification]
card that contained” a different individual’s personal information. Had Jones
1
However, as further discussed infra, the addendum elsewhere stated that Jones
“negotiated the fraudulent checks . . . on at least 11 occasions, if not more.”
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not provided her picture, the probation officer stated, the fraudulent “card could
not have been produced.”
Jones filed a response to the addendum in which she noted her continuing
objections to the PSR. The district court overruled each of Jones’s objections,
and adopted the findings and conclusions in the PSR. The court then sentenced
Jones to a within-Guidelines range of fifty months of imprisonment, to be
followed by three years of supervised release. Jones timely appeals.
II. STANDARD OF REVIEW
“We review a district court’s interpretation or application of the
Sentencing Guidelines de novo, but review its factual findings for clear error.”
United States v. Alexander, 602 F.3d 639, 641 (5th Cir. 2010). “[A] finding will
be deemed clearly erroneous if, based on the record as a whole, we are ‘left with
the definite and firm conviction that a mistake has been committed.’” United
States v. Ekanem, 555 F.3d 172, 175 (5th Cir. 2009) (quoting United States v.
Castillo, 430 F.3d 230, 238 (5th Cir. 2005)). “A district court cannot impose a
sentence enhancement . . . unless the government has proven any facts
necessary to support the enhancement by a preponderance of the evidence.”
United States v. Rodriguez, 630 F.3d 377, 380 (5th Cir. 2011) (per curiam).
III. ANALYSIS
A. Number of Victims
Under § 2B1.1(b)(2)(C), a defendant’s base offense level increases by six
levels where the offense involves 250 or more victims. In cases in which
undelivered mail is stolen from a USPS collection box, each theft “shall be
considered to have involved at least 50 victims.” U.S.S.G. § 2B1.1 cmt.
n.4(C)(i)(II), (ii)(I). Here, the district court imposed § 2B1.1(b)(2)(C)’s six-level
enhancement based on its conclusion that mail had been stolen from at least six
collection boxes, thereby presumptively involving in the offense at least 300
victims.
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Jones argues that this was erroneous. She contends that “[t]here were no
facts shown, or alleged, that [she] participated in or had knowledge of theft from
the mail.” Jones further maintains that “there was no determination of the
scope of the criminal activity that [she] agreed to jointly undertake,” nor was
there any “basis to support a finding that the conduct of others in stealing mail
was in furtherance of the scope of criminal activity jointly undertaken by [her],
or was known [to her], or was reasonably foreseeable [to her].” As we will
explain, we agree with Jones’s contention that the district court erred in
applying this enhancement.
(1) Relevant Conduct
“In fashioning a sentence, a court may consider, as ‘relevant conduct,’ acts
in addition to those underlying the offense of conviction.” United States v.
Dickson, 632 F.3d 186, 192 (5th Cir. 2011). “[I]n the case of a jointly undertaken
criminal activity (a criminal plan, scheme, endeavor, or enterprise undertaken
by the defendant in concert with others, whether or not charged as a
conspiracy),” a defendant’s relevant conduct includes “all reasonably foreseeable
acts and omissions of others in furtherance of the jointly undertaken criminal
activity.” U.S.S.G. § 1B1.3(a)(1)(B); see also United States v. Hammond, 201
F.3d 346, 351 (5th Cir. 1999). “[T]he scope of the criminal activity jointly
undertaken by the defendant . . . is not necessarily the same as the scope of the
entire conspiracy, and hence relevant conduct is not necessarily the same for
every participant.” U.S.S.G. § 1B1.3 cmt. n.2.
A sentencing court therefore “must first determine the scope of the
criminal activity the particular defendant agreed to jointly undertake.” Id.
Then, to hold a defendant accountable for the number of victims affected by third
parties, the court must make findings establishing that: (1) the defendant agreed
to undertake criminal activities jointly with the third parties, (2) the victims
were affected by the third parties within the scope of that agreement, and (3) the
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third parties’ misconduct was reasonably foreseeable to the defendant. Cf.
Hammond, 201 F.3d at 351. “These findings need not be expressly made, but the
meaning of the court’s findings must be clear.” Id. We review for clear error a
court’s determination of what constitutes relevant conduct. United States v.
Mann, 493 F.3d 484, 497 (5th Cir. 2007).
(2) Discussion of Relevant Conduct Findings
In recounting Jones’s participation in the fraudulent scheme, the PSR
detailed only the incident that formed the basis of her conviction. Again, that
incident involved Crystal Moore providing Jones a fraudulent identification card,
which Jones used in her effort to cash a forged check against the victim’s
account. Beyond that, the PSR merely explained that Jones was a runner, and
that each runner “acted independently from the other, as their agreement for the
jointly undertaken criminal activity was only entered into with [the Moores].”
Similarly, the PSR addendum stated that “[a]lthough [she] did not jointly
undertake any criminal acts with [various co-conspirators] . . ., Jones entered
into a jointly undertaken agreement to commit theft and fraud with [the
Moores].” There was no indication in the PSR or its addendum, however, that
Jones or the Moores personally stole mail from the collection boxes, or that such
conduct was known or reasonably foreseeable to Jones.
Nevertheless, in discussing during the sentencing hearing Jones’s
objections to the PSR’s references to mail theft, the district court stated that “the
theft of the mail was part of the jointly undertaken criminal activity” in which
Jones engaged, and it therefore “constituted relevant conduct.” Likewise, when
Jones specifically objected to the application of this enhancement, the court
concluded that she “agreed to jointly undertake the activity of cashing checks
that were obtained through the theft from the mail, and so she’s accountable, as
relevant—through relevant conduct for the quantity that is presumed to
have—of victims that is presumed to have been involved.”
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From these statements, the district court appears to have been suggesting
that the mail was stolen in furtherance of the jointly undertaken criminal
activity in which Jones agreed to participate. See United States v. Burton, 126
F.3d 666, 679 (5th Cir. 1997) (a district court may infer “from the evidence the
scope of the criminal activity to which [a defendant] agreed”); U.S.S.G. § 1B1.3
cmt. n.2 (“In determining the scope of the criminal activity that the particular
defendant agreed to jointly undertake . . . the court may consider any explicit
agreement or implicit agreement fairly inferred from the conduct of the
defendant and others.”). While such a conclusion appears to be supported by the
record, it nonetheless is insufficient on its own to support the further conclusion
that the mail theft constituted Jones’s relevant conduct. As the Guidelines
commentary makes clear, a defendant’s relevant conduct only includes the
conduct of others that is “in furtherance of the jointly undertaken criminal
activity,” and is “reasonably foreseeable in connection with that criminal
activity.” U.S.S.G. § 1B1.3 cmt. n.2.
Here, the district court did not state whether Jones knew or reasonably
could have foreseen that the check-cashing scheme involved mail theft. Nor, by
extension, did it enter findings explaining what evidence would support such a
conclusion. As best we can discern, the district court simply inferred that,
because Jones participated in a scheme to use fake identification cards to cash
fraudulent checks, she reasonably should have foreseen that the personal
information contained in those items might be derived from mail stolen from
USPS collection boxes.
To be sure, the Guidelines commentary certainly encourages a court
analyzing reasonable foreseeability to consider the nature of the offense. See
U.S.S.G. § 1B1.3 cmt. n.2(b)(1); see also United States v. Mergerson, 4 F.3d 337,
350 (5th Cir. 1993) (“Ordinarily, one co-conspirator’s use of a firearm will be
foreseeable because firearms are ‘tools of the trade’ in drug conspiracies.”).
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Nevertheless, it simply cannot categorically be said—as the government
implies—that all, or even most, fraudulently obtained personal information is
acquired by stealing mail from collection boxes. To the contrary, experience has
shown that the means by which personal information might be obtained for
fraudulent purposes are limited only by the imaginations of those intent on
obtaining it. See, e.g., United States v. Simmons, 420 F. App’x 414, 419 (5th Cir.
2011) (per curiam) (unpublished) (personal information purchased by
businessperson from her clients and the homeless); United States v. Perkins, 287
F. App’x 342, 345 (5th Cir. 2008) (per curiam) (unpublished) (personal data
stolen from military personnel who checked out vehicles using their military
licenses); United States v. Tisdale, 264 F. App’x 403, 405 (5th Cir. 2008)
(unpublished) (personal information culled from obituaries and credit reports
obtained through defendants’ employment); United States v. Phillips, 477 F.3d
215, 217 (5th Cir. 2007) (personal data stolen via computer hacking). Indeed,
even here, we note that the PSR stated that the personal information used in
Jones’s scheme was, in some instances, purchased illegally by the Moores from
a check-cashing business.
Given the vast array of avenues by which the personal information used
to perpetrate Jones’s scheme might have been acquired, we are unable to rely
simply on the nature of Jones’s offense to conclude that her co-conspirator’s mail
theft was reasonably foreseeable to her. Moreover, having independently
reviewed the record, we have found no evidence to substantiate the conclusion
that Jones knew or reasonably could have foreseen that the scheme in which she
was engaged involved stealing mail from USPS collection boxes. Because the
government failed to carry its burden of proving by a preponderance of the
evidence that such conduct was known or reasonably foreseeable to her, we are
left with the definite and firm conviction that, to the extent the district court
entered a finding of fact to the contrary, that finding was mistaken. See
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Rodriguez, 630 F.3d at 383. Accordingly, we reverse the district court’s
application of the enhancement set forth in § 2B1.1(b)(2)(C).2
B. Amount of Loss
Next, Jones argues that the district court erred in applying a six-level
enhancement under § 2B1.1(b)(1)(D) based on its finding that the amount of loss
exceeded $30,000. Although the PSR’s chart summarizing loss amounts
indicated that Jones was responsible for an intended loss of $2,000 and an actual
loss of $0, other evidence indicated that Jones was responsible for successfully
negotiating “between 10 and 20 checks.” The report thus used a midpoint and
deemed Jones accountable for successfully cashing 15 checks of $2,000 each, plus
the $2,000 check she tried to cash on the day of her arrest. Based on this
information, the district court concluded that $32,000 was a reasonable estimate
of the loss amount.
Jones contends, however, that the PSR and the PSR addendum were
inconsistent as to the number of checks she negotiated. She correctly notes that
these reports stated that she “negotiated between 10 and 20 fraudulent checks
during the conspiracy”; that she negotiated fraudulent checks “on at least 11
occasions, if not more”; and that “a reasonable estimate of her loss would be the
15 checks that she cashed . . . combined with the [one] check she attempted to
negotiate.” Jones submits that, given “this confusing array of numbers, it was
error for the district court to adopt the PSR findings and conclusions and
enhance 6 levels with no factual support for anything other than $2,000 in
intended losses.”
2
As noted, the court’s application of the enhancement contained in § 2B1.1(b)(2)(C) was
based on the definition of “victim” associated with mail theft. See U.S.S.G. § 2B1.1 cmt.
n.4(C)(i)(II), (ii)(I). There is otherwise no evidence in the record that would support the court’s
application of this enhancement.
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(1) Applicable Law
Under the Guidelines, “loss is the greater of actual loss or intended loss.”
U.S.S.G. § 2B1.1 cmt. n.3(A). In determining loss amount, “[t]he court need only
make a reasonable estimate of the loss. The sentencing judge is in a unique
position to assess the evidence and estimate the loss based upon that evidence.
For this reason, the court’s loss determination is entitled to appropriate
deference.” Id. § 2B1.1 cmt. n.3(C). We therefore review the sentencing court’s
calculation of the loss amount for clear error. United States v. Dowl, 619 F.3d
494, 502 (5th Cir. 2010) (per curiam). Nevertheless, because the court’s method
of determining the amount of loss implicates application of the Guidelines, the
approach it adopts is reviewed de novo. United States v. Klein, 543 F.3d 206, 214
(5th Cir. 2008).
When a sentencing court uses information in the PSR to make a factual
determination such as loss amount, that information generally “is presumed
reliable and may be adopted . . . without further inquiry if the defendant fails to
demonstrate by competent rebuttal evidence that the information is materially
untrue, inaccurate or unreliable.” United States v. Washington, 480 F.3d 309,
320 (5th Cir. 2007) (internal quotation marks and citation omitted). For this
general rule to apply, however, the PSR’s information must “bear[] some indicia
of reliability.” United States v. Scher, 601 F.3d 408, 413 (5th Cir. 2010). In other
words, the PSR cannot simply include bald assertions in an attempt to “convert[]
“such statements into reliable evidence, without providing any information for
the basis of the statements.” United States v. Taylor, 277 F.3d 721, 724, 726–27
(5th Cir. 2001) (internal quotation marks and citation omitted). Rather, the
PSR’s information must have an “adequate evidentiary basis.” United States v.
Caldwell, 448 F.3d 287, 290 (5th Cir. 2006); United States v. Alford, 142 F.3d
825, 832 (5th Cir. 1998). When it does, a defendant’s mere objections to the PSR
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“do not suffice as competent rebuttal evidence.” United States v. Parker, 133
F.3d 322, 329 (5th Cir.), cert. denied, 523 U.S. 1142 (1998).
(2) Discussion
In essence, Jones challenges both the method of loss calculation, as well
as the estimated loss amount. As pertaining to the calculation method, Jones’s
claim of error is without merit. The Guidelines provide several different factors
sentencing courts may consider when estimating loss. U.S.S.G. § 2B1.1 cmt.
n.3(C). Included among these is “the scope and duration of the offense and
revenues generated by similar operations.” Id. § 2B1.1 cmt. n.3(C)(vi). Here, the
method used to calculate the loss for which Jones was held responsible merely
entailed extrapolating the $2,000 loss she intended to inflict on the date of her
arrest by an estimate of similar operations in which she was found to have
engaged. See id. Although Jones challenges the factual determinations
underlying that approach, the methodology itself—that of extrapolating a known
quantity to unknown quantities—previously has been upheld by this court. See
Unites States v. Betancourt, 422 F.3d 240, 246–47 (5th Cir. 2005); United States
v. Jones, 372 F. App’x 530, 531–32 (5th Cir. 2010) (unpublished).
Regarding Jones’s challenge to the calculated loss amount, we note at the
outset that the PSR addendum identified co-conspirator Jereamine Moore as the
source of the PSR’s information that Jones negotiated “between 10 and 20
checks.” The addendum stated that Moore’s information had “been deemed
credible,” and that, based on that “reliable information,” a “reasonable estimate
of 15 [checks] (which is in the middle) was used to determine loss.” The
addendum continued that “[a] reasonable estimate for loss was determined by
using the amount of the check [that Jones] was known to have attempted to
negotiate, coupled with the average number of checks she was known to have
cashed.” Based on this information, the district court overruled Jones’s objection
to the loss estimate.
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Inasmuch as the PSR addendum explained that Jereamine Moore was the
source of the “credible” and “reliable” information regarding the number of
checks Jones negotiated, the addendum indicates that the information
underlying the PSR’s loss estimate bore some indicia of reliability. See Scher,
601 F.3d at 413. Jones has presented no competent rebuttal evidence
demonstrating that the probation officer’s reliance on Jereamine Moore’s
information was misplaced. See Washington, 480 F.3d at 320. Rather, Jones has
argued that: (1) the PSR and its addendum were unreliable because they
purportedly contained inconsistent information as to the number of checks she
negotiated, and (2) it was improper for the court to conclude that she
successfully negotiated 15 checks.
As to the first of these arguments, our view is that Jones is attempting to
manufacture inconsistencies where they simply do not exist. To be sure, the
PSR and its addendum do state that Jones “negotiated between 10 and 20
fraudulent checks during the conspiracy”; that she negotiated fraudulent checks
“on at least 11 occasions, if not more”; and that “a reasonable estimate of her loss
would be the 15 checks that she cashed . . . combined with the [one] check she
attempted to negotiate.” Plucking these statements from their context, Jones
characterizes them as contradictory. Within the context of the case, however,
they not only are internally consistent, but they also support the district court’s
estimated loss amount.
In particular, the probation officer’s reports indicate that Jones
successfully negotiated “between 10 and 20 checks,” and she unsuccessfully
attempted to negotiate another check. Thus, the minimum number of fraudulent
checks associated with Jones was 11. Given the range provided by Jereamine
Moore of “10 to 20 checks,” however, it was reasonable to estimate that Jones
successfully cashed 15 checks. Coupled with the single check she unsuccessfully
attempted to negotiate, the total number of checks underlying her loss amount
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was estimated to be 16. These various figures, in other words, simply detail
different aspects of the PSR’s estimated loss calculation. In the absence of other
competent rebuttal evidence that the information in the PSR was untrue,
inaccurate, or unreliable, we cannot conclude that the district court erred in
adopting its findings and conclusions. See Washington, 480 F.3d at 320.
Regarding Jones’s argument that it was improper for the court to base the
loss amount on the conclusion that she had successfully negotiated 15 checks,
we reemphasize that “the amount of loss need not be determined with precision.”
United States v. Izydore, 167 F.3d 213, 222 (5th Cir. 1999). To the contrary, “a
district court need only make a reasonable estimate of loss.” United States v.
Murray, 648 F.3d 251, 255 (5th Cir. 2011), cert. denied 132 S. Ct. 1065 (2012).
We therefore reject the notion that the court’s estimate was unreasonable or
clearly erroneous, especially given the difficulties associated with calculating the
loss amount in fraud cases such as this one.
Simply put, the district court’s loss calculation method constituted a
proper application of the Guidelines. See Betancourt, 422 F.3d at 246–47; Jones,
372 F. App’x at 531–32. Moreover, because Jones failed to present competent
rebuttal evidence demonstrating that the PSR’s information was inaccurate or
unreliable, we cannot say that the district court improperly adopted its factual
findings regarding the loss amount. See Washington, 480 F.3d at 320. As a
result, we hold that the district court did not err in finding that the amount of
loss exceeded $30,000 and, consequently, in applying a six-level enhancement
to Jones’s sentence under § 2B1.1(b)(1)(D).
C. Sophisticated Means
Jones also contends that the district court erred in imposing a two-level
enhancement under § 2B1.1(b)(10)(C), which the court applied based on its
conclusion that Jones’s offense was carried out using “sophisticated means.” She
argues that although the overall scheme involved the use of sophisticated means,
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her “conduct was not sophisticated but was simple, garden-variety fraudulent
conduct.” Further, Jones submits that “there was no showing that [she] knew
the scope of the full scheme,” and the district court did not “make a
determination and finding of reasonable foreseeability.”
(1) Applicable Law
As relevant, § 2B1.1(b)(10)(C) provides that a two-level enhancement is
proper if an “offense otherwise involved sophisticated means.” In related
commentary, the Guidelines state that “‘sophisticated means’ means especially
complex or especially intricate offense conduct pertaining to the execution or
concealment of an offense.” U.S.S.G. § 2B1.1 cmt. n.8(B). We review for clear
error a district court’s factual finding that a defendant used sophisticated means
to carry out his or her offense. United States v. Clements, 73 F.3d 1330, 1340
(5th Cir. 1996).
(2) Discussion
In applying the sophisticated means enhancement to her sentence, the
district court concluded that Jones “did more than just walk into a bank” to cash
a check. Rather, the court noted, “[s]he provided her photograph to be imposed
on a false [identification] card that contained identifiers of another person.”
Because she used that false identification card in her attempt to negotiate a
fraudulent check, and because the “overall scheme” involved sophisticated
means, the court found the sophisticated means enhancement applicable.
The district court’s conclusion is supported by ample authority. In
Clements, for example, we found no clear error in the application of the
sophisticated means enhancement where the defendant’s tax scheme involved
a series of apparently ordinary transactions whereby the defendant converted
payments he received into cashier’s checks and then deposited them into his
wife’s bank account. 73 F.3d at 1340. We upheld the sophisticated means
enhancement after explaining that the use of multiple checks and a separate
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bank account obscured the link between the defendant and the money, and made
it more difficult for the Internal Revenue Service to detect the offense. Id.Similarly, in United States v. Calderon, 209 F. App’x 418, 419 (5th Cir.
2006) (per curiam) (unpublished), we affirmed the application of the
sophisticated means enhancement where the defendant printed fraudulent
checks using a computer program available to anyone, sent the checks through
the mail to purchase coins, and walked a check into a financial institution to
open an account. In affirming, we held that “[e]ven though certain aspects of
[the defendant’s] scheme were not sophisticated, the offense as a whole involved
sophisticated means.” Id.; see also United States v. Rubio, 225 F. App’x 290, 291
(5th Cir. 2007) (per curiam) (unpublished) (“Viewed in its entirety, the scheme
involved sophisticated means even if some . . . aspects of [the defendant’s]
offense were not sophisticated, and the district court did not clearly err.”).
Here, as the district court explained, Jones’s activity involved more than
merely attempting to negotiate a fraudulent check. Jones admitted to
participating in a scheme that required the conspirators to create false
identification documents in order to cash fraudulent checks. To execute this
fraud successfully, Jones provided her photograph to other conspirators so that
it could be used to create the necessary fraudulent identification card, and she
attempted to negotiate a forged check while posing as the individual identified
on that card. Thus, although certain aspects of Jones’s offense may not have
been especially complex or intricate, some of the means used by her during her
participation in the scheme were sophisticated. See Clements, 73 F.3d at 1340;
Calderon, 209 F. App’x at 419. Accordingly, we conclude that the district court’s
finding that Jones’s offense involved the use of sophisticated means was not
clearly erroneous.
D. Unauthorized Use of a Means of Identification
Lastly, Jones challenges the district court’s application of a two-level
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enhancement under § 2B1.1(b)(11)(C)(i) for “the unauthorized transfer or use of
any means of identification unlawfully to produce or obtain any other means of
identification.” She again contends that “she had no involvement with any such
conduct and that any such means of identification were produced or obtained”
by other conspirators. Jones further asserts that there was no evidence to show
that she provided the photograph of herself to be used to create the fraudulent
identification document. Finally, she maintains that even if she had provided
the photograph herself, the enhancement would be inapplicable because “the act
would not have been ‘unauthorized’” as required by § 2B1.1(b)(11)(C)(i).
We reject each of Jones’s arguments. First, contrary to her assertions, she
was directly involved in the production of the fraudulent identification card. Her
photograph was on the fake card she used on the day of her arrest, and even if
she was not directly involved in the card’s creation, by providing her photograph
to other conspirators, at minimum, it was reasonably foreseeable to her that the
fake card would be created. Although she now argues that there was no
evidence that she provided her own photograph, she did not contest this issue in
the district court. Moreover, “in determining whether an enhancement applies,
a district court is permitted to draw reasonable inferences from the facts.”
Caldwell, 448 F.3d at 290. Given that Jones was the one who approached the
Moores about participating in this scheme, and that her photograph was on the
identification card she used the day of her arrest, the court was entitled to infer
that Jones was involved in the production of the fraudulent identification card.
As for Jones’s contention that this enhancement was inapplicable because
the photograph used to create the false identification card was her own, and, by
extension, its use therefore was not “unauthorized,” our decision in United States
v. Rhymer, 299 F. App’x 378 (5th Cir. 2008) (per curiam) (unpublished), cert.
denied, 129 S. Ct. 1638 (2009), is instructive. There, the defendant (“Rhymer”)
pled guilty to possession of stolen mail, but challenged the district court’s
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application of the two-level enhancement at issue here. Id. at 379. On appeal,
we explained that it was undisputed that Rhymer had “used another woman’s
personal information to obtain a false identification card that bore Rhymer’s
photograph and a name slightly different from the name of the woman whose
information was stolen.” Id. It also was undisputed that “Rhymer intended to
negotiate a third party’s check using that false identification card.” Id.Nevertheless, Rhymer asserted that the enhancement was inapplicable because
“she obtained the woman’s personal information legally, and the Guideline
requires that the victim’s identifying information be obtained through unlawful
means.” Id. We rejected Rhymer’s argument, however, concluding that because
“Rhymer’s use of the woman’s personal information to obtain an identification
card bearing a false name was not authorized, the enhancement applies on its
face.” Id. at 379–80.
Similarly here, Jones and her co-conspirators used an individual’s personal
information to produce a fraudulent identification card bearing Jones’s
photograph. Jones’s offense therefore involved the unauthorized use of one
means of identification (i.e., the information abstracted from the stolen mail and
illegally purchased personal documents), unlawfully to produce another means
of identification (i.e., the fraudulent identification card). Accordingly, the
district court did not err in applying a two-level enhancement pursuant to
§ 2B1.1(b)(11)(C)(i).
IV. CONCLUSION
For the reasons stated herein, we REVERSE the district court’s
application of the enhancement set forth in § 2B1.1(b)(2)(C), but AFFIRM its
judgment in all other respects. The case is REMANDED for resentencing
consistent with this opinion.
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