United States v. Stephayne McClure-Potts , 908 F.3d 30 ( 2018 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 17-2987
_____________
UNITED STATES OF AMERICA
v.
STEPHAYNE MCCLURE-POTTS,
Appellant
______________
APPEAL FROM THE UNITED STATES DISTRICT
COURT FOR THE MIDDLE DISTRICT OF
PENNSYLVANIA
(D.C. Civ. Action No. 1:16-cr-0303)
District Judge: Honorable Sylvia H. Rambo
_____________
Argued September 26, 2018
______________
Before: AMBRO, CHAGARES, and GREENAWAY, JR.,
Circuit Judges.
(Opinion Filed: November 8, 2018)
______________
OPINION
______________
Heidi R. Freese
Ronald A. Krauss
Frederick W. Ulrich [Argued]
Office of the Federal Public Defender
100 Chestnut Street, Suite 306
Harrisburg, PA 17101
Counsel for Appellant
Daryl F. Bloom
David J. Freed
Stephen R. Cerutti II [Argued]
Office of the United States Attorney
Ronald Reagan Federal Building, Suite 220
228 Walnut Street
Harrisburg, PA 17108
Counsel for Appellee
GREENAWAY, JR., Circuit Judge.
Defendant Stephayne McClure-Potts appeals a five-
month sentence rendered after pleading guilty to one count of
Social Security Fraud, in violation of 42 U.S.C. § 408(a)(6),
and one count of Harboring an Illegal Alien, in violation of 8
U.S.C. §§ 1324(a)(1)(A)(iii) and (a)(2). For the following
reasons, we will affirm.
2
I. FACTS
This case arises out of the personal relationship between
defendant Stephayne McClure-Potts and Artur Samarin, a
young man who entered into the United States without
inspection from the Ukraine and ultimately settled in
Harrisburg, Pennsylvania. In August of 2015, McClure-Potts
contacted local police to report “Homeland Security issues”
with Samarin, whom she claimed she and her husband were in
the process of trying to adopt despite his being nineteen years
of age at the time. PSR ¶ 5. She claimed that Samarin had
recently been “speaking of Hitler against the Jews” and
asserted that he may have stolen a rifle from his school. Id.
McClure-Potts would go on to provide a birth certificate for
Samarin indicating a birth year of 1992, as well as expired
immigration visas and an application to change the nature of
Samarin’s visa.
Police investigated the reports and discovered that
McClure-Potts had twice previously filed runaway reports
regarding a minor son—Asher Potts—who supposedly was
born on September 3, 1997. They also discovered that Samarin
was posing as a minor named Asher Potts and attending John
Harris High School in Harrisburg. The school provided a
number of documents pertaining to Samarin, including a sworn
statement from McClure-Potts dating from 2012 claiming that
Samarin was born on September 3, 1997, as well as
applications for free/reduced lunch and health benefits.
In an interview after the above discoveries, McClure-
Potts explained that Samarin had come to the United States in
2012 via an exchange program and befriended her and her
husband after he was assaulted by a group of “Russian boys.”
PSR ¶ 9. She also claimed that, as they assisted Samarin in
3
addressing his immigration issues at the time, he claimed to be
only fourteen years old. She did provide a passport for Samarin
indicating his birth year was 1992.
In an interview with authorities, Samarin explained that
he had gotten to know McClure-Potts and her husband by
visiting the convenience store where she worked. He said that
he had expressed his desire to stay in the United States and that
McClure-Potts and her husband offered to help him do so.
According to Samarin, this assistance included their offer for
him to live with them, their offer to change his birthdate to
allow their adoption of him, to get him enrolled in school, and
to retain an immigration attorney (albeit McClure-Potts took
$2,000 from Samarin to hire the attorney). Samarin agreed and
moved in with McClure-Potts and her husband.
Samarin contends that, once he moved in, the situation
changed. According to him, he was told to cut all ties with his
family, and his identification documents were taken from him.
He also was purportedly forced to do household work,
McClure-Potts’s own college schoolwork, and to turn over to
McClure-Potts and her husband any money he received from
work or grants.
On July 17, 2014, McClure-Potts obtained a Social
Security card issued under Samarin’s new alias, Asher Potts,
after going to the Social Security Harrisburg District Office by
herself ten times. According to the PSR, during this time,
McClure-Potts and her husband used the applied-for and
ultimately secured Social Security number obtained for
Samarin in the name of Asher Potts born in 1997 to procure
$7,336 worth of credits on income tax returns and $13,653.28
in nutritional and health benefits between 2012 and 2015 that
they were not entitled to.
4
On October 19, 2016, McClure-Potts was named, along
with her husband, in an indictment filed in the United States
District Court for the Middle District of Pennsylvania. The
indictment charged McClure-Potts with one count of Social
Security Fraud, in violation of 42 U.S.C. § 408(a)(6); one count
of Harboring an Illegal Alien, in violation of 8 U.S.C.
§§ 1324(a)(1)(A)(iii) and (a)(2); and one count of Unlawful
Conduct Respecting Documents in Furtherance of Forced
Labor, in violation of 18 U.S.C. §§ 1589 and 1590. Pursuant
to a plea agreement, McClure-Potts pled guilty to the Social
Security Fraud and Harboring counts.
McClure-Potts filed objections to the Presentencing
Investigation Report (“PSR”), including the two issues raised
here on appeal: namely, the amount of the calculated loss and
the refusal to grant an offense level reduction due to the claim
that her fraud was committed “other than for profit.” See PSR
Addendum. The amount of loss calculated by the Probation
Office—$20,989.28—had resulted in an increase of four
offense levels, while the refusal to grant McClure-Potts’s
request for a reduction cost her a potential three-level reduction
in total offense level.
At sentencing, the District Court adopted the PSR
without change and sentenced McClure-Potts to five months in
prison. This appeal followed.
5
II. DISCUSSION1
On appeal, McClure-Potts raises three arguments: (1)
that she harbored Samarin “other than for profit” under
U.S.S.G. § 2L1.1(b)(1) and therefore that she should have
received a three-point reduction to her total offense level; (2)
that the District Court clearly erred by crediting Samarin’s
testimony of the events over that of McClure-Potts; and (3) that
the District Court mistakenly calculated the total loss that
resulted from McClure-Potts’s crimes and therefore erred by
increasing her total offense level by four pursuant to U.S.S.G.
§ 2B1.1(b)(1)(C). For the reasons discussed below, we find
none of these arguments to be persuasive. We will therefore
affirm the District Court’s judgment of conviction.
A. U.S.S.G. § 2L1.1(b)(1).
McClure-Potts contends that the District Court erred by
not reducing her total offense level points by three pursuant to
U.S.S.G. § 2L1.1(b)(1). “On appeal, [w]e review the District
Court’s interpretation of the Sentencing Guidelines de novo,
and scrutinize any findings of fact for clear error.” United
States v. Kluger, 722 F.3d 549, 555 (3d Cir. 2013) (quoting
1
The District Court had subject matter jurisdiction
pursuant to 18 U.S.C. § 3231. We have jurisdiction pursuant
to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
6
United States v. Aquino, 555 F.3d 124, 127 n.5 (3d Cir. 2009)).2
Section 2L1.1(b)(1) of the Guidelines provides:
If (A) the offense was committed other than for
profit, or the offense involved the smuggling,
transporting, or harboring only of the
defendant’s spouse or child (or both the
defendant’s spouse and child), and (B) the base
offense level is determined under subsection
(a)(3), decrease by 3 levels.
U.S.S.G. § 2L1.1(b)(1). Prior to 1997, § 2L1.1(b)(1),
Application Note One of that section read (in pertinent part):
“For profit” means for financial gain or
commercial advantage, but this definition does
not include a defendant who commits the offense
solely in return for his own entry or
transportation.
U.S.S.G. § 2L1.1(b)(1), App. n.1 (1995). However, in 1997,
the Sentencing Commission deleted the 1995 commentary
definition of “for profit” and substituted it for a definition for
the phrase “other than for profit.” U.S.S.G. § 2L1.1(b)(1),
2
To the extent that the District Court’s decision can be
construed as an application of the Guidelines rather than as an
interpretation of them, then the standard of review is for abuse
of discretion. See Kluger, 722 F.3d at 555 (“[W]e review the
District Court’s application of the Guidelines to facts for abuse
of discretion.”). However, which standard applies here is not
critical to our decision, as we would affirm under either a de
novo or abuse of discretion standard.
7
App. n.1 (1997) (henceforth “Application Note One”).
Accordingly, Application Note One now provides:
“The offense was committed other than for
profit” means that there was no payment or
expectation of payment for the smuggling,
transporting, or harboring of any of the unlawful
aliens.
Id. According to the Sentencing Commission, the stated
purpose of the amendment was to narrow the class of offenders
who could benefit from § 2L1.1(b)(1) pursuant to the
immigration laws:
Reason for Amendment: This amendment
implements section 203 of the Illegal
Immigration Reform and Immigrant
Responsibility Act of 1996, Pub.L. 104-208, 110
Stat. 3009, which directs the Commission to
amend the guidelines for offenses related to
smuggling, transporting, or harboring illegal
aliens. Pursuant to the emergency amendment
authority of that Act, this amendment previously
was promulgated as a temporary measure
effective May 1, 1997. This version of the
amendment changes §
2L1.1(b)(1)(A)(pertaining to a reduction for
non-profit offenses) to narrow somewhat the
class of cases that would qualify for the reduced
offense level under that provision. This
amendment also makes a conforming change to
§ 5K2.0.
8
U.S.S.G., Amendment 561 (1997). This definition, which
remains presently in effect, typically applies to cases in which
a defendant is paid to smuggle, transport, or harbor one or more
aliens. See, e.g., United States v. Chavez-Palacios, 30 F.3d
1290 (10th Cir. 1994); United States v. Puac-Zamora, 56 F.3d
1385 (5th Cir. 1995); United States v. Zaldivar, 615 F.3d 1346
(11th Cir. 2010). Thus, as the Government concedes, “this
case falls outside the most common class of cases where the
application of this particular guideline becomes an issue – i.e.,
determining whether a defendant accepted payment in return
for smuggling illegal aliens into the country.” Gov’t Br. at 16.
At issue, therefore, is whether McClure-Potts’s receipt of
various government benefits—i.e., tax credits, social security,
food/medical assistance, etc.—constitutes behavior “other than
for profit”; if it does, then she should receive a reduction of
three criminal points; otherwise, she cannot benefit from the
provision.
McClure-Potts’s primary contention is precisely that—
courts deny the three-level reduction “in circumstances where
the harboring was indeed ‘for profit’, where the record
established a very specific quid pro quo: payment to the
harboring defendant from the unlawful alien for the particular
purpose of facilitating illegal entry.”3 Appellant Br. at 19.
According to her, unlike those cases, “[h]ere, the record
demonstrates that [she] did not harbor Samarin ‘for profit’, as
3
As a mitigating factor regarding her sentencing, it is
McClure-Potts’s burden to demonstrate that she was entitled to
the benefit of § 2L1.1(b)(1). See Zaldivar, 615 F.3d at 1352
(“It is [the defendant’s] burden to prove that the Guidelines’
section which would reduce his sentence is applicable to
him.”).
9
Samarin provided no quid pro quo; he gave nothing to her for
the purpose of facilitating illegal entry—especially considering
that all agree that he was already present in the United States
when they met—or for any other reason, including his room,
board, and all the other expenses Potts expended on his
behalf.” Id. at 20.
She also contends that, while her receipt of government
benefits may have met the pre-1997 definition of private
financial gain, they also meet the current and distinct definition
of “other than for profit.” Id. at 24. First, she explicitly
avoided pleading guilty to harboring an alien for “commercial
advantage and private financial gain,” and that the Government
specifically deleted this language—which appears in the plea
agreement—from the indictment:
The defendant agrees to plead guilty to Counts 1
and 2, as it relates solely to harboring aliens and
not for the purpose of commercial advantage or
private financial gain.
Id. at 22 (quoting App. 19). In her estimation, the distinction
between “private financial gain” and “for profit” is significant
because “[w]hile perhaps the benefits could be considered,
theoretically, as some species of ‘private financial gain’—the
very language that the Government deleted from the
indictment—there seems to be no precedent for characterizing
receipt of these benefits on behalf of someone who appears to
be a dependent as ‘for profit’.” Appellant Br. at 23. She relies
on United States v. Kim, 193 F.3d 567 (2d Cir. 1999), where
the Second Circuit found that the 1997 amendment to
10
Application Note One constituted a substantive change as
opposed to a clarification of the definition’s scope.4
4
The Second Circuit explained:
The 1997 amendments to § 2L1.1 were not
accompanied by any statement that the Commission
intended the change in Application Note 1 simply as a
clarification. See Guidelines Appendix C, Amendment
543 (1997). Instead, the amendments made numerous
changes in the guideline and its commentary, and the
Commission characterized the changes, in bulk, as
“implement[ing] section 203 of the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996,
Pub.L. 104–208, 110 Stat. 3009–566, which directs the
Commission to amend the guidelines for offenses
related to smuggling, transporting, or harboring illegal
aliens.” Guidelines Appendix C, Amendment 543
(1997). We see nothing in this statement to suggest that
the Commission amended Application Note 1 merely to
clarify the Commission’s original intent.
Further, on its face, the 1997 change to Application
Note 1 appears to effect a substantial change in scope
rather than to clarify. Plainly, a “commercial
advantage” may encompass more than a simple
“payment or expectation of payment.” Had it been the
Sentencing Commission’s original intent that the “for
profit” concept be restricted narrowly to payment or
expectation of payment, we doubt that the Commission
would have chosen to express that restriction in terms
so broad as “commercial advantage.”
11
However, the language of § 2L1.1(b)(1) is expansive
and is broad enough to cover McClure-Potts’s conduct. That
this case does not involve the typical quid pro quo or facts
involving the typical § 2L1.1(b)(1) case does not, on its face,
mean that the potential three-level reduction inures to her
benefit. First, the text of the Application Note does not require
that payment be made by the unlawful alien himself—it merely
says that “other than for profit” means “that there was no
payment or expectation of payment for the . . . harboring of any
of the unlawful aliens.” U.S.S.G. § 2L1.1(b)(1), App. n.1.
Accordingly, McClure-Potts’s argument that “Samarin . . .
gave nothing to her for the purpose of facilitating illegal entry
. . . or for any other reason” is irrelevant. Appellant Br. at 20.
See United States v. Al Nasser, 555 F.3d 722, 733 (9th Cir.
2009) (“An ‘offense was committed other than for profit’ only
if the offense itself was committed other than for profit,
regardless of whether the particular defendant got, or expected
to get, any of the money.”).
Second, the dispositive interpretative term in
Application Note One is “payment” because in order to
determine whether McClure-Potts “profited” from her
behavior, we must determine whether the government benefits
that she received constitute “payment” or “expectation of
payment” for “harboring” Samarin in her home. U.S.S.G.
In the circumstances, we are persuaded that the 1998
Guidelines reflect a substantive change to § 2L1.1
Application Note 1 rather than a clarification.
Kim, 193 F.3d at 578.
12
§ 2L1.1(b)(1), App. n.1.5 Since the term “payment” is not
defined anywhere in U.S.S.G. § 2L1.1(b)(1), we must use the
term’s ordinary meaning. See United States v. Loney, 219 F.3d
5
The Government focuses on the plain meaning of the
term “profit.” See Gov’t Br. at 21-22. In particular, it relies on
the definition of “profit” found in Webster’s Third, which reads
as follows:
1: an advantage, benefit, accession of good, gain or
valuable return esp. in financial matters, education or
character development.
Id. at 22 (quoting Webster’s Third New International
Dictionary 1811 (3rd ed. 2002)). The Government argues that
this definition of profit “easily captures the benefits that
McClure-Potts enjoyed as a result of her harboring Samarin”
(presumably because it contains the word “benefit”). Id.
However, the Government focuses on the wrong
interpretative word. We need not consider the definition of
“profit” in Webster’s Third because Application Note One
already contains a definition for “other than for profit.” See
Stinson v. United States, 508 U.S. 36, 38, (1993)
(“[C]ommentary in the Guidelines Manual that interprets or
explains a guideline is authoritative unless it violates the
Constitution or a federal statute, or is inconsistent with, or a
plainly erroneous reading of, that guideline.”); United States v.
Loney, 219 F.3d 281, 284 (3d Cir. 2000) (stating that only
“undefined terms” in the guidelines should be given their
“meaning in ordinary usage” (emphasis added)).
13
281, 284 (3d Cir. 2000) (“[W]e should interpret undefined
terms in the guidelines, as in statutes, using the terms’ meaning
in ordinary usage”). Webster’s Third defines “payment” as:
1 : the act of paying or giving compensation : the
discharge of a debt or an obligation . . . 2 :
something that is paid : something given to
discharge a debt or obligation or to fulfill a
promise.
Webster’s Third New International Dictionary 1659 (3rd ed.
2002). And Black’s Law Dictionary defines “payment” as
1. Performance of an obligation by the delivery
of money or some other valuable thing accepted
in partial or full discharge of the
obligation. 2. The money or other valuable thing
so delivered in satisfaction of an obligation.
Payment, Black’s Law Dictionary (10th ed. 2014). From these
definitions, we gather that the tax and assistance benefits that
McClure-Potts sought out, requested, and received were
“payment” for her harboring Samarin because the
Government, by providing such benefits, was “discharge[ing]
. . . an obligation” that it owed to her.6 Id.; Webster’s Third
6
Indeed, in Goldberg v. Kelly, the Supreme Court
characterized the receipt of such benefits as a “right[]” that the
Government owes to its citizens:
It may be realistic today to regard welfare entitlements
as more like ‘property’ than a ‘gratuity.’ Much of the
existing wealth in this country takes the form of rights
that do not fall within traditional common-law concepts
14
New International Dictionary 1659 (3rd ed. 2002)).
Furthermore, the PSR provides that McClure-Potts received
additional benefits from Samarin himself, including doing
household work in McClure-Potts’s home, completing some of
her college course-work for her, and turning over any money
that he earned to her.
This interpretation is consistent with that of other courts
of appeals, which have construed the term “payment” in
Application Note One in a broad and flexible manner:
According to the Sentencing Commission, “‘The
offense was committed other than for profit’
means that there was no payment or expectation
of payment for the smuggling, transporting, or
harboring of any of the unlawful aliens.”
U.S.S.G. § 2L1.1 Application Note 1 ¶ 1. Perez-
Ruiz received in-kind compensation-
transportation from Arizona to Chicago-for his
role in the offense. He contends that in-kind
compensation cannot be “payment,” but this is
untenable. Compensation is payment, and
of property. . . . ‘Such sources of security, whether
private or public, are no longer regarded as luxuries or
gratuities; to the recipients they are essentials, fully
deserved, and in no sense a form of charity. It is only
the poor whose entitlements, although recognized by
public policy, have not been effectively enforced.’
397 U.S. 254, 263 n.8 (1970) (citation omitted).
15
whether in specie or in some other form does not
matter. . . .
Perez-Ruiz valued the trip to Chicago. He
received some “payment” for his acts, and as
even a modest payment counts as “profit” the
judgment must be affirmed.
United States v. Perez-Ruiz, 169 F.3d 1075, 1076-77 (7th Cir.
1999); see also United States v. Juan-Manuel, 222 F.3d 480,
484-85 (8th Cir. 2000) (“[W]e hold that the words ‘payment’
and ‘expectation of payment,’ as used in the November 1997
commentary, can refer to something other than money.”). It is
also consistent with the stated purpose of the 1997 Amendment
to Application Note One, which was intended to “narrow
somewhat the class of cases that would qualify for the reduced
offense level under [§ 2L1.1(b)(1)].” U.S.S.G., Amendment
561 (1997).
Accordingly, we will affirm the District Court’s finding
that McClure-Potts did not qualify for the § 2L1.1(b)(1) three
offense level reduction.
B. Samarin’s Testimony
McClure-Potts contends that the District Court’s factual
findings—where the District Court credited Samarin’s
versions of the events rather than hers—was “clearly
erroneous.” Appellant Br. at 20.7 According to her, “the
District Court’s factual findings were clearly erroneous as the
7
“[W]e review the District Court’s . . . findings of fact
for clear error.” Kluger, 722 F.3d at 555.
16
court reached its findings by crediting the self-serving
statements of an illegal alien, who pleaded guilty in federal
court of falsifying documents and lying to law enforcement.”
Appellant Br. at 20. She also contends that Samarin was not
available for cross-examination, and that—although hearsay
testimony may be introduced at a sentencing hearing—his
testimony lacked the requisite “sufficient indicia of reliability
to support its probable accuracy.” Id. (quoting United States v.
Robinson, 482 F.3d 244, 246 (3d Cir. 2007)).
The District Court’s findings, however, do not meet the
clear error standard, which requires that its findings be either
“completely devoid of minimum evidentiary support
displaying some hue of credibility, or . . . bear[] no rational
relationship to the supportive evidentiary data.” United States
v. Williams, 898 F.3d 323, 332 (3d Cir. 2018) (quoting United
States v. Antoon, 933 F.2d 200, 204 (3d Cir. 1991)). Here, the
District Court provided the following reasoning for its
findings:
The Court obviously had to assess the credibility
of the Defendants. And the Court accepts
Samarin’s versions of the events surrounding the
relationship between the parties.
The following reasons for accepting Samarin’s
version are as follows: One, Mrs. Potts has
admitted that she lied to the Social Security
Administration; two, she has three convictions
for theft by deception; three, she has a conviction
for bad checks, and the factual background for
that offense shows an attempt to defraud another
of property; four, when she reported Samarin’s
illegal status to the police, she lied about his
17
stealing weapons from the school ROTC; five,
the pictures of cards and notes that were
exchanged between the parties appear to this
person to be, in some instances, contrived; there
are no dates on these exhibits and no foundation
that Samarin in fact created them; six, Mrs. Potts
did not report Samarin’s true identity to the
Dauphin and York County Assistance Offices.
Mr. Samarin’s version of events is corroborated
by many of the documents in this case.
App. 134. The District Court’s explanation reflects a sufficient
consideration of the competing statements it was presented
with, and sets forth an adequate justification for its findings.
And while Samarin did engage in repeated instances of fraud
and dishonest behavior, there is also little doubt that McClure-
Potts did as well (especially in light of the fact that she pled
guilty to Social Security Fraud). Given that the District Court
found that Samarin’s testimony was corroborated by the
record, its findings were based on adequate evidence that met
the requisite “minimal indicium of reliability beyond mere
allegation.” Robinson, 482 F.3d at 246. Accordingly, the
District Court did not commit clear error by crediting
Samarin’s testimony over that of McClure-Potts.
C. U.S.S.G. § 2B1.1(b)(1)(C)
McClure-Potts’s third and final claim on appeal is that
the District Court erred in calculating a loss amount of
$20,989.28 that, because it exceeded $15,000, resulted in a
four-level increase to her total offense level pursuant to
18
U.S.S.G. § 2B1.1(b)(1)(C).8 See Appellant Br. at 27-32. This
loss amount consisted of a $7,336 loss from fraudulently
obtained earned income tax credits and $13,653.28 in
fraudulently obtained nutritional and medical assistance.
“[W]e review the District Court’s application of the Guidelines
to facts for abuse of discretion.” Kluger, 722 F.3d at 555
(quoting United States v. Tupone, 442 F.3d 145, 149 (3d Cir.
2006)).
i. Food Stamps and Medical Assistance
McClure-Potts contends that, with respect to her
defrauding the Government of food stamps and medical
assistance benefits, “the ‘offense’ was applying for a false
social security number, not using a false social security
number” and that “[s]imply applying for a social security
number under false pretenses does not imply that Potts knew
that she could or would later get tax breaks and food
stamps/assistance.” Appellant Br. at 28. She accordingly puts
forth four arguments, none of which we find to be persuasive.
First, she argues that the food stamps and medical
assistance benefits do not count as losses for purposes of the
Sentencing Guidelines calculation under § 2B1.1. “Actual
Loss” is defined in the Guidelines as “the reasonably
foreseeable pecuniary harm that resulted from the offense.”
8
Section 2B1.1(b)(1)(C) provides that, for offenses that
include, inter alia, fraud and deceit, a four-level enhancement
is added to a defendant’s total offense level if the loss to the
victim exceeded $15,000.
19
U.S.S.G. § 2B1.1, App. n.3(A)(i). And “reasonably
foreseeable pecuniary harm” means “pecuniary harm that the
defendant knew or, under the circumstances, reasonably should
have known, was a potential result of the offense.” Id., App.
n.3(A)(iv). In McClure-Potts’s estimation, “there is nothing in
the record to establish that [she] reasonably knew or should
have known the potential results that could flow from the
[fraudulent] application for the [social security] card.”
Appellant Br. at 29. However, her argument misrepresents the
record: McClure-Potts ultimately used both the application for
and the receipt of a Social Security number to obtain the tax
and assistance benefits that she received. To the extent that she
argues that she was never charged for using the fraudulently
obtained Social Security number, it is well established that a
district court can sentence someone based on criminal activity
that was not charged in the indictment. See, e.g., United States
v. Baird, 109 F.3d 856, 869 (3d Cir. 1997) (“[I]t is clear that
the Guidelines envisioned that sentencing courts would
consider at least some conduct for which a defendant was not
actually charged.”); United States v. Tidwell, 521 F.3d 236,
250 n.9 (3d Cir. 2008) (“It is now well established in this circuit
that facts that only enhance sentences within the range allowed
by the jury’s verdict (or guilty plea) need not be charged in an
indictment or proven beyond a reasonable doubt.” (citing
United States v. Grier, 449 F.3d 558 (3d Cir. 2006) (en banc))).
Furthermore, the argument that it was not “reasonably
foreseeable” to McClure-Potts that she would use the
fraudulent Social Security number to receive government
benefits is, on its face, difficult to fathom.
Second, McClure-Potts contends that the purported
losses that accrued from her obtainment of medical assistance
benefits and food stamps—which is $13,653.28—cannot inure
20
to her detriment because they are unrelated to her federal
offense.9 According to her, “these pending state charges are
separate and distinct offenses from the instant federal offense
and cannot in anyway be considered relevant conduct . . .
because the Commonwealth is not a ‘victim’ as set forth in the
indictment, or as defined in U.S.S.G. § 2B1.1, App. n.1; the
only ‘victim’ is the Commissioner of Social Security.”10
Appellant Br. at 30. However, just because the Commissioner
of Social Security was not the only victim does not excuse
McClure-Potts’s fraudulent actions from falling within the
ambit of § 2B1.1. Specifically, U.S.S.G. § 1B1.3(a)(3)
provides that base levels like § 2B1.1 must account for “all
harm that resulted from the acts or omissions . . . and all harm
that was the object of such acts and omissions.” U.S.S.G.
§ 1B1.3(a)(3).11 Her receipt of the tax and assistance benefits
9
McClure-Potts is currently charged with fraudulently
obtaining food stamps and medical assistance in the Dauphin
County Court of Common Pleas in Harrisburg, PA.
10
The term “victim” under § 2B1.1 means “any person
who sustained any part of the actual loss determined . . . .”
U.S.S.G. § 2B1.1, App. n.1. “Person” includes “individuals,
corporations, companies, associations, firms, partnerships,
societies, and joint stock companies.” Id.
11
The District Court relied on U.S.S.G. § 1B1.3—the
Guidelines’ relevant conduct provision—in setting the loss
amount:
The Court considers these losses to be part of relevant
conduct. Under the sentencing guidelines, relevant
conduct consists of all acts and omissions committed,
aided, abetted, counseled, commanded, induced,
21
directly “resulted” from her filing of a fraudulent application
to get that Social Security number – accordingly, it falls within
the ambit of the relevant conduct that the District Court could
permissibly assess at sentencing. See, e.g., United States v.
Coe, 79 F.3d 126, 127 (11th Cir. 1996) (“[T]he broad language
of § 1B1.3(a) is clear: relevant conduct includes all acts that
occurred during the commission of the offense.”).
Third, she argues that the $13,653.28 in state assistance
that she was not entitled to receive was disbursed to her from
March 2013 to March 2016 (a period of thirty-six months), but
that the offense conduct charged in the indictment ran only
from January 15, 2013 to December 23, 2013 (a period of
twelve months). Thus, she contends that the only amount of
loss that can be attributed to the victim from her is $4,551.09
(which is one-third of $13,653.28). Again, pursuant to
U.S.S.G. § 1B1.3(a)(3), the fraud that spanned through March
2016 constitutes relevant conduct. Indeed, we have previously
stated in a case involving wire fraud that “[t]he determination
of loss and other factors pertinent to a fraudulent scheme is
never confined to the date of the charged mailing or wiring, but
always encompasses all relevant conduct that was part of the
same course of conduct or common scheme or plan.” United
procured, or willfully caused by the Defendant, and all
harm that resulted from the acts and omissions of the
underlying crime, and all harm that was the object of
such acts and omission. Each time the illegally obtained
social security number was used was relevant conduct
under the guidelines.
App. 132.
22
States v. Siddons, 660 F.3d 699, 704 (3d Cir. 2011) (internal
quotation marks omitted).
Fourth, she contends that the amount of loss may not
have been calculated properly because “the calculations do not
make clear whether these alleged losses are only the additional
payments she received as a result of adding Samarin, or if this
amount includes payments she was entitled to receive, even
without adding Samarin.” Appellant Br. at 30.
However, it was McClure-Potts’s burden to show that
the amount of benefits proven by the Government was over-
inflated.12 See United States v. McDowell, 888 F.2d 285, 290
n.1 (3d Cir. 1989) (“The party challenging the [pre-sentence]
report then has the burden of production”). Here, she has not
produced evidence showing that the District Court
12
“The Government bears the burden of establishing,
by a preponderance of the evidence, the amount of loss for
purposes of sentencing enhancement.” United States v.
Jimenez, 513 F.3d 62, 86 (3d Cir. 2008). Once the Government
makes out a prima facie case of the loss amount, however, the
burden of production shifts to the defendant to provide
evidence that the Government’s evidence is incomplete or
inaccurate. Id. Here, the Government met its burden of
providing a prima facie loss amount through the provision of
two extensively supported reports from the Pennsylvania
Office of the Inspector General, Bureau of Fraud Prevention
and Prosecution on the fraud perpetrated by McClure-Potts and
her husband.
23
miscalculated the amount, and therefore her argument is of no
avail.
ii. Federal Tax Losses
The PSR provides that Potts fraudulently received
$7,336 between 2012 and 2015 in federal tax benefits.
McClure-Potts repeats many of the same arguments above for
why this amount should not be included in a loss calculation.
She contends that (1) these losses are not “reasonably
foreseeable pecuniary harm” that resulted from the offense
(i.e., that she did not know or reasonably should have known
that they would result from the offense); (2) the loss of the tax
revenue accrued to the Commissioner of the IRS, not the
Commissioner of Social Security; and (3) the loss figure of
$7,336 spans 2012 to 2015, beyond the scope of the indictment.
However, for the reasons discussed above, these
arguments fail because (1) it was reasonably foreseeable that
she would defraud the government with a fraudulently
obtained Social Security card; and (2) it is of no moment that
the loss accrued to the Commissioner of the IRS or that the loss
occurred beyond the scope of the indictment because the
conduct still constitutes “relevant conduct” under U.S.S.G. §
1B1.3(a)(3). Accordingly, we reject these contentions and will
affirm the District Court.
III. CONCLUSION
For the aforementioned reasons, we will affirm the
District Court’s judgment of conviction.
24