United States v. Tanganica Corbett , 921 F.3d 1032 ( 2019 )

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 18-13203
________________________
D.C. Docket No. 6:18-cr-00035-GAP-GJK-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TANGANICA CORBETT,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_______________________
(April 17, 2019)
Before WILLIAM PRYOR and NEWSOM, Circuit Judges, and VRATIL, * District
Judge.
WILLIAM PRYOR, Circuit Judge:
*
Honorable Kathryn H. Vratil, United States District Judge for the District of Kansas, sitting by
designation.
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This appeal requires us to review two sentencing enhancements for plain
error and to reverse one of them. After Tanganica Corbett pleaded guilty to
participation in an identity-fraud conspiracy, the district court enhanced her offense
level under the Sentencing Guidelines two levels for an offense involving ten or
more victims and ten levels for an offense that caused a loss that exceeds $150,000
but does not exceed $250,000. See United States Sentencing Guidelines Manual
§ 2B1.1(b)(1)(F), (b)(2)(A)(i) (Nov. 2016). Corbett objected to each enhancement
in the district court, but on different grounds from her arguments on appeal, so we
review each issue for plain error only. We agree with Corbett that the district court
committed plain error in its application of the ten-or-more-victims enhancement
because, contrary to our precedent, United States v. Hall, 704 F.3d 1317 (11th Cir.
2013), the district court counted as a victim any individual whose means of
identification was stolen regardless of whether it was “used” as a means of
identification. See U.S.S.G. § 2B1.1 cmt. n.4(E). But Corbett identifies no plain
error in the application of the loss-amount enhancement. We vacate Corbett’s
sentence and remand with instructions for resentencing.
I. BACKGROUND
Tanganica Corbett and Kevin Weaver II worked at Florida Hospital near
Orlando, Florida. From July 2012 to July 2013, Weaver held the position of
release-of-information specialist. During that time, Weaver downloaded patients’
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“face sheets”—profiles that include a patient’s name, health information, date of
birth, Social Security number, and insurance details—without the authority to do
so. He then sold them to an unidentified co-conspirator who, the government
believed, intended to use the information to open credit-card accounts and to
commit other forms of identity fraud.
In July 2013, Corbett took over Weaver’s position as release-of-information
specialist. He solicited her to obtain face sheets without authority and to pass them
on to him. She complied. In March 2014, Weaver paid her about $150 to $200 for
her assistance.
A grand jury charged Corbett and Weaver with conspiracy to obtain and
disclose individually identifiable health information for commercial advantage,
personal gain, or malicious harm. See 42 U.S.C. § 1320d-6(a)(2)–(3), (b)(3); 18
U.S.C. § 371. The indictment also charged each defendant with two substantive
counts of obtaining and disclosing such information. Both defendants pleaded
guilty.
Using the 2016 edition of the Sentencing Guidelines Manual, the probation
officer assigned Corbett a total offense level of 22 based on a base offense level of
6 and four enhancements, two of which Corbett objects to in this appeal. See
U.S.S.G. § 2B1.1(a)(2) (prescribing the base offense level). First, the probation
officer found that “the defendants,” collectively, “unlawfully accessed more than
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1,700 means of identification,” so the probation officer applied the two-level
enhancement for an offense that “involved 10 or more victims.”
Id. § 2B1.1(b)(2)(A)(i). Second, the probation officer found that Florida Hospital
incurred a loss of $232,068.64 in “costs associated with identifying and notifying
patients whose individually identifiable health information was viewed without
authorization,” so the probation officer applied the ten-level enhancement for a
loss amount exceeding $150,000 but not exceeding $250,000. See
id. § 2B1.1(b)(1)(F). Combining Corbett’s total offense level of 22 with a criminal-
history category of I based on zero criminal-history points, the probation officer
calculated an applicable sentencing range of 41 to 51 months of imprisonment. But
the probation officer recommended a variant sentence of 24 months based on
Corbett’s lack of criminal history and her family responsibilities.
Among other timely objections to the probation officer’s Guidelines
calculations, Corbett objected to the probation officer’s calculation of the loss
amount on the ground that it did not limit her relevant conduct as required by
section 1B1.3 of the Guidelines. Corbett also objected to the probation officer’s
failure to apply a three-level reduction for acceptance of responsibility. See
id. § 3E1.1. But, apart from a stray, unexplained reference in her sentencing brief,
Corbett expressed no objection to the ten-or-more-victims enhancement before the
sentencing hearing.
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At the sentencing hearing, Corbett confirmed that she had “no objections to
the facts” in the presentence investigation report, but she presented her “legal
objections” to the probation officer’s calculations under the Guidelines, including
her objections to the loss amount and the ten-or-more-victims enhancement. With
respect to the loss amount, Corbett did not press her relevant-conduct argument
based on section 1B1.3 but instead argued that Florida Hospital’s expenses should
have been excluded as “costs incurred by victims primarily to aid the government
in[] the prosecution and criminal investigation of an offense.” Id. § 2B1.1 cmt.
n.3(D)(ii). The district court replied, “Well, I think more appropriately it was the
cost they had to expend to deal with this enormous problem that your client helped
create. So that objection’s overruled.” With respect to the ten-or-more-victims
enhancement, Corbett argued that, although 1,700 people had had their information
compromised, the government had identified only a handful of people, at most,
who had suffered any identifiable financial harm as a result of the conspiracy. The
district court overruled that objection, stating, “I think there are a lot more than 10
victims. I think anybody’s information who was stolen is a victim.” But the district
court agreed with Corbett that the acceptance-of-responsibility reduction was
warranted, resulting in a total offense level of 19 and a sentencing range of 30 to
37 months.
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The district court sentenced Corbett to three concurrent terms of 12 months
and one day of imprisonment and three years of supervised release. The district
court said that the severity of the offense—“by far the worst” identity-theft case it
had ever seen—was “a major aggravating factor.” But it found “significant
mitigating factors” in that Corbett “up until this event had been a productive person
with no criminal conduct,” was “clearly less culpable than . . . Weaver,” may not
have fully understood “that she was doing wrong,” was “remorseful,” and had
“cooperated with the Government.” The district court remarked favorably that
Corbett had “maintained employment notwithstanding these difficulties,”
recognized her “family obligations,” and deemed her unlikely to reoffend. The
district court also took note that Corbett’s financial gain was “minuscule.”
Observing that the probation officer had recommended a variant sentence of 24
months before the acceptance-of-responsibility adjustment had been applied, the
district court reasoned, “based on that, the probation officer’s recommendation
under [the district court’s] calculation of the guideline score would be probably
closer to 12 to 18 months.” The district court stated that, “[u]nder normal
circumstances,” it might “find probation to be appropriate . . . based on these
significant mitigating factors,” but that, “[u]nfortunately, that mitigation [was]
outweighed by the seriousness of this offense.” Corbett maintained her objections
to the loss amount and to the ten-or-more-victims enhancement.
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II. STANDARDS OF REVIEW
We review Corbett’s sentence “under an abuse-of-discretion standard.” Gall
v. United States, 552 U.S. 38, 51 (2007). Corbett does not challenge the substantive
reasonableness of her sentence, so we will not vacate the sentence unless the
district court committed “significant procedural error, such as . . . improperly
calculating[] the Guidelines range.” Id. “We review a district court’s interpretation
of the Sentencing Guidelines de novo, and the determination of the amount of loss
involved in the offense for clear error.” United States v. Maxwell, 579 F.3d 1282,
1305 (11th Cir. 2009). “When a defendant challenges one of the factual bases of
his sentence, the government must prove the disputed fact by a preponderance of
the evidence.” United States v. Aguilar-Ibarra, 740 F.3d 587, 592 (11th Cir. 2014).
We review unpreserved sentencing objections only for plain error. United
States v. Joyner, 899 F.3d 1199, 1207 (11th Cir. 2018). To establish plain error,
“there must be an error that has not been intentionally relinquished or abandoned”;
“the error must be plain—that is to say, clear or obvious”; and “the error must have
affected the defendant’s substantial rights, which in the ordinary case means he or
she must show a reasonable probability that, but for the error, the outcome of the
proceeding would have been different.” Molina-Martinez v. United States, 136 S.
Ct. 1338, 1343 (2016) (citation and internal quotation marks omitted). If these
conditions are met, we “should exercise [our] discretion to correct the forfeited
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error if the error seriously affects the fairness, integrity or public reputation of
judicial proceedings.” Id. (citation and internal quotation marks omitted). We have
explained that, “where the explicit language of a statute 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. Lejarde-Rada, 319 F.3d 1288, 1291 (11th Cir. 2003).
III. DISCUSSION
We divide our discussion in two parts. First, we explain that the district court
plainly erred when it applied the ten-or-more-victims enhancement. Second, we
explain that Corbett has established no plain error in the application of the loss-
amount enhancement.
A. The District Court Plainly Erred when It Applied the Ten-or-More-
Victims Enhancement.
Section 2B1.1 of the Sentencing Guidelines provides a two-level
enhancement for an offense that “involved 10 or more victims.” U.S.S.G.
§ 2B1.1(b)(2)(A)(i). In general, a “victim” is a person who suffered an “actual
loss” or an individual who “sustained bodily injury as a result of the offense.” Id.
§ 2B1.1 cmt. n.1. But, “in a case involving means of identification,” the term
“victim” also includes “any individual whose means of identification was used
unlawfully or without authority.” Id. § 2B1.1 cmt. n.4(E). The district court did not
find that any victims besides Florida Hospital had suffered an actual loss or that
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anyone had sustained bodily injury due to the offense, so only the last category of
“victims,” those “whose means of identification [were] used,” is in question.
Based on our decision in United States v. Hall, Corbett argues that the
district court erred when it counted all 1,700 or more individuals whose face sheets
were compromised as victims because the government did not prove that all of
their means of identification had been “used” within the meaning of the relevant
definition. As a threshold matter, we agree with the government that Corbett did
not preserve this objection for appeal and that plain error is the correct standard of
review. Corbett’s only objection to the ten-or-more-victims enhancement in the
district court was that the government had not proved that ten people suffered a
financial loss. She made no argument based on Hall or on the meaning of the word
“used.”
But we agree with Corbett that the district court committed plain error. In
Hall, we considered whether an almost identically situated defendant—a medical
office assistant who, like Corbett, stole patients’ identifying information and sold it
to co-conspirators who in turn sold it to the primary identity fraudsters in the
conspiracy—had “used” patients’ means of identification. See 704 F.3d at 1319.
The government argued that Hall “used” every means of identification that she
sold or transferred to her co-conspirators. See id. at 1319–20. The district court in
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Hall agreed, ruling that “the intentional transfer of information in exchange for
consideration constituted actual use.” Id. at 1320. We rejected that definition.
Based on the plain meaning of the word “used” in the context of the relevant
definition of “victim,” we held that the “mere sale or transfer” of identifying
information was not “equivalent to [its] actual use.” Id. at 1323. We explained that
“‘use’ is the ‘application or employment of something for the purpose for which it
is adapted.’” Id. at 1322 (alteration adopted) (quoting Use, Black’s Law Dictionary
(9th ed. 2009)). We observed the disjunctive use of the words “use” and “transfer”
elsewhere in the same section of the Guidelines. See id.; see also U.S.S.G.
§ 2B1.1(b)(11)(C)(i) (“the unauthorized transfer or use of any means of
identification”). And we observed that another part of the application notes
contemplates that a means of identification is “used” when it is employed “to
produce or obtain another means of identification.” Hall, 704 F.3d at 1322; see
U.S.S.G. § 2B1.1 cmt. n.10(C)(i). We concluded that the only patients whose
identifying information had been “used”—and who, as a result, counted as
“victims”—were those whose information had been employed to procure
fraudulent credit cards, “the purpose of the conspiracy.” Hall, 704 F.3d at 1322;
see also id. at 1323. “[T]he plain language of the sentencing guideline at issue,” we
held, “does not apply to Hall’s mere sale or transfer of the patients’ identifying
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information” to her co-conspirators: almost exactly the same conduct for which
Corbett was convicted. Id. at 1323.
The government’s argument for distinguishing Hall is untenable. Taking
Hall’s references to “the purpose of the conspiracy” out of context and treating
them as the core of its holding, the government points out that the indictment
charged that “the purpose of the conspiracy” between Corbett and Weaver was for
them to “unlawfully enrich themselves by . . . stealing . . . and selling the patients’
information,” not to obtain fraudulent credit cards, and the government argues that
Corbett “used” patients’ information to that end when she sold it to Weaver. But a
similar argument could have been made about the defendant in Hall, who, after all,
also intended to enrich herself by selling the information she had stolen. Indeed,
that argument was made, and we rejected it. See id. at 1319–20, 1323. Instead, Hall
held that the “mere sale or transfer” of a means of identification does not constitute
its “use,” based on the plain meaning of the words and their context. Id. at 1323. In
other words, Hall’s definition of “use” is one that excludes certain conduct: “mere
sale or transfer.” See United States v. Sammour, 816 F.3d 1328, 1340 (11th Cir.
2016) (“The word ‘used’ . . . does not include the ‘mere transfer without more.’”
(alteration adopted) (quoting Hall, 704 F.3d at 1322)).
The government’s contrary reading of Hall makes little conceptual sense. If
“the purpose of the conspiracy” determined whether identical conduct did or did
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not qualify as “use” of a means of identification, then we would need to know how
to define the decisive “purpose.” Purposes can be described at varying levels of
generality—remote or proximate, abstract or granular—but Hall provided no
method for selecting the right one. And the proposal on which the government’s
argument depends—that the sentencing court should simply adopt, in haec verba,
the description of “the purpose of the conspiracy” in the indictment—has no basis
in Hall or in logic. The indictment’s description of “the purpose of the conspiracy”
served a narrative function; it did not recite an element of the offense. So the grand
jury was not required to describe Corbett and Weaver’s goals at any particular
level of generality or with any particular amount of detail. And nothing in Hall
suggests that the ten-or-more-victims sentencing enhancement depends on the level
of generality the grand jury happens to select or the amount of detail it happens to
include in its description of a defendant’s aims. After all, Hall interpreted the word
“used” in the context of a definition of “victim” that applies to identity-theft-
related crimes. Every reasonable reader of the Guidelines would expect that
whether someone counts as a “victim” of such a crime depends on what was done
with his or her information—that is, on the defendant’s conduct.
Although Hall explained that the defendant’s conduct was not the use of
means of identification, it made clear what was use: the “employ[ment of] that
information” to “procure[] . . . fraudulent credit cards and cash advances.” Id. at
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1322. “[W]hen the conspirators used . . . 12 patients’ identifying information to
obtain the fraudulent credit cards,” we explained, “[a]t that point, th[ose] 12
individuals . . . became victims.” Id. at 1322, 1323. To put it simply, we held in
Hall that a means of identification is “used” for purposes of section 2B1.1 when it
is used as a means of identification. See id. at 1322–23; see also Smith v. United
States, 508 U.S. 223, 242 (1993) (Scalia, J., dissenting) (“To use an instrumentality
ordinarily means to use it for its intended purpose.”).
It follows that the district court erred when it counted every individual
whose information was illegally downloaded as a “victim,” regardless of whether
that individual’s information was ever fraudulently “used” for any purpose to
which it was adapted as a means of identification. And we reject the government’s
argument that the error was not plain because our opinion in Hall left “room for
doubt” about the issue. To be sure, when the governing text is unclear about a
specific question, “there can be no plain error where there is no precedent from the
Supreme Court or this Court directly resolving it.” Lejarde-Rada, 319 F.3d at
1291. But even if the text of the Guidelines were unclear, a question we need not
answer, our precedent in Hall directly resolves the question whether Corbett’s
conduct was the “use” of patients’ information. That it is possible to misunderstand
Hall, based on a superficial reading, is irrelevant to what it held.
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Although we will not correct even a plain error if it does not affect any
party’s substantial rights, see Fed. R. Crim. P. 52(b), the record establishes a
reasonable probability that Corbett would have received a different sentence if the
district court had not erroneously applied the two-level enhancement for an offense
involving ten or more victims. See Molina-Martinez, 136 S. Ct. at 1343. To be
sure, the district court’s significant downward variance from the sentencing range
under the Guidelines means that this sentencing error is unusual. The district court
calculated that Corbett’s sentencing range was 30 to 37 months based on a total
offense level of 19 and a criminal-history category of I. If the district court had
omitted the two-level enhancement, resulting in a total offense level of 17,
Corbett’s sentencing range would have been 24 to 30 months. See U.S.S.G. ch. 5
pt. A. Corbett’s sentence of 12 months and a day falls well below either range,
raising a serious question whether the district court’s error, however plain, was
harmless.
At least in some circumstances, a sentence well below any possible
sentencing range can be a powerful indicator that a miscalculated range did not
affect a defendant’s substantial rights, and the decision in Molina-Martinez is not
to the contrary. In Molina-Martinez, the Supreme Court reasoned that, “[i]n the
usual case,” “the systemic function of the selected Guidelines range will affect the
sentence,” so, “[i]n most cases[,] a defendant who has shown that the district court
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mistakenly deemed applicable an incorrect, higher Guidelines range has
demonstrated a reasonable probability of a different outcome.” 136 S. Ct. at 1346.
“This is so even if the ultimate sentence falls within both the correct [lower] and
incorrect [higher] range.” Id. at 1345. Even so, “[t]here may be instances when,
despite application of an erroneous Guidelines range, a reasonable probability of
prejudice does not exist.” Id. at 1346. The paradigmatic example is when the
sentencing judge provides “a detailed explanation of the reasons the selected
sentence is appropriate” that “make[s] it clear that the judge based the sentence . . .
on factors independent of the Guidelines.” Id. at 1346–47. But the Court
acknowledged that even when “the record is silent as to what the district court
might have done had it considered the correct Guidelines range,” “unusual
circumstances” might prevent an error alone from establishing a reasonable
probability of a different outcome. Id. at 1347. Ultimately, “a reviewing court must
consider the facts and circumstances of the case before it” to determine whether
substantial rights were affected. Id. at 1346.
We conclude there is a reasonable probability that the district court’s error
affected Corbett’s sentence because, even though the district court varied
downward from its calculated sentencing range, its sentencing decision remained
tethered to what it believed to be the correct range under the Guidelines. More
specifically, its sentencing decision was tethered to the variant sentence that it
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thought the probation officer, who had originally recommended a 24-month
sentence based on a calculated range of 41 to 51 months, would recommend after
the district court’s application of the acceptance-of-responsibility reduction
lowered the range to 30 to 37 months. “[B]ased on that [calculation],” the district
court reasoned at the sentencing hearing, “the probation officer’s recommendation
. . . would be probably closer to 12 to 18 months,” and the district court imposed a
sentence within that range. On this record, we cannot rule out the reasonable
probability that the district court would have imposed a lesser sentence if it had
excluded the two-level ten-or-more-victims enhancement, calculated a range of 24
to 30 months, and then estimated the probation officer’s recommended variance
based on that calculation.
The use of the ten-or-more-victims enhancement to calculate Corbett’s total
offense level was erroneous, the error was plain, and it affected Corbett’s
substantial rights. “In the ordinary case, proof of a plain Guidelines error that
affects the defendant’s substantial rights” satisfies the defendant’s “burden to
persuade the court that the error seriously affected the fairness, integrity or public
reputation of judicial proceedings,” and the government has not argued that
Corbett’s case is out of the ordinary in this respect. Rosales-Mireles v. United
States, 138 S. Ct. 1897, 1909 n.4 (2018) (alteration adopted) (citation and internal
quotation marks omitted). But, because Corbett did not dispute in the district court
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how many individuals’ means of identification were “used” and presented no
factual objections to the probation officer’s calculations under the Guidelines, the
district court on remand should permit the government the opportunity to introduce
new evidence to prove that Corbett’s offense involved ten or more victims. See
United States v. Washington, 714 F.3d 1358, 1362 (11th Cir. 2013).
B. Corbett Has Established No Plain Error in the Application of the Loss-
Amount Enhancement.
Section 2B1.1 of the Guidelines also provides for a ten-level enhancement if
the loss resulting from an offense exceeds $150,000 but does not exceed $250,000.
U.S.S.G. § 2B1.1(b)(1)(F). In general, “loss is the greater of actual loss,” namely
“the reasonably foreseeable pecuniary harm that resulted from the offense,” and
“intended loss,” which “means the pecuniary harm that the defendant purposely
sought to inflict.” Id. § 2B1.1 cmt. n.3(A)–(A)(ii)(I). Pecuniary harm is “harm that
is monetary or that otherwise is readily measurable in money,” id. § 2B1.1 cmt.
n.3(A)(iii), and is reasonably foreseeable if “the defendant knew or, under the
circumstances, reasonably should have known,” that it “was a potential result of
the offense,” id. § 2B1.1 cmt. n.3(A)(iv). “Costs to the government of, and costs
incurred by victims primarily to aid the government in, the prosecution and
criminal investigation of an offense” are excluded from the calculation of the loss
amount. Id. § 2B1.1 cmt. n.3(D)(ii). An exact calculation is not required; “[t]he
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court need only make a reasonable estimate of the loss” “based on available
information.” Id. § 2B1.1 cmt. n.3(C).
Corbett argues that the district court committed significant procedural error
in applying this enhancement because it failed to “hold[] the government to its
burden of proving a disputed sentencing fact,” but Corbett fails to clarify what
“sentencing fact” related to the loss amount was “disputed.” After all, Corbett
expressed “no objection to the facts” of the presentence investigation report. Her
objections to the probation officer’s calculations under the Guidelines were only
“legal objections.” And Corbett’s argument on appeal confusingly intertwines
three distinct rationales for objecting to the enhancement.
First, as the centerpiece of her appellate argument, Corbett appears to
contend that Florida Hospital’s losses were not “reasonably foreseeable” to her, an
argument she never presented in the district court. See U.S.S.G. § 2B1.1 cmt.
n.3(A)(iv). The probation officer found that, “[a]s a result of Weaver, Corbett and
the co-conspirators’ conduct, Florida Hospital incurred costs associated with
identifying and notifying patients whose individually identifiable health
information was viewed without authority by Weaver and his co-conspirators. The
loss incurred by Florida Hospital as a result of this conduct is $232,068.64.”
Because Corbett “did not specifically and clearly object to these factual
statements”—or to any of the probation officer’s factual findings—“[s]he is
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deemed to have admitted them and the district court was entitled to rely on them
even in the absence of supporting evidence.” Aguilar-Ibarra, 740 F.3d at 592. In
other words, if Corbett intended to raise a factual dispute about how much of the
$232,068.64 spent by Florida Hospital was “associated with identifying and
notifying patients” whose information was compromised, then she failed to do so,
and the government had no burden to prove a fact she had admitted. And if
Corbett’s argument is that the district court erred as a matter of law by treating
“costs associated with identifying and notifying patients” whose information was
compromised as “reasonably foreseeable,” then she cannot establish plain error.
That a hospital will spend resources to investigate and remedy the theft of the
identifying and medical information of thousands of its patients is virtually the
definition of “reasonably foreseeable.”
Second, Corbett’s argument contains echoes of the objection she raised at
the sentencing hearing, that Florida Hospital’s losses should have been excluded as
“costs incurred . . . primarily to aid the government in[] the prosecution and
criminal investigation of an offense.” U.S.S.G. § 2B1.1 cmt. n.3(D)(ii). Again, by
failing to object to the facts in the presentence investigation report, Corbett
admitted that Florida Hospital incurred $232,068.64 in “costs associated with
identifying and notifying patients” whose information Weaver and Corbett had
compromised, so she placed no burden on the government to prove as a factual
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matter that any part of that amount was not incurred “primarily to aid the
government.” And if Corbett’s argument is that “costs associated with identifying
and notifying patients” are indistinct from costs incurred “primarily to aid the
government” as a matter of law, then it fails on its face.
Finally, in a single paragraph of her initial brief, Corbett suggests that she
“should not be held responsible for the costs of investigating any data breaches that
occurred prior to July 28, 2013,” the date she took over Weaver’s job as release-of-
information specialist. This suggestion corresponds to Corbett’s original objection
to the loss-amount enhancement: that the probation officer did not limit Corbett’s
relevant conduct to the acts and omissions for which she was responsible under
section 1B1.3 of the Guidelines. See U.S.S.G. § 1B1.3 cmt. n.3(B) (explaining,
among other principles, that “[a] defendant’s relevant conduct does not include the
conduct of members of a conspiracy prior to the defendant joining the
conspiracy”); see also, e.g., United States v. Hunter, 323 F.3d 1314, 1319–22 (11th
Cir. 2003). But Corbett did not pursue this theory at the sentencing hearing, instead
pressing the criminal-investigation argument as the basis of her objection to the
loss amount, so the district court did not rule on this theory. And Corbett’s initial
brief fails properly to raise this distinct argument on appeal. Corbett does not cite
section 1B1.3, and any hint of an argument based on the Guidelines’ definition of
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relevant conduct is at best “buried within [her] other arguments.” Sapuppo v.
Allstate Floridian Ins. Co., 739 F.3d 678, 682 (11th Cir. 2014).
We remind the defense bar of the importance of specific factual and legal
argumentation at every stage of sentencing proceedings. A defendant should
“specifically and clearly object” to any facts in a presentence report that she does
not intend to admit and that she wishes to require the government to prove by a
preponderance of the evidence. Aguilar-Ibarra, 740 F.3d at 592. To preserve an
issue for appeal, a defendant must first present it to the district court, “rais[ing] that
point in such clear and simple language that the trial court may not misunderstand
it.” United States v. Massey, 443 F.3d 814, 819 (11th Cir. 2006) (quoting United
States v. Riggs, 967 F.2d 561, 565 (11th Cir. 1992)). “When the statement is not
clear enough to inform the district court of the legal basis for the objection, . . . the
objection is not properly preserved.” Id. An issue also is not preserved when its
“factual predicates” are in the record “but were presented to the district court under
a different legal theory.” Id. And, at the appellate stage, a defendant abandons an
objection to her sentence “when [s]he does not ‘plainly and prominently’ raise it”
in the argument section of her initial brief, when she “raises it in a perfunctory
manner without supporting arguments and authority,” and when she makes only
“passing references” to it that are “background to other arguments or [are] buried
within other arguments, or both.” Sapuppo, 739 F.3d at 681–82. At this stage too,
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Case: 18-13203 Date Filed: 04/17/2019 Page: 22 of 22
to present an issue properly for our review, an appellant must make explicit “the
legal basis for the objection” and the “legal theory” that supports it. Massey, 443
F.3d at 819. Corbett has properly raised no argument establishing plain error in the
application of the loss-amount enhancement.
IV. CONCLUSION
We VACATE Corbett’s sentence and REMAND for resentencing.
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