United States v. Nannette M. Cobb

Case: 13-14665 Date Filed: 07/09/2014 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 13-14665
Non-Argument Calendar
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D.C. Docket No. 1:13-cr-20365-CMA-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
NANNETTE M. COBB,
a.k.a. Nannette Cobb Ortiz,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(July 9, 2014)
Before TJOFLAT, WILSON and MARTIN, Circuit Judges.
PER CURIAM:
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Nannette Cobb appeals her 45-month sentence, imposed after pleading
guilty to one count of wire fraud, in violation of 18 U.S.C. § 1343. On appeal,
Cobb argues that the district court erred when it relied on uncontested statements in
the Presentence Investigation Report (PSI) to determine the losses from her
embezzlement scheme for the offense characteristic enhancement. Cobb also
argues that the court erred when it considered losses from embezzlement that
occurred before the statute of limitations when calculating the loss from her
scheme. Cobb raises both arguments for the first time in this appeal.
I.
Cobb was a Controller at South Exchange, Inc., who performed electronic
funds transfer transactions (EFTs) to disburse money from the company’s checking
account to other vendors. Cobb made several EFTs from South Exchange’s
account that eventually credited to her personal account, concealing the fraudulent
EFTs by including them with legitimate EFTs and labeling them as payments for
bona fide expenses. Her embezzlement scheme operated from May 2006 to May
2012, and she admitted to embezzling “approximately $978,537.53.” However,
the FBI calculated the total funds embezzled as $1,049,634.14. The probation
officer calculated a base offense level of seven, and Cobb received a 16-level
enhancement under § 2B1.1(b)(1)(I), because the loss from her theft was between
$1,000,000 and $2,500,000. Cobb received a two-level enhancement for abusing a
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position of private trust, and a three level reduction for her acceptance of
responsibility and guilty plea, resulting in a total offense level of 22. Based on her
criminal history category of I and the total offense level of 22, Cobb’s guideline
range was 41 to 51 months’ imprisonment. Although Cobb made eight objections
to the PSI, she made no objection to the FBI’s loss determination.
At sentencing, the court denied Cobb’s request for a variance, sentenced
Cobb to 45 months’ imprisonment, and ordered a restitution award of
$1,024,634.14. After the court pronounced the sentence, Cobb did not object to
the guidelines calculation.
II.
We normally review the district court’s application of the Sentencing
Guidelines de novo, and the court’s calculation of losses for clear error. United
States v. Maxwell, 579 F.3d 1282, 1305 (11th Cir. 2009). However, when a
sentencing issue is not raised before the district court, we review it for plain error.
United States v. Jones, 743 F.3d 826, 828 (11th Cir. 2014). The appellant must
show error that is plain and that affects substantial rights before we will exercise
our discretion to address an error that “seriously affects the fairness, integrity, or
public reputation of judicial proceedings.” Id. at 829 (internal quotation marks
omitted).
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The Guidelines provide a specific offense characteristic enhancement for
wire fraud that increases the offense level depending on the financial loss suffered
by victims or the intended loss from the crime. U.S.S.G. § 2B1.1(b)(1). In
preparing the PSI, the government must produce only a “reasonable estimate” of
the loss, not a precise loss determination. United States v. Renick, 273 F.3d 1009,
1025 (11th Cir. 2001) (per curiam). This estimate may be based on trial evidence,
undisputed statements in the PSI, or evidence presented during the sentencing
hearing. United States v. Hamaker, 455 F.3d 1316, 1338 (11th Cir. 2006).
Undisputed statements in the PSI are treated as admissions during sentencing.
United States v. Patterson, 595 F.3d 1324, 1326 (11th Cir. 2010).
The Guidelines also require the district court to consider all relevant conduct
when determining the loss enhancement, and we broadly interpret the relevant
conduct guideline y. United States v. Behr, 93 F.3d 764, 765 (11th Cir. 1996) (per
curiam). We expressly permit district courts to consider criminal conduct that
occurred outside the statute of limitations when calculating the loss amount,
pursuant to U.S.S.G. § 1B1.3(a). Id. at 765–66.
III.
Cobb argues that the district court plainly erred by basing her guidelines
calculation on losses over $1,000,000, when the factual proffer only supported a
loss amount of $978,537.53. Cobb argues that it was plain error to provide no
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evidence supporting the higher loss amount, and this error is harmful since her
sentence is outside the guidelines range under the correct total offense level. 1 The
government maintains that Cobb did not object to the loss amount in either her
written objections or at sentencing.
The district court did not commit plain error by basing its offense
enhancement on the loss figure provided in the PSI. Undisputed statements in the
PSI are proper evidence for a factual finding. United States v. White, 663 F.3d
1207, 1216 (11th Cir. 2011); Hamaker, 455 F.3d at 1338. Therefore, the district
court was permitted to treat the loss determination in the PSI as fact when Cobb
made no objection to it before or at sentencing. While Cobb argues that the
government bears the burden of providing “reliable and specific evidence”
supporting its loss calculation, that burden is only placed on the government when
the defendant challenges the PSI’s accuracy. White, 663 F.3d at 1216. As no
challenge was made to the loss determination, the court did not err in relying on it
when calculating the loss.
Second, Cobb argues that the district court plainly erred by including losses
from fraudulent transfers outside the five-year statute of limitations in the loss
calculation. Although Cobb admits that our precedent permits consideration of
1
Cobb explains that had the PSI indicated the $978,537.53 loss amount specified in the
stipulated factual proffer used at the plea colloquy, the total offense level would have been 20,
resulting in a recommended sentencing range of 33 to 41 months, which would have been the
appropriate range.
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crimes outside the statute of limitations when calculating the loss amount from
wire fraud, she argues that United States v. Booker, 543 U.S. 220, 125 S. Ct. 738
(2005), precludes consideration of stale crimes as relevant conduct because it
indicated that the Guidelines are punitive provisions separate from traditional
sentencing discretion. In response, the government argues that the district court
properly considered losses from the entire scheme as relevant conduct when
calculating the loss amount. Further, the Guidelines do not establish punishment
for stale crimes since they are advisory.
As Cobb raises the issue for the first time on appeal, she must show a plain
error that affects substantial rights and seriously affect the fairness, integrity, or
public reputation of judicial proceedings. Jones, 743 F.3d at 828–29. The
Guidelines require the court to consider all relevant conduct when calculating a
base offense level, specific offense characteristics, or adjustments to the guidelines
range. U.S.S.G. § 1B1.3(a). If the conviction was committed within a larger
scheme, the court must consider all harm that resulted from “acts and omissions . .
. that were part of the same course of conduct or common scheme or plan as the
offense of conviction.” U.S.S.G. § 1B1.3(a)(2), (3). Following Booker, though
district courts now consider the Guidelines only in an advisory fashion, they are
instructed to consider not merely the charged conduct but all “relevant conduct,” in
calculating a defendant’s offense level. Hamaker, 455 F.3d at 1336. Thus, the
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district court was permitted to consider losses from conduct outside the statute of
limitations when calculating the loss enhancement under U.S.S.G. § 2B1.1(b).
Behr, 93 F.3d at 765–66.2 Also, Cobb’s citation to United States v. Williams is
unpersuasive. 527 F.3d 1235, 1243 (11th Cir. 2008) (holding that where a scheme
to defraud involves multiple wire transmissions, each transmission may form the
basis of a separate count.) Williams does not stand for the proposition that wire
transfers outside the limitations period are not part of an ongoing scheme. Id.
Therefore, the court committed no error by considering Cobb’s fraudulent conduct
prior to May 2008 when calculating the loss enhancement.
Based upon the foregoing, the district court did not commit error by basing
its loss estimate on the undisputed information in the PSI, Hamaker, 455 F.3d at
1338, or by considering criminal conduct outside the relevant statute of limitations
when determining the loss from Cobb’s embezzlement. Behr, 93 F.3d at 765-66.
Accordingly, we affirm.
AFFIRMED.
2
Although Cobb cites Booker, that case did not overrule Behr, as it made no holding
about how the advisory guidelines should be applied. Under the prior precedent rule, we must
follow prior binding precedent “unless and until it is overruled by this court en banc or by the
Supreme Court.” United States v. Vega-Castillo, 540 F.3d 1235, 1236 (11th Cir. 2008) (per
curiam) (internal quotation marks omitted).
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