Document Info

DocketNumber: 15-15235

Filed Date: 3/7/2019

Status: Non-Precedential

Modified Date: 4/17/2021

  •                Case: 15-15235        Date Filed: 03/07/2019       Page: 1 of 36
    [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT
    ________________________
    No. 15-15235
    ________________________
    D.C. Docket No. 6:14-cr-00080-PGB-TBS-1
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    BRIAN NEWTON,
    VICTORIA SNOW,
    Defendants-Appellants.
    ________________________
    Appeals from the United States District Court
    for the Middle District of Florida
    ________________________
    (March 7, 2019)
    Before JORDAN and JULIE CARNES, Circuit Judges, and SCHLESINGER, *
    District Judge.
    *
    Honorable Harvey Schlesinger, United States District Judge for the Middle District of Florida,
    sitting by designation.
    Case: 15-15235   Date Filed: 03/07/2019   Page: 2 of 36
    JULIE CARNES, Circuit Judge:
    Over a six-year period, Defendants Brian Newton and Victoria Snow
    conspired to defraud two companies, Amerifactors Financial Group, Inc.
    (“Amerifactors”) and Prestige Funding Group LLC (“Prestige”), of millions of
    dollars. Following a jury trial, Newton and Snow were convicted of one count of
    conspiring to commit mail and wire fraud, in addition to several counts of
    substantive mail and wire fraud. The district court sentenced Newton and Snow to
    188 months’ imprisonment and 57 months’ imprisonment, respectively. On
    appeal, Newton and Snow raise various challenges to their convictions and
    sentences. After careful review and with the benefit of oral argument, we affirm.
    BACKGROUND
    I.    Facts
    Newton and Snow were employed by Dataforce International (“Dataforce”):
    Newton was a managing partner and Snow was the office manager. Dataforce
    provided IT staffing and support services to Fortune 1000 companies, including a
    substantial amount of consulting services to Hewlett-Packard. To receive payment
    from Hewlett-Packard, Dataforce submitted invoices for completed work.
    Initially, Hewlett-Packard processed paper invoices manually but Hewlett-Packard
    converted to an online-invoicing system in 2004.
    2
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    After Newton joined Dataforce, Newton and Dataforce’s President Gary
    Baran selected Amerifactors to serve as Dataforce’s primary factoring company.
    In purchasing accounts-receivable invoices from other companies, a factoring
    company pays less than the face value of those accounts, but makes its profit by
    collecting the full amount due on the invoices from the party owing the money. As
    part of the agreement, Dataforce agreed to have Amerifactors factor invoices for
    work completed for Hewlett-Packard. Amerifactors typically purchased each
    invoice for 90% of the face value and, in turn, Amerifactors expected Hewlett-
    Packard to pay the full amount of the invoice.
    In the meantime, Newton co-founded with Joe Santoro another company,
    called Prestige, for the purported purpose of factoring invoices. He successfully
    solicited investments of more than $8 million from numerous investors for this
    company. Newton told investors that the company would be factoring invoices for
    Hewlett-Packard. Unbeknownst to Prestige investors and Santoro, however,
    Newton sold invoices to Prestige that had already been sold to Amerifactors.
    Obviously, as to those double-sold invoices, one of the two factoring companies
    would be unable to collect any money.
    In addition to selling the same invoices to both companies, Newton and
    Snow also sold to Amerifactors and Prestige purported Hewlett-Packard invoices
    for work that, in fact, had never been done. To avoid having Hewlett-Packard raise
    3
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    a fuss about invoices for non-existent work, Newton and Snow never submitted
    those invoices to Hewlett-Packard for payment. Further, Newton allayed any
    suspicion on the part of Prestige investors by making quarterly payments to them
    to create an impression that their investments were generating interest.
    To prevent Baran (Dataforce’s President) from discovering that both
    Amerifactors and Prestige were factoring the same invoices, Newton also set up a
    company called B&B Investments to act as an intermediary between Dataforce and
    Prestige. Newton then directed Santoro (his partner at Prestige) to deposit
    payments for the invoices it purchased from Dataforce into B&B Investments.
    An Amerifactors employee, Bonni Jacobi, eventually discovered the fraud
    when she began investigating several past-due Hewlett-Packard invoices.
    Amerifactors had been submitting invoices to Hewlett-Packard at a specific
    address provided by Newton. When Jacobi learned that the address Newton
    provided was the home address of a Hewlett-Packard employee and further that
    Hewlett-Packard no longer even accepted mailed invoices, having converted to an
    online-invoicing system, Jacobi realized that something was greatly amiss. Her
    discovery led to the unraveling of Newton and Snow’s scheme.
    II.   Procedural History
    A federal grand jury issued an indictment charging Newton and Snow with:
    (1) conspiracy to commit mail and wire fraud, in violation of 18 U.S.C. § 1349
    4
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    (Count 1); (2) mail fraud, in violation of 18 U.S.C. § 1341 (Counts 2 through 14);
    and (3) wire fraud, in violation of 18 U.S.C. § 1343 (Counts 15 through 25). Both
    Defendants pled not guilty and proceeded to trial.
    During the 13-day trial, the Government presented testimony from numerous
    witnesses. At the close of the Government’s case-in-chief, Newton and Snow
    moved for judgment of acquittal. The district court denied their motions. Both
    Newton and Snow renewed their motions at the close of all the evidence, which
    were again denied by the court. After the jury found Newton and Snow guilty of
    all charges, the district court sentenced Newton to 188 months’ imprisonment and
    Snow to 57 months’ imprisonment. This appeal followed.
    DISCUSSION
    I.     Challenges to the Conviction
    A.      Omission of “Willfulness” as an Element in Jury Instructions
    Concerning the Substantive Offenses of Mail and Wire Fraud
    Defendant Snow1 asks that her convictions for mail and wire fraud be
    vacated because the district court did not instruct the jury that, to convict on these
    counts, it would have to find that the defendants acted “willfully.” We first note
    that the relevant statutes do not include willfulness as an element. The statute
    1
    In his brief, Newton states that he “adopts by reference all substantive arguments” contained in
    Snow’s brief. We consider this particular argument and Snow’s “redaction” argument to be
    adopted.
    5
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    proscribing mail fraud provides that “[w]hoever, having devised . . . any scheme or
    artifice to defraud, or for obtaining money or property by means of false or
    fraudulent pretenses, representations, or promises,” performs certain acts involving
    the use of the mails is guilty of a crime. See 18 U.S.C. § 1341. The statute
    prohibiting wire fraud uses the same language quoted above to make criminal
    those same acts undertaken through the use of “wire” communications in interstate
    commerce. See 18 U.S.C. § 1343. Although one might reason that a person who
    has devised a scheme to defraud or to obtain property by means of false and
    fraudulent representations will usually have also acted willfully, 2 the statutes at
    issue here do not include willfulness as an element.
    Indeed, at trial, Snow never asked the district court to include a willfulness
    element in its instructions concerning mail and wire fraud. To the contrary, she
    and her co-defendant Newton, along with the Government, asked the district court
    to use the Eleventh Circuit Pattern Jury Instructions for the substantive charges of
    mail and wire fraud. The pattern instructions for the substantive offenses of mail
    2
    The Pattern Jury Instructions contrast merely doing something “knowingly” with doing
    something “willfully.” The instructions provide: “The word ‘knowingly’ means that an act was
    done voluntarily and intentionally and not because of a mistake or by accident.” The word
    ‘willfully’ means that the act was committed voluntarily and purposely, with the intent to do
    something the law forbids; that is, with the bad purpose to disobey or disregard the law. While a
    person must have acted with the intent to do something the law forbids before you can find that
    the person acted ‘willfully,’ the person need not be aware of the specific law or rule that [his]
    [her] conduct may be violating.” Eleventh Circuit Pattern Instructions (Criminal) Basic Inst.
    9.1A (2010 ed.).
    6
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    and wire fraud track the statutory language and do not require the jury to find that
    the defendant acted willfully. The district court acceded to Defendants’ request to
    use these two pattern instructions, and the particular instruction it read to the jury
    was nearly identical to those pattern charges. See Eleventh Circuit Pattern
    Instructions (Criminal) Offense Inst. 50.1, 51 (2010 ed.).
    Yet even though the district court gave the instruction that Snow requested,
    she now argues that the court should have deviated from that request and instructed
    the jury that willfulness was an element of the offenses. Any success based on this
    tardy change of mind, however, is precluded by the invited-error doctrine. “It is a
    cardinal rule of appellate review that a party may not challenge as error a ruling or
    other trial proceeding invited by that party.” United States v. Ross, 
    131 F.3d 970
    ,
    988 (11th Cir. 1997) (quotations omitted). See United States v. Silvestri, 
    409 F.3d 1311
    , 1327–28 (11th Cir. 2005) (concluding that the invited-error doctrine
    precludes a challenge on appeal by a defendant who accepted at trial the language
    of the jury instruction in question). Accordingly, even if we assumed that the
    district court could have properly added the element of willfulness into its
    instructions on these substantive offenses, Snow cannot succeed in her efforts to
    7
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    reverse the mail and wire fraud convictions because she got the very instruction
    that she had requested the district court to give.3
    B.      Sufficiency of the Evidence
    Contending that there was insufficient evidence to support her convictions,
    Snow argues that the Government failed to establish that she intended to defraud
    Amerifactors and Prestige investors or that she willfully joined the conspiracy. 4
    We review a sufficiency-of-the-evidence challenge de novo. United States
    v. Gamory, 
    635 F.3d 480
    , 497 (11th Cir. 2011). When reviewing for sufficiency of
    the evidence, we view the evidence in the light most favorable to the Government,
    with all inferences and credibility choices made in the Government’s favor, and we
    3
    For what it’s worth, we note that, as also requested by the parties, the district court gave the
    pattern instruction for the conspiracy charge, which pattern instruction indicated that willfulness
    is required to convict a defendant of conspiracy to commit mail and wire fraud. “It is a federal
    crime to knowingly and willfully conspire or agree with someone to do something that, if
    actually carried out, would result in the crime of mail fraud or wire fraud.” “The defendants can
    be found guilty of this conspiracy offense only if all of the following facts are proved beyond a
    reasonable doubt: . . . .2. The defendant knew the unlawful purpose of the plan and willfully
    jointed in it . . . .” See Eleventh Circuit Pattern Instructions (Criminal) Offense Inst. 54 (2010
    ed.). Both defendants here were convicted of the conspiracy count as well. Thus, the jury knew
    that Defendants had to have willfully conspired to be convicted of that count, and the jury
    concluded that they had acted willfully.
    4
    Newton has not argued that the evidence was insufficient to support his conviction. Nor can
    he adopt Snow’s insufficiency-of-the evidence argument, given the fact-intensive nature of such
    an argument. See United States v. Khoury, 
    901 F.2d 948
    , 963 n.13 (11th Cir. 1990) (explaining
    that a sufficiency-of-the-evidence argument requires independent briefing due to the fact-specific
    nature of the argument).
    8
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    affirm the conviction if, based on this evidence, a reasonable jury could have found
    the defendant guilty beyond a reasonable doubt. 
    Id. To sustain
    a conviction for mail and wire fraud, the Government must
    establish: “(1) intentional participation in a scheme to defraud, and, (2) the use of
    the interstate mail or wires in furtherance of that scheme.” United States v.
    Maxwell, 
    579 F.3d 1282
    , 1299 (11th Cir. 2009). Intent to defraud can be
    established when “the defendant believed that he could deceive the person to
    whom he made the material misrepresentation out of money or property of some
    value.” United States v. Wetherald, 
    636 F.3d 1315
    , 1324 (11th Cir. 2011)
    (quotations omitted) (“A jury may infer an intent to defraud from the defendant’s
    conduct.”).
    Based on the evidence presented at trial, a reasonable jury could find beyond
    a reasonable doubt that Snow was guilty of conspiracy, as well as the substantive
    offenses of mail and wire fraud. The evidence revealed that, as Dataforce’s office
    manager, Snow was responsible for the day-to-day operations of Dataforce,
    including the assembly and approval of invoices that were sold to Amerifactors, as
    well as the submission of invoices to Hewlett-Packard for payment. Moreover,
    Snow directed a Dataforce employee (1) to sell invoices to Amerifactors but not
    submit those invoices to Hewlett-Packard for payment, (2) to create invoices to sell
    to Amerifactors for work that had not been completed, and (3) to sell invoices to
    9
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    Prestige that had already been sold to Amerifactors. Snow also personally profited
    from the scheme. See United States v. Naranjo, 
    634 F.3d 1198
    , 1207 (11th Cir.
    2011) (indicating that a jury can infer intent to defraud in part from a defendant
    personally profiting from the scheme). Viewing this evidence in the light most
    favorable to the Government, a reasonable jury could infer that Snow intended to
    defraud, and that she acted to effectuate that intent.
    A reasonable jury could also conclude that Snow willfully joined the
    conspiracy. See Maxwell, 
    579 F.3d 1282
    (explaining that to sustain a conviction
    for conspiracy to commit mail and wire fraud, the Government must prove that the
    defendant “knew of and willfully joined in the unlawful scheme to defraud”).
    Again, Snow directed a Dataforce employee to submit invoices to Prestige that had
    already been sold to Amerifactors. Snow was also the main point of contact at
    Dataforce for Amerifactors and Hewlett-Packard. Finally, she took affirmative
    steps to cover up the scheme by not submitting the invoices to Hewlett-Packard’s
    online-invoicing system and by encouraging an employee at Amerifactors not to
    contact Hewlett-Packard about past due invoices.
    In short, because we conclude that a reasonable jury could have found
    beyond a reasonable doubt that Snow was guilty of conspiracy and the substantive
    offenses of mail and wire fraud, we necessarily conclude that there was sufficient
    evidence to support Snow’s convictions.
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    C.     Redaction Error
    Snow argues that she was unfairly prejudiced by the district court’s
    admission into evidence of a tax return containing Newton’s wife’s name. Prior to
    trial, the district court had granted Newton’s and Snow’s motions in limine to
    exclude evidence related to their extramarital affair and Newton’s marital status.
    Newton’s counsel made the necessary redactions but inadvertently failed to redact
    one document: a 2003 tax return that showed the name of Newton’s wife.
    Because Snow did not object at trial to the admission of the unredacted tax
    return before the district court, we review for plain error. See 
    Wetherald, 636 F.3d at 1320
    (explaining that an error raised for the first time on appeal is reviewed for
    plain error). Nevertheless, even if we assume that the admission of the tax return
    constituted error and that the error was plain, Snow cannot meet the third prong of
    the plain-error test, which requires a showing that the error affected her substantial
    rights. See 
    Turner, 474 F.3d at 1276
    . To meet that test, Snow must show that the
    error “affected the outcome of the district court proceedings.” United States v.
    Rodriguez, 
    398 F.3d 1291
    , 1299 (11th Cir. 2005) (quotation omitted).
    Snow has failed to meet this burden. The Government introduced hundreds
    of exhibits admitted at trial, and this tax return, from all the way back in 2003, was
    hardly a key component of the Government’s case. The tax return merely noted
    the name of Newton’s wife in 2003. See 
    id. Given the
    overwhelming evidence of
    11
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    Snow’s guilt presented at trial, the failure to redact Newton’s wife’s name from the
    2003 tax return does not leave “grave doubt” that it affected the outcome of the
    case. See 
    Turner, 474 F.3d at 1276
    (“Errors do affect a substantial right of a party
    if they have a ‘substantial influence’ on the outcome of the case or leave ‘grave
    doubt’ as to whether they affected the outcome of the case.” (quotations omitted)).
    D.     Constructive Amendment
    Newton argues that the district court’s admission of evidence and
    instructions to the jury constructively amended the indictment and permitted him to
    be convicted of a crime for which he was not indicted. Specifically, Newton
    challenges (1) the district court’s admission of evidence showing that he
    misrepresented to Prestige investors that their investments were backed by
    Hewlett-Packard and (2) the court’s instruction to the jury that it could convict
    based on a finding that Newton engaged in a scheme to defraud involving the use
    of false or fraudulent representations. Because Newton did not raise the issue of
    constructive amendment before the district court, we review only for plain error.
    See 
    Wetherald, 636 F.3d at 1320
    .
    As to this allegation, Newton has failed to show that any error occurred,
    plain or otherwise. “A constructive amendment occurs when the essential
    elements of the offense contained in the indictment are altered to broaden the
    possible bases for conviction beyond what is contained in the indictment.” United
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    States v. Madden, 
    733 F.3d 1314
    , 1318 (11th Cir. 2013). Here, the indictment
    alleged that Newton and Snow conspired to commit mail and wire fraud by, “with
    intent to defraud, devising, and intending to devise, a scheme and artifice to
    defraud and for obtaining money and property by means of false and fraudulent
    pretenses, representations, and promises that related to material facts.”
    The evidence showing that Newton told Prestige investors that their
    investments were guaranteed by Hewlett-Packard provided support for establishing
    the means by which Newton furthered the conspiracy to commit mail and wire
    fraud. Indeed, the evidence was relevant to establishing Newton’s intent to
    defraud because he convinced Prestige investors to invest by misrepresenting that
    their investments would be backed by Hewlett-Packard. As one Prestige investor
    testified at trial, he believed he was making a safe investment based on Newton’s
    representation that Dataforce had a master-vendor agreement with Hewlett-
    Packard.
    For the same reason, Newton’s misrepresentation also played a part in the
    substantive mail fraud offenses. Indeed, Newton’s act of mailing interest checks to
    investors helped maintain the appearance that their investments in Prestige were
    safe. See United States v. Lehder-Rivas, 
    955 F.2d 1510
    , 1519 n.5 (11th Cir. 1992)
    (explaining that the admission of evidence intrinsic to proving the indicted crimes
    does not impermissibly broaden the indictment).
    13
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    As for Newton’s argument that the district court’s instruction to the jury
    constructively amended the indictment, he invited any error by requesting the
    instructions the district court provided to the jury. See 
    discussion supra
    at I.A. In
    short, Newton has not shown error, much less plain error.
    II.    Newton’s Challenges to His Sentence 5
    A.      Loss Calculation
    Newton argues that the district court’s calculation of the loss to be attributed
    to him is clearly erroneous because it was not supported by specific and reliable
    evidence. We review the district court’s interpretation of the Guidelines de novo.
    United States v. Barrington, 
    648 F.3d 1178
    , 1198 (11th Cir. 2011). We review the
    district court’s loss calculation for clear error. United States v. Hernandez, 
    160 F.3d 661
    , 667–68 (11th Cir. 1998). “Although review for clear error is deferential,
    a finding of fact must be supported by substantial evidence.” United States v.
    Robertson, 
    493 F.3d 1322
    , 1330 (11th Cir. 2007).
    Newton’s Presentence Investigation Report (“PSR”) was prepared in
    October 2015, using the then-applicable 2014 Sentencing Guidelines. Under that
    5
    Snow purports to adopt “the relevant issues and arguments, applicable to her appeal” contained
    in Newton’s brief. She, however, has raised no sentencing issues in her appeal brief. Similarly,
    she never challenged her sentence at oral argument, either in her initial argument or her rebuttal.
    At any rate, at best, Snow would be entitled to only plain error review, and she has made no
    effort to indicate how any sentencing errors by the district court would have changed the
    outcome of her proceedings.
    14
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    version of the Guidelines, Newton received a 20-level enhancement under
    U.S.S.G. § 2B1.1(b)(1)(K) because the loss was more than $7,000,000 but less
    than $20,000,000. By the time of the sentencing hearing on November 5, 2015, the
    2015 amendments to the Guidelines had taken effect, that event having occurred on
    November 1. Both the district court and the parties agreed that the Guideline
    governing loss amounts had been amended and that it was the 2015 calculation that
    should control. The court noted that prior to November 1, § 2B1.1(b)(1) had
    provided for a 20-level enhancement if the loss exceeded $7,000,000, but that the
    2015 Guidelines provided for only an 18-level enhancement if the loss exceeded
    $3,500,000 million but was less than $9,500,000 million. The district court found
    that the loss was between $3.5 million dollars and $9,500,000, and it imposed an
    18-level enhancement.
    Newton objected to this loss calculation, arguing that the loss did not exceed
    the $3.5 million threshold for imposition of an 18-level enhancement. In response
    to Newton’s objection to the loss-amount calculation, the Government presented
    two summary charts setting out the total loss sustained by Amerifactors and
    Prestige investors. The first exhibit indicated that the total amount of loss to
    Prestige investors was $4,748,373.94, which reflected the difference between the
    total amount each investor had invested in Prestige and the amount each investor
    had received in quarterly interest payments.
    15
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    The second exhibit indicated that the total amount of loss to Amerifactors
    was $2,468,218.86. The Government explained that it had calculated this amount
    by adding the value of every invoice purchased by Amerifactors that had not been
    bought back by Dataforce.6 The Government then reduced that number to reflect
    the amount Amerifactors had actually paid on each invoice, which in most cases
    was only 90% of the total invoice amount.7
    The Guidelines’ commentary defines “actual loss” as the “reasonably
    foreseeable pecuniary harm that resulted from the offense” and “intended loss” is
    the “pecuniary harm that the defendant purposefully sought to inflict . . . [and] that
    would have been impossible or unlikely to occur.” 
    Id. § 2B1.1,
    comment.
    (n.3(A)(i)-(ii)). The district court concluded that based on the evidence presented
    at trial, it was reasonably foreseeable that the loss to Prestige investors and
    Amerifactors was $4,748,373.94 and $2,468,218.86, respectively, or
    approximately $7 million. Accordingly, the district court determined that Newton
    was subject to an 18-level enhancement under U.S.S.G. § 2B1.1(b)(1)(J), which
    called for that enhancement if the loss attributable to the defendant is more than
    $3,500,000 but less than $9,500,000. U.S.S.G. § 2B1.1(b)(1)(J) (2015).
    6
    Dataforce occasionally bought back invoices from Amerifactors when Hewlett-Packard did not
    pay Amerifactors on those invoices within a certain period of time.
    7
    The number was further reduced by $50,000 to reflect the amount Amerifactors received from
    Hewlett-Packard in separate civil litigation.
    16
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    In reviewing Newton’s challenge to the loss calculation, we note that the
    Government must establish the facts by a preponderance of the evidence and
    support the loss calculation with reliable and specific evidence. 
    Bradley, 644 F.3d at 1290
    . The district court is only required to make a reasonable estimate of the
    loss, and we owe appropriate deference to that determination. U.S.S.G. § 2B1.1,
    comment. (n.3(C)). When making the loss determination, the district court is
    permitted to use evidence from the trial, undisputed PSR facts, and evidence from
    the sentencing hearing. 
    Bradley, 644 F.3d at 1290
    .
    Here, in calculating the loss amount, the district court relied on the evidence
    presented at trial and found to be accurate the summary charts presented by the
    Government at the sentencing hearing. On appeal, Newton asserts that the
    Government failed to establish the loss amount with specific and reliable evidence
    because the summary charts were not authenticated by any witness testimony. Yet,
    at sentencing, Newton never complained about the absence of authentication. Had
    he done so, the Government would have been able to remedy any authentication
    concerns. Instead, he objected only to the loss amount represented in those
    summary charts. It is that objection on which we focus.
    We conclude that the district court’s calculation of loss attributable to
    Newton was not clearly erroneous. To the contrary, the district court was
    meticulous and thorough in its assessment, having taken over 90 pages of notes
    17
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    during trial and displaying at the sentencing hearing a detailed knowledge of the
    evidence and its relation to the calculation of loss. The loss calculation was
    supported by specific and reliable evidence, as the summary charts presented by
    the Government were based on Special Agent Andrew Culbertson’s testimony at
    trial regarding the flow of money and the amount of money lost by Amerifactors
    and Prestige investors. 
    Bradley, 644 F.3d at 1290
    . Indeed, the evidence presented
    at trial showed that Prestige investors invested approximately $8,500,000 and
    received $3,500,000 back in interest payments, resulting in a net loss of
    approximately $5,000,000. As to Amerifactors, Special Agent Culbertson testified
    at trial that Amerifactors purchased $2,978,617 worth of invoices from Dataforce
    that were never submitted to Hewlett-Packard for payment. Moreover,
    Amerifactors’s President Kevin Gowen testified at trial that Amerifactors sustained
    a loss of $2,757,965.
    We acknowledge that the loss amounts presented at sentencing—
    $4,748,373.94 to Prestige investors and $2,468,218.86 to Amerifactors—were less
    than the amounts testified to at trial.8 But that benefitted Newton. Moreover, the
    8
    The amount attributed to Amerifactors at sentencing took into account the invoices that had
    been bought back by Dataforce, the percentage at which Amerifactors typically purchased the
    invoices from Dataforce, and the amount that Amerifactors had received from Hewlett-Packard
    as part of separate civil litigation. See 
    Bradley, 644 F.3d at 1292
    (explaining that although some
    of the evidence relied on by the district court in calculating the loss amount was not introduced at
    trial, there was nothing to suggest that the information was not reliable).
    18
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    district court is only required to make a reasonable estimate of the loss. See
    U.S.S.G. § 2B1.1, comment. (n.3(C)). Because the district court’s loss calculation
    was a reasonable estimate based on the evidence presented at trial, the district court
    did not clearly err by concluding that the total loss was between $3.5 and $9.5
    million. Cf. United States v. Pierre, 
    825 F.3d 1183
    , 1197–98 (11th Cir. 2016)
    (concluding that the district court did not clearly err in its loss determination
    because it was supported by the record); see also United States v. Manoocher
    Nosrati-Shamloo, 
    255 F.3d 1290
    , 1292 (11th Cir. 2001) (concluding that the
    district court did not clearly err in determining the loss amount in part because the
    defendant did not present any evidence to rebut the evidence presented by the
    Government at the sentencing hearing). Accordingly, the district court’s
    application of an 18-level enhancement under § 2B1.1(b)(1)(J) was proper.
    B.     Enhancement of Newton’s Sentence Based on The Number of
    Victims, per U.S.S.G. § 2B1.1(b)(2)
    1.     The “One Book Rule”
    In calculating Newton’s adjusted offense level, the district court started with
    the appropriate 7-level base offense level (§ 2B1.1(a)(1) and enhanced that level by
    18 levels, based on the loss amount discussed above (§ 2B1.1(b)(1)(J)); by 4
    levels, based on the number of victims involved in the scheme (§ 2B1.1(b)(2)); by
    2 levels, based on the offense’s use of sophisticated means (§ 2B1.1(b)(10); by 3
    levels, based on Newton’s aggravated role in the offense (§ 3B1.1(b)); and by 2
    19
    Case: 15-15235     Date Filed: 03/07/2019   Page: 20 of 36
    levels, based on Newton’s obstruction of justice (§ 3C1.1), for a final adjusted
    offense level of 36. Combined with a criminal history score of I, this calculation
    yielded a sentencing range of 188–233 months. The district court declined
    Newton’s request for a variance and imposed a sentence of 188 months.
    Of pertinence to the present discussion is the enhancement based on the
    number of victims. As noted earlier, the loss enhancement originally called for by
    the 2014 Guidelines would have been a level 20, but by the time of sentencing, the
    2015 Guidelines were in effect and the latter had amended the loss guideline to
    create a higher threshold for the imposition of loss. Thus, based on the 2015
    Guidelines, the amount of loss attributable to Newton yielded only an 18-level
    enhancement. The court, the Government, and Newton agreed that he was entitled
    to be sentenced under the 2015 Guidelines, and therefore he received this 18-level
    enhancement for loss, as opposed to the 20-level enhancement called for by the
    2014 Guidelines.
    As we now know, Section 2B1.1(b)(2), which governs an enhancement
    based on the number of victims, had likewise been amended by the 2015
    Guidelines. As will be discussed in more detail, when compared with its 2014
    counterpart, the 2015 version had the potential to reduce the applicable
    enhancement for this provision in some circumstances, but it also had the potential
    to increase the enhancement in other circumstances. Although the district court
    20
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    had been alerted to the fact the guideline governing the loss enhancement had been
    amended, apparently no one saw fit to inform the court that the provisions
    concerning the number-of-victims enhancement had also changed. Presumably,
    this would have been the duty of the probation officer, whose job it is to keep up
    with things like Guidelines’ amendments and to recommend to the sentencing
    judge the applicable guidelines’ analysis, but one would also have expected
    defense counsel and Government counsel, aware already of one amendment to the
    Guidelines, to have been vigilant about the possibility that another provision might
    also have changed.
    At any rate, whether inadvertent or not, no one advised the district court that
    the number-of-victims enhancement9 had been amended by the 2015 manual.10
    What this means, in effect, is that the district court used the 2015 manual for
    purposes of determining loss, but (unknowingly) used the 2014 manual for
    purposes of determining the imposition of the number-of-victims enhancement.
    Newton asserts that the district court should have applied the 2015 Manual’s
    enhancement provision based on the number of victims.
    9
    Likewise, as will be discussed, the provision concerning the sophisticated means enhancement
    had also been amended in the 2015 manual.
    10
    We use the word “manual” interchangeably with the phrase “version of the Guidelines.”
    21
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    It is true that only one version of the Guidelines should be used in
    calculating a defendant’s offense level. That principle has become known as the
    “one-book rule.” Here’s how it works. As a general matter, a convicted
    defendant’s sentence is based on use of the Guidelines Manual in effect on the date
    the defendant is sentenced. United States v. Bailey, 
    123 F.3d 1381
    , 1403 (11th Cir.
    1997) (citing 18 U.S.C. § 3553(a)(4); U.S.S.G. § 1B1.11(a)). That general rule,
    however, gives way to an exception if use of the Guidelines Manual in effect at the
    time of sentencing would result in a harsher sentence (translated: higher
    Guidelines’ offense level/range) than would have arisen from use of an earlier
    manual in effect at the time of the commission of the crime for which the
    defendant is being sentenced. The reasoning is that imposition of a harsher
    sentence arising out of sentencing provision enacted after the commission of a
    defendant’s crime would violate the Ex Post Facto Clause, and when that prospect
    arises, the district court must use the Guidelines Manual that was in effect on the
    date the crime was committed. Bailey, 
    id. Sensitivity to
    the Ex Post Facto Clause, however, does not mean that a
    sentencing court can properly hunt and peck its way through multiple manuals in
    effect during the time period in which the defendant’s crimes were committed,
    applying the most favorable combination of Guidelines’ provisions to arrive at the
    most lenient sentence for a defendant. Instead, the sentencing court must use
    22
    Case: 15-15235       Date Filed: 03/07/2019        Page: 23 of 36
    “either the Sentencing Guidelines Manual in effect at sentencing or the one in
    effect when the crime was committed,” which “is known as the “one book rule.”
    
    Id. See also
    U.S.S.G. § 1B1.11(b)(2)11 (codifying the one-book rule). The notion
    behind the one-book rule is that “the application of different versions of the
    Sentencing Guidelines Manual would contravene the sentencing uniformity
    objective of the Sentencing Commission, which intended that the Guidelines be
    applied ‘as a cohesive whole’ and not ‘in a piecemeal fashion’ so that a defendant
    cannot ‘mix and match amended provisions’ to achieve a more favorable
    sentence.” 
    Bailey, 123 F.3d at 1404
    .
    2.     Application of the Number-of-Victims Enhancement in this
    Case
    As noted above, Newton’s PSR, which was completed in October 2015,
    applied the 2014 version of the Guidelines. The PSR recommended, among other
    things, a 4-level enhancement under § 2B1.1(b)(2)(B), which enhancement was
    applicable if the offense involved 50 or more victims. 12 At the sentencing hearing
    on November 5, 2015, Newton argued that there were fewer than 50 victims. The
    district court concluded otherwise and applied the 4-level enhancement.
    11
    A court that uses an earlier edition of the Guidelines can apply later amendments to the extent
    such amendments are clarifying, rather than substantive. See U.S.S.G. § 1B1.11(b)(2).
    12
    In pertinent part, the 2014 Manual provided for a 2-level enhancement if the offense involved
    10 or more victims; for a 4-level enhancement if the offense involved 50 or more victims; and a
    6-level increase for 250 or more victims.
    23
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    Unbeknownst to the court, the 2015 Manual, however, changed the threshold
    and the requirements for two of the enhancement levels under this provision.
    Unchanged was the 2-level enhancement. As with the 2014 Manual, under the
    2015 Manual a defendant receives a 2-level enhancement when the offense
    involved 10 or more victims. The 2015 manual, however, did make significant
    changes to the 4- and 6-level enhancements. As to the 4-level enhancement, while
    the 2014 Manual required the existence of at least 50 victims, the 2015 Manual
    only requires that there be at least 5 victims, but the offense must have resulted in
    “substantial financial hardship” to those victims. As to the 6-level enhancement,
    although the 2014 Manual required the existence of at least 250 victims, the 2015
    Manual only requires the existence of at least 25 victims, but again it requires that
    those 25 victims have suffered substantial financial harm as a result of the offense.
    Compare U.S.S.G. § 2B1.1(b)(2)(B) (2014) with U.S.S.G. § 2B1.1(b)(2)(B)
    (2015).
    As noted, under the one-book rule, the district court should have applied the
    2015 Manual as to all enhancements, including the number-of-victims
    enhancement. Instead, as to the latter, it used the iteration found in the 2014
    Manual. Newton, however, never objected to the court’s use of the 2014 Manual’s
    iteration of this enhancement. Because Newton challenges the district court’s use
    24
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    of the wrong version of the Guidelines for the first time on appeal, we review only
    for plain error. 13 See 
    Wetherald, 636 F.3d at 1320
    .
    To establish plain error, a defendant must show that there was “(1) error, (2)
    that is plain and (3) that affects substantial rights. If all three conditions are met,
    an appellate court may then exercise its discretion to notice a forfeited error, but
    only if . . . the error seriously affects the fairness, integrity, or public reputation of
    judicial proceedings.” United States v. Turner, 
    474 F.3d 1265
    , 1276 (11th Cir.
    2007).
    We conclude that the district court committed error, that was plain, by
    applying the 2014 version of the Guidelines with respect to the number-of-victims
    enhancement instead of the 2015 Manual. As noted, the sentencing court is
    required to apply the version of the Guidelines in effect at the time of the
    sentencing, which here was the 2015 version. See 
    Bailey, 123 F.3d at 1403
    –05;
    United States v. Wilson, 
    993 F.2d 214
    , 216 (11th Cir. 1993). The problem for
    Newton, however, is the third prong of the plain-error test, which requires the
    defendant to show that the error affected substantial rights. For an error to affect
    13
    We reject the Government’s contention that our review of this argument is precluded by the
    invited-error doctrine. Newton did not request that the district court apply the 2014 version of
    the Guidelines, which provided for a 4-level enhancement if the offense involved 50 or more
    victims. See U.S.S.G. § 2B1.1(b)(2)(B) (2014). Instead, Newton simply failed to object when
    the district court (and parties) assumed that the 2014 version applied. We therefore review for
    plain error. See United States v. Dortch, 
    696 F.3d 1104
    , 1112 (11th Cir. 2012) (stating that
    “failing to object does not trigger the doctrine of invited error”).
    25
    Case: 15-15235    Date Filed: 03/07/2019    Page: 26 of 36
    substantial rights, “in most cases it means that the error must have been prejudicial:
    It must have affected the outcome of the district court proceedings.” United States
    v. De La Garza, 
    516 F.3d 1266
    , 1269 (11th Cir. 2008) (quoting United States v.
    Olano, 
    507 U.S. 725
    , 734 (1993)). And as a complaining party who failed to
    object to the error before the district court, the defendant has the burden of
    persuasion as to prejudice. United States v. Rodriguez, 
    398 F.3d 1291
    , 1299 (11th
    Cir. 2005).
    Here, we conclude that Newton has failed to show prejudice because he has
    failed to show that the outcome of the proceedings—that is, his sentencing range
    under the Guidelines—would have been any different had the district court applied
    the 2015 Guidelines as to the number-of-victims enhancement. To explain why,
    we contrast this case with Molina-Martinez v. United States, 
    136 S. Ct. 1338
    (2016). In Molina-Martinez, there was no doubt that the sentencing court had
    applied the wrong sentencing range because there was no doubt that it had
    incorrectly added up the number of criminal history points that should have been
    assessed against the defendant. That is, the court had counted up 18 points, when
    it was clear that the defendant had earned only 11 points. With 11 points, instead
    of 18, the defendant was in criminal history category V, instead of VI, and he
    would therefore have been subject to a lower sentencing range. 
    Id. at 1343,
    1344.
    26
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    Notably, there was no uncertainty about the fact that the court’s error meant
    that it had miscalculated the Guidelines range and that the defendant should have
    been subject to a lower sentencing range. Specifically, with the Category VI
    criminal history applied by the sentencing court, the defendant was subject to a 77–
    96 month range; with the appropriate Category V, however, he was subject to only
    a 70–87 month range. Clearly, the district court had committed an error that was
    plain. But as the defendant had received a 77-month sentence, which was within
    the overlapping guidelines’ range of both calculations, the question before the
    Supreme Court was whether the defendant had shown prejudice.
    The Supreme Court concluded that the defendant had been prejudiced. The
    Court noted that, notwithstanding the Guidelines’ advisory status, empirical
    sources indicate that the Guidelines are “not only the starting point for most federal
    sentencing proceedings but also the lodestar.” 
    Id. at 1346.
    Further, “when a
    Guidelines range moves up or down, offenders’ sentences tend to move with it.”
    
    Id. (citation omitted).
    Although not characterized expressly as a presumption, the
    Court observed that “[i]n most cases a defendant who has shown that the district
    court mistakenly deemed applicable an incorrect, higher Guidelines range has
    demonstrated a reasonable probability of a different outcome.” 
    Id. In Molina-Martinez,
    however, it was plain—that is, clear and obvious—that
    the sentencing court had used the wrong Guidelines range. It had incorrectly
    27
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    counted the number of criminal convictions for purposes of assigning a criminal
    history category number, and that error was apparent from a review of the
    presentence report. Thus, the predicate for the Court’s holding—and its
    observation concerning the implications of that holding—is the use by the district
    court of a Guidelines range that is wrong and whose inaccuracy is clear, obvious,
    and subject to no debate.14
    Thus, to take advantage of the assumption/presumption of Molina-Martinez
    that a defendant who shows that he was sentenced pursuant to an incorrect
    sentencing range is a defendant who has shown a probability that, absent the error,
    the outcome of the proceeding would have been different, Newton needs to first
    show that he would have been subject to a lower sentencing range had the 2015
    Manual been used. Moreover, the traditional principle requiring an appellant who
    asserts plain error to show prejudice—that is, that the outcome of the proceedings
    would have been different—applies here. See, e.g., United States v. Margarita
    Garcia, 
    906 F.3d 1255
    , 1267 (11th Cir. 2018); United States v. Rodriguez, 627
    14
    Indeed, that is the same scenario that the Supreme Court confronted in Rosales-Mireles v.
    United States, 
    138 S. Ct. 1897
    (2018), when it expanded the reasoning of Molina-Martinez to
    conclude that the use by a sentencing court of a plainly wrong sentencing range also satisfies the
    “fourth’ prong of the plain error test: that the error seriously affects the fairness, integrity, or
    public reputation of the proceedings. In Rosales-Mireles, the sentencing court had made a
    simple arithmetic mistake when it counted twice a prior conviction and when that miscounting
    had jumped the defendant from a Category V to a Category VI. This arithmetic mistake, and its
    impact on the calculation of the Guidelines’ range, was clear and obvious. That is, there could
    be no debate that the corresponding sentencing range triggered by this mistaken calculation was
    incorrect.
    28
    Case: 15-15235     Date Filed: 03/07/2019    Page: 29 of 
    36 F.3d 1372
    , 1380 (11th Cir. 2010); United States v. Gonzalez, 
    550 F.3d 1319
    , 1323
    (11th Cir. 2008).
    In this case, however, it is not at all clear that a lower sentencing range
    would have resulted from the use of the 2015 Manual’s provision concerning the
    number-of-victims enhancement. Indeed, it is even possible that Newton might
    have been subject to a higher range had the 2015 Manual been used. Specifically,
    as set out above, over Newton’s objection and per the PSR’s recommendation, the
    district court applied a 4-level enhancement based on § 2B1.1(b)(2)(B), which
    under the 2014 Manual imposed that enhancement if the offense involved 50 or
    more victims. At the sentencing hearing, Newton argued that there were only 48
    victims, while the Government argued that there were 66, and provided a chart in
    support of that assertion. The court found for the Government on this point and,
    concluding that there were more than 50 victims, he imposed the 4-level
    enhancement.
    As noted above, the requirement for receiving a 2-level enhancement based
    on § 2B1.1(b)(2) is the same under both the 2014 and the 2015 Manual: an offense
    involving 10 or more victims. Clearly, Newton would be subject to a 2-level
    enhancement under both versions. The 2015 Manual did change the requirements
    for imposition of a 4-level enhancement. While the 2014 Manual required the
    existence of at least 50 victims, the 2015 Manual only requires that there be at least
    29
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    5 victims. It does, however, also require that the offense have resulted in
    “substantial financial hardship” to those victims. In explaining what the
    Guidelines mean by “substantial financial hardship,” the relevant commentary
    indicates that when determining whether a victim suffered substantial hardship, the
    court shall consider in relevant part whether the victim (1) became insolvent,
    (2) filed for bankruptcy, (3) suffered retirement losses, (4) changed his or her
    employment, (5) changed his or her living arrangements, or (6) had difficulty
    obtaining credit. U.S.S.G. § 2B1.1(b)(2), comment. (n.4(F)).
    As the party bearing the burden of persuading us that he would have been
    subject to a different Guidelines range had the district court applied the 2015
    iteration of § 2B1.1(b)(2), Newton has offered nothing in support of an argument
    that there were not at least 5 victims who might have suffered substantial financial
    hardship, as that term is defined under the Guidelines.15 Indeed, in his brief,
    Newton has not even attempted to explain why he would not still qualify for a
    four-level enhancement under the 2015 version of the Guidelines.
    Further, the Government has noted that, of the 66 victims, 15 lost more than
    $100,000, with six of the victims losing between $205,438 and $893,397; 34
    victims lost more than $25,000. Certainly, it is possible that none of those
    15
    His entire argument on this issue is only a paragraph in length.
    30
    Case: 15-15235      Date Filed: 03/07/2019   Page: 31 of 36
    victims—or more precisely, less than 5 of those victims—suffered a substantial
    financial hardship as a result of being duped by Newton. But possible is not good
    enough. In a plain error context, where the person asserting an error has the
    burden to prove prejudice, not knowing whether the error had any negative effect
    is fatal to the proponent. “As we said in Rodriguez, where ‘we don’t know’ what
    the district court would have done, and ‘the record provides no reason to believe
    any result is more likely than the other,’ the appellant cannot prevail.” Dell v.
    United States, 
    710 F.3d 1267
    , 1277 (11th Cir. 2013) (citation omitted). See also
    
    Gonzalez, 550 F.3d at 1322
    (in determining whether a Guidelines ruling by the
    district court constituted plain error, “Where error could have cut either way and
    uncertainty exists, the burden is the decisive factor in the third prong of the plain
    error test, and the burden is on the defendant.” (quoting United States v.
    Rodriguez, 
    398 F.3d 1291
    , 1300 (11th Cir. 2005)).
    Moreover, it is possible that the 6-level enhancement under the 2015 Manual
    might have been in play had the 2015 Manual been used. As noted, although the
    2014 Manual required the existence of at least 250 victims for this enhancement,
    the 2015 Manual only requires the existence of at least 25 victims, but again it
    requires that those 25 victims have suffered substantial financial harm as a result of
    the offense. With 33 of 66 victims suffering losses of over $25,000, there was at
    least a possibility that 25 of those victims suffered a substantial financial hardship.
    31
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    This possibility that the 2015 enhancement governing number of victims might
    have produced a greater enhancement than that provided for by the 2014 Manual is
    another factor disfavoring a finding of prejudice and supporting the rationale
    behind the requirement of a contemporaneous objection. Requiring a
    contemporaneous objection “fosters finality of judgment and deters ‘sandbagging,”
    saving an issue for appeal in hopes of having another shot at trial if the first one
    misses.” 
    Rodriguez, 627 F.3d at 1379
    (citation omitted). “The daunting hurdles
    erected under plain error review are imposed for powerful reasons. Without them,
    a defendant would be free to sleep on his rights at trial, and ignore his duty in our
    adversarial system to help the district court police the trial process in order to
    ensure fair and accurate fact-finding.” Margarita 
    Garcia, 906 F.3d at 1268
    .
    In summary, Newton has failed to shoulder his burden of proving a
    probability that he would have been subject to a lesser sentencing range had he
    objected to the district court’s use of the 2014 iteration of the number-of-victims
    enhancement. Cf. 
    Rodriguez, 398 F.3d at 1301
    (“[W]here the effect of an error on
    the result in the district court is uncertain or indeterminate—where we would have
    to speculate—the appellant has not met his burden of showing a reasonable
    probability that the result would have been different but for the error.”). Having
    failed to shoulder his burden, Newton cannot succeed in his request for reversal on
    this ground.
    32
    Case: 15-15235     Date Filed: 03/07/2019   Page: 33 of 36
    C.     Sophisticated Means Enhancement
    Newton also argues that the district court clearly erred by imposing a two-
    level enhancement for sophisticated means pursuant to U.S.S.G.
    § 2B1.1(b)(10)(C).
    We review for clear error a district court’s finding that sophisticated means
    were used. 
    Barrington, 648 F.3d at 1199
    . The 2014 Sentencing Guidelines
    provided for a two-level enhancement if “the offense otherwise involved
    sophisticated means.” U.S.S.G. § 2B1.1(b)(10) (2014). This provision was
    amended in 2015 to provide for a two-level increase in the defendant’s offense
    level if the “the offense otherwise involved sophisticated means and the defendant
    intentionally engaged in or caused the conduct constituting sophisticated means.”
    (U.S.S.G. § 2B1.1(b)(10) (2015) (2015 amended material is underlined). The
    commentary defines “sophisticated means” as “especially complex, or especially
    intricate conduct” that pertains to executing or concealing the offense. 
    Id. § 2B1.1,
    comment. (n.9(B))).
    Newton’s PSR, which used the 2014 Guidelines, recommended a two-level
    enhancement under § 2B1.1(b)(10)(C) because the offense involved sophisticated
    means. At the sentencing hearing, Newton argued that the fraud was not complex
    or sophisticated, as it merely involved the creation and presentation of fraudulent
    invoices to Amerifactors and Prestige. In finding that the offense involved
    33
    Case: 15-15235     Date Filed: 03/07/2019    Page: 34 of 36
    sophisticated means, the district court concluded that the scheme involved, among
    other things: (1) the creation of an investment firm (Prestige) to purchase invoices
    that had already been sold to Amerifactors; (2) the solicitation of investors to
    invest in the firm; (3) interest payments made to investors; (4) the use of an
    intermediary company to go between Dataforce and Prestige; (5) interfacing
    between Dataforce, Amerifactors, and Hewlett-Packard to keep the parties
    separated from each other; and (6) the creation of false timesheets and invoices.
    We conclude that the district court did not clearly err in concluding that this
    offense involved sophisticated means. See United States v. Ghertler, 
    605 F.3d 1256
    , 1267 (11th Cir. 2010) (explaining that each of a defendant’s actions need not
    be sophisticated in order to warrant the enhancement, as it is sufficient that the
    totality of the scheme is sophisticated).
    As to the newly-added language in the 2015 amendments requiring that the
    defendant intentionally engaged in or caused the conduct constituting sophisticated
    means, neither Newton nor the Government mentioned the existence of that new
    requirement to the Court, hence it was never discussed. That being so, and as with
    the enhancement for number of victims, this means that Newton must demonstrate
    that the court plainly erred in applying the sophisticated means enhancement. Like
    the victim enhancement, we conclude that it was error for the district court not to
    apply the 2015 amendment concerning the sophisticated means enhancement. But
    34
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    to prevail on this claim, Newton must prove prejudice arising from the error and,
    once again, he has failed to prove that the result of the proceedings would have
    been any different had the district court acknowledged the additional requirement
    that Newton intentionally engaged n or caused the conduct constituting the
    sophisticated means. Again, he offers nothing to support such an inference.
    Indeed, on this record, it seems clear that Newton intentionally engaged in the
    conduct giving rise to the enhancement. Although the district court did not
    specifically state that Newton engaged in or caused the conduct constituting
    sophisticated means, its findings support that conclusion. Newton helped create
    Prestige, he solicited Prestige investors by representing that their investments were
    guaranteed by Hewlett-Packard, and he kept the charade going by making interest
    payments to Prestige investors. Because the record establishes that the fraud was
    both sophisticated and that Newton personally caused or engaged in conduct
    constituting sophisticated means, the district court did not err by applying the two-
    level enhancement pursuant to § 2B1.1(b)(10)(C).
    Accordingly, we affirm the district court’s enhancement of Newton’s
    adjusted offense level based on the use of sophisticated means.
    III.   CONCLUSION
    For the foregoing reasons, we affirm the convictions and sentences imposed
    by the district court.
    35
    Case: 15-15235   Date Filed: 03/07/2019   Page: 36 of 36
    AFFIRMED.
    36