United States v. Tanesea Jones

USCA11 Case: 21-11615 Date Filed: 11/08/2021 Page: 1 of 4
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11615
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TANESEA JONES,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Florida
D.C. Docket No. 4:20-cr-00009-AW-MAF-1
____________________
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2 Opinion of the Court 21-11615
Before WILSON, LUCK, and LAGOA, Circuit Judges.
PER CURIAM:
Tanesea Jones appeals her sentence of 14-months’ imprison-
ment for conspiracy to commit wire fraud, in violation of 18 U.S.C.
§§ 1343 and 1349, and aggravated identify theft, aiding and abet-
ting, in violation of 18 U.S.C. § 1028A(a)(1), (2), through a scheme
to knowingly sell cell phones to individuals using fraudulently ob-
tained personal identifying information. Jones argues that the dis-
trict court clearly erred by including the loss amount of a co-con-
spirator, pursuant to U.S.S.G. § 1B1.3(a)(1)(B), resulting in a six-
level total offense level increase based on the total loss amount of
the fraudulent conduct under U.S.S.G. § 2B1.1(b)(1)(D).
We review the district court’s determination of the loss
amount for clear error. United States v. Cavallo, 790 F.3d 1202,
1232 (11th Cir. 2015). The government has the burden to prove
the losses attributed to the defendant by a preponderance of the
evidence. Id. The Sentencing Guidelines do not require that the
sentencing court make a precise determination of loss. Id. Instead,
a sentencing court need only make a reasonable estimate of the
loss, given the available information. Id. We will not vacate a de-
fendant’s sentence based on the district court’s failure to make spe-
cific findings if the record otherwise supports the court’s determi-
nation. United States v. Baldwin, 774 F.3d 711, 727 (11th Cir. 2014).
Indeed, the district court is in a unique position to assess the rele-
vant evidence and estimate the loss, and we thus grant the
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21-11615 Opinion of the Court 3
sentencing court’s loss amount determination “the appropriate def-
erence.” Cavallo, 790 F.3d at 1232 (citing U.S.S.G. § 2B1.1 cmt.
n.3(C)).
The district court may hold all participants in a conspiracy
responsible for the losses resulting from the reasonably foreseeable
acts of co-conspirators in furtherance of the conspiracy. See id. at
1235. The “acts and omissions” of the co-conspirators must be: 1)
“within the scope of the jointly undertaken criminal activity;” 2)
“in furtherance of” the activity; and 3) “reasonably foreseeable in
connection with” the activity. United States v. Whitman, 887 F.3d
1240, 1248 (11th Cir. 2018) (quoting U.S.S.G. § 1B1.3(a)(1)(B)).
“To determine ‘the scope of the defendant’s agreement’ to
participate in a jointly undertaken criminal scheme, the district
court may consider ‘any explicit agreement or implicit agreement
fairly inferred from the conduct of the defendant and others.’” Id.
(quoting U.S.S.G. § 1B1.3 cmt. n.3(B)). A defendant’s “mere aware-
ness” that she was part of a larger scheme is insufficient to show
that another individual’s criminal activity was within the scope of
jointly undertaken criminal activity, “[b]ut actions that suggest that
the defendant was actively involved in a criminal scheme permit
the inference that the defendant agreed ‘to jointly undertake’ that
scheme.” Id. (alteration accepted) (first quoting United States v.
Presendieu, 880 F.3d 1228, 1246 (11th Cir. 2018), then quoting
U.S.S.G. § 1B1.3 cmt. n.3(B))). For example, an implicit agreement
may be inferred where, even though the various participants in the
scheme acted on their own behalf, each of the participants “knew
each other and was aware of the other’s activities” and “aided and
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4 Opinion of the Court 21-11615
abetted one another by sharing” information necessary for the op-
eration of the scheme. See United States v. Hunter, 323 F.3d 1314,
1322 (11th Cir. 2003).
Here, Jones has not shown that the district court clearly
erred in finding her responsible for both her direct loss amount and
the loss amount of a co-conspirator, Kheica Jones, under U.S.S.G.
§ 1B1.3(a)(1)(B) because the record supports the findings that the
actions and omissions of the co-conspirators were within the scope
of the jointly undertaken criminal activity, were in furtherance of
the criminal activity, and were reasonably foreseeable in connec-
tion with the criminal activity. See Whitman, 887 F.3d at 1248;
Baldwin, 774 F.3d at 727. Accordingly, we conclude that the dis-
trict court did not clearly err in applying a six-level increase, pursu-
ant to U.S.S.G. § 2B1.1(b)(1)(D) and affirm the sentence.
AFFIRMED.