                                                       [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT           FILED
                     ________________________ U.S. COURT OF APPEALS
                                                        ELEVENTH CIRCUIT
                                                           OCT 29, 2008
                            No. 08-10407
                                                         THOMAS K. KAHN
                        Non-Argument Calendar
                                                             CLERK
                      ________________________

                  D. C. Docket No. 06-00275-CR-W-N

UNITED STATES OF AMERICA,


                                                          Plaintiff-Appellee,

                                 versus

JACOB WARNER,

                                                       Defendant-Appellant.


                      ________________________

               Appeal from the United States District Court
                   for the Middle District of Alabama
                     _________________________

                           (October 29, 2008)

Before ANDERSON, CARNES and HULL, Circuit Judges.

PER CURIAM:
      Jacob Warner appeals his 72-month sentence for theft of government

property. Warner pleaded guilty to defrauding the Federal Emergency

Management Agency in the wake of Hurricane Katrina. He contends that under

the sentencing guidelines, the district court erred in three ways: (1) in calculating

the loss amount for his conduct under § 2B1.1; (2) in finding that he was a

manager or supervisor in the criminal enterprise under § 3B1.1; and (3) in denying

him a downward adjustment for acceptance of responsibility under § 3E1.1. We

address each contention in that order.

                                          I.

      We review the district court’s amount-of-loss determination for clear error.

United States v. Cabrera, 172 F.3d 1287, 1292 (11th Cir. 1999). The government

must establish the attributable loss by a preponderance of the evidence. United

States v. Polar, 369 F.3d 1248, 1255 (11th Cir. 2004).

      Loss is the financial quantification of a theft that is used to set a base

offense level for the crime under the sentencing guidelines. Courts use either the

“actual loss: the reasonably foreseeable pecuniary harm that resulted from the

offense” or the “intended loss: the pecuniary harm that was intended to result from

the offense,” whichever is greater. U.S.S.G. § 2B1.1, cmt. 3(A)(i–ii). An amount




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of loss between $10,000 and $30,000 adds four levels to the base offense level for

theft. U.S.S.G. § 2B1.1(b)(1)(C).

      Warner pleaded guilty following an indictment that listed $8,358.00 as the

total amount of his theft. He argues that $8,358.00 is the correct amount of loss

involved in his case, meaning that only two levels of enhancement were

appropriate, rather than four. See U.S.S.G. § 2B1.1(b)(1) (showing that a loss

between $5,000 and $10,000 equates to a two-level increase).

      U.S.S.G. § 1B1.3(a)(1), however, instructs the district court to consider “(A)

all acts and omissions committed, aided, abetted, counseled, commanded, induced,

procured, or willfully caused by the defendant; and (B) in the case of a jointly

undertaken criminal activity . . . all reasonably foreseeable acts and omissions of

others in furtherance of the jointly undertaken criminal activity.” Under this rule,

the district court calculated the loss from Warner’s crimes as $25,062.00—well

within the $10,000 to $30,000 range that calls for a four-level increase.

      The district court’s calculation of $25,062.00 included $12,358.00 that

Warner received in FEMA checks made out to him and $12,704.00 in FEMA

checks made out to four other people. Those four people were Ina Allen, William

Goldsmith, James Lassic Jr., and Jannell Lassic. Each testified that Warner

brought them FEMA checks or introduced them to others who procured the

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checks. In each instance, Warner took a share of the money for his assistance,

usually several hundred dollars per check. That testimony established that Warner

at least aided and abetted those frauds, meaning that the $12,704.00 was part of

the loss caused by Warner’s crimes under U.S.S.G. § 1B1.3(a)(1). Further, FEMA

mailed six checks, totalling $12,358.00, to Warner directly. Security cameras

photographed Warner cashing three of the checks; the other three were also cashed

or deposited, but without photographs being made. Therefore, regardless of his

involvement with the fraudulent checks made out to others, Warner himself

received more than $12,000 via checks made out specifically to him. That actual

loss alone placed Warner in the $10,000 to $30,000 range and justified the four-

level increase under U.S.S.G. § 2B1.1(b)(1)(C). The district court did not err.

                                         II.

      We review for clear error the district court’s finding that Warner was a

manager or supervisor for enhancement purposes under U.S.S.G. § 3B1.1. United

States v. Ramirez, 426 F.3d 1344, 1355 (11th Cir. 2005). Under the guidelines, a

defendant’s offense level is increased by three if he was “a manager or supervisor

(but not an organizer or leader) and the criminal activity involved five or more

participants or was otherwise extensive.” U.S.S.G. § 3B1.1(b).




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      Warner argues that he did not lead or organize the fraud and claims that

Eloise Curry—his mother—was the head of the operation. But the district court

did not find that Warner was the “organizer or leader;” instead, it found that he

was a “manager or supervisor.” To qualify as a “manager or supervisor” the

defendant need only assert “control or influence over at least one other participant

in the crime.” United States v. Campa, 529 F.3d 980, 1013 (11th Cir. 2008)

(quotation marks omitted); U.S.S.G. § 3B1.1, cmt. n.2.

      Testimony established that Warner controlled or influenced Ina Allen and

Jannell Lassic. Allen testified that Warner had recruited her to collect a FEMA

check, asked his cousin to make the fraudulent phone call on her behalf, called her

when the check arrived, and drove her to pick up the check, cash it, and pay off his

cousin. Warner himself then filched the rest of the money from the check.

Similarly, Lassic testified that Warner came to her house, solicited her

participation by telling her that a FEMA check had been issued in her name, drove

Lassic and her father to retrieve the check and to cash it, and took $800 from the

proceeds. Warner does not deny any of this. The trial court did not err in finding

that Warner controlled or influenced at least one other participant.

      For a “manager or supervisor” enhancement, the guidelines also require that

the criminal activity involve “five or more participants or [be] otherwise

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extensive.” U.S.S.G. § 3B1.1(b). “‘Participant’ is defined as a person who is

criminally responsible for the commission of the offense, but need not have been

convicted.” United States v. Williams, 527 F.3d 1235, 1248 (11th Cir. 2008)

(citing U.S.S.G. § 3B1.1, cmt. n.1) (emphasis omitted). In this case, evidence

shows that as many as nine people were involved in this enterprise to defraud

FEMA. In fact, five people—Warner, Ina Allen, William Goldsmith, James Lassic

Jr., and Nakasha Woods—all explicitly admitted their involvement in the criminal

activity and pleaded guilty to related charges. The criminal activity obviously

involved at least these five participants. The government thus established both

elements of the three-level enhancement for being a manager or supervisor, and

the district court did not err in applying it under U.S.S.G. § 3B1.1.

                                         III.

      We review for clear error the district court’s judgment denying a downward

adjustment for acceptance of responsibility. United States v. Moriarty, 429 F.3d

1012, 1022–23 (11th Cir. 2005). Under U.S.S.G. § 3E1.1, a defendant who has

“clearly demonstrate[d] acceptance of responsibility for his offense” is entitled to a

two-level reduction. A guilty plea is significant evidence of acceptance of

responsibility, but does not create entitlement to the reduction, and can be




                                          6
outweighed by a defendant’s conduct that is inconsistent with accepting

responsibility. United States v. Williams, 408 F.3d 745, 756 (11th Cir. 2005).

      Warner did plead guilty. However, while on pretrial release, Warner also

tested positive for and admitted using marijuana, then cut off his monitoring

bracelet and disappeared for five months. During those five months, Warner led

Montgomery police on a high-speed chase and escaped after wrecking the car; was

arrested in Georgia but freed after lying to the police about his identity; and fled

again when the deputies came for him. Warner also directed another participant in

the fraud to lie to police if questioned. For all of this, Warner received a two-level

increase under U.S.S.G. § 3C1.1 for obstruction of justice.

      There are two independently sufficient reasons why the district court did not

err in denying Warner an acceptance of responsibility reduction. First, as Warner

acknowledges, “conduct resulting in an enhancement under U.S.S.G. § 3C1.1

[obstruction of justice] . . . ordinarily indicates that a defendant has not accepted

responsibility for his criminal conduct.” U.S.S.G. § 3E1.1, cmt. n.4. However, the

guidelines recognize that “there may . . . be extraordinary cases” in which both an

acceptance of responsibility reduction and an obstruction of justice enhancement

are warranted. Id. Warner contends that this qualifies as an “extraordinary case”

because he fled in fear after learning that his sister, at her sentencing for similar

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hurricane-related fraud, would face a minimum of 34 years in prison. A defendant

who flees because he fears a long term of incarceration does not qualify for the

“extraordinary” circumstances exception warranting a reduction in sentence.

      Second, Warner used marijuana in violation of his pretrial release

conditions. In United States v. Pace, 17 F.3d 341, 343 (11th Cir. 1994), this Court

stated that “it is well established that a district court may consider subsequent

criminal conduct in deciding whether a decrease pursuant to § 3E1.1 is

appropriate.” The district court in Pace refused to grant an acceptance of

responsibility reduction because, while awaiting trial on conspiracy and fraud

charges, the defendant tested positive for marijuana. We affirmed. Id. at 343–44.

Pace controls, and on that ground alone the district court’s decision to deny

Warner an acceptance of responsibility reduction is not error.

      Warner bases his request for an acceptance of responsibility reduction

centrally on his guilty plea, which in itself is not enough. United States v. Sawyer,

180 F.3d 1319, 1323 (11th Cir. 1999) (“The defendant bears the burden of clearly

demonstrating acceptance of responsibility and must present more than just a

guilty plea.”) (citation omitted). In light of Warner’s criminal activity between his

indictment and sentencing and his well-deserved obstruction of justice




                                          8
enhancement, the district court did not err in denying him an acceptance of

responsibility reduction under U.S.S.G. § 3E1.1.

      AFFIRMED.




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