                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 11a0500n.06

                                      Nos. 10-1103, 10-1843

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

       Plaintiff-Appellee,

v.                                                     ON APPEAL FROM THE UNITED
                                                       STATES DISTRICT COURT FOR THE
KEVIN ERWIN,                                           WESTERN DISTRICT OF MICHIGAN
MARK ALLEN SAMUELS,

       Defendants-Appellants.                                          FILED
                                                                   Jul 20, 2011
                                                /
                                                            LEONARD GREEN, Clerk




BEFORE:        KEITH, CLAY, and COOK, Circuit Judges.

       CLAY, Circuit Judge. Co-Defendants Kevin Erwin and Mark Allen Samuels were

convicted of offenses stemming from their involvement in a multi-state scheme to defraud Bank of

America out of approximately $750,000. Erwin pleaded guilty, pursuant to a written plea agreement,

to wire fraud in violation of 18 U.S.C. § 1343, and aggravated identity theft in violation of 18 U.S.C.

§§ 1028A(a)(1) and (c)(5). Samuels pleaded guilty, without the benefit of a plea agreement, to bank

fraud in violation of 18 U.S.C. § 1344, wire fraud in violation of 18 U.S.C. § 1343, aggravated

identity theft in violation of 18 U.S.C. § 1028A, and conspiracy in violation of 18 U.S.C. §§ 371 and

1349. Both Defendants now appeal their sentences.
                                     Nos. 10-1103, 10-1843

       For the reasons set forth herein, we AFFIRM the sentences imposed upon Defendants Erwin

and Samuels by the district court.

                                        BACKGROUND

       I.      Criminal Conduct

       In mid-2007, Defendant Kevin Erwin and approximately one dozen other individuals from

Oakland, California, began implementing a scheme to defraud Bank of America (“BOA”) of more

than three-quarters of a million dollars. In June of 2008, Defendant Mark Allen Samuels joined that

scheme as a supervisor.

       The scheme operated as follows: Erwin cultivated contacts at Kaiser Hospital in California

and a local BOA branch. Those contacts supplied Erwin with identity information of current BOA

customers. Using this information, Erwin created false identity documents that he supplied to his

co-conspirators.1

       Erwin and his co-conspirators, operating in small teams, would then organize trips to various

locations throughout the United States, including South Carolina, Florida, Virginia, Missouri,

Kansas, Pennsylvania, New Mexico, Connecticut, Maryland, Rhode Island, Michigan and

Washington, D.C. Once in those locations, the teams would enter BOA branches and request a

withdrawal of money from the accounts for which they held false identification. In order to ensure

that those accounts contained sufficient funds, the team would call the BOA contact to verify the

account balances.     The team members who physically entered the branch offices—the


       1
        Erwin used checks written by patients to Kaiser Hospital to identify BOA account holders.
(Erwin PSR at ¶ 20.) In addition to producing false IDs, Erwin also produced fraudulent credit cards
with the information that he obtained from Kaiser and BOA. (Id.)

                                                 2
                                     Nos. 10-1103, 10-1843

“walkers”—would then meet with the trip supervisor, who would distribute the proceeds gained

from the fraudulent withdrawals.

       In addition to paying the walkers, each team supervisor was responsible for organizing the

logistics of the trips that he supervised. These duties included booking airfare and lodging for all

team members, and providing for food, travel, and incidental expenses while on site. Furthermore,

the supervisors were responsible for targeting the bank branches that the teams would attempt to

defraud. Having identified a weakness in BOA’s systems integration, the teams looked for branches

of other banks that had recently been taken over by BOA and were unusually vulnerable. Lastly,

team supervisors also coordinated any given day’s activities, by mapping out which banks the teams

would visit.

       Using this structure, the teams successfully withdrew $726,726.18 from BOA accounts

between May 10, 2006 and January 8, 2009.2

       On January 8, 2009, eight BOA branches in and around Grand Rapids, MI, reported several

fraudulent withdrawals, made by individuals with California identification, to BOA’s internal fraud

investigation department. The next day, employees at a BOA branch in Wyoming, MI called local

police after refusing to allow one of the walkers to withdraw money from an account. Those

employees provided local officers with a description of the walkers’ vehicle, which officers located

and traffic stopped. The four people in the vehicle were arrested for identity theft and bank fraud.




       2
        Defendants attempted to withdraw an additional $59,641.47, bringing the total attempted
and actual loss to $786,367.65. BOA’s total loss was $707,526.18.

                                                 3
                                      Nos. 10-1103, 10-1843

       The local officers contacted the United States Secret Service, which assisted in the

investigation. Agents searched the car and the local hotel where the team was lodged. They found,

among other items, approximately two dozen fraudulent identification documents, 18 counterfeit

credit cards, lists of bank account numbers, various electronics (including laptops, cell phones, and

global positioning system (“GPS”) units), screen prints of checks, and $16,300.00 in cash.

       While in jail, a co-conspirator made a telephone call to Defendant Samuels in which he told

Samuels about the arrest and instructed him to “clean it up,” “sweep the house,” and “shut it down.”

Another jailed co-conspirator later made a call to Samuels in which they discussed the scope of the

conspiracy, including an earlier trip to Michigan made by a different team, and the co-conspirator

warned Samuels that the investigation was expanding outside of Michigan.

       II.     Indictment and Pleas

       On February 18, 2009, Samuels was arrested in California. Erwin was arrested, also in

California, on February 26, 2009. Both were remanded to federal custody and transported to

Michigan. On March 19, 2009, Erwin and Samuels were added, by way of a first superseding

indictment, to a four count indictment filed in the Western District of Michigan. The indictment

charged: I) conspiracy to commit wire fraud and bank fraud, in violation of 18 U.S.C. §§ 371 and

1349, for acts committed in the Western District of Michigan between May 31, 2007 and January

9, 2009; II) bank fraud in violation of 18 U.S.C. § 1344, for acquiring fraudulent identification

documents and using them to make fraudulent cash withdrawals; III) wire fraud in violation of 18

U.S.C. § 1343, for use of the internet and GPS units in the commission of fraud; and IV) aggravated




                                                 4
                                      Nos. 10-1103, 10-1843

identity theft in violation of 18 U.S.C. § 1028A, for using the names, dates of birth, and social

security numbers of certain individuals to commit wire and bank fraud.3

       On October 13, 2009, Erwin pleaded guilty to wire fraud and aggravated identity theft, as

charged in the second superseding indictment, pursuant to a written plea agreement. Erwin agreed

to cooperate with law enforcement; in exchange, the government agreed to move to dismiss the

remaining charges, not oppose Erwin’s motion for an acceptance of responsibility reduction, and

evaluate Erwin for a § 5K1.1 reduction for substantial assistance. On November 12, 2009, Samuels

pleaded guilty to all four counts as charged in the second superseding indictment, without the benefit

of a plea agreement.

       III.    Sentencing—Erwin

       Erwin’s sentencing hearing was held on January 13, 2010. Pursuant to recommendations in

his Presentence Investigation Report (“PSR”), Erwin’s base offense level was set at 7. Erwin

received a 14-level enhancement for a loss of more than $400,000 but less than $1,000,000, pursuant

to United States Sentencing Guideline (“U.S.S.G.” or “Guidelines”) § 2B1.1(b)(1)(H); a two-level

enhancement for the use of sophisticated means, pursuant to U.S.S.G. § 2B1.1(b)(9)(C); and a four-

level enhancement for being an organizer of leader in the offense, pursuant to U.S.S.G. § 3B1.1(b).

He received a three-level reduction for acceptance of responsibility, pursuant to U.S.S.G. § 3E1.1.

Therefore, his adjusted offense level was calculated to be 24.




       3
       The second superseding indictment was filed on April 23, 2009, adding additional
defendants and including new allegations of overt acts occurring in the Western District of Michigan.
On October 22, 2009, a third superseding indictment was filed, which did not include Erwin.

                                                  5
                                      Nos. 10-1103, 10-1843

       Erwin had 11 criminal history points. Because only four of his five one-point convictions

could be counted toward his criminal history, pursuant to U.S.S.G. § 4A1.1(c), his subtotal was

reduced to 10 points. Erwin received two additional points for committing the instant offense while

on probation. Therefore, Erwin had a total of 12 criminal history points, which equated to a

Criminal History Category V. His recommended Guidelines range of imprisonment was 92 to 115

months on Count III, with a consecutive 24 month term of imprisonment on Count IV, for a total

range of 116 to 139 months.

       At sentencing, the government moved for an upward departure to Criminal History Category

VI. The district court granted the motion, finding that Erwin’s criminal history category substantially

under-represented his criminal background and likelihood of recidivism. Erwin’s recommended

Guidelines sentence was thereafter calculated to be 100 to 125 months of imprisonment (non-

inclusive of the 24 months for Count IV). The district court sentenced Erwin to 120 months on Count

III and 24 months on Count IV, for a total of 144 months of incarceration. The judgment of the

district court was entered on January 15, 2010.4

       IV.     Sentencing—Samuels

       Samuels’ sentencing hearing was held on June 16, 2010. Pursuant to recommendations in

his PSR, Samuels’ base offense level was set at 7. Samuels received a 14-level enhancement for a

loss of between $400,000 and $1,000,000, pursuant to U.S.S.G. § 2B1.1(b)(1)(H); a two-level

enhancement for the use of sophisticated means, pursuant to U.S.S.G. § 2B1.1(b)(9)(C); and a three-



       4
         The district court entered an amended judgment on January 29, 2010, clarifying the
restitution imposed.

                                                   6
                                     Nos. 10-1103, 10-1843

level enhancement for a managerial or supervisory role in the offense, pursuant to U.S.S.G. §

3B1.1(b). He received a three-level reduction for acceptance of responsibility, pursuant to U.S.S.G.

§ 3E1.1. This yielded an adjusted offense level of 23.

       Samuels’ criminal history corresponded to a Criminal History Level IV, which together with

Samuels’ adjusted offense level of 23, produced a recommended Guidelines sentencing range of 70

to 87 months of incarceration. Samuels was also subject to a 24 month term of incarceration on

Count IV, under 18 U.S.C. § 1028A(a)(1), to run consecutively to any other sentence imposed.

       The district court sentenced Samuels to 87 months on Counts I through III, collectively, and

24 months on Count IV, for a total sentence of 111 months of incarceration.5 The judgment of the

district court was entered on June 17, 2010.

       Both Defendants now appeal.

                                           ANALYSIS

       I.      Reasonableness of Erwin’s Sentence

               A.      Standard of Review

       This Court “review[s] a district court’s sentencing determination, under a deferential

abuse-of-discretion standard, for reasonableness.” United States v. Bolds, 511 F.3d 568, 578 (6th

Cir. 2007) (internal quotations omitted). On appeal, we generally review a sentence imposed by the

district court for both procedural and substantive reasonableness. See United States v. Smith, 516

F.3d 473, 476 (6th Cir. 2008).


       5
         Co-defendant Alonzo Lamar Holloway, the third supervisor in the scheme, pleaded guilty
to all four counts of the second superseding indictment. He was sentenced to 108 months of
imprisonment on Counts I through III, and 24 months on Count IV, to be served consecutively.

                                                 7
                                      Nos. 10-1103, 10-1843

       Erwin challenges only the substantive reasonableness of his sentence. Therefore, we need

not review for procedural reasonableness. See United States v. Tate, 516 F.3d 459, 469 (6th Cir.

2008). “Substantive reasonableness turns on whether the length of the sentence is unreasonable

because the sentencing court ‘select[ed] the sentence arbitrarily, bas[ed] the sentence on

impermissible factors, . . . or [gave] an unreasonable amount of weight to any pertinent factor.’”

United States v. Brown, 579 F.3d 672, 677 (6th Cir. 2009) (quoting United States v. Webb, 403 F.3d

373, 385 (6th Cir. 2005)). Sentences within the advisory Guidelines range are afforded a rebuttable

presumption of reasonableness, see Rita v. United States, 551 U.S. 338, 347 (2007), but we will not

draw a negative presumption against sentences that fall outside of that range. See Tate, 516 F.3d at

469-70.

       “[A] district court’s decision to exercise its discretion to depart from the advisory Guidelines,

either upward or downward, is reviewed for reasonableness.” United States v. Herrera-Zuniga, 571

F.3d 568, 581 (6th Cir. 2009). This Court accords substantial deference to such decisions, as

“questions concerning sentencing departures necessarily address the district court’s ‘refined

assessment of the many facts bearing on the outcome, informed by its vantage point and day-to-day

experience in criminal sentencing.’” Id. at 583 (citing United States v. Pluta, 144 F.3d 968, 977 (6th

Cir. 1998).

       Erwin argues that his sentence is substantively unreasonable because “[h]is advisory

sentencing range was based on a Guideline calculation which . . . included three points of criminal

history which arose out of a conviction which was barely within the 15-year window required by the

Sentencing Guidelines to count . . . [which] resulted in an over-statement of Mr. Erwin’ criminal


                                                  8
                                      Nos. 10-1103, 10-1843

history.” (Erwin Br. at 9.) Erwin also argues that his “sentence contravenes 18 U.S.C. § 3553(a)(6)

and the mandate to avoid unwarranted sentencing disparity” because it is 12-months longer than the

sentences imposed on any of his co-defendants. (Id.)

        B.        Weight of Criminal History

        Erwin’s PSR identified 19 prior adult convictions and 16 additional arrests and prosecutions.

Seven of these convictions were counted toward Erwin’s criminal history for the purposes of

sentencing in this offense; the remaining twelve were not counted because they were too dated. The

scored convictions were: transporting, possessing and selling narcotics (3 points); transporting and

selling narcotics (3 points); burglary (1 point); receiving stolen property (1 point); obtaining and

possessing a credit card without cardholder’s consent (1 point); possessing or selling personal

information to establish false status or identity (1 point); and driving under the influence of alcohol

(1 point).

        At sentencing, the district court identified Erwin’s “repeated convictions for a whole bevy

of offenses including drug crimes, including lesser crimes for sure, but then including a series of

fraud crimes.” (Erwin Sent. Tr. at 70.) It further highlighted the trend in Erwin’s history of

receiving “progressively increasing punishments,” which had “done nothing to deter the

law-breaking conduct.” (Id.) Lastly, it noted that Erwin’s PSR reflected “a history of basically 25

years of law-breaking and no history of law-abiding activity.” (Id.) Having reviewed these

considerations, the district court “conclude[d] that the criminal history calculation substantially

underrepresents either the seriousness of [Erwin’s] criminal history or the likelihood of recidivism.”

(Id. at 67-68.)


                                                  9
                                      Nos. 10-1103, 10-1843

       Erwin now argues that the three points that he was assessed for a conviction for transporting,

possessing and selling narcotics, for which he served a sentence between 1991 and 1994, was

“obviously considered far too strongly by the court” in reaching its sentencing determination. (Erwin

Br. at 12.) This is because, while that offense conduct “barely made it in” to the 15-year criminal

conduct window mandated by U.S.S.G. § 4A1.2(e), it accounted for three of the 12 criminal history

points that Erwin was assessed, which he argues is imbalanced with its relative importance. (Id. at

7-8.) Erwin argues that in imposing sentence without re-weighing the relative importance of his

prior convictions, the district court erred in not recognizing its “wide latitude in imposing sentence

and the fact that sentences must be tailored to defendants and do not depend on the Guidelines for

ultimate support.” (Id. at 13.)

       The government responds that “the record thoroughly supports its finding that Defendant had

been breaking the law since he was 18, had shown no sign of changing his ways, and had proven

impervious to the deterrent of increasingly longer sentences.” (Pl.’s Br. at 18-19.) Therefore, the

government contends, “the district court could, and did, correctly conclude that [Criminal History

Category] V did not reflect the likelihood of Defendant’s recidivism, and that the need to protect the

public warranted treating him as a [Criminal History Category] VI instead of a [Criminal History

Category] V.” (Id.)

       An upward departure may be taken under the following circumstance:

       If reliable information indicates that the defendant’s criminal history category
       substantially under-represents the seriousness of the defendant’s criminal history or
       the likelihood that the defendant will commit other crimes, an upward departure may
       be warranted.

U.S.S.G. § 4A1.3(a)(1)

                                                 10
                                       Nos. 10-1103, 10-1843

        An upward departure under this section does not represent a deviation from the guidance

provided by the Guidelines; instead this Court has held that “a departure is expressly encouraged

under § 4A1.3 where the recommended sentencing range does not adequately account for the

defendant’s past criminal conduct.” Herrera-Zuniga, 571 F.3d at 583 (internal quotations omitted).

        As an initial matter, it should be noted that the district court clearly considered Erwin’s

criminal history and made an individually tailored decision about the relative weight to give to his

prior offenses. That the district court recognized its “wide latitude in imposing sentence” is proven

by the fact that it determined that a departure based on Erwin’s criminal history was

warranted—albeit it an upward departure.

        Because the scored offenses underlying the calculation of a Criminal History Category V for

Erwin only extended back 15 years, they did not clearly reflect the fact that Erwin had never had a

significant period of time elapse during his adult life when he was free from crime. The limited

scored offenses also failed to illustrate Erwin’s propensity to commit the same kinds of

crimes—involving stolen property, stolen identities, and drug offenses—over and over again. This

pattern directly implicates the probability of Erwin reoffending, which the district court addressed.

(Erwin Sent. Tr. at 70.) Finally, the extent of Erwin’s criminal history, and the seeming failure of

previous punishment to deter him from committing further crimes, also supports the district court’s

conclusion that upward departure was warranted.

        Having reviewed Erwin’s record, it is clear that the district court reasonably determined, “in

light of all the facts and circumstances of the particular case before it, whether the range in question




                                                  11
                                       Nos. 10-1103, 10-1843

[was] appropriate to the case.” United States v. Brown, 371 F.3d 854, 860 (6th Cir. 2004) (internal

quotations omitted). This Court will not disturb that determination.

                C.      Disparity Among Sentences of Co-Defendants

        Erwin argues that “the district court abused its discretion and imposed an unreasonable

sentence by sentencing [him] to 12 years of incarceration when it sentenced Mr. Holloway and the

other co-defendants to less . . . . It is further unreasonable because it contravenes 18 U.S.C. §

3553(a)(6) and the mandate to avoid unwarranted sentencing disparity.” (Def.’s Br. at 16.)

        In response to Erwin’s latter argument, the government counters, correctly, that “‘[a] district

judge is not required to consider the disparity between the sentences of co-defendants.’” (Pl.’s Br.

at 14 (quoting United States v. Wallace, 597 F.3d 794, 803 (6th Cir. 2010).) Responding to Erwin’s

argument that the district court generally abused its discretion in imposing disparate sentences among

the co-defendants, the government asserts that “the question is not whether Defendant’s sentence is

in fact disproportionate to that of Alonzo Holloway, but only whether the district court considered

Defendant’s argument that he should not receive a longer sentence than Holloway.” (Id. at 15.)

        The government, again, takes the correct position. A district court’s consideration of

disparity amongst co-defendants’ sentences is completely discretionary. See United States v.

Simmons, 501 F.3d 620, 624 (6th Cir. 2007). Because Erwin raised the issue of the disparity

between his and Holloway’s sentences before the district court, the court was obligated to consider

the argument if it felt that it was not frivolous. See, e.g., United States v. Gale, 468 F.3d 929, 939-40

(6th Cir. 2006). But “discretionary factors are not even appealable when discretion is requested and




                                                   12
                                      Nos. 10-1103, 10-1843

the judge refused or did not depart as far as the defendant wanted so long as the judge appreciated

his discretion to downwardly depart.” Simmons, 501 F.3d at 624.6

       A review of the sentencing transcript shows that the district court did consider that it was

imposing upon Erwin a sentence “12 months longer than Mr. Holloway’s.” (Erwin Sent. Tr. at 68.)

The district court described, at some length, its rationale in imposing a longer sentence upon Erwin

than on other co-defendants, including Holloway:

       Things that are instrumental in the Court’s mind are, number 1, that multiple parties
       have indicated in their presentence report proffers that both Mr. Erwin and for that
       matter Mr. Holloway did act as supervisors on the trips they took. Paragraph 77 and
       78 [of the PSR] talks about Mr. Erwin getting money on those trips. And in fact Mr.
       Holloway in that particular paragraph or set of paragraphs, I think it’s 78, indicates
       that the money would be turned over to Mr. Erwin on the return trip.

       More than that, paragraph 82 indicates that Mr. Erwin was paid separately for
       documents. It was simply a fee for documents, if you will, which . . . [is] unique
       among the codefendants.

       ....

       And similarly it appears that Mr. Erwin was the person who had the inside source,
       Ms. Aldridge, at Bank of America. Those documents and the inside source were
       critical, essential elements to this crime. It could not have been done without it. . .
       . I put both [Holloway and Erwin] in the same tier of what the government has
       characterized in its briefing as tier 1. But I do think that Mr. Erwin’s participation
       was still incrementally more aggravating within the meaning of the guidelines as an
       organizer or leader because he had access to two critical bits of information, two
       critical things, without which this could not have happened. . . . He had the source
       on the inside, and he had the ability and wherewithal to make the phony documents.




       6
         While Erwin frames this as a substantive reasonableness challenge, it is instead a challenge
to the district court’s procedural reasonableness, as the claim goes to “the factors evaluated and the
procedures employed by the district court in reaching its sentencing determination.” United States
v. Webb, 403 F.3d 373, 383 (6th Cir.2005).

                                                 13
                                       Nos. 10-1103, 10-1843

(Id. at 40-41.)7

        Erwin offers no reason why the district court, having considered the relative roles of all co-

conspirators and found that Erwin’s role was more significant and integral to the scheme than that

of any of his co-defendants, should not have sentenced him in the manner that it did.

        Because “[c]onsidering uniformity between co-defendants’ sentences . . . is not required by

the Sentencing Guidelines or the § 3553(a) factors,” Simmons, 501 F.3d at 623, and because the

district court considered the disparity between co-defendants’ and Erwin’s sentences, and presented

a reasonable rationale therefor, the district court did not abuse its discretion.

                   D.    Summary

        For these reasons, the district court did not abuse its discretion in determining that an upward

departure was warranted pursuant to U.S.S.G. § 4A1.3; nor was it substantively or procedurally

unreasonable to sentence Erwin to a 12-month longer term of incarceration than any of his co-

defendants.

        II.        Calculation of Samuels’ Sentence

                   A.    Attribution of Loss Amount

        Samuels argues that the district court erred when it held him responsible for more than

$400,000 in loss, based on the amount fraudulently obtained (or attempted) by all members of the




        7
         The district court stated that it found “a sentence that’s incrementally greater than Mr.
Holloway’s . . . is appropriate and justifiable on the facts and the circumstances of the case” under
the same analysis that it “found a four-point enhancement appropriate for Mr. Erwin . . . as compared
to the three points for Mr. Holloway.” (Erwin Sent. Tr. at 75.)

                                                  14
                                       Nos. 10-1103, 10-1843

scheme from the time that Samuels joined in July of 2008.8 Because he was “not involved in the

planning, execution, or sharing of proceeds from fraud trips led by other defendants,” he contends

that “[h]is offense level should therefore be increased only by 10 levels for losses between $120,000

and $200,000 under § 2B1.1(b)(f) from the trips for which he was responsible.” (Samuels Br. at 6.)9

        We “review de novo the district court’s method of calculating loss for purposes of sentencing

enhancements under the Guidelines.” United States v. White, 492 F.3d 380, 414 (6th Cir. 2007).

“Under the Guidelines, the district court is to determine the amount of loss by a preponderance of

the evidence, and the district court’s findings are not to be overturned unless they are clearly

erroneous.” United States v. Triana, 468 F.3d 308, 321 (6th Cir. 2006). In determining the amount

of loss attributable to a defendant, the district court may not “blindly embrace[] the figures set forth

in [a defendant’s] PSR . . . . Rather, the district court must actually find facts.” White, 492 F.3d at

416.

        Under U.S.S.G. § 1B1.3(a), offense level and characteristics are determined in relation to

certain relevant conduct, including:



       8
        Samuels does not challenge the mathematical calculation that the district court used in
reaching a dollar figure for attempted loss from all co-conspirators post-June 2008.
       9
          Samuels’ math is somewhat difficult to follow. Samuels’ PSR, as he points out, only reports
his having personally traveled on one trip, from October 15-18, 2008. The total attempted loss for
that trip was $81,427.79 and the actual loss $73,927.79. (Samuels PSR ¶ 88.) Though the trip that
Samuels directly participated in generated an attempted loss of between $70,000 and
$120,000—equating to an 8-level increase—Samuels “maintain[s] that he should be held
accountable for under $200,000,” (Samuels Br. at 7), because “he personally received no more than
$150,000 from the criminal activity he jointly undertook with others.” (Samuels Sent. Memo at 2.)
How Samuels could have received $150,000 from the one trip in which he participated, which
grossed only $74,000, is inexplicable.

                                                  15
                                      Nos. 10-1103, 10-1843

       in the case of jointly undertaken criminal activity (a criminal plan, scheme, endeavor,
       or enterprise undertaken by the defendant in concert with others, whether or not
       charged as a conspiracy), all reasonable foreseeable acts and omissions of others in
       furtherance of the jointly undertaken criminal activity, that occurred during the
       commission of the offense of conviction, in preparation for that offense, or in the
       course of attempting to avoid detection or responsibility for that offense.

U.S.S.G. § 1B1.3(a)(1)(B).

       We have held that U.S.S.G. § 1B1.3(a)(1)(B) “requires that the district court make

particularized findings with respect to both the scope of the defendant’s agreement and the

foreseeability of his co-conspirators’ conduct before holding the defendant accountable for the scope

of the entire conspiracy.” United States v. Campbell, 279 F.3d 392, 400 (6th Cir. 2002).

       It is Samuels’ position that the district court did not make particularized findings as to the

scope of his agreement with co-conspirators, and that furthermore, the record does not support the

finding that Samuels was jointly involved in the trips that he did not personally attend. (Samuels Br.

at 9.) Samuels further argues that the conduct of his co-conspirators was not foreseeable, as he “was

[not] involved in any way whatsoever in the separate fraud trips conducted by Defendants Holloway

and Erwin, the other two leaders in this triple conspiracy.” (Id.)

       The district court made the following specific factual findings regarding the scope of

Samuels’ participation in the criminal enterprise—“that no later than July of 2008 Mr. Samuels has

joined this particular conspiracy” and:

       there’s no question that Mr. Samuels operated at a higher level, at a planning level,
       at a level that warrants responsibility for the entire operation that occurred on his
       watch. And I think in Mr. Samuels’ case that includes trips certainly that he went on
       and also includes trips that he didn’t go on but that other people, in particular Mr.
       Holloway or Mr. Erwin, were personally supervising. And that’s because in my view
       Mr. Samuels on this presentence record was somebody who was intimately involved
       once he got into the conspiracy in the planning, execution, implementation, and then

                                                 16
                                       Nos. 10-1103, 10-1843

        ultimately the attempt to clean it up . . . . And I think the evidence on this point is
        particularly telling and supportive of an inference that, certainly by a preponderance
        of the evidence, Mr. Samuels’ role is at that high level.

(Samuels Sent. Tr. at 59-60, 63.) The district court noted that Samuels had introduced other

participants, who went on trips that he did not supervise, to the conspiracy. (See Id. at 64.) The

district court found this to be an additional indication that Samuels was intertwined in the entire

enterprise, not just the trips that he attended. (See Id.)

        The district court also credited the proffers offered by many of Samuels co-conspirators,

which repeatedly indicated that Samuels was a leader in the conspiracy and performed an “identical”

role to Holloway and Erwin, the other supervisors. (See Id. at 59.) This role was greater than that

of the walkers, who were only involved in and responsible for the trips that they attended, and

extended to the whole of the scheme. (See Id. at 57-58.)

        Regarding foreseeability, in addition to the foregoing, the district court found that the

evidence of co-conspirators’ jailhouse calls to Samuels after the arrest supported to the conclusion

that Samuels was aware of the conduct of all of the teams. (See Id. at 60-61.) When arrested,

several co-conspirators called Samuels, and during these conversations Samuels discussed not only

trips that he personally supervised, but also trips that other supervisors led. (See Id. at 64; Samuels

PSR ¶ 50.) He discussed “cleaning” up whatever evidence of the conspiracy might be in California;

presumably not just evidence of his own trips (which his co-conspirators would have no reason to

tell him to clean up), but evidence of the operation as a whole. (Samuels Sent. Tr. at 64; Samuels

PSR ¶ 48.) The co-conspirator also told Samuels that Erwin wanted him to “shut it down,” which

again speaks to the conspiracy as a whole and not just to Samuels’ own trips. (Samuels PSR ¶ 49.)


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                                     Nos. 10-1103, 10-1843

       Samuels replies that the district court’s findings were nonetheless insufficiently

particularized, as “the district court failed to distinguish the three conspiracies in this case and

determine the separate losses caused by each group.” (Samuels Reply at 1.) This argument fails for

two reasons: first, the district court properly found that there was only a single conspiracy, which

Samuels joined in 2008; and secondly, because the walkers worked for different supervisors’ teams

at different times, and because supervisors sometimes traveled on the teams together, it would be

impossible to separate out “three conspiracies” in the way that Samuels seems to envision. (See

Samuels PSR ¶ 88.)

       There is no evidence in the record to undermine the conclusion that Samuels was a supervisor

in the single conspiracy from June 2008 forward, and that all activity after that point was jointly

undertaken within the meaning of U.S.S.G. § 1B1.3(a)(1)(B). The district court made particularized

findings regarding both the scope of Samuels participation and the foreseeability of his co-

conspirators’ actions, and those findings are supported by a preponderance of the evidence.

Therefore, the district court did not err in assessing Samuels a 14-level enhancement.

               B.      Enhancement for the Use of Sophisticated Means

       We review the district court’s application of the Guidelines for clear error. See United States

v. Kraig, 99 F.3d 1361, 1371 (6th Cir. 1996).

       The district court determined that Samuels qualified for a two-level sentencing enhancement,

pursuant to U.S.S.G. § 2B1.1(b)(9), for the use of sophisticated means. The Guidelines defines

“sophisticated means” as:

       [E]specially complex or especially intricate offense conduct pertaining to the
       execution or concealment of an offense. For example, in a telemarketing scheme,

                                                 18
                                       Nos. 10-1103, 10-1843

        locating the main office of the scheme in one jurisdiction but locating soliciting
        operations in another jurisdiction ordinarily indicates sophisticated means. Conduct
        such as hiding assets or transactions, or both, through the use of fictitious entities,
        corporate shells, or offshore financial accounts also ordinarily indicates sophisticated
        means.

U.S.S.G. § 2B1.1 cmt. n.8 (2008).

        While Samuel acknowledges that “he arranged or ‘sponsored’ some of the [fraud] trips . . .

purchased false identifications, recruited persons to go on the trip, scheduled the flights, and located

the banks to hit,” he claims that the district court committed clear error in applying the enhancement

to his sentence. (Samuels Br. at 2) Samuels argues that sophisticated means, if any, were only used

in the commission of Count IV, for which no enhancement can be applied.

        The government responds that Samuels’ efforts to minimize the complexity of the operation

by examining each aspect of the scheme piecemeal—e.g., booking airfares or locating bank

branches—obscures the fact that the combination of all of these activities required extremely

sophisticated planning. Therefore, as “Defendant’s objection asks the Court to focus on one aspect

of the offense instead of the totality of the scheme, it should be overruled.” (Pl.’s Br. at 20.)

        Samuels is correct that the charged activities of Count IV cannot be used to enhance his

sentence for Counts I through III. The Guideline addressing aggravated identity theft states:

        If a defendant was convicted of violating 18 U.S.C. § 1028A, the guidelines sentence
        is the term of imprisonment required by statute. Chapters Three (Adjustments) and
        Four (Criminal History and Livelihood) shall not apply to that count of the
        conviction.

U.S.S.G. §2B1.6(a).

        There is no question that the district court did not directly apply any enhancement to the 24-

month sentence it imposed upon Samuels on Count IV. Instead, Samuels argues that, in applying

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                                        Nos. 10-1103, 10-1843

an enhancement to his sentences for Counts I through III, the district court used only the factual basis

underlying Count IV.

        On the contrary, the district court found that “this situation involves a whole variety of

sophisticated means and that go well beyond the Count IV, aggravated identity theft, which certainly

involved sophisticated means.” (Samuels Sent. Tr. at 65.) The district court continued:

        [The conspirators] picked out locations across the country as opposed to
        concentrating all their efforts in one place. . . . and it’s probably one of the things that
        allowed the conspiracy to thrive as long as it did. And certainly sophisticated means
        include efforts taken not just to commit the offense but to conceal the offense as well.

        Another, it seems to me, obvious sophisticated means is the whole description of how
        Mr. Samuels handled proceeds by depositing it into an account of a daughter, not his
        own personal account, and then using increments that are below the reporting
        threshold of $10,000. That seems to me a well-known means among people who
        understand the banking system to conceal or at least slow down the path of law
        enforcement. And it’s happened here. I think the only reasonable inference is that
        it was part of an effort, successful for a while, to conceal what was going on.

        The third and certainly the most obvious sophisticated means, it seems to me, is the
        logistical planning involved. Flying in your own name with legal lawful documents
        is hard enough these days. To do it with false documents, to do it across the country,
        to coordinate the trips of multiple players, and to include housing and everything else
        that goes along with that, rental cars, this is a group of people whose logistical skills
        are quite remarkable, it seems to me, and that was necessary to conceal the fraud as
        long as it went on.

(Id. at 66-67.)

        Each of these activities was charged under Counts I through III. Count II charged that the

co-conspirators “traveled to the Western District of Michigan and other states where they used

[counterfeit] documents to make fraudulent, in-person cash withdrawals of approximately $211,319

from the BOA accounts of those persons, resulting in a financial loss to BOA of approximately

$174,585.” (Samuels PSR ¶ 5.) This kind of cross-jurisdictional conduct, for the purposes of

                                                    20
                                      Nos. 10-1103, 10-1843

avoiding detection, is exactly the type of conduct described in the Guidelines definition of

“sophisticated means.” See U.S.S.G. § 2B1.1 cmt. n.8 (2008).

       Count III charged that “defendants used the Internet to determine the addresses of BOA

branches for the purpose of committing bank fraud and aggravated identity theft. They also used a

GPS to assist in locating bank branches, lodging, and otherwise traveling as necessary to carry out

the scheme.” (Id. ¶ 6.) This count addresses the complicated logistics involved in targeting the

banks “to hit.” It also encompasses the sophistication required to target out-of-state banks in

transition onto BOA systems, which the conspirators identified as being particularly vulnerable to

their kind of fraud. (Samuels Sent. Tr. at 11-12.)

       Furthermore, Samuels’ structuring of deposits into his daughter’s bank account was an

attempt to cover up not the crime of identity theft, but to cover up his participation in a bank fraud

conspiracy, as charged under Counts I through III. This Court has held that such funneling of

transactions through relatives in order to disguise the origin of funds is sufficient to support an

enhancement for sophisticated means. See United States v. May, 568 F.3d 597, 607 (6th Cir. 2009)

(citing United States v. Clear, 112 F. App’x 429, 431 (6th Cir. 2004)).

       Just as in United States v. Masters, “[w]hile each of the individual steps in the fraud scheme

was not particularly sophisticated, it is the totality of the defendant’s conduct—the entire

scheme—that the district court found was carried out using ‘sophisticated means.” 216 F. App’x

524, 527 (6th Cir. 2007). In determining that Samuels’ offense conduct under Counts I through III

involved the use of sophisticated means, the district court did not commit clear error.

                                          CONCLUSION


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                                     Nos. 10-1103, 10-1843

       The district court neither abused its discretion nor committed error in sentencing Defendants

Erwin and Samuels. We therefore AFFIRM the sentences imposed upon Defendants Erwin and

Samuels by the district court.




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