           Case: 18-12259   Date Filed: 05/17/2019   Page: 1 of 10


                                                          [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 18-12259
                         Non-Argument Calendar
                       ________________________

               D.C. Docket No. 8:15-cr-00462-MSS-TGW-1


UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,
                                  versus
ILFRENISE CHARLEMAGNE,
                                                          Defendant-Appellant.

                      __________________________

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

                              (May 17, 2019)




Before WILSON, JILL PRYOR, and EDMONDSON, Circuit Judges.
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PER CURIAM:



      Ilfrenise Charlemagne appeals her conviction and 33-month sentence

imposed after Charlemagne pleaded guilty to one count of wire fraud, in violation

of 18 U.S.C. § 1343. Charlemagne also challenges the amount of her restitution

and forfeiture obligations. No reversible error has been shown; we affirm in part

and dismiss the appeal in part.



                                            I.



      On appeal, Charlemagne argues that her guilty plea was not entered

knowingly and voluntarily; she says the district court (in violation of Fed. R. Crim.

P. 11) failed to inform her adequately of the consequences of her guilty plea. In

particular, Charlemagne contends she was not advised properly about (1) her right

to a speedy and public jury trial; (2) her right to testify and to compel the

attendance of witnesses at trial; (3) her waiver of her trial rights if the district court

accepted her guilty plea; and (4) the district court’s obligation to calculate the

applicable guideline range and to consider that range, possible departures, and the

18 U.S.C. § 3553(a) sentencing factors in determining a sentence.




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      Because Charlemagne raised no objection to the adequacy of her plea

proceedings in the district court, we review this argument only for plain error. See

United States v. Moriarty, 429 F.3d 1012, 1019 (11th Cir. 2005). Under the plain-

error standard, the defendant must show “(1) error, (2) that is plain, and (3) that

affects substantial rights.” Id. An error affects a defendant’s substantial rights if it

“affected the outcome of the district court proceedings.” United States v.

Rodriguez, 398 F.3d 1291, 1299 (11th Cir. 2005). A defendant seeking to

establish plain error under Rule 11 “must show a reasonable probability that, but

for the error, he would not have entered the plea.” United States v. Dominguez

Benitez, 542 U.S. 74, 83 (2004).

      The district court must “conduct an inquiry into whether the defendant

makes a knowing and voluntary guilty plea.” United States v. Hernandez-Fraire,

208 F.3d 945, 949 (11th Cir. 2000). Rule 11 directs specifically that the court

inform the defendant of -- and make sure the defendant understands -- certain

matters. See Fed. R. Crim. P. 11(b)(1). In determining whether a defendant’s plea

is knowing and voluntary, the district court must address three “core concerns”

underlying Rule 11: (1) whether the plea is free from coercion; (2) whether the

defendant understands the nature of the charges; and (3) whether the defendant

understands the consequences of the guilty plea. Hernandez-Fraire, 208 F.3d at

949. We will uphold a plea colloquy -- even if the district court fails to address


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expressly an item listed in Rule 11 -- as long as the colloquy addresses adequately

the three core concerns. Id. at 950.

      The district court committed no violation of Rule 11(b) during

Charlemagne’s plea colloquy. About Charlemagne’s right to a trial, the district

court advised Charlemagne that she had the right to plead not guilty and to proceed

to trial, that she had a right to have a lawyer represent her at trial, and that the

government would have to prove her guilt beyond a reasonable doubt to a 12-

member jury. The district court also advised Charlemagne that, if she went to trial,

she could decide whether she wanted to testify in her defense and that her decision

not to testify could not be used against her. The district court explained that, at

trial, Charlemagne would have the right to cross-examine government witnesses,

challenge the government’s documents, and present her own evidence. The district

court confirmed that Charlemagne understood that, by pleading guilty, she would

give up her rights to present a defense, to offer testimony, and to cross-examine the

government’s witnesses. The district court also explained to Charlemagne that it

would calculate her guidelines range at sentencing and that it had ultimate

authority to sentence her up to the statutory maximum regardless of the parties’

recommendations.

      Even to the extent the district court failed to address specifically an item

under Rule 11, the district court addressed adequately Rule 11’s three “core


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concerns.” About the first two “core concerns,” nothing evidences (nor does

Charlemagne argue) that she was coerced into pleading guilty or that she failed to

understand the charges against her.

      About Rule 11’s third “core concern,” the district court addressed in detail

the consequences of Charlemagne’s guilty plea, including that she would waive her

right to a trial, her right to testify and to present witnesses in her defense, and her

right to challenge the government’s evidence against her. The district court also

explained that Charlemagne could be sentenced up to a statutory maximum of 20

years’ imprisonment and up to 3 years’ supervised release, would be subjected to a

forfeiture obligation between $36,000 and $755,000, and could be subject to

deportation or other immigration proceedings.

      Charlemagne has failed to allege that a reasonable probability exists that --

but for the district court’s alleged Rule 11 errors -- she would not have entered her

guilty plea. Accordingly, Charlemagne cannot show that the alleged errors

affected her substantial rights. See Dominguez Benitez, 542 U.S. at 83. The

district court committed no plain error in determining that Charlemagne’s guilty

plea was knowing and voluntary.




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                                         II.



      Charlemagne challenges the district court’s calculation of her sentencing

guidelines range, the procedural and substantive reasonableness of her sentence,

and the amount of her restitution and forfeiture obligations. The government

contends that Charlemagne’s arguments are barred by the plea agreement’s

sentence-appeal waiver.

      We review de novo the validity of a sentence-appeal waiver. United States

v. Johnson, 541 F.3d 1064, 1066 (11th Cir. 2008). A sentence-appeal waiver is

enforceable if it is made knowingly and voluntarily. United States v. Bushert, 997

F.2d 1343, 1351 (11th Cir. 1993). To establish that the waiver was knowing and

voluntary, the government must show either that “(1) the district court specifically

questioned the defendant concerning the sentence appeal waiver during the Rule 11

colloquy, or (2) it is manifestly clear from the record that the defendant otherwise

understood the full significance of the waiver.” Id.

      Charlemagne’s arguments about the calculation of her guidelines range and

the procedural and substantive reasonableness of her sentence of incarceration are

barred by her sentence-appeal waiver. Charlemagne’s plea agreement provided

that Charlemagne waived “the right to appeal [her] sentence on any ground,

including the ground that the Court erred in determining the applicable guidelines


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range.” On top of that agreement, at the plea colloquy, the district court explained

in detail that Charlemagne had the right to appeal her sentence in only three limited

circumstances: if the sentence exceeded the guidelines range, the sentence

exceeded the statutory maximum sentence, or the sentence violated the Eighth

Amendment. Charlemagne indicated that she understood the sentence-appeal

waiver. Moreover, Charlemagne confirmed that she had discussed the plea

agreement with her lawyer and that Charlemagne understood the consequences of

her guilty plea.

      On this record, Charlemagne’s waiver of her right to appeal the length of her

term of imprisonment was made knowingly and voluntarily. Accordingly, we will

not address the merits of those arguments; we dismiss that portion of

Charlemagne’s appeal.

      We are less certain, however, that Charlemagne made a knowing and

voluntary waiver of her right to appeal the amount of her restitution and forfeiture

obligations. Because we cannot say that “it is manifestly clear from the record”

that Charlemagne understood that she was waiving her right to appeal the amount

of her restitution and forfeiture obligations, we will reach the merits of those

arguments on appeal.




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                                          III.



      About her restitution and forfeiture obligations, Charlemagne contends that

the district court failed to make specific findings about the loss amount attributable

to Charlemagne. Charlemagne also argues that the district court shifted improperly

the burden of proof by requiring Charlemagne to prove her requests for credits

instead of requiring the government to prove the loss amount by a preponderance

of the evidence.

      We review for clear error the district court’s determination about loss

amount. United States v. Campbell, 765 F.3d 1291, 1302 (11th Cir. 2014). Under

the clear-error standard, we will overturn a district court’s loss calculation only if

“we are left with a definite and firm conviction that a mistake has been

committed.” Id.

      The district court “need only make a reasonable estimate of the loss, given

the available information.” United States v. Barrington, 648 F.3d 1178, 1197 (11th

Cir. 2011). Because estimating loss amount is a highly fact-dependent inquiry, we

have said that “district judges are entitled to considerable leeway in choosing how

to go about this task.” United State v. Campbell, 765 F.3d 1291, 1301 (11th Cir.

2014). Moreover, given the district court’s “unique position to assess the evidence

and estimate the loss based upon that evidence . . . the court’s loss determination is


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entitled to appropriate deference.” Id. The district court must however “support its

loss calculation with reliable and specific evidence.” Id. at 1304. The government

bears the burden of proving the loss amount by a preponderance of the evidence.

Id.

      The district court committed no clear error in calculating the loss amount

and, thus, in determining the amount of Charlemagne’s restitution and forfeiture

obligations. The district court began its loss calculation with the amount the

government -- through the Social Security Administration and the Florida

Medicaid program -- transferred to Charlemagne. Where “a defendant’s conduct

was permeated with fraud” -- as in this case -- we have said that “a district court

does not err by treating the amount that was transferred from the victim to the

fraudulent enterprise as the starting point for calculating the victim’s pecuniary

harm.” See Campbell, 765 F.3d at 1305. The district court then reduced properly

that initial amount by proven expenses incurred and payments made by

Charlemagne for the benefit of the assisted-living facility residents. See id. at 1302

(“If the defendant . . . rendered any legitimate services to the victim before the

fraud was detected, the loss amount must be reduced by the fair market value of . .

. the services rendered.”).

      At the sentencing hearing, the government presented testimony from a

forensic accountant with the Federal Bureau of Investigation. The accountant


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testified -- based on her review and analysis of the financial and bank records from

Charlemagne’s assisted-living facilities -- about the amount of government benefits

Charlemagne obtained and about the expenditures made for the benefit of the

residents of the assisted-living facilities. The district court considered the

government’s evidence and Charlemagne’s arguments about additional expenses

that Charlemagne believed should be credited against the loss amount. The district

court explained adequately its reasons for rejecting Charlemagne’s arguments. The

resulting loss amount is supported by specific and reliable evidence on the record;

we are not “left with a definite and firm conviction that a mistake has been

committed.”

      AFFIRMED IN PART; APPEAL DISMISSED IN PART.




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