           Case: 13-12685    Date Filed: 12/20/2013   Page: 1 of 4


                                                         [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 13-12685
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 4:13-cr-00013-RH-CAS-1


UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                   versus


KRAIG ANTONIO DAVIS,

                                                          Defendant-Appellant.

                      ________________________

                Appeal from the United States District Court
                    for the Northern District of Florida
                      ________________________

                            (December 20, 2013)

Before TJOFLAT, MARCUS and JORDAN, Circuit Judges.

PER CURIAM:
              Case: 13-12685    Date Filed: 12/20/2013   Page: 2 of 4


      Kraig Antonio Davis appeals his 42-month sentences after pleading guilty to

two counts of mail fraud, in violation of 18 U.S.C. § 1341, one count of aiding and

abetting a false claim, in violation of 18 U.S.C. §§ 287, 2, and one count of

aggravated identity theft, in violation of 18 U.S.C. §§ 1028A(a)(1). Based on

information in the statement of facts, the presentence investigation report (“PSI”),

and from the sentencing hearing, the district court held Davis accountable for over

ten victims and over $70,000 in loss.        Davis admitted stealing the personal

information of three individuals for a loss amount of $11,425 by filing fraudulent

tax returns. However, because there were other fraudulent tax returns filed using

an internet protocol (“IP”) address and physical addresses that were connected to

Davis, he was held accountable for a total loss amount of $77,081 and eighteen

victims. The court ordered a restitution amount for $77,081. On appeal, Davis

argues that: (1) the district court clearly erred in determining that the offense

involved more than ten victims, resulting in a two-level enhancement under

U.S.S.G. § 2B1.1(b)(2)(A)(i), and determining that the amount of loss exceeded

$70,000, resulting in an eight-level enhancement under U.S.S.G. § 2B1.1(b)(1)(E);

and (2) the district court erred in ordering a restitution amount of $77,081. After

careful review, we affirm.

      We review the district court’s interpretation and application of the

sentencing guidelines de novo and findings of fact for clear error. United States v.


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Bane, 720 F.3d 818, 824 (11th Cir. 2013). Thus, we review for clear error the

factual findings underlying a restitution order. United States v. Brown, 665 F.3d

1239, 1252 (11th Cir. 2011). In order to be clearly erroneous, the finding of the

district court must leave us with a “definite and firm conviction that a mistake has

been committed.” United States v. Rothenberg, 610 F.3d 621, 624 (11th Cir. 2010)

(quotation omitted). However, a factual finding cannot be clearly erroneous when

the factfinder is choosing between two permissible views of the evidence. United

States v. Saingerard, 621 F.3d 1341, 1343 (11th Cir. 2010).

      Where a defendant objects to a fact contained in the PSI, the government

bears the burden of proving that disputed fact by a preponderance of the evidence.

United States v. Martinez, 584 F.3d 1022, 1027 (11th Cir. 2009). The findings of

fact of the sentencing court may be based on facts admitted by a defendant’s guilty

plea, undisputed statements in the PSI, or evidence presented at the sentencing

hearing. Id.

      Here, the district court did not clearly err in determining that Davis’s offense

involved more than ten victims and over $70,000 in loss. As the record shows,

there were fourteen different victims who had their personal information used to

file fraudulent tax returns using physical addresses and an IP address that were all

connected to Davis. Davis admitted to stealing the personal information of at least

three individuals for a total of $11,425, and to having debit cards sent to


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neighboring addresses. The evidence does not leave us with a “definite and firm

conviction that a mistake has been committed.” See Rothenberg, 610 F.3d at 624

(quotation omitted). Even though there are other plausible conclusions that could

be drawn from the evidence that do not connect Davis to the additional fraudulent

tax returns, the district court’s conclusion is a permissible view of the evidence.

See Saingerard, 621 F.3d at 1343.

      As for Davis’s claim concerning the restitution order, Davis relies on the

same argument concerning the amount of damage. Thus, for the reasons we’ve

discussed above, the district court did not err in finding that the restitution total

was $77,081.

      AFFIRMED.




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