                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT                      FILED
                       ________________________          U.S. COURT OF APPEALS
                                                           ELEVENTH CIRCUIT
                                                              December 23, 2005
                              No. 05-12541                  THOMAS K. KAHN
                          Non-Argument Calendar                 CLERK
                        ________________________

                    D. C. Docket No. 04-20337-CR-JEM

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                   versus

CARLOS BENHAMU,

                                                          Defendant-Appellant.


                        ________________________

                 Appeal from the United States District Court
                     for the Southern District of Florida
                       _________________________
                            (December 23, 2005)


Before CARNES, PRYOR and KRAVITCH, Circuit Judges.

PER CURIAM:

     Carlos Benhamu appeals his sentence of 24 months’ imprisonment, imposed
following his guilty pleas for two counts of bank fraud, in violation of 18 U.S.C. §

1344. For the reasons that follow, we AFFIRM.

                                        I. Background

       Benhamu owned B&B Group, Inc. (“B&B”), a cellular telephone

distribution company.1 Benhamu operated B&B and controlled its financial and

business activities.

       In October 1998, B&B entered into a Loan and Security Agreement (the

“Agreement”) with HSBC Business Loans, Inc. (“HSBC”), an affiliate of HSBC

Bank, a federally insured bank, whereby HSBC offered B&B a revolving line of

credit. Pursuant to the agreement, HSBC would release funds to B&B contingent

on the company’s posting of sufficient collateral. B&B’s accounts receivable

constituted one form of collateral. In signing the Agreement on B&B’s behalf,

Benhamu represented that the accounts receivable would be “genuine and

enforceable.”

       Between February and May 2000, B&B submitted documents for eight



       1
         The parties dispute whether Benhamu was the sole owner of B&B. Although the
Criminal Information states that Benhamu was a co-owner of B&B, the government stated that
he was the owner, implying that Benhamu was the sole owner, when it set forth the facts it
would offer as proof beyond a reasonable doubt of Benhamu’s guilt during the plea colloquy.
This fact also appears in the PSI. As Benhamu failed to object to this fact at either the plea
colloquy or in his objections to the PSI, he is deemed to have admitted it. United States v.
Shelton, 400 F.3d 1325, 1330 (11th Cir. 2005).


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fictitious accounts receivable purportedly owed by customers in Brazil, with a total

face value of $2.76 million. Based upon these invoices, HSBC advanced funds to

B&B and increased its loan balance.

       HSBC eventually noticed irregularities involving B&B’s accounts receivable

and ultimately concluded that the company had supplied false accounts receivable.

Benhamu admitted, first to the bank and later to agents from the Federal Bureau of

Investigation (the “FBI”), that he knowingly submitted the fictitious documents.2

       Benhamu and HSBC entered into a settlement agreement, wherein Benhamu

agreed to make cash payments to HSBC and authorized the bank to seize all

available collateral on the loan account. Despite the payments, however, HSBC

contends it was forced to write off approximately $1.8 million; the bank explained

that $1.164 million of that amount was “unpaid principal.” Eventually, Benhamu

was indicted on two counts of bank fraud, in violation of 18 U.S.C. § 1344. He

pleaded guilty to both.

       The probation officer prepared a presentence investigation report (“PSI”)

using the Guidelines Manual for 1998, ultimately arriving at an offense level of 21.


       2
          Benhamu explained why he submitted the false invoices by asserting that though the
invoices were false, they represented legitimate sales to customers in Venezuela. He explained
that the invoices named customers in Brazil so that he could evade receivable insurance credit
limitations applying to sales to Venezuela. In an August 23, 2000 letter to Benhamu’s counsel,
however, HSBC stated that Benhamu had still failed to provide authentic shipping documents or
invoices to support his explanation.

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She first grouped both counts together and determined that the base offense level

was 6 pursuant to U.S.S.G. § 2F1.1(a). She then added 12 levels because the

amount of loss exceeded $1.5 million but was less than $2.5 million, see U.S.S.G.

§ 2F1.1(b)(7)(B), and then further increased the offense level to 24 because the

offense affected a financial institution and Benhamu derived more than $1 million

in gross receipts from the scheme. See U.S.S.G. § 2F1.1(b)(7)(B) (“If the offense .

. . affected a financial institution and the defendant derived more than $1,000,000

in gross receipts from the offense, increase by 4 levels. If the resulting offense

level is less than level 24, increase to level 24.”). Finally, the probation officer

subtracted three levels because Benhamu accepted responsibility, see U.S.S.G. §

3E1.1(a), and timely provided complete information to the government concerning

his involvement in the offense or timely notified the government of his intention to

enter a guilty plea. See U.S.S.G. § 3E1.1(b).

      Given Benhamu’s criminal history category of 1, the advisory guidelines

range was 37 to 46 months’ imprisonment. However, the probation officer noted

several factors counseling a lesser sentence than the guidelines advised, including:

(1) unlike many perpetrators of bank fraud, Benhamu did not intend to steal money

from HSBC; (2) he derived no direct personal gain from the offense; (3) he

ultimately cooperated with the victim in identifying the scheme; and (4) he



                                            4
attempted to repay the victim prior to the government’s involvement.

      Although Benhamu pleaded guilty, at his plea colloquy, he disputed the

amount of loss, asserting that his offense did not result in an actual loss. In

addition, he argued that the district court should not include in the amount of loss

calculation the interest that accrued once the loan was put on a non-accrual basis.

      A witness for HSBC testified that the bank disbursed $2.2 million to

Benhamu under the terms of the loan, which was the amount of loss the bank

faced. Benhamu presented as a witness Marcie Bour, a certified fraud examiner,

who calculated the amount owed both with and without interest and determined

that, after the settlement, there was $477,931 in unpaid principal remaining. Bour

testified that the maximum amount the bank advanced based on the fraudulent

invoices was $2.2 million.

                                II. Standard of Review

       This Court reviews a district court’s application of the guidelines de novo,

reviewing findings of fact for clear error. United States v. Bracciale, 374 F.3d 998,

1004 (11th Cir. 2004).

                                    III. Discussion

A. Amount of Loss

      On appeal, Benhamu first argues that the district court incorrectly



                                           5
determined the amount of loss because the court failed to resolve conflicting

evidence about the amount and because he did not individually obtain more than

one million in gross receipts, as required under U.S.S.G. § 2F1.1(b)(7)(B). He

contends that he did not, as an individual, obtain any of the loan money, as it all

went to B&B and he obtained only a small salary. Benhamu also asserts that he

was not the sole owner of B&B and that, therefore, only a portion of the loaned

money can be attributed to him. Furthermore, Benhamu argues that he did not

waive this objection after the court pronounced sentence because, although defense

counsel failed to renew his objections, the court’s inquiry was insufficient under

United States v. Jones, 899 F.2d 1997 (11th Cir. 1990). Benhamu also contends

that even if this Court applies a plain error standard, he is nevertheless entitled to

resentencing.

      After reviewing the record, we first conclude that Benhamu is the sole owner

of B&B. Second, we further conclude that Benhamu waived the argument that he

must have personally received gross receipts in excess of one million dollars,

rather than a corporation owned solely by him obtaining those funds, in order to

qualify for a § 2F1.1(b)(7)(B) enhancement. Although Benhamu objected to the

relevant paragraph of the PSI on the basis that he “only received $96,000/year in

salary from B&B’s business,” he failed to renew that objection after the court



                                            6
pronounced his sentence. Accordingly, we review for plain error. United States v.

Hall, 314 F.3d 565, 566 (11th Cir. 2002). “Plain error occurs where (1) there is an

error; (2) that is plain or obvious; (3) affecting the defendant's substantial rights in

that it was prejudicial and not harmless; and (4) that seriously affects the fairness,

integrity or public reputation of the judicial proceedings.” Id. at 566. As this Court

has never addressed the question of whether, to qualify under § 2F1.1(b)(7)(B), a

defendant must have derived more than $1,000,000 is gross receipts individually,

rather than through a corporation, any error made by the district could would not

be plain or obvious. See United States v. Humphrey, 164 F.3d 585, 587-88 (11th

Cir. 1999).

      Benhamu’s argument that the district court failed to adequately inquire as to

whether the defendant had any objections at the close of sentencing, as required by

United States v. Jones, 899 F.2d 1097 (11th Cir. 1990), overruled on other

grounds, United States v. Morrill, 984 F.2d 1136 (11th Cir. 1993), also fails.

“Where the district court has offered the opportunity to object and a party is silent

or fails to state the grounds for objection, objections to the sentence will be waived

for purposes of appeal, and this court will not entertain an appeal based upon such

objections unless refusal to do so would result in manifest injustice.” Id. at 1103.

Here, after the sentence was pronounced, the district court asked whether the



                                            7
defendant or his counsel had any objection “to the Court’s finding of fact or the

manner in which sentence was pronounced,” satisfying Jones.

      As the minimum offense level applicable to a defendant under U.S.S.G. §

2F1.1(b)(7)(B) is 24, Benhamu’s final offense level will be 21 regardless of

whether the district court erred in determining the amount of loss. Accordingly,

any error in the district court’s calculation of the amount of loss would be

harmless.

B. Request For Downward Departure

      Benhamu next argues that the district court erred by failing to determine the

specific loss amount because the figure was relevant to determining the

appropriateness of a downward departure based on Benhamu’s proffered ground

that because of a miscalculation of the amount of loss, the guidelines overstated the

severity of his offense. He contends that the fact that the district court failed to

determine the amount of loss and did not base its variance from the guidelines

range on Benhamu’s proffered ground is evidence that the court erroneously

believed it lacked the authority to depart on that ground. This argument must fail.

      First, the record contains statements indicating that the district court

understood that it had the authority to depart from the guidelines range. Second,

the district court imposed a sentence that fell well below the applicable range.



                                            8
      The district court explicitly recognized that under U.S.S.G. § 2F1.1(b)(7)(B)

the applicable base level would be 24 “no matter what,” making a precise

determination of the amount of loss unnecessary.

      Benhamu’s argument that the district court mistakenly believed that the

guidelines range properly reflected the seriousness of the offense must also fail.

The court heard Benhamu’s explanation for his actions and considered the

probation officer’s comments concerning the differences between Benhamu’s

offense and the typical bank fraud. Nevertheless, the court concluded that a term

of 24 months’ imprisonment, half of which he recommended Benhamu spend in a

half-way house, properly reflected the seriousness of the offense. The record lacks

any evidence suggesting that the court’s conclusion regarding the seriousness of

Benhamu’s offense relates in any way to the amount of loss, rather than to the

fraudulent conduct itself.

      Accordingly, we AFFIRM the district court.




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