                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________           FILED
                                                U.S. COURT OF APPEALS
                             No. 09-14192         ELEVENTH CIRCUIT
                                                      JULY 1, 2010
                         Non-Argument Calendar
                                                       JOHN LEY
                       ________________________
                                                        CLERK

                  D. C. Docket No. 08-00001-CR-1-JTC-3

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

KOJO KENYATTA BOSTIC,

                                                         Defendant-Appellant.


                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Georgia
                     _________________________

                               (July 1, 2010)

Before DUBINA, Chief Judge, PRYOR and ANDERSON, Circuit Judges.

PER CURIAM:
      Appellant Kojo Kenyatta Bostic pled guilty to conspiracy to commit bank

fraud and to one count of substantive bank fraud, and the district court sentenced

him to 87 months’ imprisonment. He appeals various sentencing guideline

applications. In particular, Bostic argues that the district court’s loss-amount

determination of approximately $140,500 was erroneous because the court

improperly attributed to him relevant conduct relating to the eight dismissed

substantive counts of bank fraud. The offense conduct involved Bostic’s use of

intermediaries to recruit individuals to deposit fraudulent checks and his direction

of individuals to withdraw money against these checks and provide him a larger

portion of the proceeds. On appeal, Bostic also challenges his role in the offense,

and the court’s failure to grant him a reduction for acceptance of responsibility.

                                           I.

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

United States v. Machado, 333 F.3d 1225, 1227 (11th Cir. 2003). Proper

calculation of the Guidelines, and in particular a defendant’s offense level, requires

consideration of “all relevant conduct,” not merely charged conduct. United States

v. Hamaker, 455 F.3d 1316, 1336 (11th Cir. 2006). When a defendant challenges

relevant conduct, such as the calculation of loss amount in a fraud case, the

government has the burden of establishing the disputed fact by a preponderance of



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the evidence and “supporting its loss calculation with reliable and specific

evidence.” See United States v. Liss, 265 F.3d 1220, 1230 (11th Cir. 2001)

(internal quotation marks omitted).

      The district court’s factual findings for purposes of sentencing may be based

on, among other things, undisputed statements in the presentence investigation

report (“PSI”), or evidence presented during the sentencing hearing. United States

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

provide that, in determining any sentencing-related factual dispute, “the court may

consider relevant information without regard to its admissibility under the rules of

evidence applicable at trial, provided that the information has sufficient indicia of

reliability to support its probable accuracy.” U.S.S.G. § 6A1.3(a); see also United

States v. Baker, 432 F.3d 1189, 1254 n.68 (11th Cir. 2005) (concluding that,

post-Booker, a sentencing court may still rely on “reliable hearsay”).

      We will not disturb the district judge’s credibility finding unless a witness’s

testimony is unbelievable on its face. See United States v. Calderon, 127 F.3d

1314, 1325 (11th Cir. 1997) (holding that testimony is incredible as a matter of law

when it is “unbelievable on its face” and relates to “facts that the witness

physically could not have possibly observed or events that could not have occurred

under the laws of nature”) (internal quotation marks omitted). Moreover, “[t]he



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fact that a witness has consistently lied in the past, engaged in various criminal

activities, and thought that his testimony would benefit him does not make his

testimony incredible.” United States v. Thompson, 422 F.3d 1285, 1291 (11th Cir.

2005) (internal quotation marks, alterations and ellipses omitted).

      Relevant conduct includes “all acts and omissions . . . that were part of the

same course of conduct or common scheme or plan as the offense of conviction.”

U.S.S.G. § 1B1.3(a)(2) (cross-referencing U.S.S.G. § 3D1.2(d)). According to the

commentary, offenses constitute a common scheme or plan for purposes of

relevant conduct if they are “substantially connected to each other by at least one

common factor, such as common victims, common accomplices, common purpose,

or similar modus operandi.” U.S.S.G. § 1B1.3, cmt. n.9(A). Additionally, whether

or not charged as a conspiracy, relevant conduct includes “all reasonably

foreseeable acts and omissions of others in furtherance of the jointly undertaken

criminal activity.” U.S.S.G. § 1B1.3(a)(1)(B). A defendant is accountable under

this provision for the conduct of others that was both “(i) in furtherance of the

jointly undertaken criminal activity; and (ii) reasonably foreseeable in connection

with that criminal activity.” U.S.S.G. § 1B1.3, cmt. n.2.

      Under U.S.S.G. § 2B1.1(b)(1), the sentencing court should apply offense

level enhancements where a crime resulted in increasing amounts of loss. U.S.S.G.



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§ 2B1.1(1). A 10-level enhancement should be applied where the amount of loss is

more than $120,000, but not more than $200,000. U.S.S.G. § 2B1.1(b)(1)(F), (G).

The amount of loss is the greater of the intended or actual loss. U.S.S.G. § 2B1.1,

cmt. n.3(A). “Actual loss” is defined as “the reasonably foreseeable pecuniary

harm that resulted from the offense.” Id., cmt. n.3(A)(i). “Reasonably foreseeable

pecuniary harm” is “harm that the defendant knew or, under the circumstances,

reasonably should have known, was a potential result of the offense.” Id., cmt. n.

3(A)(iv). “Intended loss” is defined as “the pecuniary harm that was intended to

result from the offense,” and includes “intended pecuniary harm that would have

been impossible or unlikely to occur.” Id., cmt. n. 3(A)(ii). The district court need

only make a reasonable estimate of the loss. United States v. Miller, 188 F.3d

1312, 1317 (11th Cir. 1999); U.S.S.G. § 2B1.1, cmt. n.3(C).

      Here, we conclude from the record that the district court’s amount-of-loss

determination was not clearly erroneous. Based on the evidence presented at

sentencing, which Bostic has not demonstrated to be unbelievable on its face or

unreliable, the offense conduct to which Bostic pled guilty was similar and related

to the dismissed counts of the indictment. Based on the similarities between the

evidence underlying the dismissed counts and facts underlying the offense conduct,

we conclude that the district court did not clearly err in finding that $140,500 was



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the approximate total intended loss. Consequently, the court correctly enhanced

Bostic’s offense level according to U.S.S.G. § 2B1.1(b).

                                           II.

      We review for clear error a district court’s enhancement of a defendant’s

offense level based on his role as an organizer or leader. United States v. Gupta,

463 F.3d 1182, 1197 (11th Cir. 2006). “The government bears the burden of

proving by a preponderance of the evidence that the defendant had an aggravating

role in the offense.” United States v. Yeager, 331 F.3d 1216, 1226 (11th Cir. 2003).

      The Sentencing Guidelines provide that a four-level enhancement may be

applied if “the defendant was an organizer or leader of a criminal activity that

involved five or more participants or was otherwise extensive.” U.S.S.G.

§ 3B1.1(a). An enhancement under § 3B1.1 “requires the exercise of some

authority in the organization, the exertion of some degree of control, influence, or

leadership.” United States v. Yates, 990 F.2d 1179, 1182 (11th Cir. 1993)

(emphasis added) (citing United States v. Brown, 944 F.2d 1377, 1385 (7th Cir.

1991). In determining whether a § 3B1.1(a) enhancement applies, the district court

should consider: “(1) the exercise of decision-making authority, (2) the nature of

participation in the commission of the offense, (3) the recruitment of accomplices,

(4) the claimed right to a larger share of the fruits of the crime, (5) the degree of



                                            6
participation in planning or organizing the offense, (6) the nature and scope of the

illegal activity, and (7) the degree of control and authority exercised over others.”

Gupta, 463 F.3d at 1198 (citing U.S.S.G. § 3B1.1, cmt. n.4). On appeal, we give

deference to the district court’s application of a § 3B1.1(a) enhancement. Rendon,

354 F.3d, 1320, 1332 (11th Cir. 2003).

      Here, Bostic does not dispute that the offense conduct involved five or more

individuals, and the evidence supports the court’s finding in this respect. The

evidence also supports the court’s finding that Bostic was the leader or organizer in

the offense because the evidence demonstrates that he initiated the conspiracy,

suggested that intermediaries recruit others, worked to ensure that participants

complied with his instructions, and the evidence also shows that he received a

larger portion of the profits compared to the other individuals. As a result, we

conclude that the district court did not clearly err in applying a four-level

enhancement under § 3B1.1.

                                          III.

      We review for clear error a district court’s factual findings concerning a

reduction for acceptance of responsibility. United States v. Williams, 408 F.3d

745, 756 (11th Cir. 2005). Under clear error review, we give great deference to the




                                           7
district court, and its determination should not be overturned unless it is without

foundation. See United States v. Sawyer, 180 F.3d 1319, 1323 (11th Cir. 1999).

      The guidelines provide for a two-level reduction when the defendant clearly

demonstrates acceptance of responsibility for his offense. U.S.S.G. § 3E1.1(a).

Bostic bears the burden of showing entitlement to a reduction, and he “must

present more than just a guilty plea.” Sawyer, 180 F.3d at 1323. Although a guilty

plea is significant evidence of acceptance of responsibility, “this evidence may be

outweighed by conduct of the defendant that is inconsistent with such acceptance

of responsibility.” United States v. Lewis, 115 F.3d 1531, 1537 (11th Cir. 1997);

see also U.S.S.G. § 3E1.1, cmt. n.1 and 3) (stating that a guilty plea is evidence of

acceptance of guilt only when that plea is combined with truthfully admitting the

conduct comprising the offense of the conviction and truthfully admitting or not

falsely denying any additional relevant conduct for which the defendant was

accountable under U.S.S.G. § 1B1.3). Appropriate considerations in determining

whether a defendant qualifies for the reduction include truthfully admitting the

conduct comprising the offense of conviction, the timeliness of the defendant’s

conduct in accepting responsibility, and assistance to authorities in recovering the

fruits of the offense. U.S.S.G. § 3E1.1, cmt. n.1. Adjustment is not warranted

where the defendant falsely denies relevant conduct. Id., cmt. n.1(a).



                                           8
      Here, we conclude from the record that the district court did not clearly err

by denying Bostic a reduction for acceptance, because, although he entered a guilty

plea and admitted some relevant conduct, he did not clearly demonstrate

acceptance for accountable conduct. On the contrary, Bostic acted in a manner

inconsistent with acceptance of responsibility by largely denying other relevant

conduct and attempting to diminish his role in the offense. Under these

circumstances, we conclude that the district court did not clearly err when it found

that Bostic’s other conduct outweighed evidence of his guilty plea, and thus, he

was not entitled to a reduction for acceptance of responsibility. Accordingly, we

affirm Bostic’s sentence.

      AFFIRMED.




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