                                                                   [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________            FILED
                                                               U.S. COURT OF APPEALS
                                            No. 11-10621         ELEVENTH CIRCUIT
                                                                  NOVEMBER 2, 2011
                                        Non-Argument Calendar
                                                                      JOHN LEY
                                      ________________________
                                                                       CLERK

                           D.C. Docket No. 1:08-cr-00478-JOF-GGB-1



UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                                  Plaintiff-Appellee,

                                            versus

ORLANDO KING,

llllllllllllllllllllllllllllllllllllllll                            Defendant-Appellant.

                                     ________________________

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

                                           (November 2, 2011)

Before BARKETT, MARCUS, and FAY, Circuit Judges.

PER CURIAM:
      Orlando King appeals his convictions and sentences for conspiracy to

commit bank fraud, in violation of 18 U.S.C. § 1349, and aggravated identity theft,

in violation of 18 U.S.C. § 1028A. On appeal, he raises four challenges to his

convictions: (1) the district court abused its discretion when it denied his motion

to withdraw his guilty plea; (2) there was an insufficient factual basis as to his

aggravated identity theft conviction; (3) the court improperly denied his motion

for a continuance; and (4) his right to a speedy trial was violated. King also raises

four challenges to his sentences: (1) the court’s loss calculation was clearly

erroneous; (2) the court clearly erred in applying a two-level sophisticated means

sentencing enhancement under U.S.S.G. § 2B1.1(b)(9); (3) the court clearly erred

in applying a four-level role enhancement under U.S.S.G. § 3B1.1; and (4) the

court clearly erred in applying a two-level obstruction of justice enhancement

under U.S.S.G. § 3C1.1. For the reasons set forth below, we affirm King’s

convictions and sentences.

                                          I.

      King and his codefendant, Harold Wardlaw, opened business checking

accounts at a number of banks and deposited stolen checks into the accounts.

After obtaining a stolen check, they would incorporate a business in the name of

the check’s payee with the Georgia Secretary of State and use the paperwork from

                                           2
the Secretary of State to open a business checking account in the payee’s name.

They and their co-conspirators would then deposit the stolen check into the

newly-opened bank account, withdraw money, and make wire transfers from the

accounts. King and Wardlaw’s agreement as to the proceeds was that Wardlaw

earned 5% for opening the bank accounts and depositing the stolen checks.

Wardlaw recruited co-conspirators to assist him in opening bank accounts,

depositing checks, and withdrawing funds, and these co-conspirators turned over

most of the money from the accounts to Wardlaw. The total intended loss from

the stolen checks, an unauthorized credit line, unauthorized loans, and three stolen

checks that had not yet been negotiated was $1,617,750.70. The actual loss was

$919,436.26.

      In a 21-count superseding indictment, King was charged with, among other

things, conspiracy to commit bank fraud, in violation of 18 U.S.C. § 1349 (Count

1), and aggravated identity theft, in violation of 18 U.S.C. § 1028A (Count 14).

The district court allowed King to represent himself and directed his attorney to

act as standby counsel. On the first day of trial, King moved for a continuance to

give him more time to prepare. He had received witnesses’ prior statements from

the government the week before and a DVD of a witness interview the day before.

He had also had trouble communicating with standby counsel from pretrial

                                         3
detention, and he had not received all of the evidence that standby counsel had

sent him. The government agreed to make copies of the missing evidence for him.

The court nonetheless continued with the trial. On the second day of trial, King

asked that standby counsel be appointed to represent him. The court granted a

one-day continuance and stated that it would allow counsel to take recesses

throughout the trial when issues arose that he had not had the chance to review.

      The next day, the government and King indicated that they had reached a

plea agreement, under which King pleaded guilty to Counts 1 and 14. The

government agreed that the U.S. Attorney for the Northern District of Georgia

would not bring criminal charges against King’s mother for her involvement in

filing liens against the judges, attorneys, and case agent in this case.

      At the plea colloquy, King was placed under oath, and he testified that he

had had enough time to discuss the charges against him with his attorney, was

satisfied with his attorney’s advise and representation, and had discussed the plea

agreement with his attorney before signing it. Nobody had forced or threatened

King to get him to sign the plea agreement, and nobody had made any promises to

him that were not contained in the plea agreement. The government explained the

elements of the charges in Counts 1 and 14, and King testified that he had no

questions about the charges, and he understood that he was giving up a number of

                                           4
rights by pleading guilty. Finally, King testified that he had committed the acts

alleged in Counts 1 and 14 of the indictment. The government presented its

factual basis, and King agreed that, if the case went to trial, the government would

be able to prove that factual basis. After finding that he was pleading guilty

knowingly and voluntarily and that the plea was supported by an independent

factual basis, the court accepted King’s guilty plea.

      King and his attorney both filed motions to withdraw the guilty plea,

alleging that the plea was involuntary because King was threatened and under

duress when he pleaded guilty. Judge Jack Camp held an ex parte hearing on the

motion, at which King stated that his attorney had told him that the government

would indict his family members if he did not plead guilty. His attorney stated

that he had never told King that if he did not plead guilty, his family members

would be indicted. Nor had he told King that he should consider the investigation

of his family members when deciding whether to plead guilty. The government

filed a response.

      Camp denied the motion, explaining that King had testified that he

understood the charges against him, had committed the acts charged in the

indictment, had not been forced or threatened to plead guilty, and was satisfied

with his attorney’s advice and representation. He had not shown that these

                                          5
statements were false, and therefore, King had pleaded knowingly, voluntarily,

and with the close assistance of counsel. Additionally, denying the motion would

conserve judicial resources and prevent the government from being prejudiced.

      King filed a motion for reconsideration, after which, his case was reassigned

to Judge J. Owen Forrester because a felony criminal complaint had been filed

against Judge Camp. Judge Forrester denied the motion for reconsideration after

de novo review.

      In preparing the PSI, the probation officer assigned King a base offense

level of 7 for Count 1, a 16-level enhancement under U.S.S.G. § 2B1.1(b)(1)(I)

because the total loss was over $1 million, a 2-level enhancement under

§ 2B1.1(b)(2)(A) because there were ten or more victims, a 2-level sophisticated

means enhancement under § 2B1.1(b)(9)(C), a 4-level role enhancement under

§ 3B1.1(a), and a 2-level obstruction of justice enhancement under § 3C1.1. The

obstruction of justice enhancement was due to liens King had filed against the

prosecutor, case agent, district court clerk, and a number of judges after he was

indicted. King’s total offense level was thus 33, and his guideline range for Count

1 was 135 to 168 month’s imprisonment. He was also subject to a mandatory

two-year term of imprisonment for Count 14, to run consecutively to the sentence

imposed for Count 1. King objected to the 16-level enhancement for the intended

                                         6
loss over $1 million, the sophisticated means enhancement, the role enhancement,

and the obstruction of justice enhancement. As to the intended loss, King only

objected to being held responsible for the losses in Counts 6, 10-12, 17, and 21.

      At the sentencing hearing, U.S. Postal Inspector Jessica Owen testified that

she had executed a search warrant at King’s house, located at 577 Rankin Street.

Prior to executing the search warrant, she had found mail with King’s name on it

in the trash at that address. Additionally, county tax records showed that King

owned the house, and Wardlaw and King’s roommate both told Owen that King

lived in the house. At King’s house, Owen found numerous checks and receipts

made out to Insurance Services Office, Sealy, BFP Potomac Tower, Reuters

America, Madison Tower Associates. She also found a sheet of paper with “LP”

and the account number for the 200 Park LP bank account written on it and three

checks that had not yet been negotiated. Finally, Owen testified that Wardlaw told

her that King gave him all of the checks he gave to their co-conspirators to

deposit. The court found that an intended loss amount of $1,617,750.70 was

supported by a preponderance of the evidence.

      As to the sophisticated means enhancement, the court explained that

obtaining stolen mail, filing articles of incorporation, depositing the checks, and

making wire transfers constituted sophisticated means. Next, the court overruled

                                          7
King’s objection to the role enhancement because: (1) the conspiracy could not

have occurred without King; and (2) even if King was correct that Wardlaw was

also a leader, the enhancement could still be applied to King for his leadership

role. As to the obstruction of justice enhancement, Owen testified that the liens

were filed with the Kentucky Secretary of State, which she knew because King

sent a copy of the liens to her and to the U.S. Attorney’s Office in Kentucky.

Either King or the U.S. Attorney’s Office in Kentucky had indicated that the liens

were filed in Kentucky. The court found that the liens were worthless, but it

overruled King’s objection because he had intended to influence the officials to

whom he sent the liens. The court then sustained an objection King made to the

enhancement for the number of victims, making King’s guideline range 108 to 135

months’ imprisonment for Count 1. The court sentenced King to 108 months for

Count 1 and 24 months for Count 14, to run consecutive. King renewed his

objections.

                                         II.

      We review a district court’s decision to deny a motion to withdraw a guilty

plea for an abuse of discretion. United States v. Brehm, 442 F.3d 1291, 1298

(11th Cir. 2006). The district court does not abuse its discretion unless its

decision is “arbitrary or unreasonable.” Id. (quotation omitted). When a party

                                          8
does not object to a judge’s alleged bias in the district court, we review for plain

error. United States v. Rodriguez, 627 F.3d 1372, 1380 (11th Cir. 2010), cert.

denied, 131 S.Ct. 1840 (2011). The defendant must prove plain error, which exists

where: (1) there was an error; (2) that was plain; (3) that affected the defendant’s

substantial rights; and (4) the error “seriously affected the fairness of the judicial

proceedings.” Id. (quotation omitted). An error generally only affected the

defendant’s substantial rights if it “affected the outcome of the district court

proceedings.” Id. at 1382 (quotations omitted). Thus, the defendant “must

establish a reasonable probability of a different result but for the error.” Id.

(quotation omitted).

      The district court may allow a defendant to withdraw a guilty plea after the

court has accepted the plea but before it has imposed a sentence if “the defendant

can show a fair and just reason for requesting the withdrawal.” Fed.R.Crim.P.

11(d)(2)(B). The district court “may consider the totality of the circumstances

surrounding the plea.” Brehm, 442 F.3d at 1298 (quotation omitted). We consider

four factors when reviewing the district court’s decision: “(1) whether close

assistance of counsel was available; (2) whether the plea was knowing and

voluntary; (3) whether judicial resources would be conserved; and (4) whether the

government would be prejudiced if the defendant were allowed to withdraw his

                                           9
plea.” Id. (quotation omitted). A guilty plea is knowing and voluntary if the

defendant entered the plea without coercion and with an understanding of the

nature of the charges and the consequences of the plea. United States v. Brown,

586 F.3d 1342, 1346 (11th Cir. 2009), cert. denied, 130 S.Ct. 2403 (2010). When

a defendant has received close assistance of counsel and pleaded guilty knowingly

and voluntarily, we have declined to give considerable weight or attention to the

third and fourth factors. United States v. Gonzalez-Mercado, 808 F.2d 796, 801

(11th Cir. 1987).

      “There is a strong presumption that the statements made during the [plea]

colloquy are true.” United States v. Medlock, 12 F.3d 185, 187 (11th Cir. 1994).

The defendant “bears a heavy burden” to show that statements made under oath at

a plea colloquy were false. United States v. Rogers, 848 F.2d 166, 168 (11th Cir.

1988). It is up to the district court to determine “[t]he good faith, credibility and

weight of a defendant’s assertions in support of a motion” to withdraw a guilty

plea. Brehm, 442 F.3d at 1298 (quotation omitted).

      The district court did not abuse its discretion in denying King’s motion to

withdraw his guilty plea. First, King had close assistance of counsel leading up to

his plea. He testified during his plea colloquy that he had had enough time to

discuss the charges against him with his attorney, was satisfied with his attorney’s

                                          10
advice and representation, and had discussed the plea agreement with his attorney

before signing it. In ruling on the motion to withdraw, the court explained that it

accepted these statements as true, which was within its discretion. See Brehm, 442

F.3d at 1298.

      Second, King’s guilty plea was knowing and voluntary. He testified during

his extensive plea colloquy that nobody had forced or threatened him to get him to

sign the plea agreement, nor did anyone make any promises to him that were not

contained in the plea agreement. In ruling on the motion to withdraw, the court

found that King had not shown these statements to be false, which was within its

discretion. See id. King also argues on appeal that he felt threatened and coerced

to plead guilty because: (1) the court prevented him from preparing a meaningful

defense by denying his motion for a continuance; and (2) he feared that his family

members would be prosecuted if he did not plead guilty. As to the first, argument,

the court recessed the trial when he asked that standby counsel be appointed to

represent him, and it stated that it would allow counsel to take recesses during the

trial if anything arose that he had not had the chance to review. As to the second

argument: (1) King testified that no one made him promises not contained in the

plea agreement; (2) the plea agreement only protected his mother from

prosecution; and (3) his attorney stated that he never told King that pleading guilty

                                         11
would protect his family members. Therefore, these claims are not supported by

the record.

      The court also ensured that King understood the nature of the charges and

the consequences of pleading guilty. After the government explained the elements

of the offenses, King testified that he did not have any questions about the

charges. King also testified that he had committed the acts alleged in the

indictment and that the government could present evidence to support the factual

basis that it presented to the court. Based on these admissions and testimony, the

court’s finding that King pleaded guilty knowingly and voluntarily was not

arbitrary or unreasonable. See Brehm, 442 F.3d at 1298. As to the consequences

of his plea, King testified that he understood that he was giving up a number of

rights by pleading guilty, the possible penalties, and the sentencing process.

King’s statements at the plea colloquy are presumed to be true. See Medlock, 12

F.3d at 187. Therefore, King pleaded guilty knowingly and voluntarily.

      Because King had close assistance of counsel and pleaded guilty knowingly

and voluntarily, we need not consider whether judicial resources would be

conserved or whether the government would be prejudiced if King were allowed

to withdraw his plea. See Gonzalez-Mercado, 808 F.2d at 801. However, these

factors also weigh in favor of affirming the court’s denial of the motion. Judicial

                                         12
resources would not be conserved because the government would again have to

prepare for King’s trial and pay the travel expenses of its out-of-state witnesses.

The government would be prejudiced because one of its witnesses has died since

the first day of King’s trial, and it would therefore be unable to present the

witness’s live testimony to the jury. Based on the above, the district court did not

abuse its discretion in denying King’s motion to withdraw his guilty plea.

      Finally, King’s argument that we should presume that Judge Camp abused

his discretion in denying the motion to withdraw the guilty plea is without merit.

King must show plain error to succeed on this argument because he did not argue

that Judge Camp may have been biased or impaired before the district court. See

Rodriguez, 627 F.3d at 1380. King has not established that Judge Camp erred in

denying the motion because, as discussed above, it was not an abuse of discretion

to do so. King has cited no evidence that Judge Camp denied the motion due to

bias or impaired judgment. Nor has King presented any law in support of his

assertion that we should per se find an abuse of discretion. Moreover, even if

King could show an error that was plain, he has not shown that his substantial

rights were affected because there is no “reasonable probability of a different

result but for the error.” Rodriguez, 627 F.3d at 1382 (quotation omitted). Judge

Forrester reviewed King’s motion to withdraw his guilty plea de novo and found

                                          13
that King had pleaded guilty knowingly and voluntarily based on his statements

during the plea colloquy. Based on the above, the district court did not abuse its

discretion or commit plain error in denying King’s motion to withdraw his guilty

plea.

                                          III.

        We review a district court’s acceptance of a guilty plea for an abuse of

discretion. United States v. Frye, 402 F.3d 1123, 1126 (11th Cir. 2005). Although

a defendant waives nonjurisdictional defects by pleading guilty, he may attack the

knowing and voluntary nature of his plea on appeal. Wilson v. United States, 962

F.2d 996, 997 (11th Cir. 1992). The sufficiency of the evidence supporting a

guilty plea is nonjurisdictional. United States v. Viscome, 144 F.3d 1365, 1370

(11th Cir. 1998). Under this rule, a defendant also may not argue “that his conduct

did not meet the elements of the charges.” United States v. Evans, 478 F.3d 1332,

1339 n.7 (11th Cir. 2007).

        King waived his challenge to the sufficiency of the evidence in support of

his guilty plea to aggravated identity theft. The sufficiency of the evidence

supporting his conviction is nonjurisdictional. See Viscome, 144 F.3d at 1370.

Because King does not argue that an insufficient factual basis rendered his plea




                                          14
involuntary, we will not consider the merits of this claim. See Wilson, 962 F.2d at

997.



                                         IV.

       A defendant waives all nonjurisdictional defects in his proceedings when he

“knowingly, voluntarily, and with the benefit of competent counsel” pleads guilty.

United States v. Yunis, 723 F.2d 795, 796 (11th Cir. 1984). Jurisdictional errors

implicate “a court’s power to adjudicate the matter before it.” United States v.

Peter, 310 F.3d 709, 712 (11th Cir. 2002). “Whether a claim is ‘jurisdictional’

depends on whether the claim can be resolved by examining the face of the

indictment or the record at the time of the plea without requiring further

proceedings.” United States v. Tomeny, 144 F.3d 749, 751 (11th Cir. 1998)

(quotation omitted). For example, a claim that an indictment did not charge an

offense is jurisdictional. Id. A speedy trial violation is nonjurisdictional. Yunis,

723 F.2d at 796.

       As discussed above, King pleaded guilty knowingly, voluntarily, and with

close assistance of counsel. See Yunis, 723 F.2d at 796. Thus, he waived review

of the denial of his motion for a continuance and of any speedy trial violation,




                                          15
which are nonjurisdictional defects. See Tomeny, 144 F.3d at 751. Therefore, we

will not review these claims.

                                          V.

      We review a district court’s loss calculation for clear error. United States v.

Sepulveda, 115 F.3d 882, 890 (11th Cir. 1997). Clear error review is deferential,

“and we will not disturb a district court’s findings unless we are left with a definite

and firm conviction that a mistake has been committed.” United States v.

Ghertler, 605 F.3d 1256, 1267 (11th Cir. 2010) (quotations omitted). If the

defendant challenges a factual basis for his sentence, the government must

establish “the disputed fact by a preponderance of the evidence” using “reliable

and specific evidence.” Sepulveda, 115 F.3d at 890 (quotations omitted). The

court may base its factual findings on “facts admitted by a defendant’s plea of

guilty, undisputed statements in the [PSI], or evidence presented at the sentencing

hearing.” United States v. Wilson, 884 F.2d 1355, 1356 (11th Cir. 1989).

      A defendant who commits a theft offense receives a 12-level enhancement if

the loss is more than $200,000, a 14-level enhancement if the loss is more than

$400,000, and a 16-level enhancement if the loss is more than $1,000,000.

U.S.S.G. § 2B1.1(b)(1)(G)-(I). The loss amount “is the greater of actual loss or

intended loss.” Id. § 2B1.1, comment. (n.3). “[T]he district court may hold all

                                          16
participants in a conspiracy responsible for the losses resulting from the

reasonably foreseeable acts of co-conspirators in furtherance of the conspiracy.”

United States v. Dabbs, 134 F.3d 1071, 1082 (11th Cir. 1998).

      The district court did not clearly err in applying a 16-level enhancement for

a loss over $1,000,000. King only challenges the losses as to Counts 6, 10-12, 17,

and 21, and any arguments as to the remaining counts are thus abandoned. See

United States v. Jernigan, 341 F.3d 1273, 1283 n.8 (11th Cir. 2003) (stating that a

party abandons an issue not raised in its initial brief). These losses were in

furtherance of the conspiracy because they resulted from King’s co-conspirators

depositing stolen checks and withdrawing funds from the accounts into which the

checks were deposited, which was the aim of the conspiracy. See Dabbs, 134 F.3d

at 1082.

      Additionally, Owen’s testimony established that the losses were reasonably

foreseeable to King. She testified that Wardlaw stated that King provided him

with the checks that he gave to their co-conspirators to deposit. Additionally, she

identified documents connected to the transactions in Counts 6, 10-12, 17, and 21,

and three checks that had not been negotiated, which were found in King’s house.

Specifically, Owen identified a receipt for and copy of the $143,359.29 check to

Insurance Services Office (Count 6); the invoices and receipts for the $161,681.95

                                          17
and $15,336.80 checks to Sealy, Inc. (Count 10); the $114,458.37 check to BFP

Potomac Tower (Count 11); a copy of the $190,910.12 check to Reuters America

(Count 12); receipts showing a $93,167.91 deposit, which she determined was of

the check to Madison Tower Associates based on the date, account number, and

deposit amount as shown on the receipts (Count 17); a sheet of paper with “LP”

and the account number for the 200 Park LP Bank of America account written on

it (Count 21); and three checks that had not been negotiated, in the amounts of

$142,694.10, $22,782.44, and $120,906.12.

      Owen’s testimony also established that King lived at the house where these

documents were found. She testified that prior to executing the search warrant,

she found mail with King’s name on it in the trash at that address, and tax records

showed that King owned the house. Wardlaw and King’s roommate both told

Owen that King lived in the house. Thus, the court did not clearly err in finding

that King was responsible for the losses as to Counts 6, 10-12, 17, and 21 and as to

the three checks that had not been negotiated.

                                        VI.

      We review a district court’s factual findings as to the use of sophisticated

means for clear error. Ghertler, 605 F.3d at 1267. A defendant receives a

two-level enhancement under U.S.S.G. § 2B1.1(b)(9)(C) if his offense “involved

                                         18
sophisticated means.” Id. (quotation omitted). This enhancement is appropriate

where the means used were “especially complex” or the offense or concealment of

the offense was “especially intricate.” Id. § 2B1.1, comment. (n.8). The

enhancement is proper where the “totality of the scheme was sophisticated” even

if the individual actions comprising the scheme were not sophisticated. Ghertler,

605 F.3d at 1267. Using “fictitious entities, corporate shells, or offshore financial

accounts” are ordinarily sophisticated. U.S.S.G. § 2B1.1, comment. (n.8).

      The court did not clearly err in applying the sophisticated means

enhancement in this case. Although some of the individual steps involved in this

conspiracy may have been unsophisticated—such as depositing checks,

incorporating businesses, opening bank accounts, and withdrawing funds from the

bank accounts—the “totality of the scheme was sophisticated.” Ghertler, 605 F.3d

at 1267. The totality of this scheme involved obtaining stolen business checks,

incorporating shell companies in the names of the payees on the stolen checks

with the Georgia Secretary of State, using the incorporation documents from the

Georgia Secretary of State to open business checking accounts, depositing the

stolen checks in the accounts, and withdrawing the funds and making wire

transfers from the accounts. King argues that he should not have received this

enhancement because the companies were not fictitious entities. His argument is

                                         19
meritless, as he incorporated shell companies that were not used to conduct

business. See U.S.S.G. § 2B1.1, comment. (n.8). Accordingly, the court did not

clearly err in applying a two-level enhancement for the use of sophisticated means.



                                        VII.

      We review a district court’s application of a § 3B1.1 role enhancement for

clear error. United States v. Martinez, 584 F.3d 1022, 1025 (11th Cir. 2009).

Under the Sentencing Guidelines, a defendant receives a four-point offense level

increase for being “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). Relevant

factors in determining whether a § 3B1.1(a) enhancement is warranted include:

      (1) 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 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.

Martinez, 584 F.3d at 1026 (quotation omitted). It is not necessary that every

factor is present for the enhancement to be applied in a particular case. A role

enhancement is appropriate only where the defendant exercised “some control,

influence or decision-making authority over another participant in the criminal



                                         20
activity.” It is insufficient that a defendant merely managed the assets of the

conspiracy. The enhancement is intended “to address concerns about relative

responsibility.” Id. (quotation omitted). We upheld a role enhancement under

§ 3B1.1(a) where the defendant recruited and instructed two co-conspirators.

United States v. Ndiaye, 434 F.3d 1270, 1304 (11th Cir. 2006). More than one

member of a conspiracy can qualify as a leader or organizer under this section.

U.S.S.G. § 3B1.1, comment. (n.4).

       The district court did not clearly err in applying a four-level role

enhancement under § 3B1.1(a).1 See Martinez, 584 F.3d at 1025. A number of

factors support the application of this enhancement. King organized the entire

criminal scheme, obtained the stolen checks without which the conspiracy would

have been impossible, and recruited Wardlaw to open the bank accounts and

deposit the checks. Thus, the nature of King’s participation, his recruitment of his

first co-conspirator, and the degree to which he organized the conspiracy all

support the application of the role enhancement. See Martinez, 584 F.3d at 1026.

Next, the evidence showed that King’s and Wardlaw’s co-conspirators retained

only a small portion of the proceeds and that King retained a much larger share of


       1
         King has waived any argument under § 3B1.1(a) that the criminal activity did not
involve at least five participants or that it was not otherwise extensive because he did not raise
these issues in his initial brief. See Jernigan, 341 F.3d at 1283 n.8.

                                                 21
the proceeds than Wardlaw did. King’s claimed share of the profits of the

conspiracy thus supports the application of the role enhancement as well. See

Martinez, 584 F.3d at 1026. The extensive nature and scope of the conspiracy

support the application of the enhancement because this conspiracy caused an

actual loss of $919,436.26 and an intended loss of $1,617,750.70. See id.

      As to the final factor, it appears that King exercised control over Wardlaw

because King determined the proceeds Wardlaw would receive from the

conspiracy; provided the stolen checks to Wardlaw to deposit; and retained

documentation for the various transactions involved in the conspiracy, such as

copies of checks, the invoices that came with some of the checks, and receipts

showing that deposits had been made. See Martinez, 584 F.3d at 1026. Therefore,

this factor also supports the application of the enhancement.

      King also argues that this enhancement was improperly applied because

Wardlaw, not King, led the conspiracy. Even if Wardlaw was also a leader or

organizer of the conspiracy, that fact would not preclude King from receiving the

role enhancement as well because more than one member of a conspiracy can

qualify as a leader or organizer. See U.S.S.G. § 3B1.1, comment. (n.4).

      Based on King’s role in organizing this conspiracy and obtaining the stolen

checks essential to the conspiracy, his recruitment of Wardlaw, the fact that he

                                         22
claimed a large share of the conspiracy’s profits, the extensive nature and scope of

the conspiracy, and King’s apparent control over Wardlaw, the four-level role

enhancement was properly applied in this case. See Ndiaye, 434 F.3d at 1304.



                                          VIII.

      “We review a district court’s factual finding of obstruction of justice for

clear error” and the application of U.S.S.G. § 3C1.1 to the factual findings de

novo. United States v. Snipes, 611 F.3d 855, 871 (11th Cir. 2010), cert. denied,

131 S.Ct. 2962 (2011). A defendant may receive a two-level enhancement for

obstructing or impeding the administration of justice where he “willfully

obstructed or impeded, or attempted to obstruct or impede, the administration of

justice with respect to the investigation, prosecution, or sentencing of the instant

offense of conviction, and . . . the obstructive conduct related to . . . the

defendant’s offense of conviction and any relevant conduct.” U.S.S.G. § 3C1.1.

“Obstructive conduct can vary widely in nature, degree of planning, and

seriousness.” U.S.S.G. § 3C1.1, comment. (n.3). The defendant need not be

successful in his attempt to impede or obstruct the administration of justice.

United States v. Taylor, 88 F.3d 938, 944 (11th Cir. 1996).




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      King makes two arguments as to this enhancement. His first—that the

district court’s only factual finding as to this enhancement was that liens were

filed—is belied by the record. The court also found that the liens were legally

worthless, but that King intended to influence the officials to whom the liens were

sent. His second argument—that the liens were incomprehensible and

worthless—does not render this enhancement improper. The obstruction of justice

enhancement is applicable even where the defendant did not successfully obstruct

or impede the administration of justice. See U.S.S.G. § 3C1.1. Here, King did not

successfully influence the officials to whom he sent the liens, but as the court

found, he did intend for that outcome to occur. Because King attempted to

obstruct justice by influencing officials working on his case when he filed and sent

the liens, the district court did not clearly err in applying this enhancement. See

Taylor, 88 F.3d at 944.

      For the foregoing reasons, we affirm King’s convictions and sentences.

      AFFIRMED.




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