                                                            [DO NOT PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT            FILED
                         ________________________ U.S. COURT OF APPEALS
                                                            ELEVENTH CIRCUIT
                                                              MARCH 21, 2008
                               No. 07-14155
                                                             THOMAS K. KAHN
                           Non-Argument Calendar
                                                                 CLERK
                         ________________________

                    D. C. Docket No. 06-00011-CR-WLS-1

UNITED STATES OF AMERICA,


                                                      Plaintiff-Appellee,

                                    versus

JOHN H. JOHNSON, JR.,

                                                     Defendant-Appellant.

                         ________________________

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

                              (March 21, 2008)

Before BIRCH, DUBINA and CARNES, Circuit Judges.

PER CURIAM:

     John Johnson, Jr. appeals his conviction and sentence for misappropriation
by a fiduciary, in violation of 31 U.S.C. § 6101. Johnson was charged with

misappropriating $14,922.53 in veterans benefits in his capacity as fiduciary for his

father, John Johnson, Sr.

                                          I.

      Johnson contends that the evidence was insufficient to support his

conviction. According to him, the government showed only that he commingled

the Veterans Affairs benefits with his personal funds, not that he misappropriated

any specific funds over which he served as a fiduciary. Johnson also argues that he

had no intent to misappropriate because he believed that he could compensate

himself as a caregiver to his father.

      We review de novo the sufficiency of the evidence supporting a criminal

conviction. United States v. Garcia, 405 F.3d 1260, 1269 (11th Cir. 2005). “[W]e

must view the evidence in the light most favorable to the government and decide

whether a reasonable juror could have reached a conclusion of guilt beyond a

reasonable doubt.” United States v. Faust, 456 F.3d 1342, 1345 (11th Cir.), cert.

denied, 127 S. Ct. 615 (2006). “The jury is free to choose among alternative

reasonable interpretations of the evidence . . . and the government’s proof need not

exclude every reasonable hypothesis of innocence.” United States v. Tampas, 493

F.3d 1291, 1298 (11th Cir. 2007).



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      However, under Federal Rule of Criminal Procedure 29(b), “if the district

court reserves ruling on a motion for judgment of acquittal, the court must decide

the motion on the basis of the evidence at the time the ruling was reserved.”

United States v. Moore, 504 F.3d 1345, 1346 (11th Cir. 2007). The district court

reserved ruling on Johnson’s motion for judgment of acquittal, which was made at

the close of the government’s case, so our review is “limited to the evidence in the

government’s case in chief.” Id. at 1347.

      Section 6101 provides:

      Whoever, being a fiduciary . . . shall . . . embezzle or in any manner
      misappropriate any such money or property derived therefrom in
      whole or in part and coming into such fiduciary’s control in any
      manner whatever in the execution of such fiduciary’s trust, or under
      color of such fiduciary’s office or service as such fiduciary, shall be
      fined in accordance with title 18, or imprisoned not more than five
      years, or both.

38 U.S.C. § 6101(a). “Any willful neglect or refusal to make and file proper

accountings or reports concerning such money or property as required by law shall

be taken to be sufficient evidence prima facie of such embezzlement or

misappropriation.” Id. § 6101(b).

      The evidence, viewed in a light most favorable to the government, was

sufficient to support Johnson’s conviction. The government presented a sworn

statement by Johnson where he admitted that he “knew [he] was supposed to use



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the money for [his] father, but a gambling habit got in the way of good intentions.”

The government also introduced the fiduciary agreement Johnson signed, which

instructed him that the VA benefits were to be used solely for the benefit of his

father, and that he was required to provide an accounting of all funds received in

his capacity of fiduciary upon request.

         Ronald Pryor, a field examiner for the Veterans Administration, testified that

he handled Johnson’s appointment as his father’s fiduciary. He told the jury that

he had advised Johnson that he should set up a custodial account, maintain detailed

records of the use of VA funds, and avoid writing checks to cash or commingling

VA funds with other accounts. The government also presented the testimony of

Daniel Goldberg, another field examiner for the VA, who visited Johnson

approximately a year after he had become his father’s fiduciary. Goldberg testified

that Johnson informed him that “he used the veteran’s funds for his own personal

use.” When Goldberg requested an accounting from Johnson, Johnson responded

that he could not and would not provide an accounting of how the funds were

spent.

         The government introduced the bank records from the account Johnson set

up to receive the VA benefits. The total amount of the VA deposits into the

account was $14,922.53, and the statements revealed that this amount was



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commingled with $21,563 in other deposits. A substantial amount of the money

was withdrawn through checks made out to “cash” or to Johnson himself. In

addition, a check for $700 was paid from the account to Johnson’s ex-wife, and

$2,400 was paid in electronic debits to an online gambling website. The

government also called Kathy Hershey, a special agent with the Veterans

Administration who was assigned to investigate Johnson’s case. She testified that

when Johnson was confronted with the bank records he could not account for what

he had done with the money from the VA, but “[h]e pretty quickly admitted that he

did not spend it on his father.”

      Johnson’s refusal to provide an accounting to the Veterans Administration

was prima facie evidence of embezzlement or misappropriation of the funds. 38

U.S.C. § 6101(b). Moreover, the government provided evidence through

Johnson’s written statement, as well as his admissions to Goldberg and Hershey,

that Johnson knew that he had improperly spent the VA funds. Viewed in the light

most favorable to the government, the government presented sufficient evidence

for a reasonable jury to find beyond a reasonable doubt that Johnson knew that the

benefits were to be used solely for his father’s benefit, but misappropriated the

funds for his own personal use.




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                                           II.

      Johnson next contends that the district court erred by instructing the jury that

his failure to make an accounting as required by law was prima facie evidence of

misappropriation. According to Johnson, he was informed by the Veterans

Administration that no accounting would be necessary when he assumed the role of

fiduciary. Furthermore, Johnson argues that the court’s instruction improperly

shifted the burden to him to prove his innocence, which resulted in prejudice.

      “Where an appellant has objected to a jury instruction at trial, we review the

court’s decision to use that instruction for abuse of discretion.” United States v.

Dean, 487 F.3d 840, 847 (11th Cir.), petition for cert. filed, No. 07-553 (U.S. Oct.

25, 2007). “If we are satisfied that the district court’s instruction has not misstated

the law or misled the jury, we give the district court ‘wide discretion as to the style

and wording employed in the instructions.’” Id. at 851 (quotation omitted).

Moreover, as we mentioned above, section 6101(b) provides that a fiduciary’s

refusal to make an accounting of VA funds “shall be taken to be sufficient

evidence prima facie of such embezzlement or misappropriation.” 38 U.S.C. §

6101(b).

      The court did not abuse its discretion in instructing the jury as to the

applicable law on prima facie evidence of misappropriation. The court did not



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misstate the law; it actually read section 6101(b) verbatim. The court also included

a careful limiting instruction that the burden is never on the defendant to prove his

innocence, but that the government must prove the defendant’s guilt beyond a

reasonable doubt. Johnson has not shown any error in the court’s jury instructions,

and we affirm his conviction.

                                          III.

         Johnson contends that the district court violated his Sixth Amendment rights

by enhancing his sentencing guidelines range based on facts that were neither

found by the jury nor admitted by him. Specifically, Johnson objects to the district

court’s imposition of a two-level enhancement for abuse of position of trust,

United States Sentencing Guidelines § 3B1.3 (Nov. 2006), a two-level

enhancement for a vulnerable victim, U.S.S.G. § 3A1.1, and a two-level

enhancement for obstruction of justice, U.S.S.G. § 3C1.1. Johnson also objects to

the district court’s calculation of the amount of loss as $14,922.53, the total

amount of the VA benefits disbursed, which resulted in a four-level increase of his

offense level. U.S.S.G. § 2B1.1(b)(1)(C). He contends that the jury should

determine the facts in support of each of these enhancements beyond a reasonable

doubt.

         We review de novo questions of law arising under the sentencing guidelines.



                                           7
United States v. Crawford, 407 F.3d 1174, 1178 (11th Cir. 2005). The Supreme

Court has provided that “[o]ther than the fact of a prior conviction, any fact that

increases the penalty for a crime beyond the prescribed statutory maximum must

be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi v. New

Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 2362–63 (2000). Furthermore, “the

Sixth Amendment right to trial by jury is violated where under a mandatory

guidelines system a sentence is increased because of an enhancement based on

facts found by the judge that were neither admitted by the defendant nor found by

the jury.” United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005).

However, there is no error under Apprendi when the defendant is not sentenced

beyond the statutory maximum, and “district courts may still impose fact-based

sentencing enhancements under an advisory guidelines system without violating

the Sixth Amendment.” United States v. Dudley, 463 F.3d 1221, 1228 (11th Cir.

2006).

         Johnson was sentenced to 21 months imprisonment, which was below the

statutory maximum of 5 years. The district court had the authority to enhance

Johnson’s advisory guidelines range based on facts not found by a jury beyond a

reasonable doubt or admitted by him. See Dudley, 463 F.3d at 1228. As a result,

we conclude that Johnson suffered no Sixth Amendment violation in the



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application of sentencing enhancements based on facts found by the district court.

                                          IV.

      Finally, Johnson contends that the district court erred in enhancing his

guidelines offense level based on its finding that the amount of loss was equivalent

to the total amount of disbursed VA funds, $14,922.53. He argues that after the

jury found him guilty of misappropriation, the burden should not have shifted to

him to establish the amount that he did not misappropriate out of the total amount

that was disbursed. According to Johnson, he detailed the appropriate expenditures

at sentencing, yet the court simply determined that there was an insufficient

accounting to show that any of the proffered expenditures represented authorized

uses of the VA funds.

      “[T]he amount of loss determination at sentencing is reviewed for clear

error.” United States v. Medina, 485 F.3d 1291, 1297 (11th Cir. 2007). “The

government must prove the attributable loss by a preponderance of the evidence.”

United States v. Dabbs, 134 F.3d 1071, 1081 (11th Cir. 1998) (analyzing the

former § 2F1.1 loss provision). Section 2B1.1 of the guidelines, the applicable

guideline for Johnson’s offense, provides for a base offense level of six, as well as

a four-level increase if the amount of loss exceeds $10,000. U.S.S.G.

§ 2B1.1(a)(2), (b)(1)(C). The application notes instruct that “loss is the greater of



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actual loss or intended loss.” Id. § 2B1.1 cmt. n.3(A). “The court need only make

a reasonable estimate of the loss.” Id. § 2B1.1 cmt. n.3(C). “A reasonable estimate

of the loss amount is appropriate because often the amount of loss caused by fraud

is difficult to determine accurately.” Medina, 485 F.3d at 1304.

      It is undisputed that Johnson received $14,922.53 in VA disbursements, and

the government proved beyond a reasonable doubt that he misappropriated at least

a substantial amount of those funds. Any determination of the actual loss was

complicated, if not made impossible, by the fact that Johnson commingled the VA

funds with his personal funds and failed to make an accounting or otherwise

maintain records of how he spent the VA funds. The evidence presented at

Johnson’s sentence hearing failed to show that any of the actual VA funds were

used on behalf of his father, so the court reasonably estimated that the amount of

disbursed funds was equivalent to the amount of loss for the purposes of the

guidelines. Johnson has not shown any error in his sentence.

      AFFIRMED.




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