              Case: 13-13076      Date Filed: 05/29/2014   Page: 1 of 8


                                                               [DO NOT PUBLISH]



                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                  No. 13-13076
                              Non-Argument Calendar
                            ________________________

                      D.C. Docket No. 3:13-cr-00002-MCR-3



UNITED STATES OF AMERICA,

                                                                   Plaintiff-Appellee,

                                        versus

CHRISTOPHER JESSE LEE,

                                                                Defendant-Appellant.

                            ________________________

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

                                   (May 29, 2014)

Before TJOFLAT, MARTIN, and JORDAN, Circuit Judges.

PER CURIAM:

      Christopher Jesse Lee appeals his sentence of 120 months of imprisonment

after pleading guilty to one count of conspiracy to file fraudulent tax returns, in
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violation of 18 U.S.C. § 286, and one count of conspiracy to commit mail fraud, in

violation of 18 U.S.C. §§ 1341, 1349. Lee raises two arguments on appeal. First,

Lee argues that the district court erred by imposing a four-level enhancement for

his leadership role in the conspiracy. Second, he argues that the district court erred

by holding him responsible for over $1,000,000 in losses.

                                          I.

      We first consider Lee’s argument that the district court improperly assessed

a four-level enhancement for Lee’s role as an organizer or leader of the conspiracy.

Lee argues that his conduct was completely independent of the actions of his

codefendants, and he claims that Cora Beard was the true organizer of the

conspiracy. Because Lee was incarcerated during the course of the entire

conspiracy (unlike Beard), he argues that it was impossible for him to exercise any

control over anyone else. He also contends that there was no proof of his

leadership role relative to other members of the conspiracy.

      We review a district court’s factual determination that a defendant is subject

to a United States Sentencing Guidelines (USSG) § 3B1.1 role enhancement for

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

“Where a fact pattern gives rise to two reasonable and different constructions, the

factfinder’s choice between them cannot be clearly erroneous.” United States v.

Almedina, 686 F.3d 1312, 1315 (11th Cir. 2012) (quotation marks omitted).


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      USSG § 3B1.1(a) states that a four-level enhancement will apply if the

defendant “was an organizer or leader of a criminal activity that involved five or

more participants or was otherwise extensive.” In assessing a defendant’s role in

the offense, district courts should consider the following factors: (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 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.” USSG § 3B1.1,

comment. (n.4); see also United States v. Gupta, 463 F.3d 1182, 1198 (11th Cir.

2006). There can be “more than one person who qualifies as a leader or

organizer.” USSG. § 3B1.1, comment. (n.4); see also United States v. Ndiaye, 434

F.3d 1270, 1304 (11th Cir. 2006) (“Section 3B1.1 requires the exercise of some

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

leadership.” (quotation marks omitted)). Although the district court’s factual

determination regarding a defendant’s role in the offense is entitled to deference, it

“should be informed by two principles discerned from the Guidelines: first, the

defendant’s role in the relevant conduct for which [he] has been held accountable

at sentencing, and, second, [his] role as compared to that of other participants in

[his] relevant conduct.” United States v. De Varon, 175 F.3d 930, 940 (11th Cir.


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1999) (en banc).

      With these principles in mind, we cannot say that the district court clearly

erred by applying the leadership enhancement to Lee. According to the factual

basis for his guilty plea, Lee and his codefendants devised and executed a scheme

to file fraudulent tax returns in order to obtain refunds from the Internal Revenue

Service (IRS). As a part of this scheme, Lee collected names and Social Security

numbers in order to file false tax returns on their behalf. These tax returns would

list the addresses of Cora Beard and other coconspirators who were able to receive

refunds because they were not incarcerated. Once the refund checks arrived, the

proceeds were divided among the coconspirators both in and out of prison.

      Lee was instrumental in the scheme because he prepared false returns and

directed Beard and others in preparing and mailing the returns. For example, the

government presented recorded phone calls in which Lee directed Beard to mail

letters, manage money orders, and arrange for certain individuals to cash the

refund checks. Lee also disseminated mailing addresses and collaborated with

Beard about controlling how frequently certain addresses were to be used. Once

tax season opened, Lee also directed Beard to secure addresses for him and

discussed with her how to divide up the proceeds from the refunds. In the same

way, while Lee was in lockdown, he instructed another inmate to call Beard

regarding a check that he wanted cashed. Finally, Lee recruited other inmates into


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the conspiracy and used their contacts outside of prison to serve as additional

recipients where refund checks could be mailed.

      Based on this record and our standard of review, we cannot say that the

district court clearly erred by applying the four-level enhancement to Lee.

Although Lee was incarcerated during the course of the conspiracy, he

nevertheless exerted control and influence by directing Beard to act on his behalf,

recruiting other inmates into the conspiracy, and deciding how the refunds should

be divided. Also, while Lee may be correct that Beard served in a leadership role,

we know that there can be more than one leader or organizer. See USSG § 3B1.1,

comment. (n.4). On this record, we conclude that the district court did not clearly

err by finding that Lee exercised “some degree of control, influence, or leadership”

over the scheme as a whole. Gupta, 463 F.3d at 1198 (quotation marks omitted).

                                         II.

      We next consider Lee’s argument that the government did not establish a

factual basis for the $1,398,748 loss amount. Lee argues that the district court

failed to make individualized findings regarding the scope of his criminal activity.

He also notes that the government prepared a spreadsheet with 18 addresses where

refunds were sent, but contends that the government did not provide sufficient

evidence that refunds mailed to these addresses were in furtherance of the

conspiracy and reasonably foreseeable to him.


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      We review the district court’s determination of amount of loss for clear

error. United States v. Medina, 485 F.3d 1291, 1303 (11th Cir. 2007). For a

finding to be clearly erroneous, we “must be left 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 marks omitted). Because the amount of

loss caused by fraud is often difficult to accurately calculate, district courts need

only make “a reasonable estimate of the loss amount.” Medina, 485 F.3d at 1304;

USSG § 2B1.1, comment. (n.3(C)). The loss amount must be proven by a

preponderance of the evidence through reliable and specific evidence. Medina,

485 F.3d at 1304.

      The Sentencing Guidelines provide for a 16-level increase to the base

offense level if a defendant is responsible for loss between $1 million and $2.5

million. USSG § 2B1.1(b)(1)(I)–(J). According to USSG § 1B1.3, when

defendants participate in jointly undertaken criminal activity, they are accountable

for the conduct of others that was both: (1) in furtherance of the jointly undertaken

criminal activity; and (2) reasonably foreseeable in connection with that criminal

activity. USSG § 1B1.3(a)(1)(B) & comment. (n.2). Before holding a defendant

responsible for the acts of others, “the district court must first make individualized

findings concerning the scope of criminal activity undertaken by a particular

defendant.” See United States v. Hunter, 323 F.3d 1314, 1319 (11th Cir. 2003)


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(quotation marks omitted). But failure to make such findings “is not grounds for

vacating a sentence if the record supports the court’s determination with respect to

the offense conduct, including the imputation of others’ unlawful acts to the

defendant.” United States v. Petrie, 302 F.3d 1280, 1290 (11th Cir. 2002).

      The district court’s conclusion regarding the loss amount attributable to Lee

was not clearly erroneous. Even though the district court did not explicitly make

individualized findings regarding Lee’s involvement in the conspiracy, the

undisputed facts indicate that Lee agreed to be a part of an overall scheme to file

fraudulent tax returns to obtain refunds. Multiple phone calls show that Beard and

Lee discussed other participants in the conspiracy. In this sense, Beard served as a

hub so that the various members of the conspiracy could coordinate and exchange

information about where to send refunds and how the proceeds should be

distributed.

      Beyond that, the record also supports the district court’s finding that all 18

addresses listed in the government’s spreadsheet were reasonably foreseeable to

Lee. As we have said, Lee was certainly aware that he was not the only one who

was submitting false tax returns, and he was also aware that Beard was not the only

one receiving refunds. Lee and Beard also knew that the scheme could not

function if too many refunds were sent to the same addresses, which is why they

discussed finding new addresses where refunds could be sent. Therefore, Lee


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should have reasonably foreseen that some refunds would be sent to other

addresses, even if Lee was not personally involved with those specific tax returns.

                                        III.

      For the reasons stated above, we affirm.

      AFFIRMED.




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